Justesen v. Olsen

This action involves the right to the use of waters of an artesian basin situate in Sanpete county, Utah. The court's findings, based on the pleadings and sufficient evidence, set out: That plaintiff's land, consisting of 127 acres, was segregated from the public domain in the year 1883; that the defendants' land, consisting of 527 acres situated immediately to the north of plaintiff's land, was segregated from the public domain in different parcels between the years 1873 and 1901. That there has been on plaintiff's land since the time when the memory of man runneth not to the contrary some small springs, and that in the year 1889, plaintiff drove six wells, and in the year 1901, he drove another well, which wells tapped the underground waters, and that the combined flow of the seven wells, during a period of maximum flow, is approximately seven gallons per minute, and during the winter, spring, and autumn months of each year, approximately four gallons per minute. That the period of the maximum flow of plaintiff's wells and springs follows closely the heavy run-off of the melting snows and spring rains from the Wasatch Range of mountains to the east of plaintiff's land, and the height of the irrigation season which is contemporaneous with said run-off in the particular locality where the springs and wells are located each and every year, the waters from which mountains are distributed for irrigation purposes on lands lying above and to the east of the land of the plaintiff and defendants herein described, and to the south, southeast, and northeast thereof, and partly on the upper lands of the plaintiff herein described, and partly on the upper lands of the defendants herein described. That there is located in Sanpete county about two miles northwesterly from the city of Ephraim, a certain artesian district, the exact boundary of which is unknown, but which underlies the west 80 acres of plaintiff's land, and also underlies a great portion of defendants' land; but the exact boundary of said artesian basin is not ascertainable from the evidence. That said artesian basin is fed from the waters falling on the mountains and in the canyons adjacent to Ephraim City, Sanpete county, state of Utah, which said waters sink into the ground on said mountain and in said canyons and form and constitute a natural source of supply to the said artesian basin. That the waters of said basin constitute the source of supply common to all the springs and all the wells involved in this action and on plaintiff's and defendants' land alike, and is underground approximately 100 to 150 feet; and all of said springs and wells are affected in substantially like manner and approximately to the same extent within a radius of one-half mile, varying with the distance from defendants' No. 10 Kimball pump hereinafter referred to, by the operation of said pump, by variation from year to year in the rainfall and snowfall on said mountains, and by the variation in the seasons of each and every year, and said springs and wells are similarly affected by the different seasons of each year, winter, spring, summer, and autumn. That prior to the year 1916 the defendants bored a few artesian wells on their land which had no noticeable effect on plaintiff's springs nor upon plaintiff's wells. That about the month of August, 1927, defendants bored a large well on their premises 500 yards north from plaintiff's springs and wells, and placed in said large well a No. 10 Kimball pump, with a capacity of 1,000 gallons a minute. That after the installation of said Kimball pump in the summer of 1927, the water raised to the surface thereby varied from 525 to 900 gallons a minute. That there is a direct and positive connection between the waters and the water bearing bed or stream at the defendants' said Kimball pump, and the waters issuing from plaintiff's springs and wells aforesaid, and the use of said Kimball pump in said well where it has been used diverts the water away from plaintiff's wells and springs aforesaid, and has so diverted the water away from plaintiff's springs and wells whenever said pump has been used. That said water so raised to the surface by defendants by the use of said Kimball pump was not and is not developed water, nor was it every appropriated by the defendants, and that it is not upon a creek channel or subterranean stream. That plaintiff and his predecessors in interest appropriated all of the waters flowing from plaintiff's said springs as early as 1884, and from plaintiff's said wells as early as 1889, for the purpose of irrigation and for domestic and culinary purposes, all of which purposes were necessary and beneficial, and plaintiff appropriated as early as 1901 all of the waters of his seventh and last made well, for the same purposes.

It very clearly appears from the evidence that a tract of about 9 acres of land situate immediately to the east and south of plaintiff's wells and springs, is low ground, and that the run-off from the rains, melting snows, and irrigation of approximately 2,000 acres of land lying to the east and south thereof drains into that low area within the boundaries of plaintiff's land; that plaintiff, many years prior to the commencement of this action dug a trench from this low area and into the pond where the waters from plaintiff's springs and wells are collected, at a point where plaintiff claims his main spring issued from the ground. While there is ample evidence to support the finding of the court that there have been springs and seeps as claimed by plaintiff from the time when the memory of man runneth not to the contrary, yet it is also very clear that a large portion of the waters now making up the flow of these springs is from a source near or on the surface and that they are not so directly affected by the operation of defendants' Kimball pump as are plaintiff's wells. We therefore come to the conclusion that, in affirming the judgment, plaintiff's right must be determined by the flow of the wells. If the defendants are restrained from interfering with the normal flow of the wells, we think it necessarily follows that the flow from the springs will not be diminished by the operation of the pump. The claim of the defendants which we think is supported by the evidence is to the effect that the Kimball pump when operating lifts from 525 to 900 gallons per minute. The court's findings as to the total supply of plaintiff's wells and springs are to the effect that they flow 9 acre feet in five days. We think the great preponderance of the evidence is to the effect that the total flow is 4 acre feet in nine days, or approximately one-fourth of a cubic foot per second of time, as compared with the defendants' flow amounting to somewhere between 1 1/4 and 2 cubic feet per second of time.

It is evident, therefore, that the defendants cannot complain if the judgment is affirmed under the rule laid down by this court in Horne v. Utah Oil Refining Co., 59 Utah 279,202 P. 815, 31 A.L.R. 883. This would be true even though we were to assume that the artesian basin underlies all of the land owned by defendants, a fact not found by the court and not established by the evidence. But the area underlaid by the artesian basin is not in fact found by the court, and in the opinion of the writer, it is beyond the scope of reasonable investigation to so determine such fact. In this regard, it is interesting to note the case ofPeterson v. Lund, 57 Utah 162, 193 P. 1087, 1090. In that case the waters of Shumway Springs in Sanpete Valley and only a very few miles distant from the springs in issue in this case, were involved. The finding of the court in that case was that the artesian basin is 30 miles long, 4 miles wide, and covers an area of approximately 120 square miles, undoubtedly including the land and water in issue in this case. Whether the court was right in that case in fixing the area of the artesian basin at 120 square miles, or whether the court is right in this case in merely finding that 80 acres of plaintiff's land and a large portion of defendants' land are in the area, may make little difference; but these cases do demonstrate the practical impossibility of locating the limits of an artesian basin either by men in the field, trying to determine to what extent they may safely proceed to improve land relying on underground water, of later by the court in trying to unravel the unfortunate knots that the application of the doctrine of reasonable use and correlative rights are sure to lead to.

It is difficult to determine what rule of law either of the parties relied on in the presentation of their case, and it is just as difficult to determine upon what theory of law the court found the issues and rendered its judgment. Both parties pleaded that their direct source of supply is an artesian area underlying their respective tracts. Plaintiff asserts that the pervious strata of earth bearing water is common to both tracts. The defendants assert that the water bearing strata underlies their ground, that pervious strata underlies about two acres of plaintiff's land, and that there is some slight connection between some water strata underlying the Kimball pump and plaintiff's well. Plaintiff pleads a prior appropriation, and the defendants allege that the large pump draws its water from an underground stream which does not pass under plaintiff's land. The court finds that there is an artesian area common to plaintiff's land and a large portion of defendants' land and also finds that the plaintiff appropriated all of the waters of his springs and wells prior to the time the defendants began digging their wells. If the judgment is supported under the theory of an appropriation, then it necessarily follows that the fact that the waters flowing from plaintiff's wells and springs come from an artesian basin is immaterial. If the doctrine of the Horne Case is to be applied, then it must be because the doctrine of appropriation cannot be applied to waters in an artesian area.

But the confusion may well be expected. It is because fundamental principles of law are at war with each other, and with rules of nature that are constantly asserting themselves in opposition to these conflicting legal principles.

The doctrine of correlative rights can be nothing more than a modification of the rule that the owner of the surface owns to the lowest depths, including the water percolating therein. Under the English rule, each man could take the water from beneath, even though it resulted in taking the water out of his neighbor's ground. Under the modern doctrine, the 1 owners of the surface may take jointly or proportionately from the underground supply, even though it may result in greatly diminishing the flow of the springs and wells which the first user may have used as the basis of developing valuable property. This rule is not based on the idea of appropriation; it must rest on the theory of a combined ownership of the underlying waters.

There can be no more ownership of water moving through the soil than there can be of ownership of water moving across the surface. It is evasive and constantly changing. In either case any use must of necessity be in its nature usufructory only. This doctrine has always been recognized with reference to surface water but eminent jurists in England and in America came to the conclusion that water in the soil was owned by the owner of the surface, the same as the rock, sand, or minerals stationary in their nature. Because of this misconception, there developed the inconsistency that a man in taking his own water from his own ground could draw the water from his neighbor's soil and thereby dry up the wells and springs, kill the verdure growing on his ground, and ruin his habitation.

To adopt the rule of correlative rights may modify and lessen the evils of this rule; but it does not cure. In this state the law of prior appropriation had been recognized as being most feasible to the development of our resources. From the beginning of our history, when a man went upon a stream of water, diverted it, and applied it to a beneficial use, his right to the use of that stream was recognized as being prior and superior to the rights of all subsequent appropriators to the extent of the reasonable necessities of the man making the first appropriation. During the progress of our development, as new conditions presented themselves from time to time our courts have consistently enforced this right of priority and protected appropriators not only as against all subsequent claimants taking water from the body of the stream, but as against all persons interfering with its source. It makes no difference whether the interference be with the main stream or the tributaries thereto, or whether the interference be with water flowing over the surface of the ground, flowing in subterranean streams or merely percolating through the ground. The burden has always been placed upon the prior appropriator to show that subsequent claimants have interfered with his right to the use of the water, but when that is shown he is protected whether the interference is with surface flow, subterranean stream, or percolation.

In Horne v. Utah Oil Refining Co., supra, a state of facts somewhat similar to the facts in Katz v. Walkinshaw, 141 Cal. 116,70 P. 663, 74 P. 766, 64 L.R.A. 236, 99 Am. St. Rep. 35, were presented to the Supreme Court of our state for consideration. It appears that under a tract of ground situated just north of the city of Salt Lake there is what is commonly spoken of as an artesian basin. Residents and owners of the surface drove wells into that basin and secured flows of water adequate for their use for domestic and culinary purposes, and for the irrigation of their lawns and gardens. Thereafter the Utah Oil Refining Company purchased a small parcel of ground near the lower extremities of the land overlooking the basin, drove therein a large number of wells, and conveyed the water which flowed therefrom to other lands on which they had established large refineries, with the result that the pressure of the wells of the home owners on the lands overlying the artesian basin was diminished. Justice Thurman, in a well-written opinion, reviewedKatz v. Walkinshaw, supra, at length, quoted copiously therefrom, and arrived at the conclusion that the case should be controlled by the doctrine of correlative rights and reasonable use.

There is no question but that under the facts of that case it was correctly decided. The limits of the artesian basin were determined with a reasonable degree of accuracy. The contour of the surface and the pressure that forced the water to flow were such that, until the defendant began withdrawing water on a large scale, the plaintiffs, all of whom had been enjoying the use of the water for more than twenty years, were receiving water to the extent of their respective necessities. And it was also apparent in that case that, if the defendant company had used water to the extent and in the same manner that it was being used by the plaintiff for the growing of lawns and gardens and for culinary and domestic purposes upon their ground overlying the artesian basin, they would not have interfered with the plaintiff. In other words, by the application of the doctrine of correlative rights, plaintiff's rights were preserved and the defendants were permitted to use the surplus waters in the basin upon their land to the extent of their necessities. The same result would have been reached by the application of the doctrine of priority of appropriation as recognized by the law of our state in every other case that has been presented for consideration. But for some reason that we are unable to appreciate some jurists have reached the conclusion that the same rule that determines the right to the use of the water before it enters the artesian basin and after it leaves, cannot be applied in determining these rights during that short period of time that it moves in its everlasting circle through that part of the earth where the water happens to be under pressure, because of overlying impervious strata.

In the opinion of the writer, the facts in the case now before us for disposition very aptly illustrate the fact that an artesian basin is nothing more than a body of water more or less compact, moving through the soils with more or less resistance. The source of the water is the rainfall on the mountains to the east of Sanpete Valley and upon the alluvial fans and deltas skirting the west base of the mountains, and waters applied to the irrigation of the higher lands lying to the east and nearer the base of the Wasatch Range. The water so falling or being applied upon the surface sinks into the deeper strata and thence moves along the lines of least resistance toward the Sanpitch river which flows in a southerly direction in the bottom of Sanpete Valley, near the outer toe of the detritus that has been carried from the mountains during the ages and roughly paralleling the course of the Wasatch Range. No doubt much of the water that passes through the area now under consideration is collected in the bed of the canyon called Pigeon Hollow, which drains about nine sections of land on the Wasatch Range and enters Sanpete Valley about one and one-fourth miles east of defendants' pump. Borings made in the earth's surface demonstrate quite clearly that there are many strata of earth of different density underlying the alluvial fan at the mouth of Pigeon Hollow. And it also appears with reasonable certainty that gravel and sand strata are located at different and somewhat irregular depths under the surface and extending from the vicinity of the mouth of Pigeon Hollow and outward toward the Sanpitch river under the area owned by the parties to this action. Wells in the vicinity of the mouth of Pigeon Hollow and to the west thereof, varying in depth from a few feet to as much as 150 feet, which pierce one or more of the gravel or sand strata, establish quite conclusively that these pervious strata are carrying water which comes from the uplands into the soils forming the bed of Pigeon Hollow and thence move westerly in its downward course through the area where the waters in dispute are located and on toward the probable surface outlet in the Sanpitch river. Borings demonstrate that thick layers of comparatively impervious materials overlie and underlie these pervious water bearing strata. When these different strata are pierced by wells driven from the surface, the result is that the water in the pervious strata, impeded to a greater or lesser extent in its forward movement, rises to the surface in quantities depending upon the degree of resistance and pressure applied beneath the earth's surface. The defendants' well in which the large pump is placed pierces one of these water bearing strata where there is a comparatively large quantity of water which with the aid of the pump is lifted to the surface with the result that it interferes with the flow of plaintiff's wells and springs. Pressure varies in different wells throughout the artesian area, and it also varies as different strata of water bearing materials are punctured. The static head of the water in the wells, the level of the ground water table, and the surface of the ground all slope to the west with approximately the same rapidity. From these facts it may be fairly inferred that the resistance which causes the water to rise in the wells is merely the action of the water in percolating or oozing through the soil, and not an impervious dike over which the water must flow before it can continue in its downward course. When the pressure is released, as was done by driving the big well and installing the pumps, water in the surrounding country gravitates toward the point of least resistance with the result that wells and springs fed from the same common source of supply are affected.

It necessarily follows that it is impossible to apply the doctrine of reasonable use or correlative rights so as to give any assurance of permanency to men who may spend their money in developing sources of water supply, improving the country, and building their homes. Plaintiff in this case had lived for half a century upon his ranch, during which time he used, enjoyed, and depended upon the water supply he had developed and appropriated. Then the defendants, under claim of right to take what is in their own soil, drove wells and tapped the source of supply that had fed plaintiff's wells and springs. The only assurance that the defendants can have that some one else with more power or new devices or at a more favorable point will not in turn sink wells and deprive them of what they have spent years of toil and much treasure to develop lies in the application of the law of priority of appropriation. The law of correlative rights of necessity cannot do it. It varies only in degree from the maxim that the owner of the soil owns to the lowest depth including the water that percolates through it. To say that the owners of the surface own correlative rights in the underground moving body of water is to give to the word "ownership" a new meaning. The owner is one who has dominion of a thing real or personal, corporeal or incorporeal, which he has the right to enjoy and to do with it as he pleases. As well talk of owning the air as it passes overhead as to talk of owning the water as it passes beneath. There can be no ownership of a thing that is evasive, constantly changing and moving onward. There may be a right of use as it passes, but nothing more unless it be in fact captured.

If every person owning land over a waterbearing area shall be permitted to share with every other person whenever he shall see fit to drive his well, it is very probable, if not quite certain, that as the process of development goes on, many, if not all, will find themselves restricted in their use of the water they have brought to the surface to the extent of ruination. If the defendant is right in his theory of the source of the water involved in this discussion, then it would seem that the owner of the land in the mouth of Pigeon Hollow could, by driving sufficient wells on his premises, rob not only the plaintiff but the defendant as well, of all they have builded, unless a proportionate share would prove to be sufficient for their needs. It does not make proof to satisfy those who know this arid country that a proportionate share would be insufficient to properly irrigate and farm the surface in most places, if not in all.

The doctrine of reasonable use necessarily implies the right of one landowner to take the water that is passing through his neighbor's soil and apply it to a beneficial use upon his premises. It completely ignores the right of ownership of the water in the owner of the soil. There is no rule of law upon which it is based. The only support upon which it rests is the notion that it is the policy which will tend most materially to the development of the commonwealth and the protection of our citizens in their property rights. With this notion we are unable to agree. In our opinion it will cause strife and discord through the years. It will make people hesitate to invest their time and money in the development of properties depending for their value upon underground sources of supply. Without the expenditure of untold sums of money in testing the scope of a given underground water supply, they will be entirely without means of knowing how many acres will be entitled to participate in the use of the water. The evidence in this case demonstrates that the supply of underground water varies with the years as do the surface streams. In times of plenty, new developments may cause the use to be extended, and in periods of drouth it will necessarily follow that all will suffer. This we think should be avoided. To our minds the same rule should be applied to underground water as to surface streams. The law of priority of use has been the guide in this state from the beginning. After fifty years our people were so well pleased that they enacted an extensive Code for protection of the prior appropriators of the water of our streams, and, so far as we have learned, there is no one to complain. The law has proved beneficient and satisfactory. In our judgment the same results would follow if the same rules of law are applied to underground waters.

It would almost seem that we have already by former decisions applied the law of prior appropriation to underground waters. We have held that, if a man digs a hole in the ground and thereby permits the water of the surrounding territory to percolate into the hole, a spring is thereby developed, and that it is the subject of appropriation (Sullivan v. Northern Spy Min. Co.,11 Utah 438, 40 P. 709, 30 L.R.A. 186); if wells are driven into a subterranean body of water, and a spring is dried up, the owner of the wells will be enjoined from permitting them to flow; if a tunnel is driven into a mountain and percolating waters are gathered with the result that the water of a surface stream is affected, the water cannot be claimed by the person who drove the tunnel; if a man digs a trench across his lands and thereby intercepts the ground water percolating through his lands to lower levels with the result that a prior user is injured, the prior user can enjoin the injury. Everywhere in the Western States it is the law that, if a man develops water from a source that has not been theretofore appropriated, the developed water can be appropriated and the rights of such individual will be protected. But it seems to be doubted whether, if a man drives a well into the earth and thereby pierces strata of water bearing soil under pressure, he can appropriate it even though it is not subject to any prior appropriation. It would seem that, if the aperture through which water is brought to the surface of the earth and there applied to a beneficial use is made by nature, the law of prior appropriation applies; but, if the aperture is man-made, then the law of correlative rights should apply. Even though the aperture is man-made, if it is driven horizontally into the earth and an underground supply of water tapped, it is still the subject of appropriation, but, if the aperture is vertical and pierces a water bearing stratum beneath, then the right to its use must forever be subject to the possibility of some one else driving a well on their ground and sharing the supply.

To the writer's mind these distinctions are not based on common sense. They have neither rhyme nor reason in them and they do not harmonize with the rules of nature. It ought to make no difference as to the kind of a channel through which water reaches the sunlight. Neither should it make any difference whether the channel is an ancient or a modern one. Once the water bubbles forth to be used by man in the reclamation of our desert areas, whether from a pipe driven into the earth by man or as the result of an earthquake or some other force of nature, the first to apply to a beneficial use should be protected. This rule can work no hardship on any one. If in a given case there is enough for all, then it follows that priority will not affect the situation. If the event should prove that the supply is insufficient, the experience with surface streams has fully demonstrated that the law of priority is the safest guide.

We are not altogether lacking for authority in adopting this course. In the year 1907, five years after Katz v.Walkinshaw, supra, the California Court of Appeals expressed itself as follows:

"The fact that the flow of the stream from the spring is caused by water percolating through the soil does not deprive it of the character which makes it subject to appropriation. `Where percolating waters collect or are gathered in a stream, running in a defined channel, no distinction exists between waters so running under the surface or upon the surface of the land.'Cross v. Kitts, 69 Cal. 217, 10 P. 409, 58 Am. Rep. 558. Water passing through the soil, not in a stream, but by way of filtration, is not distinctive from the soil itself; the water forms one of its component parts. In this condition it is not the subject of appropriation. When, however, it gathers in sufficient volume, whether by percolation or otherwise, to form a running stream, it no longer partakes of the nature of the soil, but has become separate and distinct therefrom, and constitutes a stream of flowing water subject to appropriation. The water in question here is the stream issuing from the wells, and it is immaterial for the purposes of this discussion whether this stream is supplied by water percolating and filtering through the earth or not; at all events, it has gathered into a stream. No distinction can be made between the water flowing from these artesian wells and that flowing from springs. `Water rising to the surface of the earth from below, and either flowing away in the form of a small stream or standing as a pool or small lake,' is the definition of a spring given by the Century Dictionary. This definition is equally applicable to an artesian well. The stream in either case may result from the gathering of water at some point, whether near or distant, which produces the stream, the flow of which is by natural causes forced to the surface. In the one case the aperture or opening through which it finds its way to the surface is the result of nature's forces; in the other, it is produced by artificial means. The fact that it is produced by boring a hole in the ground in no wise changes its character. In either case the water flows to the surface naturally. When a stream of unappropriated water flows from an artesian well, having its location upon unoccupied government land, it is the subject of appropriation to the same extent as the waters of a natural spring likewise located." De Wolfskill v. Smith, 5 Cal. App. 175, 89 P. 1001, 1003.

Mr. Kinney, in his work on Water Rights, makes the following criticism of the De Wolfskill Case:

"It seems to us that the court of appeals endeavored to draw a too fine distinction between `artesian waters' and waters flowing from the artesian basin. Then, again, the court was unfortunate in its comparison as to the water flowing from an artesian well — an artificial means of diversion — and that of a spring, a natural source of water supply. As well might the court have said that the water might be appropriated from an artificial ditch or canal as from an artificial well. The artesian well was but the artificial means of the diversion of the water from the artesian basin."

What difference can it make that the water flowing from an artesian basin passes from the natural source of supply through a pipe or through a tunnel driven horizontally into a mountain or through a drain intercepting percolating waters. In either event it is only a means of reaching the source 2 of supply. Whether it be appropriated at the mouth of a spring or at the mouth of a well in this state ought make no difference. An appropriation when made follows the water to its original source whether through surface or subterranean streams or through percolation. Again Mr. Kinney says:

"The waters of these artesian basins, although they are in a way percolating, being held under an impervious stratum of clay or rock and under pressure of itself from above, legally must be treated as a class by themselves. They differ from the ordinary percolations in that they are above the impervious stratum and are under no pressure. There is also a distinction between wells having a natural flow and those not so constituted. It is, therefore, obvious that different legislation and laws are required peculiar to those waters and wells from those of ordinary percolation."

Here again Mr. Kinney in his discussion reverts to that peculiar idea that, because water happens to be for the time being under pressure of impervious strata, a different rule should apply in acquiring rights to its use than should apply either before it enters the area of pressure or after it passes therefrom. The distinction is one without a difference. If the law of prior appropriations is applied to water at any stage of its eternal circle, it should be applied at every stage. Different rules applied to the same subject-matter for such slight differences as have been pointed out cannot be in the interest of public welfare and must inevitably lead to increasing confusion.

The same learned author brings himself more nearly in harmony with the principles of nature and the underlying human rights when he uses the following language:

"While the artesian waters still remain in their natural artesian basins underlying the public land of the United States, undiscovered and untapped, no valid appropriation can be instituted of them which will in any wise affect the title of the lands afterward acquired from the government by private individuals or others. It is only after the wells have been sunk and the water rises to the surface of the earth and forms a stream, the same as though they flowed from natural springs, that a valid appropriation can be made of them and finally consummated. In other words, a stream of water must be discovered and must be produced, and in this respect it makes no difference whether the aperture or opening through which it flows is the result of nature's forces or the result of the sinking of artesian wells by artificial means. When, however, a stream of unappropriated water flows from an artesian well, having its location on unoccupied government land, it is the subject of a valid appropriation to the same extent as the waters of a natural spring likewise located, under the acts of Congress of 1866, and 1870, where the right of appropriation of water is recognized by the local customs, laws, and decisions, of the courts. The appropriator takes the water at the starting point; that is to say, at the mouth of the well, and if, after the right of the appropriation has once vested, the government sells the land upon which the artesian wells are situated, the purchaser takes it subject to the right acquired by the appropriator, both as to the waters flowing from the wells and the right of way for the necessary ditches used in connection therewith. Therefore, while the land is still a part of the public domain the posting of a valid notice of appropriation of the waters of certain wells, sunk thereon and abandoned by the parties sinking the same, by another person followed up with reasonable diligence in the construction of the ditches for the conduction of the water to the place of use, constitute a valid appropriation of the waters flowing from the well, together with the necessary rights of way. The water in question being the stream issuing from the surface of the earth, it is immaterial whether this stream is supplied by water percolating and filtering through the earth or not, after it has gathered into a stream and flows over the surface of the earth."

In Peterson v. Lund, supra, the question for determination was the right to the use of water flowing from springs which had been appropriated for many years. Defendant had driven wells into an artesian basin which resulted in diminishing the flow of the springs. The defendants insisted that the doctrine of reasonable use or correlative rights should control. The court says:

"In view of the importance of the subject, all of the Legislatures, as well as all of the courts within the arid zones of this country, have not only recognized the right of appropriating the waters flowing from springs, but that right has been established and fixed beyond question. Congress has also fully established and protected the right. It is also well settled that in acquiring the right to the use of water flowing from springs the source of the water is not controlling. That proposition has frequently been decided by the courts."

In Peterson v. Wood, 71 Utah 77, 262 P. 828, 833, decided in 1928, there was involved the question as to whether a man may dig trenches on his own land and thereby intercept percolating waters that were appropriated and used on lower land. Justice Thurman in upholding the right of the prior appropriator concluded his opinion with the following pertinent language:

"It is wholly immaterial whether the water of the Wood spring is percolating water, as that term is known at the common law, or whether it is the water of a subterranean stream. We believe that the cases to which we have referred have settled that question once for all in cases of this nature, and settled it right."

In justification of the conclusion reached that percolating waters are the subject of appropriation when collected into a well, spring or stream, the court in the Sullivan Case and in thePeterson v. Wood Case, heretofore referred to, calls attention to the statutes of Utah then in force, defining a vested right by appropriation. Comp. Laws Utah 1888, § 2780:

"1. Whenever any person or persons shall have taken, diverted and used any of the unappropriated water of any natural stream, water course, lake, or spring, or other natural source of supply."

Certainly, every reason that would induce a person to call the percolations of water through the ground as in the Sullivan Case, where a hole is dug into the ground and the water merely seeps into it, a natural source of supply, ought to apply in a case where a pipe is driven into the ground and the water gushes forth as a result. It is none the less a natural source of supply merely because it happens at the time to be passing through an area of pressure. The foregoing provision of the statute was the law of this state when plaintiff dug six of his wells and until the year 1897, when it was modified, but in the judgment of the writer the change was one of form merely.

In Crescent Min. Co. v. Silver King Min. Co., 17 Utah 444,54 P. 244, 70 Am. St. Rep. 810, it is held by this court that, where a man digs tunnels in his own ground and thereby intercepts and collects the percolating water therein in sufficient quantity that it flows off his premises, it 3 cannot be appropriated by another person. But we do not have such a case here. Here the plaintiff's predecessor in interest in the year 1889 drove six wells on his own premises and from then on and continuously until the interference of the defendants in the year 1927 used the waters flowing from said wells upon his own premises for economic and beneficial purposes. These waters came from a natural source of supply that was unappropriated and unused by any one. It was unnecessary, until the year 1903, to make a record of an appropriation of water. If the water was in fact diverted and put to a beneficial use, that was sufficient. All that the plaintiff did. We think his rights should be protected as an appropriation with a right of priority the same as if the diversion had been directly from the surface. Having been there from the early settlement of our state, it is not right to subject him or his successors in interest to the hazards of other wells, few or many, being driven somewhere within the limits of the Sanpete artesian basin, either as imperfectly described under the evidence in this case, or in the Peterson v. Lund Case heretofore referred to, or in some other case that may arise in the future.

The plaintiff should be required to keep his wells cleaned and in such condition as to permit the water to flow freely therefrom, and, when so cleaned, the defendants should be restrained from operating their Kimball pump whenever the combined flow of plaintiff's seven wells is less than seven gallons per minute during the period of maximum flow in the months of June and July and the first half of the month of August, or when the combined flow of said wells is less than four gallons per minute during the remainder of the year. As thus modified, the judgment should be affirmed. Each party to bear their own costs on appeal.

EPHRAIM HANSON, J., concurs.