It is not clear what theory the pleader had in mind when he drew the complaint in this cause as to the basis of plaintiff's claimed right to the use of the water in controversy. Some of the allegations of the complaint are such as are usually found in pleadings wherein the pleader's claim to the use of the water is founded upon prior appropriation. Other allegations clearly indicate that plaintiff seeks to establish his right to the use of the water in question upon the doctrine of correlative rights as announced by this court in the case of Horne v. Utah OilRefining Co., 59 Utah 279, 202 P. 815, 31 A.L.R. 833. Still other allegations seem to proceed upon the theory that plaintiff claimed his right to the use of the water in dispute by reason of his "exclusive, hostile, adverse, open, and notorious" use thereof "under claim of right" for a period of more than thirty-five years. In our discussion and determination of the questions here presented for review we should avoid confusing the law applicable to the acquisition of a right to the use of the water by appropriation, by the doctrine of correlative rights, and by adverse use. It will aid in the clarity of our discussion and the soundness of our conclusions if the complaint be viewed in the light of, and the sufficiency of its allegations to state a cause of action be tested by, the law applicable to the acquisition of a water right in each of the three manners indicated. The prevailing opinion, as I understand it, holds that sufficient facts are alleged in the complaint to establish, if sustained by proof, that plaintiff has acquired a right to the use of the water in question by appropriation. With such view I am unable to agree. A right to the use of public water of this state may be acquired by appropriation as by law provided. However, a compliance with the law applicable to the appropriation of public water does not aid one in establishing a right to the use of water which is privately owned. It is, and for many years has been, the settled law of this jurisdiction that water flowing in defined natural channels either above *Page 134 or below the surface of the earth is public water and as such may be appropriated subject to all existing rights to the use thereof. R.S. Utah 1933, 100-1-1. It has also been held that the water in a large lake, such as Utah Lake, is public water and as such subject to appropriation. Salt Lake City v. Gardner,39 Utah 30, 114 P. 147. That water of a lake is subject to appropriation was expressly provided for by Comp. Laws Utah 1888, § 2780. So also has it been held that water on the public domain is public water and subject to appropriation without regard to whether such water is percolating in the land or flowing through the land in a subterranean stream. Peterson v. Wood, 71 Utah 77,262 P. 828. On the other hand, percolating water in privately owned land is not public water and hence not subject to appropriation. Willow Creek Irrigation Co. v. Michaelson,21 Utah 248, 60 P. 943, 51 L.R.A. 280, 81 Am. St. Rep. 687. The same rule applies to a spring on privately owned land where the water therefrom does not flow off such land. Deseret Live Stock Co. v. Hooppiania, 66 Utah 25, 239 P. 479. The case of Horne v.Utah Oil Refining Co., supra, is authority for the doctrine that water of an artesian basin within or subjacent to privately owned lands is not public water, but belongs to the landowner, and therefore such water is not subject to appropriation. It would seem that water of an artesian basin subjacent to land of the public domain is public water and may be appropriated so long as the land remains a part of the public domain. Kinney on Irr. Water Rights (2d Ed.) vol. 2, § 1177, p. 2139. In my opinion the law as announced in the Horne Case should not be disturbed. That case was decided October 8, 1921, and a rehearing denied October 28, 1921. It is reasonable to assume that since the Horne Case was decided those who are interested in underground water have relied upon the doctrine announced in that case as the settled law in this jurisdiction. It may well be that water rights have been adjusted and that money and labors have been expended in reliance upon the law as so announced by this court. To repudiate the doctrine of that case, at this late date, may well result in *Page 135 very grave injustice to many who have relied upon its pronouncements. Only the most cogent reasons can justify the overruling of that case. The doctrine of correlative rights is not new and is not peculiar to this jurisdiction. It has the approval of numerous courts of last resort and eminent authors as will be seen from an examination of the authorities cited in the Horne Case. It is founded upon sound principles of law. As the term implies, public waters are such as belong to the public. By complying with the law with respect to the appropriation of public water the right to the use thereof may pass into private ownership. If water in an artesian basin subjacent to privately owned lands be held to be public and as such subject to appropriation, it necessarily follows that such water may be appropriated by any one possessed of the qualifications necessary to become an appropriator. To hold that water from a given source is public and subject to appropriation implies that there is available to a prospective appropriator some lawful procedure whereby he may acquire the use thereof. If it be held that water in an artesian basin subjacent to privately owned lands is public water and subject to appropriation, such holding would be barren of any practical results in the absence of a provision for some lawful means whereby a would-be appropriator may acquire possession of the water and apply it to a beneficial purpose. To illustrate: A and B own in severalty two tracts of land within which is an artesian basin, no part of the water of which is being used, so C, knowing such to be the facts, attempts to make a lawful appropriation thereof. In such case the mere fact that the water in the artesian basin within the lands of A and B is declared to be public water would be of no avail to C in the absence of a provision whereby C may lawfully acquire possession of such water and apply it to his proposed use. If the water of an artesian basin subjacent to privately owned land is to be given all of the characteristics incident to public water, some provision must be made whereby it may be appropriated. The lawmaking power of this state has not seen fit to extend to a prospective *Page 136 water appropriator the right, by condemnation or otherwise, to go upon the land of another and there prospect for or appropriate water of an artesian basin. It is open to very serious doubt if the Legislature has any such power. I am thus of the opinion that under the authorities and upon principle the law as announced in the Horne Case should not be disturbed. Upon the authority of that case the allegations of the complaint are insufficient to establish a right in plaintiff to the use of the water in question on the theory that he has acquired such right under the law of appropriation.
Little need be said with respect to those portions of the complaint which seem to indicate that plaintiff relied upon adverse use as a source of his claimed right. While it is alleged that plaintiff's use of the water in question was exclusive, hostile, open, adverse, notorious, and under claim of right, other allegations of the complaint are merely to the effect that some thirty-five years prior to the acts complained of plaintiff's predecessor drove a well from which he secured a flow of water, which water has, since acquired, been continuously put to a beneficial use by plaintiff and his predecessor in interest. Plaintiff's use of the water flowing from his wells has not been, so far as appears from the allegations of the complaint, in any sense adverse to any rights which the defendants have had to such water. Had defendants, prior to the time they began using the water in question, brought an action against the plaintiff, they would not, so far as appears from the allegations of the complaint, be entitled to any legal or equitable relief. The complaint is fatally defective on the theory that plaintiff has acquired title to the water in question by adverse use.
Viewing the allegations of the complaint in the light of the doctrine of correlative rights, a more serious question is presented. Under the doctrine of correlative rights, water in an artesian basin subjacent to privately owned land belongs to the landowners. It appears from the allegations of the complaint that the artesian basin here involved is subjacent to privately owned land. In a limited sense the landowners are *Page 137 tenants in common of the water within their lands. Water is constantly seeking its own level, and hence it follows that, if one landowner draws off an unlimited quantity of the water from his own land, he thereby takes not only the water from his own land, but also draws water from the land of his neighbor. The doctrine of correlative rights is calculated to conserve the water within an artesian basin and to permit each landowner to use his proportion of the common supply provided he makes beneficial use thereof. Under the rule announced in the Horne Case, if the common supply of water in an artesian basin is barely sufficient or less than sufficient to supply all, each landowner should be limited to his just proportion according to his surface area. Doubtless the rule thus announced in the Horne Case will, in many instances, be difficult of application. From the very nature of underground waters it is difficult to formulate any rule which will be easy of application and at the same time do justice between interested parties.
It is earnestly urged on behalf of defendants that the complaint is fatally wanting in facts to state a cause of action under the law of correlative rights. I quite agree with the able argument made on behalf of defendants that the mere fact that the pressure in plaintiff's well has been reduced or that the water of such well has ceased to flow, as it was wont to do, does not necessarily entitle plaintiff to the relief prayed or to any relief. Correlative rights of landowners in and to the water of a subjacent artesian basin may well be of no practical value to some of the landowners unless such rights are coupled with correlative rights to the means whereby the water may be drawn from the basin. To illustrate: It may be made to appear that plaintiff's wells are located on lands higher in elevation than those of the defendants, and also that, if defendants draw from the basin their just proportion of the water thereof, the pressure of plaintiff's wells will be reduced or cease to flow out of the pipe above the ground. Such a state of facts is the rule rather than the exception where artesian basins are involved. If, under such *Page 138 a state of facts, it be held defendants may be enjoined from taking their just proportion of the water from the artesian basin, obviously, for all practical purposes, they will be denied their correlative rights in and to the water of the basin. As a corollary to the doctrine of correlative rights to the use of the corpus of the water of an artesian basin, there must be evolved a doctrine as to the manner or means whereby such correlative rights to the water may be exercised. Doubtless it will be difficult, if not impossible, to lay down any hard and fast rules with respect to what means may or may not be employed by a landowner to secure his just proportion of the water of an artesian basin, as each case will probably stand in great part upon the facts of the particular case. In the absence of all the facts in this case, it would be ill-advised for us to at this time say what means the defendants may or may not employ to secure their proportion of the water from the artesian basin in question.
In my opinion, if the complaint merely alleged that, because of the acts complained of the pressure in plaintiff's wells was reduced and the water ceased to flow above the surface of the ground, the complaint would be fatally defective because of want of sufficient facts. It is, however, in substance alleged in the complaint that by reason of the acts complained of the defendants have withdrawn and are withdrawing from the artesian basin, water in excess of the supply thereof; that plaintiff is wholly deprived of the use of the water from his wells, and that the same has been destroyed; that defendants have withdrawn and are withdrawing from the artesian basin more than their share of the water thereof; that, if the defendants be permitted to continue to pump from the basin the quantities that they have been pumping, the supply of the basin will become exhausted. These allegations are statements of ultimate facts, and, if sustained by proofs, entitle plaintiff to relief under the doctrine of correlative rights.
I thus concur in the order made in the opinion of Mr. Justice MOFFAT. *Page 139