Because of the importance of the questions discussed by Mr. Justice MOFFAT in the prevailing opinion, I feel justified in adding my views to those already expressed by Mr. Justice ELIAS HANSEN, with whom I am in agreement. I, too, concur in the order made by Mr. Justice MOFFAT, but for the reasons and on the grounds stated by Mr. Justice ELIAS HANSEN. The issue disclosed in the prevailing opinion is whether underground percolating waters, including waters of artesian basins, are public waters and hence subject to the same regulation and control by the state under existing or future law, and subject to appropriation by persons desiring to put them to a beneficial use, as are applicable to surface streams and other public waters, or whether such waters are to be regarded as privately owned or the community property of the owners of the land in and through which they percolate, and hence subject to the so-called "correlative rights" or "American" doctrine. The matter is of the utmost importance to the preservation of vested property rights and to the future development of the state.
This case, and the two other cases now before the court and about to be decided, were argued and presented on the theory that the rule of correlative rights as announced in the case ofHorne v. Utah Oil Refining Co., 59 Utah 279, 202 P. 815, 31 A.L.R. 883, was the settled law of this state applicable to underground percolating waters. These cases were not argued on the theory that the law of exclusive rights (the law of appropriation) was applicable to percolating water, and as to that we have not had the benefit of the views of counsel either in support or opposition or in contemplation that the court might decide the cases, or either of them, on that theory.
If percolating waters, including artesian waters, are to be regarded as publicly owned and subject to the rule of "first in time, first in right," this is the first time such doctrine has been announced in this court, and the law in this respect *Page 140 should be settled only after litigants and others interested are afforded the fullest opportunity of presenting their views to the court.
As I read the decisions and the statutes, I believe it is settled law in this state: (1) That the only waters subject to appropriation are surface waters and such underground waters as flow in underground streams in known or defined channels, and that the appropriator of such waters acquires an interest in the stream or other supply from the point of diversion back to the original source, even to the percolations in the soil where the appropriations of the water were made while the lands were still part of the public domain. (2) That percolating waters, which include all underground waters except such as flow in known or defined channels underground, are a part of the soil and belong to the owner, subject to two exceptions, (a) if the percolating or subterranean waters in the soil may be the feeders or source of supply of a stream or water course, spring, or well, appropriated or put to a beneficial use when the land was public domain, it may not be taken by the owner of the freehold in diminution or depletion of the rights of the appropriator for sale or use away from the land where found, but may be used thereon and the owner may make a reasonable use on his land even though it may interfere with the rights of prior appropriators; (b) the right of the owner is a correlative right, that is, he may take and use the water obtained from his soil provided he does not deprive other landowners within the same subterranean basin or water belt of a similar right to take and use the waters within their lands for a beneficial use on such lands; and that no owner of such lands may extract such waters for use on distant lands or for purposes not connected with lands in the basin, if thereby he deprives any of the landowners of the district of their proper or proportionate share of the waters percolating in their lands.
Subterranean waters are by law divided into two classes: (1) Percolating waters; and (2) underground streams flowing in known or defined channels. 55 A.L.R. 1386. The *Page 141 presumption is that subterranean water is percolating water rather than the water of a known and defined subterranean stream. The burden of proof is on one who alleges the waters are flowing in a known and defined stream to prove such fact. Willow CreekIrr. Co. v. Michaelson, 21 Utah 248, 60 P. 943, 944, 51 L.R.A. 280, 81 Am. St. Rep. 687. Other cases cited in 55 A.L.R. 1387. Water supplied by artesian wells is percolating water. Horne v.Utah Oil Refining Co., supra.
It is settled in this state that all natural streams and other surface waters and streams flowing underground in known or defined channels are subject to the law of appropriation, and that springs, wells, and percolations arising in or on the public domain are subject to appropriation if the right be initiated before the lands are segregated from the public domain and the water applied to a beneficial use. Sullivan v. Northern SpyMin. Co., 11 Utah 438, 40 P. 709, 30 L.R.A. 186; Stookey v.Green, 53 Utah 311, 178 P. 586; Peterson v. Lund, 57 Utah 162,193 P. 1087.
The law with respect to subterranean waters is of comparative recent development. The first English case was decided in 1843, that of Acton v. Blundell, 12 Mees. W. 324, 152 Eng. Reprint, 1223, 15 Morrison Min. Rep. 168, followed in 1859 byChasemore v. Richards, 7 H.L. Cases 349, 11 Eng. Reprint 140, 1 Eng. Rul. Cases 729, decided by the House of Lords. These cases established what is known as and referred to in the books as the common-law or English rule that percolating waters are regarded as belonging to the owner of the freehold, and that such owner may, in the absence of malice, intercept and take such waters while they are on his premises and make whatever use of them he pleases either on the premises or elsewhere, regardless of whether he thereby cuts off the flow of such waters to adjoining lands or deprives adjoining landowners of their use. The rule is based on the maxim, Cugus est colum ejus est usque ad coelum etad inferos. The rule has been followed by many of the states of the union, but never has been followed without *Page 142 modification or change in the state of Utah, notwithstanding many of the text-writers and judges interpret the early decisions as having adopted the English rule. The Utah cases are bottomed on the common-law rule, but with certain modifications, as will be seen by an examination of the cases. In the earliest cases there was no necessity, under the facts, for any modification of the common-law rule because the rights of adjoining landowners who, under the American rule, might be entitled to correlative rights in percolating waters were not involved.
The earliest case involving percolating waters was Sullivan v. Min. Co., supra, and here the court held one entitled to go under the public domain, dig a well, and appropriate the waters found therein to a beneficial use. The decision is based on the ground that the lands were public and under the practice in the territory and the laws of Congress a valid appropriation might be made of such waters as public waters. The next case is that ofCrescent Min. Co. v. Silver King Min. Co., 17 Utah 444,54 P. 244, 245, 70 Am. St. Rep. 810. The court there said:
"The waters issuing from the artificial tunnel into the lake are found to be underground, percolating waters from the mining claim of the defendant, and not waters naturally flowing in a stream with a well-defined channel, banks, and course. Under such a state of facts, the law seems to be well settled that water percolating through the soil is not, and cannot be, distinguished from the soil itself. The owner of the soil is entitled to the waters percolating through it, and such water is not subject to appropriation. The ordinary rules of law applying to the appropriation of surface streams do not apply to percolating water and subterranean streams, with undefined and unknown courses and banks."
The court further said, construing the statute:
"We conclude that section 2780, Comp. Laws Utah 1888, was intended to apply to natural water courses having a natural source of supply, and that it does not apply to percolating waters arising in the land of the owner, and carried through artificial drains, constructed by the owner, for the purpose of improving the property, or for the convenience of the owner. So long as such water remained *Page 143 in the tunnel, or on said mining claim of the defendant, it was not open to appropriation by the plaintiff, or any other person, except the defendant and his grantors, and was the property of said defendant, and subject to its ownership and control."
While this case has been explained and limited strictly to the facts thereof, I do not believe it has ever been overruled. There was no occasion for the court to speak of either of the modifications of the rule which appear in the later cases because the facts in the case do not require it. The appropriation of the plaintiff was not from a natural stream or from any artificial stream flowing from the Silver King property while it was yet a part of the public domain, nor did the defendants take waters which would have percolated underground into the lands of plaintiff, and which would have required an expression with respect to the correlative rights of adjoining landowners. If it were then the law that all of the subterranean waters of the state were public waters subject to the law of appropriation, the case probably should have been decided differently.
The next case involving percolating water was HerrimanIrrigation Co. v. Butterfield Min. Mill. Co., 19 Utah 453,57 P. 537, 541, 51 L.R.A. 930. The mining company constructed a tunnel into the watershed lands of the creek, the waters of the creek having been previously appropriated by plaintiff, and dried up the springs which were the source of supply. While the case was reversed and a new trial directed because of incomplete and erroneous findings of fact, the court said:
"We are clearly of the opinion that the defendant company did not acquire a right to any of the water flowing from said tunnels, except such as was developed by percolation, and that the plaintiff retains the right to all the water flowing in the natural channel of Butterfield creek, diminished only to the extent of the increase of the quantity of water which naturally flowed in the channel of Butterfield creek before said tunnels were run and said springs were dried up. This right of plaintiff is not affected because the underground channels of said springs are not traceable." *Page 144
This language, while somewhat obscure yet indicates that the prior appropriators were entitled to all of the water which they had appropriated and which would flow naturally in the stream, but that the mining company was entitled to the excess over and above that amount which it had developed by the driving of its tunnel.
Much is said by Mr. Justice MOFFAT with respect to the meaning of the language in section 2780, Comp. Laws Utah 1888, "or other natural source of supply." This, he argues, refers to underground waters, and that the purport of the statute is to subject all waters, including subterranean waters, to the law of exclusive right as public waters. This court, however, has held otherwise in Willow Creek Irr. Co. v. Michaelson, supra. There the decisive question was whether or not the defendant by virtue of her patent to the land on which a bog or marsh was formed was the owner of the water flowing therefrom. Plaintiff contended this was a natural stream or a natural source of supply which under the statute, section 2780, supra, was subject to appropriation. The court held the waters were percolating waters on privately owned lands and were not subject to appropriation under the statute. It was there said:
"Undoubtedly, under this provision, any person or persons may divert and use the unappropriated water of any `natural stream, water course, lake, or spring, or other natural source of supply,' for any of the purposes mentioned in the statute, but it is evident that the enactment, although comprehensive terms are employed therein in reference to the appropriation and use of water for the purposes of irrigation, must be construed to mean a `natural stream, or other natural source of supply,' flowing or situated upon lands over which the sovereignty has dominion, or which forms a part of the public domain, and not to streams or springs or other waters arising through percolation upon land, after it has been segregated from the public domain, and the title thereto passed into private ownership. The statute, therefore, cannot be so interpreted as to include a stream flowing from a bog or marsh like the one in the case at bar, which did not make its appearance upon the surface until after the land had been purchased from the government by a private individual. *Page 145
"When the United States issued its patent to the respondent, neither the bog nor marsh, nor the water in question, was visible upon the land conveyed. Nor was there any known and defined subterranean stream thereon. At that time the water, if it existed at all, was percolating through the soil, or flowing in a subterranean stream, having no defined or known channels, courses or banks. Water so percolating and flowing forms a part of therealty, and belongs to the owner of the soil. A conveyance or grant by the United States of any part of the public domain to a person, natural or artificial, carries with it the right of filtrating or percolating water, and to streams flowing through the soil beneath the surface, but in undefined and unknown channels, just the same as it carries with it the right to rocks and minerals in the ground which have not been reserved in the instrument of conveyance or by statute. Water, intermingling with the ground or flowing through it by filtration or percolation or by chemical attraction, is but a component part of the earth, and has no characteristic of ownership distinct from the land itself. In the eye of the law, water so commingled and flowing, or motionless, underneath the surface, is not the subject of ownership apart and distinct from the soil. If, however, subsurface streams of water flow in clearly defined channels, it is otherwise, for then the rules of law applicable to surface streams and waters apply."
Herriman Irr. Co. v. Keel, 25 Utah 96, 69 P. 719, was a second appeal of the same case as Herriman Irr. Co. v.Butterfield Min. Mill. Co., reported in 19 Utah 453,57 P. 537, 51 L.R.A. 930. The decision turned mainly on questions of fact. The three judges wrote separate opinions and discussed the questions with which we are here concerned. It is difficult, if not impossible, to obtain a clear conception of any principle of law decided. The case settled no principle and is without much force as a precedent. The decision, however, gave the mining company a portion of the water developed by its tunnel on the theory that it was the owner thereof by reason of the ownership of the land. The fifth headnote is as follows:
"Water standing in land underneath the surface, or passing through it by filtration, percolation, chemical attraction, or in undefined and unknown streams, belongs to the land and the incidental drying up of springs caused by the escape of such waters into and out through a tunnel driven by one on his own land is damnum absque injuria." *Page 146
In Garns v. Rollins, 41 Utah 260, 125 P. 867, 869, Ann. Cas. 1915C, 1159, the court recognized that
"in this jurisdiction the common-law doctrine as declared by the Supreme Court of California in the cases above mentioned, in so far as applicable to the questions litigated in which was involved the right of the owner of the land to the percolating water found therein, has been adhered to and followed,"
and then stated that the question of ownership of percolating subterranean water was not involved, since the seepage or percolating waters came from ordinary irrigation of appellant's land and is nothing more than surface or waste water. On these facts the owner of the land was held to be the owner of such water and entitled to put it to a beneficial use on that or any other land. The court expressly withheld a decision on whether the conditions in this state require a modification of the common-law doctrine as to percolating waters.
Roberts v. Gribble, 43 Utah 411, 134 P. 1014, was decided on authority of Garns v. Rollins, supra, and by subsequent cases has been limited strictly to its facts and the doctrine of the latter case. Stookey v. Green, 53 Utah 311, 178 P. 586.
In Peterson v. Eureka Hill Min. Co., 53 Utah 70,176 P. 729, it was held that,
"Where a mining company has appropriated the waters of a spring located on the public domain and has subsequently acquired title to the premises, another cannot over the owner's protest acquire any rights to such waters by making application to the state engineer's office."
In Stookey v. Green, 53 Utah 311, 178 P. 586, 587, the case was remanded for further evidence as to whether or not the land on which the spring arose was public domain at the time the waters were diverted and put to a beneficial use. The previous cases by the Utah court were reviewed and construed. The court said:
"Up to this time at least, it has never been held by thiscourt that water can be appropriated from private lands. In fact the decisions *Page 147 are all the other way wherever the question has been directly presented. * * *
"If it is private land and the water is percolating, as known and understood at the common law, then it is not the subject of appropriation as against the owner of the land." (Italics added.)
These statements may not be decisive as stare decisis, but they indicate that at no time had the Utah court held the doctrine of appropriation applicable to percolating waters in privately owned lands. If it be true that percolating waters may not be appropriated as against the owner of the land, how can it be said that one landowner may drive wells and drain the land of his neighbor and thereby acquire by appropriation a superior and exclusive right to the waters percolating in his neighbor's soil or under its surface merely because of priority of use or compliance with the statute as to appropriation? It would also follow, if these statements are true, that such waters are not public waters and are not subject to the statutory method of appropriation.
In Rasmussen v. Moroni Irr. Co., 56 Utah 140, 189 P. 572, the court said that the case was the first and only case in this state involving the precise question there presented; that is, the right to the use of seepage or percolating waters coming from irrigation of upper lands and passing on their return into a stream, the waters of which had all been previously appropriated to a beneficial use. The case was denominated a river system case, and the decision was said not to involve or apply to artesian or subterranean waters.
Peterson v. Lund, 57 Utah 162, 193 P. 1087, is referred to and somewhat relied on by Justice MOFFAT in his opinion. The case was remanded for a new trial, similarly to the case of Stookey v. Green, supra, in order to obtain additional facts for the particular purpose of determining whether or not the lands on which the springs arose were public domain or private property at the time the waters thereof were put to a beneficial use. The court said the complaint alleged that plaintiff had used the water, but there was no allegation *Page 148 of an appropriation of the water flowing from the springs and that the evidence was insufficient to justify a finding of appropriation. The case was remanded for further facts. The court also said that the waters from flowing springs were the subject of appropriation just as any other unappropriated waters, but still was unable to reach a decision because of no showing of an appropriation while the land on which the spring arose was part of the public domain. If this fact had not been of controlling importance, the case might well have been decided without additional facts, since priority of use was shown and that the waters had been put to a beneficial use; the flow having been interfered with by the driving of wells by the defendant. Plaintiff's springs and defendant's wells apparently drew water from the same artesian basin, and the driving of the wells lessened the pressure and diminished the flow of plaintiff's spring. The evidence was unsatisfactory as to measurements, and for this additional reason the case was remanded. The court refrained from expressing an opinion on the particular rules which should apply to the facts until further evidence was taken. The doctrine of correlative rights or reasonable use was referred to but neither adopted nor rejected.
In Deseret Live Stock Co. v. Hooppiania, 66 Utah 25,239 P. 479, 484, the court made a statement which is an accurate restatement of the rule announced in the cases cited to support it:
"We do not find any conclusive evidence in the record as to whether or not the lands upon which these springs are located were part of the public domain at the time of the attempted appropriation. The waters from the springs in controversy were not sufficient in volume to run into or create a natural channel, and were not sufficient in volume to run to appellant's land, and would not reach appellant's land without being fed by water from other sources. The waters of the springs are therefore percolating waters, and if such springs are located upon private lands the waters arising therefrom are not subject to appropriation. Stookey v. Green, 53 Utah 311, 178 P. 586;Peterson v. Eureka Hill M. Co., 53 Utah 70, 176 P. 729;Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 60 P. 943, 51 L.R.A. 280, 81 Am. St. Rep. 687. Such of the springs as are located upon the homestead *Page 149 of Hooppiania are not upon the public domain, and are therefore not subject to appropriation by appellant."
If this statement be true, then the waters of this spring were not public waters, but owned by the owner of the land as a part thereof. If such waters were subject to the law of appropriation, I see no reason why they could not be appropriated by any one who should comply with the statute and make a valid appropriation even though the waters arose on the lands of another.
Holman v. Christensen, 73 Utah 389, 274 P. 457, 459, while holding that spring water flowing in a natural channel is subject to appropriation by any person who could put it to a beneficial use whether the land on which it arose was public domain or privately owned, said:
"It should be observed that we do not here hold that water arising from springs on private land and flowing off such land in a manner other than through a natural channel is subject to appropriation."
Petersen v. Cache County Drainage Dist. No. 5, 77 Utah 256,294 P. 289, while discussing the law of reasonable use and correlative rights, the court stated that such doctrine had no application because the waters involved were merely irrigation waters and that the rule of correlative rights applied only to water percolating through the soil from natural causes.
The cases thus far discussed establish, I think, the rule that the owner of the soil is the owner of waters percolating in or through his lands and that such waters are not subject to appropriation by any one except the owner, and do not disclose that such owner is obliged to comply with the law of the state with respect to making his appropriation in the manner by law required; that is, he may put his waters to a beneficial use on the lands where found, or elsewhere where other's rights are not impaired, not by reason of the law of prior appropriation, but because of his ownership of the freehold in which such waters are percolating. This *Page 150 right of the owners of a freehold to the waters percolating in or through his lands is not an absolute or unconditional right, but is a modified or limited right. The first modification of the rule is found in the mining and tunnel cases and the river system case where, notwithstanding prior appropriation of the waters of the stream and the principle of law which gives the appropriator a vested interest in the water so appropriated back to the source of supply in the watershed lands (Cole v. Richards Irr. Co.,27 Utah 205, 75 P. 376, 101 Am. St. Rep. 962), the owner of the soil may nevertheless operate and develope his lands by draining, driving tunnels, or other necessary and reasonable use thereof. In Rasmussen v. Moroni Irr. Co., supra, plaintiff collected from seepage and percolations on his land waters which he diverted into the river and attempted to divert from the river at a lower point onto other lands owned by him. The court held that all such waters were tributary to the river and could not be diverted to other lands, but plaintiff might use them on the lands on which they were gathered.
The Circuit Court of Appeals in Midway Irr. Co. v. SnakeCreek Min. Tunnel Co., 271 F. 157, affirmed by the Supreme Court of the United States in 260 U.S. 596, 43 S. Ct. 215,67 L. Ed. 423, held that the reasonable use or correlative right doctrine was the law of Utah, and applied such doctrine to the facts of that case, permitting the mining company to make a reasonable use, in connection with the operation of its mine, of the waters developed in its mining operations, but said that to sell such waters to irrigation companies was not a reasonable and beneficial use in connection with the business of the mining company and this would not be permitted when to do so would deprive prior appropriators of water which they had appropriated and put to a beneficial use.
The correlative right doctrine is recognized by text-writers, as well as the courts of many jurisdictions, as a just and equitable rule that is now fully established. Says Kinney *Page 151 in his work on Irrigation and Water Rights, vol. 2 (2d Ed.) p. 2134:
"The cujus est solum, etc., doctrine as modified relative to these waters means in effect that, although you may be the owner of the soil and everything in it to the lowest depths, you must so use these subterranean waters found in your own land that the use will not injure the rights or property of another. And although this modified maxim or rule of law applies to other percolating waters than the ones now under discussion, it applies with special force to the waters of artesian basins for the reason that the porous strata wherein these waters are found usually underlie large areas of country, and the tapping of which by artesian wells will draw the waters from the lands of many owners. And, although even the modern authorities are by no means unanimous in the adoption of this modified rule, we are of theopinion that it is the only just and equitable one. And, therefore, the rule should be applied to all cases where it is known that by the flow of artesian wells naturally overflowing the surface, or the pumping of water in considerable quantities from wells on the lands of one person it draws from or prevent it from percolating to the lands of others, to their injury. And this rule of correlative rights has been adopted as the rule of law governing the waters of artesian basins in many States."
And Wiel in 2 Water Rights in the Western States (3d Ed.) pp. 1045 and 1047, says:
"As laid down in these cases, the rule now is that all persons having land over an underground supply of percolating water have by nature certain rights to the use of their lands by means of the water, whether they exercise them or not, and they may begin to exercise them whenever they will. Priority in time of use will give no better right, and nonuse will affect only the remedy (refusing a prohibitive injunction and granting instead a declaratory decree declaring the right to begin use on his land whenever he will). It is hence settled that no exclusive right under the law of appropriation will be permitted, because of priority of use, to defeat the use of one's own land at any time. * * *
"The sprit of the new law of percolating water, as well as the rulings under it, make directly against the law of exclusiverights by priority of appropriation."
In a scholarly article entitled "Natural Communism, Air, Water, Oil, Sea and Seashore," 47 Harvard Law Review, p. 425, Mr. Samuel C. Wiel says: *Page 152
"There are few states today that have not removed groundwater from this influence (English rule) and transferred it into the `Negative Community,' with the appropriate consequences of common property, correlative rights and reasonable use."
See, also, the exhaustive brief on subterranean or percolating water in 55 A.L.R. 1385, and the recent case of Maricopa County,etc., v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369.
Because of the fugitive or migratory quality of water, in that it seeks its level, one landowner may drain his neighbor's land and deprive him of the water therein. This led the courts to adopt the more equitable and just rule of correlative rights, known also as the "American" doctrine, which has been followed in many jurisdictions including our own in Horne v. Utah OilRefining Company, supra. The decisions of the courts in this and other jurisdictions were analyzed, considered, and discussed by Mr. Justice Thurman in that case in such thorough manner that it is needless to further refer to them here. The quotations above from Mr. Kinney and Mr. Wiel well state the conclusions reached in the cases prior to the decision by this court in the Horne Case.
While this court had previously indicated in no unmistakable language its leaning toward the American rule as applicable to percolating waters, the court in that case for the first time unequivocally committed itself to the American rule, and recognized the correlative rights of adjoining landowners to the underground waters percolating in and through their respective tracts of land. Mr. Justice Thurman, the writer of the decision, said:
"The doctrine of correlative rights or reasonable use is the nearest approach that can be made towards a literal application of the maxim, `cujus est solum,' etc., as far as underground percolating water is concerned."
Indeed, two maxims of the common law are brought into use, one to modify the other; the maxim of cujus est solum ejus est usquead infernos, being the one which fixes the *Page 153 right of the owner of the freehold to the percolating waters in the soil, and the other, Sic utere tuo ut alienum non laedas, being a modification of the first requiring the owner to so use his own as not to injure the property of another. In other words, he may not so use his available opportunities in such a way as to take that which belongs to adjoining owners who are, in effect, tenants in common with him in the water percolating through their respective tracts of land.
The decision in the Horne Case was well considered and ably written. The doctrine of that case was affirmed in Glover v.Utah Oil Refining Co., 62 Utah 174, 218 P. 955, 31 A.L.R. 900. These decisions are in harmony with and the culmination of a line of decisions which foreshadowed and logically led to the application of the law of correlative rights to underground percolating waters. This court in the Horne Case announced a rule applicable to the facts of that case which I am unwilling at this time to modify or overrule; that is, that each proprietor of land within an artesian district is entitled to water proportionate to his surface area, provided he makes a beneficial use of it. This rule may not be the most just and equitable as applied to the facts in all cases and may not necessarily be the only application of the doctrine of reasonable use to measure the rights of common owners, but I think it is a workable and sound rule and should be used where the facts permit of its application. In Erickson v. Crookston Waterworks, Power Light Co., 105 Minn. 182, 117 N.W. 435, 17 L.R.A. (N.S.) 650, the court said that what constitutes a reasonable use is a question of fact to be determined from the facts and circumstances of each particular case. There the defendant city drove wells into an artesian basin on property owned by it and pumped the water out for the use of the inhabitants of the city whose lands also lay over the artesian basin, thereby reducing the water level in the ground. The trial court limited the use by the city so that it could not reduce the water level to a point lower than 50 feet below the surface of the ground, but the Supreme Court reversed this decree as an unreasonable requirement *Page 154 and permitted the city to take the water for the reasonable use of its inhabitants even though the water level was reduced below 50 feet from the surface. This left it so that the plaintiff was required to pump in order to secure his supply, but there was water in the ground available to him by means of pumping and the court held that this was a reasonable use by both parties. A salutary rule deduced from this decision is well stated by the brief of defendants:
"Neither one nor more than one can withdraw water in such quantities as will lower the general level to a point from which the general supply is not readily, easily and economically available."
I am also very much impressed with other statements of the law under the correlative rights doctrine made in the same brief:
"No man is entitled to waste water; he has a right only to what he uses beneficially.
"Every owner over an artesian basin is entitled to make a reasonable use of the common supply. There are no preferences and no priorities.
"If the common supply is sufficient, each has the right to use all he needs. That is a reasonable use under those circumstances.
"If one does not need water or wastes it, others may use that water, apportioning it according to their respective acreage and their needs.
"If the common supply is barely sufficient or less than sufficient, as in the Horne Case, each `should be limited to his just proportion according to his surface area.' That is a reasonable use under those circumstances.
"No owner has a vested right in pressure. All rights are strictly correlative, each bearing his share of the burdens as well as enjoying his share of the blessings.
"If it is `reasonably necessary for the beneficial purposes to which he devotes the water' an owner may withdraw his rightful portion `to the injury' (not in the technical sense) `of others similarly situated' (quotation from Horne Case). That is reasonable."
It should be noted that in the case before us both parties are owners of land overlying an artesian or percolating water area, and that no attempt is made by any landowner to take the water away from the basin for use elsewhere, but are *Page 155 only attempting to use the water on their lands within the artesian district.
It is said to be illogical to distinguish between a spring or a well dug or a pipe driven into the ground to develop water; reference being made to Sullivan v. Northern Spy Min.Company, supra, which sustained the right of one to dig a well and obtain a right to the use of percolating waters thereby under the law of appropriation, and to Peterson v. Lund, supra, where the appropriation was from a natural spring. The distinction is not controlling by the method of taking but by the fact of ownership of the soil. If the land is public domain, the waters are public and may be appropriated even if percolating. If the land is privately owned, the percolating waters belong to the owner of the soil and may not be appropriated or taken by anyone else as against the right of the landowner.
Two states have decided that percolating waters are public waters subject to the law of appropriation applicable to waters in surface streams, lakes and ponds. They are Idaho and New Mexico. The Idaho case of Hinton v. Little, 50 Idaho 371,296 P. 582, 584, decided February 21, 1931, held that subterranean waters permeating horizonally through a basin and reaching the surface through ordinary openings in impervious stratum were subject to appropriation, and the rule, "first in time, first in right," would be applied. The decision rests on an early Idaho statute and previous cases construing it. The statute (C.S. Idaho § 5558) reads,
"The right to the use of the waters of rivers, streams, lakes, springs, and of subterranean waters, may be acquired by appropriation."
There is a strong dissenting opinion by Mr. Justice Budge, who holds the laws of correlative rights applicable. The suit was between adjoining landowners. Plaintiff had first driven wells on his lands and put the water to a beneficial use. Later the defendant drove wells on his land which plaintiff claimed interfered with and lessened the flow of his wells. *Page 156 The result of the decision was that the plaintiff had the exclusive use of all the waters because of prior appropriation.
In the New Mexico case of Yeo v. Tweedy, 34 N.M. 611,286 P. 970, decided April 16, 1930, a statute passed by the Legislature in 1927 declaring the waters of underground streams, channels, artesian basins, reservoirs, and lakes, the boundaries of which may reasonably be ascertained by scientific investigation or surface indications, to belong to the public and subject to appropriation to be not subversive of vested rights of owners of overlying lands. Since the statute was held to be merely declaratory of existing law, a full review of the history of the state with reference to its law of underground waters was given in the opinion. There is a dissenting opinion by Mr. Justice Parker, who holds with the American doctrine of correlative rights and thinks the decision violative of the constitutional provision that private property may not be taken for public use without compensation.
I refrain from any discussion of the results which might flow from the application of the law of appropriation to percolating waters. Serious objections will occur to any one who studies the problem. It is not for us to decide matters of policy, nor, indeed, to weigh the beneficial results which may follow the adoption of any particular policy. It is sufficient for us to declare the law as it is. We are not responsible for consequences. As I read the cases, it has never been the law in this state that the rule, "first in time, first in right," is applicable to underground percolating waters and it is too late now for this court to change the law in that respect. It may be too late even for legislative action declaring percolating waters to be publicly owned. It would be a taking of private property without compensation and seriously unsettle rights which have become vested. An early Legislature might well have declared that all waters, whether flowing on the surface, flowing underground, or percolating in the soil, were public waters and subject to appropriation. No Legislature of this state has so declared, *Page 157 as did the Legislature of Idaho. The difference between the Utah and Idaho statute is obvious. The Idaho statute plainly states:
"The right to the use of * * * subterranean waters, may be acquired by appropriation."
Our statute, R.S. Utah 1933, 100-1-1, is:
"The water of all streams and other sources in this state, whether flowing above or under the ground in known or defined natural channels, is hereby declared to be the property of the public, subject" etc.
It is, I think, a strained construction which makes that language mean the same as if the statute had read,
"all waters in this state, whether on the surface or flowing or percolating underground, are declared to be the property of the public."
While the statute is not entirely free from ambiguity, it would seem to exclude percolating waters from the waters declared to be the property of the public. Section 2780 of Comp. Laws Utah 1888, which recognizes the right to the use of water "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," may give rise to the suggestion that the words "other natural source of supply" were intended to include percolating waters. These words have been construed and have been made applicable to percolating waters only when the appropriation was made while the lands on which or in which such waters were found were still part of the public domain, and by the cases heretofore referred to restricted to such meaning. This provision of the statute was thus construed in Willow Creek Irr. Co. v. Michaelson, supra, and CrescentMin. Co. v. Silver King Min. Co., supra, already quoted.
In no legislative act, from the beginning down to the present, are subterranean waters expressly mentioned, except in the later enactments where water in underground streams *Page 158 flowing in known or defined channels are declared to be the property of the public.
The constitutional provision, article 17, § 1, lends no support to the theory that the underground waters of the state are publicly owned, but rather the contrary. The Constitution makers carefully refrained from asserting public ownership to any of the waters in the state, whether on the surface or underground. The section reads:
"All existing rights to the use of any of the waters in this State for any useful or beneficial purpose, are hereby recognized and confirmed."
Rights vested by reason of ownership of land, including the water therein, are here "recognized and confirmed," if that was the law at that time, to the same extent as rights obtained by appropriation.
If it be held that percolating waters are public waters and subject to the law of appropriation, then I see no escape from the conclusion that all the formalities required by statute must be complied with to entitle an appropriator to perfect his right whether he be the landowner or not. I am not inclined to overrule the case of Deseret Live Stock Co. v. Hooppiania, supra, certainly not at this time. Whether underground percolating waters be regarded as public or not the one thing needed at this time to effect a conservation of this natural resource is legislation extending a more definite control by the state engineer or other public authority. Conservation of the underground supply may be enforced by legislative action under either theory of ownership or right, and such control should be asserted and enforced without further delay.