Plaintiff, Orson Hanson, respondent here, brought this action against defendant, Salt Lake City, appellant here, for injunctive relief and money damages. He claims that as a result of the city drilling a large well and pumping large quantities of water therefrom during the summer *Page 405 of 1934 in the neighborhood of his artesian well, the flow of water therefrom was greatly reduced so that without the aid of a pump on his well it would not supply sufficient water to satisfy his culinary and irrigation requirements as it had previously done, and that to supply his needs he installed a pump on his well. He asked as damages the cost of installing the pump, cost of operating it, and that the city be enjoined from pumping water from its well. The court refused to grant injunctive relief but did award him the damages which he asked in the sum of $295.10, which includes a substantial amount of interest.
The plaintiff is the owner of about 24 acres of land located at about 5200 South and 1700 East, according to Salt Lake County numbering system, southeast of Salt Lake City. It is an "L" shaped piece of property, facing a county road called Spring Lane on the north, and Highland Drive on the east.
This well is the only source of culinary water for plaintiff's home; it was drilled in 1921. Prior thereto, there was another well only 60 feet deep which went dry shortly before this one was drilled. These two wells have supplied the culinary water for that home for 40 years prior to the time of the trial, in May, 1947. The first of these two wells was drilled after 1903. The present well is 260 feet deep, and until the city commenced pumping in August, 1934, it had always supplied about 50 gallons of water per minute, which was ample to supply the culinary needs of the home and water for the chickens and livestock and the dairy and to irrigate some land.
A three inch pipe brings the well water above the surface of the ground. From there a horizontal pipe extends about 7 feet in which the size of the pipe is reduced to 1 inch, from which the water flows into a 30 gallon barrel. From the barrel the water is piped on a downward slope a distance of about 25 feet through a 3 inch pipe into a ram, which uses the fall of the water from the barrel to *Page 406 lift some of it about 32 feet into a tank. The water used to lift this water into the tank escapes into a ditch through which it runs onto the lands of others and sometimes is used for irrigation but is not thereafter used by plaintiff. The water is piped from the tank to plaintiff's house, barn, chicken coops and stock watering trough. There is a valve on the well through which the well water may be turned into the dairy house and used for cooling purposes and onto the lawn around plaintiff's house.
The summer of 1934 was an extremely dry one. In order to obtain irrigation water which it was obligated to supply to certain farmers, the city sank a large well on the banks of its canal at a point about 6000 South and 2100 East and about 1 1/4 miles southeast from plaintiff's well. This well was drilled to a depth of 500 feet, and was perforated so that it would drain the water from all the various depths where water was encountered. It was on higher ground than plaintiff's well and required a pump to bring the water to the surface. The city installed an electric pump thereon and commenced to pump on August 21, 1934, and continued to operate, with the exception of short intermittent periods, until October 17th of that year. It was also operated some in the summers of 1935 and 1936, but plaintiff's evidence was positive that the pumping only interfered with his flow during 1934. When the pump was operating it produced a flow of from 2 cubic feet per second to 10.24 c.f.s.; usually it produced around 8 c.f.s. Shortly after the city commenced operating its pumps, the flow of water from plaintiff's well decreased from 50 to about 4 gallons per minute. This quantity was insufficient to operate plaintiff's ram and supply the water necessary for the other purposes for which he had used it in the past. He thereupon installed an electric pump on his well.
The court found that the operation of the city pump on its well reduced the flow in plaintiff's well from 50 gallons to 4 gallons per minute. And, further, that such flow was insufficient to operate his ram or supply his needs for irrigation *Page 407 culinary purposes. It refused to enjoin the city from operating its pump but awarded plaintiff damages as stated above. From this award the city appeals. It contends that in pumping water from this well it violated no right of the plaintiff.
The evidence is undisputed that both of these wells tap a large interconnected subterranean or artesian water basin. It indicates that this basin exists in the pervious strata or layers under the surface of the earth at various depths, and covers an irregular area from north to south of about 12 miles and from east to west of about 6 miles. This basin is sealed by impervious strata on the east, south and west but to the north it has an outlet into the Great Salt Lake. The water in question enters the basin from the east at the foot of the Wasatch mountain range. West of the Wasatch range fault line there is another fault line running generally from the south to the north which breaks the strata through which this water courses through which some of the water escapes to the surface as springs. About 6000 wells have been drilled into this basin, in some of which the pressure is sufficient to cause the water to flow naturally to the surface and in others, pumps are required. Part of these wells were drilled prior to 1934 and others have been drilled since.
Generally, each well has a tendency to lower the static head pressure, or the height to which the water will naturally rise, of all the wells, in the basin. But since pressure is required to force the water through the strata of pervious materials and the movement of the water is slow, the direct effect of one well upon another cannot be traced for more than a distance of two and a half miles and then only where there are no natural interferences between the two wells in the artesian basin. Each well is said to have a cone of influence, or that within a circular shaped area around the well, in the absence of natural interference, each well tends to directly effect the static head pressure of all other wells within a distance in some cases as far from *Page 408 the well as two and one half miles. The closer the wells are together the greater the effect one has on the other, and where one well is upstream, or the course of the movement of the waters of the basin is from it toward the other well, the upper well in the flow of the waters has a greater effect and effects the other for a greater distance away than where the conditions are reversed. There also may be pockets in the basin or natural interferences in the flow of the water from one to the other, so that two wells might be relatively close to each other without either exerting any appreciable effect on the other.
Data was introduced in evidence by both parties of the effect the pumping from the city well had upon the flow and the static head pressure of plaintiff's well, and a number of expert witnesses gave testimony on that question. There is no dispute that the pumping of the water from the city well greatly reduced the static head pressure and the quantity of water which would flow naturally from plaintiff's well in a given time. The expert testimony of both sides was to that effect and the records and charts of both sides demonstrated that within a few hours of starting the city pumps the flow in plaintiff's well was greatly decreased and that it returned practically to its previous flow within a few hours whenever the city pumps were not operating. It is reasonably certain that had the city not operated its pumps the natural flow of water from plaintiff's well would have been ample to supply his needs according to his previous usage.
On July 17, 1934, there was received from Salt Lake City, by the State Engineer's Office, an application to appropriate 10 cubic feet per second of underground water, which the city proposed to pump from a well to be drilled at the place where its well was later drilled. This application was not approved until January 11, 1935, after the decision in Wrathall v. Johnson,86 Utah 50, 40 P.2d 755. This action was commenced February 21, 1935. Plaintiff filed with the State Engineer's Office an Underground *Page 409 Water Claim to the waters of his well, pursuant to the Laws of 1935, c. 105, section 100-5-12, on December 23, 1935, and the city filed a similar claim to the waters of its well on February 29, 1936.
At the time of the first settlement of this state in 1847, water was diverted from the mountain streams onto the ground which was the commencement of the use of water for irrigation purposes here. See Hutchins, Selected Problems in the Law of Water Rights in the West, 74. The courts of this state have always recognized the prior right to the use of the water in the one who first appropriated it to a beneficial use. See Ib., andMunroe v. Ivie, 2 Utah 535. In 1866, Congress by 14 Stat. 253, Rev. St., Sec. 2339, 30 U.S.C.A. § 51, validated all vested and accrued rights to the use of water which are recognized and acknowledged by local customs, laws and decisions of the courts, and in 1870, by Stat. 218, Rev. St., Sec. 2340, 30 U.S.C.A. § 52, it made all patents, pre-emptions and homesteads subject to all vested and accrued water rights. By Laws of Utah for 1880, c. 20, Sec. 6 the territorial legislature passed an act which recognized that the right to the use of water for any useful purpose within reasonable necessity has vested and accrued whenever any person has
"diverted and used any of the unappropriated waters of any natural stream, water course, lake, or spring or other natural source of supply."
The State Constitution adopted in 1896, by Sec. 1, Art. 17, recognized and confirmed all existing rights to the use of any of the waters of the state for any beneficial or useful purpose. The Laws of Utah of 1897, c. 52, Sec. 8, provided for the posting of notice of intention to appropriate waters and for the recording of notice of such appropriation after it has been accomplished. It also provided for the recording of notice of appropriations which had been completed prior to that enactment.
By c. 100, Laws of 1903, the legislature made comprehensive provision for the regulation of water and water *Page 410 rights and the procedure to be followed in making an appropriation of unappropriated waters among which were the following:
Sec. 34.
"Rights to the use of any of the unappropriated water of the State may be acquired by appropriation, in the manner hereinafter provided, and not otherwise. The appropriation must be for some useful or beneficial purpose, and, as between appropriators, the one first in time shall be first in right." (Emphasis ours.)
Sec. 47.
"The waters of all streams and other sources in this State, whether flowing above or underground, in known or defined channels, is hereby declared to be the property of the public, subject to all existing rights to the use thereof."
Sec. 49.
"Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this State."
These provisions remained practically unchanged until 1935, when the legislature on account of certain suggestions and the holdings in the cases of Wrathall v. Johnson, 86 Utah 50,40 P.2d 755, and Justesen v. Olsen, 86 Utah 158, 40 P.2d 802, made substantial changes in the first two sections above quoted, and added other sections regulating the appropriation and use of the waters of subterranean and artesian basins. These provisions will be quoted more in detail later in this opinion.
From the earliest times this court has recognized that percolating waters were not subject to appropriation as a part of the public waters of the state. Such waters were said to be a part of the ground through which they passed and belonged to the owner thereof the same as the rocks, soil and other materials thereof to the lowest depth, and the owner thereof could use such waters as he saw fit. Crescent Mining Co. v. Silver KingMining Co., 17 Utah 444, 54 P. 244, 70 Am. St. Rep. 810; WillowCreek Irr. Co. *Page 411 v. Michaelson, 21 Utah 248, 60 P. 943, 51 L.R.A. 280, 81 Am. St. Rep. 687. However, it has been held that under the early federal and state statutes and laws above referred to that where a party developed or collected percolating waters on the public domain and appropriated them to a beneficial use, or where percolating waters supplied the source of a natural stream which had been appropriated to a beneficial use during the time when the lands through which such water percolated were public lands, the later private owner of such lands could not rightfully interfere with such use of such waters to which they had been previously appropriated. See Sullivan v. Northern Spy MiningCo., 11 Utah 438, 40 P. 709, 30 L.R.A. 186; Herriman Irr. Co. v. Keel, 25 Utah 96, 69 P. 719; Peterson v. Wood, 71 Utah 77,262 P. 828.
In 1921, in the case of Horne v. Utah Oil Refining Co.,59 Utah 279, 202 P. 815, 31 A.L.R. 883, and later in the case ofGlover v. Utah Oil Refining Co., 62 Utah 174, 218 P. 955, 31 A.L.R. 900, we held that subterranean and artesian basins of water were percolating waters and therefore not the subject of appropriation but belonged to the owners of the ground through which they coursed. We adopted the American rule of correlative rights and reasonable use as the law which governed the use of such waters in this state. On the petition for a rehearing in the first of those cases at page 306 of 59 Utah, and at page 825 of 202 P., we summarized the holding by saying that
"where the water is put to a beneficial use, each party in the artesian district, if the water is necessary for his use, is entitled to a proportionate share according to his surface area as compared with the whole."
These decisions were recognized as the law governing the use of the waters from artesian basins in this state until 1935, and there was nothing in the decisions of this court or in the statutes as they had been interpreted and understood up to that time which required a compliance with the rules governing an appropriation of unappropriated *Page 412 waters in order to obtain the right to use such waters in this state.
In 1935 the cases of Wrathall v. Johnson, supra, andJustesen v. Olsen, supra, held that the law of appropriation applies to the waters of subterranean and artesian basins. The Horne case, supra, was not expressly overruled in those cases, but it was held that the law of prior appropriation was not involved in the Horne case. It is evident that in the later cases the court applied a rule of law which conflicts with the rule applied in the Horne case although the cases are not distinguishable on their facts. The only attempt to distinguish the later cases on their facts from the Horne case was to point out that the area alleged to be covered by the artesian basin in the Horne case was not as large as in the later cases. This is not a distinguishing fact which would justify a different rule of law. Nor do we understand that the prevailing opinion so held because every argument which was advanced in support of the appropriation doctrine would apply with equal force to the facts in the Horne case. However, if there was any distinction between the facts in the Horne case and the two later cases, those cases cannot be distinguished from the present case. We are in accord with the law as announced in the later cases to the effect that the waters of artesian basins are subject to appropriation.
These cases held that artesian basin waters were flowing underground in sufficiently defined channels to be included as the property of the public and subject to appropriation under sections 47 and 34, supra. Those sections were carried into R.S.U. 1933, as 100-1-1 and 100-3-1, respectively. By those decisions it was recognized that in the past neither the courts, the State Engineer's Office, nor the bar or public generally had construed those laws so as to cover this kind of water. The various opinions in view of this fact suggested various legislative changes in law. Accordingly, the legislature which was then in session, made *Page 413 the following amendments and additions to the laws. See Laws of Utah, 1935, pp. 195-200, c. 105:
Section 100-1-1, R.S.U. 1933, was amended to read as follows:
"All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof."
Section 100-3-1, R.S.U. 1933, was amended so as to contain the following:
"Rights to the use of the unappropriated public waters in this state may be acquired only as provided in this title. No appropriation of water may be made and no rights to the use thereof initiated and no notice of intent to appropriate shall be recognized except application for such appropriation first be made to the state engineer in the manner hereinafter provided, and not otherwise. * * *"
In addition to making amendments to the existing statutory provisions governing the procedure to be followed in appropriating unappropriated waters so as to expressly cover underground waters the following sections were added: Section 100-3-22, requiring every person boring or digging wells or tunnels for the purpose of appropriating underground waters to report the result thereof to the State Engineer Section 100-3-23, granted the right of replacement to any junior appropriator whose appropriation may diminish the quantity or injure the quality of the waters of a prior appropriator at the sole cost of the junior appropriator. And Section 100-5-12, requires all claimants to rights to use underground waters to file notice of such claims with the State Engineer within one year after the approval of that act.
Under these laws and decisions had plaintiff acquired the right to use the waters of his well prior to the time when the city's well was sunk in 1934? The evidence establishes that plaintiff's first well was drilled about 1907, which was four years after the enactment of the regulations for the appropriation of water in 1903. In Deseret *Page 414 Live Stock Co. v. Hooppiania, 66 Utah 25, 239 P. 479, section 34, supra, later Section 100-3-1, R.S.U. 1933, which provided that
"rights to the use of the unappropriated public water in the State may be acquired by appropriation, in the manner hereinafter provided, and not otherwise,"
was held to require that without compliance with the provisions of that act no person could acquire the right to the use of any of the public waters of this state, and that mere use of the waters without complying with the formal provisions of the 1903 law thereafter give the user no right thereto as against a later appropriator who complied with such provisions. This was a three to two decision written by Chief Justice Gideon and concurred in by Mr. Justice Cherry and by Mr. Justice Thurman who concurred in an extensive opinion, and wherein Justices Straup and Frick each dissented with an extensive opinion. If the law as decided in that case is governing here, then plaintiff acquired no right to the use of these waters because the city first made application to appropriate these waters with the State Engineer, and plaintiff as far as the record shows has made no such application.
However, in Wrathall v. Johnson, supra, Mr. Justice Moffat, in the prevailing opinion, concurred in by Mr. Justice Ephraim Hanson, and by Chief Justice Straup without comment on this point, said that the Hooppiania case was overruled. That case was decided on a demurrer and plaintiff's complaint expressly alleged that he had appropriated the water and applied it to a beneficial use prior to 1903, when the law governing appropriation of water was first enacted. It is conceded by everyone that prior to the enactment of that law the right to the use of the unappropriated public waters of this state could be acquired by appropriating them to a beneficial use without following any statutory procedure. So, in the Wrathall case, although the court purported to expressly overrule the Hooppiania case, that question was not before the court, *Page 415 but there can be little doubt that this expressed the views of a majority of the court as it was then constituted, since Mr. Justice Moffat relied on Chief Justice Straup's dissenting opinion in the Hooppiania case. At least twice since the Wrathall case we have stated without discussion the law to be in accordance with the decision in the Hooppiania case. Adams v.Portage Irr., Reservoir Power Co., 95 Utah 1, 72 P.2d 648;Smith v. Sanders, 112 Utah 517, 189 P.2d 701. The 1935 amendment to Section 100-3-1, R.S.U. 1933, enacted immediately after the Wrathall decision and undoubtedly with this holding in mind, leaves no doubt that thereafter no right to the use of the unappropriated public waters of this state can be acquired without complying with the statutory requirements.
As previously pointed out prior to the Wrathall case, the courts, legislature, bar and the public in general apparently understood that the law of 1903 prescribing the procedure to be followed in order to acquire the right to use unappropriated public waters of this state, did not apply to underground water basins. All of the opinions in that case recognized this fact. There was a complete absence in the statute of any provision making such laws applicable to the appropriation of underground waters. No reference whatever was therein made to wells, tunnels or other underground diverting works. Of course, the reason for this was that it was considered that the right to the use of such waters could not be acquired by appropriation and beneficial use. Immediately following that decision the legislature amended the old statutes and enacted new provisions which clearly showed that it intended from then on that in order to acquire the right to use underground waters those statutory provisions must be complied with. The statute was expressly made to cover the sinking or drilling of wells and tunnels, and required a report to the engineer of all such future activities. The legislature also required the filing within one year of a notice of all claims to the use of underground waters, and made the failure *Page 416 to do so prima facie evidence of an intention to abandon such claims. Laws of 1935, c. 105, Section 100-5-12. By making such requirement without expressly requiring that such claimants comply with all the provisions governing a new appropriation the legislature recognized that prior thereto the right to use such waters could be acquired by mere appropriation to a beneficial use without complying with the statutory requirements, and thus by implication validated all appropriations of underground waters made after the 1903 and prior to the 1935 law without compliance with laws governing appropriation where the claimants complied with the new law within the time provided therein.
The statutes of 1903 and those subsequent thereto regulating the procedure to be followed in appropriating public waters of this state, were made in order to make a record of the priorities of future appropriators, and of other facts which would aid in regulating the waters in the future. This was not a revenue measure, and the only interest of the state therein was to conserve and encourage the development and use of all the waters and insure a just and equitable distribution thereof among the appropriators. It is clear that the legislature did not intend, at the time of these enactments, that these statutory provisions should govern the appropriation of underground waters such as are involved in this case, because it did not understand that such waters could be appropriated. So it made no provision for such a procedure. Later this court held that such waters were subject to appropriation and then the legislature amended the provisions so as to provide for the appropriation of such waters. In the meantime many persons had appropriated such waters to a beneficial use, and no doubt such persons would have complied with the statutory regulations had the legislature made it clear that such was its intention. It would be a great injustice to hold that these people acquired no right to the use of such waters by appropriating them to a beneficial use, because they had failed to comply with statutory regulations which the legislature *Page 417 at that time did not intend that they should comply with, and the courts had held were not applicable to their case. No one has been harmed by their failure to comply with these regulations.
We do not have to determine whether the doctrine of the Hooppiania case is correct or not because here the facts are different. We, therefore, conclude and hold that the right to the use of underground waters which prior to the Wrathall case were not considered the subject of an appropriation, but which were therein held to be subject thereto, could be acquired prior to the 1935 enactments and amendments of our statutes on that subject by merely diverting such waters from their natural source and placing them to a beneficial use and that the plaintiff had, prior to the filing of the application of the city with the State Engineer, acquired a vested right to the use of the waters flowing from his well to the extent that he had placed them to a beneficial use as hereinbefore indicated, and that by filing his claim to such right to use such waters in accordance with the 1935 statute he has established that right with a priority dating from his first use.
The city argues that it is not liable to plaintiff for the added expense caused to him as the result of its drawing the water from the basin and thereby lowering the static head pressure. On a surface stream, if a subsequent appropriator were to lower the level of the water of a stream so that the size of the stream which was diverted into a prior appropriator's diverting works was greatly diminished, and he was thereby put to an additional expense in order to obtain his water, the subsequent appropriator would certainly be liable for the added expense which he caused to the prior appropriator. To that effect this court squarely held in Salt Lake City v. Gardner,39 Utah 30, 114 P. 147, 152. This case involved the waters of Utah Lake. Plaintiffs had previously appropriated all of the waters which flowed naturally out of that lake through the Jordan River, its only outlet, during the irrigation season and some water which had to be pumped therefrom. *Page 418 Defendants made application to appropriate 40 c.f.s. during the irrigation season of the unappropriated waters of the lake, which it proposed to take out of the lake by means of a pump when necessary, and which would thereby lower the level of the waters of the lake and lessen the quantity of water which would flow out of the lake by gravitation, and according to plaintiffs' claim would thus interfere with their prior right and cause them additional expense in obtaining their water. It was clear that there was much unappropriated waters in the lake which would not flow therefrom by gravitation. We allowed the application but required the applicants to stand all the expense resulting to plaintiffs from the removing of the additional water from the lake, in doing so we said:
"* * * If it be held, therefore, that a subsequent appropriator of water need have no regard for the diverting means or methods of the prior appropriator, but may in fact or effect make prior appropriations of water unavailable with umpunity, then there is in fact no such a right as a prior right, but all rights may, at any time, be invaded or destroyed by a subsequent appropriator by simply making the diverting means used by the prior appropriator useless. To permit such an invasion of a prior right would, in effect, amount to an indirect taking of a prior appropriator's water. This neither the legislative nor the judicial power can allow without permitting confiscation of property rights.
* * * * * "If all rights can be protected and preserved, a mere change in prior established means or methods of diversion, if possible, ought not to prevent the use of water which could otherwise not be beneficially applied. But, in our judgment, the risk of interfering with prior rights and the cost of any change in the prior appropriator's means or methods of diversion should be assumed and borne by the subsequent appropriator, and a court should in no case permit a subsequent appropriation unless all prior rights can by some feasible means be protected and maintained."
But it is said that the state is interested in the fullest conservation and highest development and utilization of all of its waters which is possible without endangering the supply. It is urged that if a subsequent appropriator in an artesian basin is required not only to lift his own water *Page 419 out of the basin but to pay the added expense caused to all prior appropriators by his well lowering the static head pressure of the basin waters then the cost to the subsequent appropriator will soon become prohibitive and the waters of the basin cannot be developed and utilized to the extent that they could be without depleting the supply. See Hutchins, Selected Problems in the Law of Water Rights in the West, 174-177.
The above author discusses the Utah law as enacted and amended in 1935 with other similar state laws. He suggested that it contemplates complete development of the waters of artesian basins under supervision of the State Engineer and after thorough investigation, that the system is new and unhampered by outmoded precedents and ancient rights, that each appropriator should make his appropriation with the understanding that his rights are subject to the static head pressure being lowered in the interest of serving the most people and that when it is he must stand the expense of bringing his own water to the surface, that only in that way can the greatest development of the waters of the basin be obtained.
Although the 1935 laws are comparatively new many of the water rights in artesian basins are of long standing. In the Horne case, the Wrathall case and the Justesen case, previously discussed, the plaintiffs in each case claimed a water right dating prior to the turn of the century. So the suggestion that all appropriators under this law would make their appropriations with notice that when and if it became necessary in the opinion of the State Engineer for the fullest utilization of these waters to lower the static head pressure of the basin then any appropriator would have to stand his own expense occasioned thereby is now impossible because these appropriators' rights were established many years before this law was enacted.
Our 1935 water laws did not contemplate that the rights of prior appropriators would be limited as above suggested. *Page 420 Section 100-3-23, Laws of 1935, now Section 100-3-23, U.C.A. 1943, provides that in cases of appropriation of underground waters,
"the right of replacement is hereby granted to any junior appropriator whose appropriation may diminish the quantity or injuriously affect the quality of appropriated underground water" but that "replacement shall be at the sole cost and expense of the applicant."
This clearly indicates the legislative policy that later appropriators shall stand all the expense which such appropriation causes to prior appropriators. The rights of the parties to this action accrued prior to the enactment of this law and are not governed thereby, but the legislative policy has persuasive force as to what is the correct rule to be followed.
The rule that the expense to a prior appropriator, caused by a subsequent appropriator's taking water from an artesian basin and thereby lowering the static head pressure, must be borne by the subsequent appropriator is not as bad as it may appear. While in general every well in a basin tends to lower the static head pressure of every other well in the basin still the direct effect of one well on another is only traceable within a cone of influence, and even within that limit there are often obstructions which prevent one well from affecting another. In many cases there is difficulty in determining that the later well does affect the flow in the prior one and that problem becomes more complicated where there are many wells in the same basin, but that is merely a question of proof, and the prior appropriator cannot succeed against the subsequent one unless he can prove his case. Even if it were shown that more water would be used if each appropriator were required to stand the expense of lifting his water to the surface regardless of priority, and no such showing has been made in this case, still that would be no reason to allow a subsequent appropriator to deprive the prior appropriator of his right to use the water as long as his method of diversion was a reasonably efficient one. *Page 421
On the other hand, the suggested rule that each appropriator bear the expense of lifting his water to the surface regardless of his priority, may be disastrous to the prior appropriator. This is illustrated by the three cases from this court involving artesian basins. We refer to the Horne case, Wrathall case and the Justesen case. In each of those cases as in the present one, small home owners had discovered the basin and developed flowing wells therefrom, and many years later a large industrial concern, and in this case the city, which could realize a greater profit from the water than could the original appropriators, sank large wells, into the basins and began pumping large quantities of the waters out, thereby threatening to cut off the entire supply of the prior appropriators. If the rule prevails that each appropriator must pay his added costs of bringing the water to the surface caused by subsequent appropriators lowering the static head pressure, then in many cases subsequent appropriators may draw the water out of the basin so that the static head pressure is so low that the cost of bringing the water to the surface is prohibitive to the prior appropriator, and then the subsequent appropriator will be able to obtain all the water from the prior appropriator without paying a cent therefor. In each of our previous cases the court intervened to prevent such a result. Such a rule gives proper reward to the person who first discovers and develops the water and stabilizes his right, and is in harmony with the long established policy of this state that a later appropriation may not interfere with the use of water by a prior appropriation in the manner he has become accustomed to use such waters.
That the subsequent appropriator must bear the added expense of bringing a prior appropriator's water to the surface caused by the removal of water from an artesian basin by the subsequent appropriator is squarely decided in other western states. SeePima Farms Co. v. Proctor, 30 Ariz. 96, 245 P. 369; Noh v.Stoner, 53 Idaho 651, 26 P.2d 1112; City of Lodi v. East BayMunicipal Utility *Page 422 District, 7 Cal. 2d 316, 60 P.2d 439. Except that all of the wells required a pump to bring the water to the surface, and the plaintiffs in those cases asked for an obtained injunctive relief, unless and until the defendant made plaintiff's water available to him at defendant's expense, those cases are not distinguishable from our case.
This is in harmony with the well established rule as to surface waters as pointed out in the Salt Lake City v. Gardner case, supra. As to surface waters, no one has ever seriously made the claim that a subsequent appropriator could deprive a prior appropriator of his water through the means of diversion which he established and make him pay an additional expense to get the water by a different means of diversion. In Little CottonwoodWater Co. v. Kimball, 76 Utah 243, 289 P. 116, we allowed an application to appropriate water, where the appropriator contemplated piping the waters of a stream from the place of diversion to the place of use and thereby saving a loss of water through seepage and evaporation and absorption by plant life. But there the applicant did not even claim that he had the right to require the prior appropriator to pay the cost of that water saving.
We conclude that the waters of artesian basins are subject to appropriation in this state and that the first appropriator obtains a prior right to the use of such waters over subsequent appropriators, and that includes his means of diversion as long as such means are reasonably efficient and do not unreasonably waste water. It follows that where a subsequent appropriator draws a sufficient quantity of water out of an artesian basin to lower the static head pressure of a prior appropriator's well so that additional costs are required to lift sufficient water from his well to satisfy his previously established beneficial use of such waters, the subsequent appropriator must bear the additional expense.
Here the evidence shows that only a small portion of the waters which came to the surface through plaintiff's *Page 423 well when the ram was operating was lifted into the tank and used thereafter by him. The lift into the tank was about 32 feet and was accomplished through a ram by means of a 5 foot drop from the well. If the ram were one hundred per cent efficient it would require between 86 and 87 per cent of the water to lift between 13 and 14 per cent thereof into the tank. There was expert testimony to the effect that good rams have an inefficiency of about 17 per cent or more. So it is improbable that this ram would lift more than about 10 per cent of the water used in that process into the tank, the rest of that water would drain out into a ditch and thereafter would serve no further useful purpose to plaintiff. The ram was not always operated because at times the water was used for other purposes which did not require it to be lifted into the tank. The evidence showed that when the city pump was operating, the flow in plaintiff's well was reduced to a point where there was not sufficient volume to operate the ram and therefore plaintiff could not get his water into the tank to satisfy his requirements. It is not shown that there was not sufficient quantity of water to satisfy his requirements had the water which did flow naturally from his well been lifted into the tank.
During the time when the ram was in operation about 90 per cent of the flow of water of plaintiff's well was wasted, or not used for domestic or agricultural purposes. The only use made of such water was for the power purpose of lifting the other water into the tank. Under section 100-3-21, U.C.A. 1943, in times of scarcity the use of water for domestic and agricultural purposes are given a priority over the use for other purposes. In this state we recognize the importance that all water shall be used most beneficially and economically and that none shall be wasted.Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213,174 P.2d 148, 172 A.L.R. 175. Usually, however, where an improvement is made in a system to save water the one who obtains the right to use the water saved thereby must *Page 424 pay for the improvement. Little Cottonwood Water Co. v.Kimball, supra. But here we do not have to determine whether water can be used for power purposes when others who need its use for domestic or agricultural use must go without, nor whether a person will be allowed to waste water by an inefficient system which deprives others of the use of such wasted water. Here both parties did obtain sufficient water to satisfy their requirements and the ram was still used and operated after the pump was installed. But plaintiff claims to have been put to additional expense because of the operation of the city pump.
Plaintiff was allowed damages to cover the purchase price of a pump and electric motor, and the cost of the electricity to operate during the time that the city pump was operating in 1934. The only time that the operation of the city pump ever interfered with the natural flow of plaintiff's well sufficiently to require him to use this pump on that account was during 1934, still since that time and up to the time of trial in May 1947, a period of more than 12 years, the plaintiff has used and operated his pump to deliver his water, and has incurred the expense of furnishing electric power and has replaced the motor once in the meantime. In view of this fact, this pump must have some further utility in delivering the plaintiff's water than merely to overcome the effect of the operation of the city pump on the flow of his well because he admitted that no such effect had occurred since 1934, yet he has continued to operate his pump and pay the expense of operation and upkeep thereon up to the time of the trial. In other words, he asks the city to pay for an improvement installed in his system which he has used over a period of about 13 years, although the city's pumping affected the flow of his well for a period of only a few months. Under these circumstances he is not entitled to recover. The judgment of the lower court is reversed with directions to dismiss the action. Costs to appellant.
McDONOUGH, J., concurs. *Page 425