I respectfully dissent.
This is an outpost skirmish over the waters of the Carrizo sand. Here we hold that a distant city, after purchasing a few acres of land upon which it drills four big artesian wells, can flow ten million gallons of water a day into a stream from which (under the evidence and the finding of the trial court) it recovers only about twenty five per cent of the artesian water. In doing this it can disregard any injury to or effect upon the wells of other property owners drawing water from a common reservoir to irrigate local farms and to supply local communities. To me this seems obviously unjust and a bad situation. The majority feel compelled to this result by the belief that the problem is primarily legislative. It is indeed commendable for a court to impose upon itself a rigid self control in refusing to trespass upon the legislative function, but I do not believe the courts to be impotent in preventing such a waste and especially so when existing legislation properly construed against the common-law background would prevent it.
Just as a court could not command one end of a seesaw not to move when the other end moves, it cannot by fiat make uncor-relative that which in physical nature is in fact correlative. The result actually reached by the court is to give to one person the unrestrained right to injure his neighbor. I have this to say about reaffirming the rationale of the East case, Frazier v. Brown, and Acton v. Blundell. These cases were decided (1843-1904) before the development of most of our present knowledge of geology and hydrology and there has been a great advance in knowledge since these decisions. In the East case the court takes its rationale from Frazier v. Brown which is, essentially, that, (one) the movement of underground waters “are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would, therefore, be practically impossible”, and (two) “ ‘ * * * Because any such recognition of correlative rights would interfere, to the material detriment of the commonwealth, with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building, and the general progress of improvement in works of embellishment and utility.’ ”
This dire prediction — like much prophecy —overlooked the possibility of advance in knowledge and technique. It is understandable that this rationale should appeal to this court in 1904 but I regret to see us reaffirm it now, as the majority does, in 1955 — especially in view of the development since 1904 of our comprehensive knowledge and experience in oil and gas regulation.
I am convinced that the rationale of Frazier v. Brown has been rebutted and answered by the course of our history and the entire trend of our jurisprudence since that decision and since the East case. Although this court can close its eyes to the advancement of scientific and legal knowledge and governmental techniques by reaffirming this rationale as the majority do here, I do not believe that this court will always do so, and for that reason the substance of this dissent seems worth filing.
Prior to the passage of Art. 7602, R.C.S. 1925, a landowner could not produce water from an artesian well and then waste it to the detriment and injury of his neighbors without being answerable through injunction. Although the majority recognize that one of the limitations upon a well owner even then was that he could not willfully waste the water, it assumes that prior to Art. 7602 a well owner could use a natural *806stream bed for transporting water, irrespective of the waste involved. I doubt this interpretation of the law. Although the adoption in 1917 of the Conservation Amendment to the State Constitution undoubtedly-broadened the State’s governmental powers to conserve natural resources, it does not follow that before its adoption one property owner in a common reservoir could not have enjoined a waste of water which was damaging him, irrespective of the State’s governmental power to conserve its natural resources.
Therefore, it seems fundamental that once plaintiffs establish waste and consequent injury to themselves, they would have had an action without the Constitutional Amendment adopted in 1917 and without regard to Art, 7602 unless this statute gives defendant permission to flow the water down the river and lose seventy five per cent en route.
I grant that it is within the province of the Legislature to define or redefine waste. I grant that common-law waste which might have been prevented by injunction prior to the adoption of Art. 76ÍD2 might become a permissive use after its adoption even though another property owner be injured — at least, as in the case at bar, if the injury did not amount to a complete taking of the property of another. This being true, Art. 7602 is valid legislation even though it makes permissive what was theretofore waste. But we are not required to construe a statute contrary to its spirit and intent. Here a statute intended to define and prohibit waste is construed so as to make a tremendous waste possible. Here the construction given by the majority actually nullifies the prohibitory aspect of the statute.
The movement of water from the ocean through clouds to fall on land as rain and its trip back to the ocean is called the hydrological cycle. It is not within the power of man to destroy water in any appreciable quantities but only to divert and control water as it flows toward the ocean. Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 17 P.2d 1074, 89 A.L.R. 200. For this reason, the legal term waste does not mean the destruction of water but rather its escape from beneficial use. Art. 7476, R.C.S. 1925. See also Pecos Valley Artesian Conservancy Dist. v. Peters, 50 N.M. 165, 173 P.2d 490. It is an illegal handling or abandonment by the person charged with waste. Gallio v. Ryan, 52 Nev. 330, 286 P. 963; Oliver v. Skinner, 190 Or. 423, 226 P.2d 507.
Here the trial court has found that under the facts of this case the transportation of water by flowing it down a stream bed is wasteful. The proof established that the purpose of pumping the wells is to obtain water for use in the City of Corpus Christi. It is released into the stream only for the purpose of transportation. Obviously, that portion of the water lost en route is not being put to a use which would be “lawful on the premises of the owner of such well” if this amounts in law to waste.
By Art. 7602 the Legislature defined waste of artesian water as permitting it to run into a natural water course unless “it be used for the purposes and in the manner” it might lawfully be used on the premises of the owner. The use referred to must mean the use at the other end of the journey through the natural water course. Otherwise the statute is meaningless, for it would serve no purpose to prohibit running arte-sian water into a natural water course and then turn around and say that this in and of itself constitutes a lawful use. So for the statute to mean anything at all, the exception must refer to the water course as an instrument for transporting water comparable to a canal. Although the Legislature probably contemplated that some water might be lost in transit, it would nullify the prohibition to hold that it all might be lost in transit. If all of the water were lost in transit and none of it reached its destination, then the prohibition of Art. 7602 would apply as a matter of law. If all of the water from defendants’ wells reached its destination and was there put to a use “lawful on the premises of the owner of such well”, then defendants as a matter of law would be within the exception to the statute, and plaintiff could not complain. The question of whether under Art. 7602 too much water *807is lost to the City’s use and purpose by this method of transportation is one upon which reasonable minds could differ, and therefore one of fact. Although defendants offer evidence that most of the water reached its destination, plaintiff offered evidence that at certain times only 26% of the water pumped into the river reached its destination and that at other times only 37% reached its destination.1 Art. 7602 was enacted to prevent and not to license waste. I could not hold as a matter of law that flowing the wells into a natural water course in the case at bar is not waste as defined in Art. 7602. In view of the fact finding of waste, it is not necessary to the decision of this case to hold that as a matter of law it is wasteful. We should hold that the trial court’s finding of waste has support in the evidence.
The city contends that even so it costs less money to flow water down this stream bed than it would to construct a conduit, and, in effect, its method of transportation is the most economical. But Section 59(a) of Art. XVI of the Texas Constitution enjoins the conservation of our natural resources and is not primarily concerned with the conservation of the money of one exploiting a natural resource. State v. Jarmon, Tex.Civ.App., 25 S.W.2d 936, wr. er. dism. While the balancing of financial advantage and disadvantage might be a factor to be considered in selecting a method of transporting water, it cannot be a controlling factor in determining the waste prohibited by both Art. 7602 and Section 59(a), Art. XVI, Texas Constitution.
Defendants contend that since the District’s production methods are not attacked as wasteful and since it owns the water, the use after production cannot be regulated by Art. 7602 and consequently the use of the water after production is of no concern to the plaintiffs, citing Houston & T. C. R. Co. v. East, 98 Tex. 146, 81 S.W. 279, 66 L.R.A. 738. They overlook the fact that the tremendous waste after production from the ground makes necessary a much heavier flow from the wells.
Section 59(a), Art. XVI, Texas Constitution (making the preservation and conservation of natural resources, including water, “public rights and duties”) contains no language permitting the waste of a natural resource after production. The use of all property, including property rights in water, is subject to the general police power of a state. Hudson County Water Co. v. McCarter, 1908, 209 U.S. 349, 28 S.Ct. 529, 52 L.Ed. 828; Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475. The State’s power to conserve its natural resources through the creation of entities such as defendant district and the passage of legislation such as Art. 7602 is not limited to the production processes, but extends to the use after production. Ohio Oil Co. v. Indiana, 1900, 177 U.S. 190, 20 S.Ct. 576, 44 L.Ed. 729; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276; Hathorn v. Natural Carbonic Gas Co., 1909, 194 N.Y. 326, 87 N.E. 504, 23 L.R.A.,N.S., 436; People v. New York Carbonic Acid Gas Co., 1909, 196 N.Y. 421, 90 N.E. 441; Ex parte Elam, 1907, 6 Cal.App. 233, 91 P. 811; Eccles v. Ditto, 1917, 23 N.M. 238, 167 P. 726, L.R.A. 1918B 126.
The defendant district was itself created to carry out the State’s conservation policy. The Act creating the defendant district states that it is created “Under and pursuant to the provisions of Article 16, Section 59 of the Constitution”. It specifically provides that this district shall have the power and duties of a Water Control and *808Improvement District and it specifically incorporates by reference Chapter 25, Acts 1925, 39th Legislature, Title 128, Chapter 3a of Vernon’s Civil Statutes. The district's contention here that it can waste water after production from the water-bearing strata is in the very teeth of the Act creating it.
Plaintiffs and defendant district each have substantially the same property interest in the water under their land. The proof supports a finding of fact that their lands overlie a common reservoir and that the quantities of water drawn out by the defendants have materially and adversely affected neighboring wells. Defendants contend that the water taken from the reservoir through the four wells has not decreased the quantity of water taken from other wells in the same reservoir, and this seems to be true. However, there is proof that the flowing of the defendants’ wells causes an inverse pressure cone which in turn results in lowering the level at which water stands in the other wells, with a consequent increase in the cost of lifting the water and other operating cost.
Although the East case was decided in 1904 before the adoption in 1917 of Section 59 of Article XVI, Texas Constitution, the court even then specifically pointed out that there was no claim of waste before it. The court said [98 Tex. 146, 81 S.W. 281] :
“ * * * The defendant here is making a reasonable and legitimate use of the water which it takes from its own land, which use is not, in quality, different from, or in its consequences to plaintiff more injurious than, many upheld in the decisions. There is no claim of malice or wanton conduct of any character, and the effect to be given to such a fact when it exists is beside the present inquiry. * * * ”
It is now long settled that under the power to conserve its natural resources, a state may prevent waste of a natural resource contained in a common reservoir where the reservoir is split into different ownership segments. Also, one such owner may prevent another from wastefully destroying or damaging his property. Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136, 78 A.L.R. 826; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510; Brown v. Humble Oil & Ref. Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393; Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961; Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 4 A.L.R.2d 191; Stillwater Water Co. v. Farmer, 1903, 89 Minn. 58, 93 N.W. 907, 60 L.R.A. 875; Barclay v. Abraham, 1903, 121 Iowa 619, 96 N.W. 1080, 64 L.R.A. 255. For due process of law requires that property be protected against destruction or damage. The general prohibition contained in Article 7602, R.C.S.1925, against the waste of artesian water carries out the conservation policy of the State established by Section 59(a) of Article XVI of the Texas Constitution, and is in harmony with the definition of waste contained in Section A(6) of Article 7880-3c, R.C.S., Vernon’s Ann.Civ.St.
In the field of water law, there is no consolation to be found in the law of capture. Of what value would it be to the plaintiffs to offset defendants’ wells and produce an enormous amount of water for which they have no use? This would further deplete the reservoir, reduce the pressure, and lower the standing level with consequent increase of pumping expense. Why further injure their own wells? To refer them to the law of capture in this situation is simply to say that one who has been injured may go and inflict a like injury upon his neighbor. If the law of capture has any true application to underground water, it is an extremely limited one. No one can live in a vacuum. Therefore all property rights are, to a certain extent, correlative. For this reason, I do not feel that there is any true distinction between an “absolute” and a “correlative” theory of property in artesian water. The theory, discussed in some cases and mentioned by the majority, that artesian water can be used only upon the land from which it is produced has no application at all to the problem at bar. It is not the contention of plaintiffs that artesian water can *809only be used on the land from which it is produced. It is their contention that arte-sian water cannot be wasted when to do so injures a neighbor. In my opinion Art. 7602 when properly construed does not make permissive such a waste and injury, and the construction here adopted by the majority in effect nullifies the statute. I would affirpi the judgments of the trial court and the Court of Civil Appeals.
CULVER, J., joins in this opinion.. In an Amicus Curiae brief filed by the High Plains Underground Water Conservation Dist. No. 1 is the following statement:
“The High Plains district is attempting to educate the water users of its district that very substantial amounts of their water are wasted when water is run down an open ditcb from the well to the point of beneficial use and then out into another open ditch, gully, or bar ditch after its use. In addition to the large amounts which are simply abandoned, substantial portions of the water are lost through evaporation, transpiration, and seepage.”