Dissenting. — The principal opinion holds that the water involved in this case is the private water of appellant as distinguished from public water of the state. If the water was private property of appellant, it could not be impressed with a public use and subjected to the jurisdiction of the Utilities Commission without the consent of appellant, express or implied, for to do so would be to take its property without due process of law. From an examination of the record, I am unable to conclude that appellant intentionally dedicated the water to a public use. If, on the other hand, the water is public water of the state appellant’s right thereto is usufructuary only and appellant cannot claim a vested right freed from the limitations and conditions under which the right may be exercised.
*313The evidence submitted to the commission does not disclose whether the source of the water supply is a subterranean stream, or a basin or an underground lake, or water* percolating through the soil. If the source of supply is an, underground stream or a lake, it is thought that there can be no doubt but that it is public water and subject to the same rules of appropriation as surface water. If appellant’s wells are fed by percolating water, the result should be the same.
Under the common law of England, water percolating through the soil belongs to the owner of the soil, following the doctrine expressed in the maxim, “Gujus est solum, ejus est usque ad inferos.”
In many of the states the doctrine above referred to has been applied and carried to its logical conclusion. (Chatfield v. Wilson, 28 Vt. 49; Greenleaf v. Francis, 18 Pick. (Mass.) 117; Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721; Wheelock v. Jacobs, 70 Vt. 162, 67 Am. St. 659, 40 Atl. 41; Huber v. Merkel, 117 Wis. 355, 98 Am. St. 933, 94 N. W. 354, 62 L. R. A. 559; Houston & Texas Cent. R. Co. v. East, 98 Tex. 146, 107 Am. St. 620, 4 Ann. Cas. 827, 81 S. W. 279, 66 L. R. A. 738.) In other jurisdictions, what is known as correlative or reciprocal rights in underground water has been recognized. (Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179; Meeker v. City of East Orange, 77 N. J. L. 623, 134 Am. St. 798, 74 Atl. 379, 25 L. R. A., N. S., 465; Hathorn v. Natural Carbonic Gas Co., 194 N. Y. 326, 128 Am. St. 555, 16 Ann. Cas. 989, 87 N. E. 504, 23 L. R. A., N. S., 436; Schenk v. Ann Arbor, 196 Mich. 75, Ann. Cas. 1918E, 267, 163 N. W. 109, L. R. A. 1917F, 684; Pence v. Carney, 58 W. Va. 296, 112 Am. St. 963, 52 S. E. 702, 6 L. R. A., N. S., 266; Debok v. Doak, 188 Iowa, 597, 176 N. W. 631. See, also, 27 R. C. L., p. 1174.)
The question was presented to the supreme court of California in the case of Katz v. Wilkinshaw, 141 Cal. 116, 99 Am. St. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, which has become a leading ease among the western states. *314In that case it was decided that, “the geological formation of the land, its topographical characteristics, and the aridity of the climate produced conditions so different from those of the countries from which our common-law rules were derived, that the well-known rule that the ownership of the soil in fee gave absolute title to all beneath the surface, including such subterranean water supplies, was held unsuitable to our conditions.” (Article by Chief Justice Shaw, California Law Review, September 1922, p. 459.) But the decision rests fundamentally upon 'the doctrine of the common law that percolating water is part of the soil and the property of the owner of the soil, though in a qualified sense. The qualification consisted in applying the maxim, “Sic utere tuo ut alienum non laedas,” and therefore the owner of the soil was limited to a reasonable use of the water which was recognized as his property. This case was adopted as authoritative by the supreme court of Utah in the case of Home v. Utah Oil Refining Co. (Utah), 202 Pac. 815. The theory of correlative rights is very similar to that which governs the rights of riparian owners.
In the case of Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674, it was held that the adoption of the common law by that state had carried with it the law of riparian rights, which when they became vested could not be interfered with, except upon due compensation. In that state, and in several other western states, the doctrine of riparian rights has been maintained and enforced in connection with the antagonistic doctrine of water rights founded upon appropriation, which is generally known as the Colorado system. Idaho, early in- its history, adopted the Colorado system. (Drake v. Earhart, 2 Ida. 750, 23 Pac. 541.) The rights of a riparian owner always yield to the rights of an appropriator whenever they come in conflict. (Hutchinson v. Watson Slough Ditch Co., 16 Ida. 484, 133 Am. St. 125, 101 Pac. 1059; Schodde v. Twin Falls Land & Water Co., 224 U. S. 107, 32 Sup. Ct. 470, 56 L. ed. 686.)
*315The doctrine of correlative or reciprocal rights in percolating water, being based upon the recognition of a qualified ownership in the water underneath the soil, is fraught with some difficulties which appeal to the minds of those accustomed to follow the principles of the Colorado system. In connection with this system, and as a necessary concomitant thereto, arose the principle of first in time first in right. Under the theory of correlative rights one may, under certain circumstances, improve his own land to the detriment or destruction of the crops, trees and shrubbery of an adjacent proprietor, although the use of the adjacent proprietor may have been long prior in time. (Hudson v. Dailey, 156 Cal. 617, 105 Pac. 748; Burr v. Maclay Co., 154 Cal. 428, 98 Pac. 260.) It would also seem to follow logically that a person who had developed a supply of water, fed from subterranean percolation upon unoccupied lands, at great expense and carried the same to distant lands and applied it to a benficial use, could be deprived of a portion or perhaps all of his source of supply by subsequent locators upon the adjoining lands who make a reasonable use of the percolating water. In the Utah case of Horne v. Utah Refining Co., supra, it is not difficult to imagine a condition under which the first users of the water who had applied it to the growing of trees and shrubbery on their property for 25 or 30 years might be lawfully deprived of the use of the water or put to a great additional expense in raising it to the surface, if the right to the use of the water is fundamentally based upon the recognition of the ownership thereof, rather than upon that growing out of their right of appropriation.
The climatic and other conditions of the state of Idaho, particularly the southern portion thereof, in common with that of many other western states, are similar to those obtaining in the state of California. The reasons for declining to apply the rules of the common law are fully as cogent here as there. It is submitted that these reasons are so powerful that it requires the repudiation of the prin*316eiple of ownership in percolating water by the proprietor of the soil.
Acton v. Blundell, 12 Mees. & W. 354, seems to be the case in which the common-law doctrine was first stated. In that case the question, which was said to be one of equal novelty and importance, was stated as follows: “Whether the right to the enjoyment of an underground spring, or of a well supplied by such underground spring, is governed by the same rule of law as that which applies to, and regulates a watercourse flowing on the surface.” It was stated that, considering the grounds and the origin of the law which was held to govern running streams and the consequences which would result if the same law was made applicable to springs beneath the surface, there is a marked and substantial difference beteen the two cases and that they are not to be governed by the same rule of law. It was further stated that the rights enjoyed by the proprietor of land over which running streams flow is and always has been public and notorious; but in the ease of a well sunk by a proprietor on his own land, the water which feeds it from his neighbor’s soil does not flow openly in the sight of the neighboring proprietor, but through hidden veins in the earth beneath its surface. No man can tell what changes these underground sources have undergone in the progress of time, and no proprietor knows what portion of the water is taken from beneath his own soil, how much he gives originally, how much he transmits only, or how much he receives. The court further considered the consequences resulting if the same laws were to be applied to surface water and percolating water, reaching the conclusion that such results would be very serious. The final conclusion was as follows: “Confining ourselves strictly to the facts stated in the bill of exceptions, we think the present case, for the reasons above given, is not to be governed by the law which applies to rivers and flowing streams, but that it rather falls within that principle which gives to the owner of the soil all that lies beneath its surface.” It thus appears that the principle was not applied *317because of any inherent quality in the thing itself, but because of expediency in view of conditions existing in England at the time. Following the same method of reasoning, the considerations which furnished the grounds for the decision in that case lose their persuasive force when applied to the conditions existing in this state, where beneficial use of all available water is necessary to its fullest development.
Owing to the conditions in this state, full recognition should be given to the doctrine that all the water within its borders which is found where nature places it is the property of and under the control of the state wherever found, whether running in well-defined streams above or below the surface of the ground or percolating through the soil, and is subject to appropriation whenever capable of being devoted to a beneficial use, except where prohibited by statute. The decisions of this court have been in accordance with this principle. (See Le Quime v. Chambers, 15 Ida. 405, 98 Pac. 415, 21 L. R. A., N. S., 76; Josslyn v. Daly, 15 Ida. 137, 96 Pac. 568.) In the case of Bower v. Moorman, 27 Ida. 162, Ann. Cas. 1917C, 99, 147 Pac. 496, it is said: “In the case of Le Quime v. Chambers, 15 Ida. 405, 98 Pac. 415, 21 L. R. A., N. S., 76, the court says in effect, that percolating water is subject to appropriation under our statute, and as such will be recognized and protected by the courts.”
The decision in the case of Newport Water Co. v. Kellogg, 31 Ida. 574, 174 Pac. 602, was based upon the assumption that a prior appropriation of percolating water was entitled to protection.
The constitution does not contain a direct declaration that all water of the state is public water and subject to its control. It does declare, however, that “The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a *318public use, and subject to the regulation and control of the state in the manner prescribed by law.” (Const., art. 15, see. 1.) Also, “The right to collect rates or compensation for the use of water supplied to any county, city, ór town, or water district, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law.” (Const., art. 15, sec. 2.) And further: “The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied.” (Const., art. 15; sec. 3.) This provision is a limitation upon the power of the legislature and should not be construed to contain a renunciation by the state of its control over any of the waters therein.
O. S., see. 5556, contains the following: “All waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of any of the waters of the state for useful or beneficial purposes is recognized and confirmed; . ”
C. S., see. 5562, is as follows: “All ditches now constructed or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state, shall be governed by the same laws relating to priority of right as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams.”
C. S., sec. 5572, is as follows: “The department of reclamation is hereby prohibited from issuing or granting permits to divert or appropriate the waters of any lake not exceeding five acres in surface area at high water mark, pond, pool or spring in this state, which is located or situated wholly or entirely upon the lands of a person or corporation, except to the person or corporation owning said land, or wdth his or its written permission, executed and acknowledged as required for the conveyance of real estate.”
*319The prohibition contained in the foregoing section is within the legislative discretion. It is not a recognition of the private ownership of the waters therein mentioned. It rather proceeds upon the theory that such waters are subject to the control of the state, but .for reasons of policy, their appropriation, without the consent of the owner of the land on which they are situated, is prohibited.
The recognition of the dominion of the state over all the water within its borders is not obnoxious to the due process clause of the federal constitution. Control by the state of the waters within its boundaries appears to have been recognized as one of its proper functions wherever the rights of navigation are not involved. (United States v. Rio Grcmde Irr. Co., 174 U. S. 690, 19 Sup. Ct. 770, 43 L. ed. 1136; Clark v. Nash, 198 U. S. 361, 4 Ann. Cas. 1171, 25 Sup. Ct. 676, 49 L. ed. 1085; Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. ed. 956; Producers Oil Co. v. Hanzen, 238 U. S. 325, 35 Sup. Ct. 755, 59 L. ed. 1330; Mettler v. Ames Realty Co., 61 Mont. 152, 201 Pac. 702; Basey v. Gallagher, 20 Wall. 670, 22 L. ed. 452; Boquillas Land & C. Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct, 493, 53 L. ed. 822.)
No distinction can be made on account of the temperature of the water, nor on account of the fact that it is chiefly used for heating purposes. 'The heating of dwelling-houses is certainly a beneficial use, and comes within the definition of domestic purposes found in C. S., sec. 5566, which is as follows: “The phrase ‘domestic purposes’ as contained in this title shall be construed to include water for the household, and a sufficient amount for the use of domestic animals kept with and for the use of the household.”
If the foregoing propositions are well founded, it follows that the appellant when it sank its wells and developed and diverted the subterranean water upon ■ its property, even though its source was due to percolation, appropriated it, and when it began to sell, rent or distribute the same for compensation it devoted it to a use which the constitution *320declares to be a public use and subject to regulation and control of the state in the manner prescribed by law.
The further question remains as to whether the legislature has provided for the regulation, by the Public Utilities. Commission, of that portion of appellant’s water which is sold, rented or distributed.
By C. S., sec. 2396, the term “public utility” includes a “water corporation.” C. S., see. 2392, defines a water corporation as follows: “The term water corporation when used in this chapter includes every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any water system for compensation within this state.” C. S., sec. 2391, defines the term “water system.” The definition is very broad, and would include the various irrigation systems of the state. The section, however, specifically excludes Carey Act projects from the definition. C. S., sec. 2517, makes it the duty of the Commission to enforce the statutes relating to public utilities, the enforcement of which is not specifically invested in some other officer or tribunal. C. S., see. 5641, provides for the fixing of rates by Boards of County Commissioners for the use of water for irrigation or other beneficial purposes from any ditch, canal or conduit. Though the provisions of this section when read alone would seem to be broad enough to include the system of appellant, a reference to C. S., sec. 5643, shows that the jurisdiction of Boards of County Commissioners was intended to be limited to ditches or other works conducting water for irrigation of lands. While the Department of Reclamation is given power to supervise water distribution by C. S., sec. 5606, it is clear that the jurisdiction of this department does not extend to the system of appellant. Appellant’s system is therefore by law made subject to the control of the Public Utilities Commission under C. S., see. 2517.