(concurring in part and dissenting in part).
*241I am compelled to dissent from the conclusion reached in the majority opinion in disposing of plaintiffs’ asserted first cause of action. The majority opinion, insofar as it treats of the first cause of action, in my judgment is entirely obiter dicta (not upon the point or question in issue), which I shall endeavor to demonstrate.
The majority, relying on our previous decisions with which I have no quarrel, has presumed that subsurface waters are percolating waters which assumption is of course rebuttable. Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co., 1931, 39 Ariz. 65, 4 P.2d 369. Plaintiffs assumed, in their opening brief, in the first two assignments of error, that the waters in question were percolating waters. Counsel for plaintiffs, in referring to their first cause of action said: “The first cause of action does not pose a question as to who has the better right between adjoining owners, both of whom are pumping percolating water and using the water to develop their respective lands. It does, however, we believe, present squarely to this court the proposition that the pumper of percolating water cannot transport such percolating water to some other locality where there would be no opportunity for it to return and replenish the common supply available to the owners of both tracts of land.” (Emphasis supplied.)
Counsel for plaintiffs then says: “Since the appeal is based entirely upon the sufficiency of appellants’ complaint, reference is made to the complaint itself.”
It is thus seen that counsel’s interpretation of his own complaint was that he had stated a cause of action predicated upon either the “reasonable use” or “correlative rights” doctrine.
Amici curiae, Messrs. Moore and Romley, who represent none of the parties in this case, appraise the positions of the parties of record as follows: “The Common Law is urged by the appellees, correlative rights theory, embellished by some of the principles of the law of appropriation by appellant; zvhile we, as amici curiae, suggest the law of prior appropriation as the true rule.” (Emphasis supplied.)
The plaintiffs, in their reply brief, complain of the position taken by the defendants (appellees) as follows: “Appellees’ brief seeks to narrow the choices presented to this court between the extreme English common law rule and the correlative rights doctrine. * * * ” and assert that the appellees say: “Appellees agree with appellants’ original contention that percolating zvater is the property of the soil. We believe that this is the settled law in the United States.” (Emphasis supplied.)
The appellants (plaintiffs) say: “That is precisely the position of appellants in this action and that position is reflected in the complaint. They own their land, they have sunk wells and used the water therefrom for domestic purposes for a long period of *242time prior to any action taken by appellees. If appellees own their percolating' water appellants likewise own theirs and the cases cited by counsel so hold. ■* * *” (Emphasis supplied.)
Counsel for plaintiffs then proceeds by recognizing and arguing that the rights of both of the parties are vested in the law of percolating water. His argument is that the court should modify its position and relax the strict English rule relating to percolating waters by apportioning their rights to a reasonable use thereof. At this juncture, I think it advisable to more clearly state the issues as made by the pleadings, and particularly by the assignments of error.
Plaintiffs’ first two assignments of error are addressed to their first cause of action. The first assignment assigns as error the granting of appellees’ motion to dismiss the complaint, and reads as follows: “The Court erred in granting appellees’ Motions to Dismiss the First Cause of Action of the Complaint, under date of November 14, 1949, for the reason that the First Cause of Action states a valid claim for relief against appellees, since the owner of land overlying a supply of percolating water common to adjoining land owners may not pump the water from wells upon his land and convey it to other lands, for the benefit of those lands, from whence it does not return to replenish the common supply, if such supply available to the adjoining land owners from pumps upon their lands drawing water from such common supply, is diminished to their injury.” (Emphasis supplied.)
The second assignment assigns as error the entry of the final judgment dismissing the first cause of action, the specification of error being in the identical words of the first assignment of error. One proposition of law, reading as follows, is offered in support of these two assignments. I quote: “The owner of land overlying a supply of percolating water common to adjoining land owners may not pump the water from wells upon his land and convey it to other lands for the benefit of those lands, from whence it does not return to replenish the common supply, if the supply available to the adjoining land owners from pumps upon their lands drawing water from such common supply, is diminished to their in-j ury.”
In my judgment, the only issue before the trial court was whether the owner of land overlying a supply of percolating water common to adjoining land owners may pump the water from wells upon his land and convey it to other lands for the benefit of the latter from whence it does not return to replenish the common supply, if the supply available to the adjoining land owners from pumps upon their lands drawing water therefrom is diminished to their injury. These are the issues made by the parties before this court.
Amici curiae, Jennings, Strouss, Salmon and Trask, in their appraisal of the issues *243made by the pleadings of the parties and the record on appeal, state: “Plaintiffs and defendants in this action seem to concede that this State is committed to one doctrine or the other (i. e., ‘the strict common law doctrine’ or ‘the correlative rights doctrine’). We respectfully submit that neither provides a correct solution.” (Emphasis supplied.)
These amici curiae and others, not representing any of the parties in this case, then proceed to interject into the case the doctrine of prior appropriation, and have successfully persuaded a majority of the court to make a decision upon an issue not presented. Amici curiae, Jennings, Strouss, Salmon and Trask, present the following introduction in their brief: “The decision of the Court in this cáse may well be the most important in its history. The scope of the doctrine upon which the decision is based may be determinative of the rights of thousands of users of water for stock and irrigation purposes who cere not parties to the litigation or even aware of its pendency. The impact on the economy of the State could be as sudden and devastating as the dropping of a gigantic atomic bomb in our midst. The purpose' of this brief is to point out to the Court the magnitude of the many problems involved and the far-reaching consequences of the decision to be rendered. Should a final determination of a question of such moment be made on the bare record now before the Court? Yet the extreme urgency of the situation will not admit of delay.” (Emphasis supplied.) It occurs to me that the majority decision may well be likened to “the dropping of a gigantic atomic bomb in our midst”. I submit that if adhered to, its impact on the economy of this state will be so vast and devastating that no one at this time can envision its éffect. I do not believe that this case on its record requires, compels or permits this court to be pressed into becoming both a bomb-maker and a bombardier. In 1931, Mr. Justice Lockwood, in speaking for this court in the case of Water Conservation Dist. No. 1 v. Southwest Cotton Co., supra [39 Ariz. 65, 4 P.2d 372], after carefully considering the statutes from 1864 to the date of the opinion and the various reasons upon which they are based, held that percolating subterranean waters were not subject to appropriation and that such was still the law. That opinion was prefaced by the following statement: “The case is one of the most important which has -ever come before this court, involving as it does not only property interests of the value of many millions of dollars, but also a declaration of legal principles which will in all probability determine and govern to a great extent the course of future agricultural development within the arid regions of Arizona. The real question involved is the law applicable to the relative rights to the ownership and use of the subterranean waters of the state as against those of the surface waters. We have discussed certain phases of this question in previous cases, but have never made a complete statement of the principles ap*244plying thereto, for the reason that heretofore the development of the subterranean waters has been of comparatively minor importance. We think, however, this case is proof that the time has come when it is necessary- for the protection and guidance of future agricultural development in the state that these principles should be enunciated as clearly and definitely as possible, so that our citizens may know how to guide their futtire procedure. For this reason we treat the matter as though it were of first impression in all respects, not only considering the new issues which have arisen, but reconsidering and redetermining the old ones upon which we have heretofore expressed an opinion. * * * ” (Emphasis supplied.)
In that' case, it was pointed out that as early as 1904, in the case of Howard v. Perrin, 8 Ariz. 347, 76 P. 460, Id., 200 U.S. 71, 26 S.Ct. 195, 50 L.Ed. 374, this court had determined that waters generally percolating through the soil are the property of the owner and not subject to appropriation. This holding was reaffirmed in the case of McKenzie v. Moore, 1918, 20 Ariz. 1, 176 P. 568. In the Southwest Cotton Company case, 1931, [39 Ariz. 65, 4 P.2d 376.] as here, the court had urged upon it the proposition that the holding in Howard v. Perrin was dicta and not binding upon the court. With reference to this contention the court then said: “ * * * Whether such statement was, strictly speaking, dicta or not, it has been accepted as the law of this jurisdiction for so long, and so many rights have been based on it, that only the clearest showing that the rule declared was error would justify us in departing from it. Since the legislative branch of the government in the twenty-five years which have elapsed since the decision in the above case has not seen fit to contradict this interpretation of the law, but rather has confirmed it, we may reasonably assume we correctly stated its meaning.” (Emphasis supplied.)
I can now observe that 47 years have elapsed since the pronouncement of the holding in Howard v. Perrin to the effect that percolating waters are not subject to appropriation. At the time of the decision of the Southwest Cotton Company case, 27 years had elapsed since the pronouncement in Howard v. Perrin. Now 20 years have elapsed since the decision in the Cotton Company case. The legislature, at no time from 1904 to the present date, has seen fit to contradict these interpretations of the law, but rather has affirmed them by its inaction.
Having delineated the issues attempted to be made in the complaint and as made in this court by, the assignments of error, I am utterly surprised at the statement of the majority of the court wherein they state: “We believe the matter is properly before us and the time has arrived as predicted by the late Justice Lockwood in the Southwest Cotton Co. case, supra, when the court should review as a new question the nature and ownership of percolating waters and *245the right to the use thereof.1 supplied.) (Emphasis
I respectfully insist that Justice Lockwood, in the Southwest Cotton Co. case, did not predict that in the future this court should or would review anew the question of the nature and ownership of percolating water. What he did say, in this respect, is as follows: “Whether .percolating waters in Arizona since the adoption of the Howell Code have been governed by the old English common law in its strictest form, or by the American modification known as the rule of correlative rights, as explained and defined in Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236, 99 Am. St.Rep. 35, and the cases which follow it, based on the doctrine of sic utere tuo ut .alienum non laedas (use your own property in such a manner as not to injure that of another, Black’s Law Diet.), we need not now decide. When the matter is properly before us, we will determine the rule which •applies.” 4 P.2d at page 376.
If I can understand this statement, it means this: That the court at some time in the future might determine which rule ■applied — the old English common law in its strictest form, or the American modification of the rule known as correlative rights. He did not say or predict that the court in the future would review the question • of the nature and ownership of percolating waters or their susceptibility to appropriation. The opinion specifically and unequivocally held and determined that percolating waters were not subject to appropriation. The opinion completely reviewed the law from 1864 down to 1931 and reviewed its previous holdings for the announced purpose that its review and re-determination was timely and “necessary for the protection and guidance of future agricultural development in the state * * * so that our citizens may know how to guide their future procedure.” 4 P.2d at page 372. (Emphasis supplied.) The majority opinion now comes up with the idea that this is the time to hold for naught all that has been previously said and with one detonating bomb destroy and wipe out all rights and investments that have been-acquired by the expenditure of millions of dollars and the industry of thousands of citizens. These millions of dollars represent not only investments of private persons but for the most part trust funds loaned by insurance companies, banking corporations and ■ other lending agencies. I am confident that many millions are still owed by such borrowers. The majority decision wipes out not only the equity capital of the owners but also the security investments of the individuals and corporations who loaned the money to bring about the huge agricultural development which has occurred in Arizona through the use of percolating waters. This decision affects not only farmers and lenders but- it also affects and will affect the way of life of every man, woman and child in the state. The agricultural empire *246built up in this state and the wealth created by it directly and indirectly affects the earning capacity of every person earning wages in this state and those dependent upon them. The majority say:
“We fail to see any danger lurking in a decision of this court holding percolating waters to be public. On the other hand we definitely can see the inevitable exhaustion of all underground waters in the State of Arizona if the rule of private ownership of such waters as enunciated in the Howard v. Perrin case is still held to be the law. If that rule is adhered to' the legislature is shackled from enacting an underground water code to meet the present emergency.
“Let us observe here . that the vested rights of all persons who have appropriated and applied percolating waters to a beneficial use in this state are fully protected under the law of prior appropriation. In fact more so than under the common-law rule as laid down in the Howard v. Perrin case. * * * ”
Assuming that percolating waters are subject to appropriation (with which assumption I disagree), I could agree with the observation that “the vested rights of all persons who have appropriated and applied percolating waters to a beneficial use in this state are fully protected under the law of prior appropriation”, provided that at the time they made their several appropriations there was water open to appropriation, water which had not been theretofore appropriated. Just who are the prior appropriators that the majority say are now fully protected? In view of the situation as we all know it to be, it is. certain that all the wells that have been drilled in the past five years will be closed down and the lands dependent upon them consigned to the desert from whence they came. It may well be that to close down all the wells drilled in the past five years will not be sufficient to protect the “prior appropriators”.’ The owner of any well who can establish that his groundwater has been diminished to his damage by the sinking of wells in the past 5, 10, 15 or 20 years can successfully maintain an action to enjoin the use and abstraction of water from wells subsequent in time to the date that he sunk his and began using water therefrom. Not only will the later user be destroyed but he will be subject to action for damages for his trespasses, though committed under the decisions of this court and following the signposts erected for his guidance and protection.
I honestly believe that the majority decision can result only in chaos and economic disruption. The free availability of credit will be hampered if not found to be entirely unavailable. Interminable and expensive-litigation cannot help but arise to the benefit of no one except the legal profession. Neighbor will be set upon neighbor with a harvest of bad feelings and animosities. This for the reason that no well ownei can know or have any assurance that'he is.. *247a "prior appropriator” with rights that he can protect. A cursory examination of the records in the office of the State Land Commissioner, which are incomplete, indicates that there are approximately 4,500 irrigation wells in Maricopa and Pinal counties, 60% to 70% of which have been drilled in the past 15 years.
The records of the United States Geological Survey, Groundwater Division 1947, and Supplements, indicate that on an average the groundwater level in Maricopa county to the end of 1950 has been lowered 46 feet since the year 1930, arbitrarily fixing the goundwater level in 1930 at zero. This level had been lowered approximately 12 feet at the end of 1944. Since the end of 1944 to the end of 1950, it has been lowered an additional 34 feet. The same records indicate that the safe pumping yield for Maricopa county only is 579,000 acre feet per year, whereas the actual pumping in Maricopa county in 1950 was 1,852,000 acre feet, and the 1951 estimate exceeds. 2,000,000 acre feet, as compared to the 943,000 acre feet pumped in 1940. These same records indicate that since 1945 the water pumped in Maricopa county has exceeded the accretion to the groundwater supply in the ratio of 4 to 1. Again referring to these records for Pinal county and arbitrarily fixing the groundwater level at zero for the year 1940, the groundwater level has rapidly lowered. At the end of 1944, it had lowered 10 feet. At the end of 1946 it was down to 20 feet, at the end of 1948 to 33 feet, and at the end of 1950 to 43 feet. In Pinal county at the end of 1940 there was pumped 372,000 acre feet, whereas in 1950 there was pumped 1,180,-000 acre feet. These figures, I believe, definitely indicate that the late users of pumped water for irrigation have very definitely interfered with earlier users. In order to discover which of the late users are trespassers and not prior appropriators is going to be a difficult task to determine. In the old-fashioned butter churn it. took a lot of strokes of the dasher to separate the butter from the milk. Under the majority decision, it is going to take more than a lot of strokes of the legal dasher to separate the “prior appropriators” from the present users without appropriative rights.
I am of the opinion that the law announced by this court in its previous cases relative to the right to take and use percolating waters has become a settled rule of property in this state. Where a principle of law has become settled by a series of decisions, it is binding on the courts and should be followed. Especially is this true where judicial decisions may be fairly presumed to have entered into the transactions of a state, and have become established as rules of property. 21 C.J.S., Courts, § 216. Quoting from this same section, it is said: “ * * * it is the duty of the court, on the principle of stare decisis, to adhere to such decisions without ■ regard to how it might be inclined to decide *248if the question were new, and they should not be disturbed except for the most cogent reasons. The rule that such final decisions will ordinarily be adhered to even when they are erroneous applies to decisions relating to real property with particular force." (Emphasis supplied. Citing cases).
It is suggested by some of the amici curiae that the question of whether percolating waters belong to the owner of the soil was not in issue in the Howard v. Perrin case, and that the expression of opinion thereon was dicta, and a rule of property may not he predicated thereon. In referring to the Howard v. Perrin case, they say that a decision of the court upon a point of law predicated upon a stipulation or agreement of counsel upon the law on such point is valueless as a precedent. Assuming that the pronouncement in Howard v. Perrin was dicta, the law as enunciated in the Southwest Cotton Co. case certainly was not dicta. In the Southwest Cotton Co. case, the court said [4 P.2d page 372]: “ * * * The real question involved is the law applicable to the relative rights to the ownership and use of the subterranean waters of the state as against those of the surface waters.”
The court therein had called to its attention upon contentions made that the rule in Howard v. Perrin was dicta, and then said: “ * * * For this reason we treat the matter as though it were of first impression in all respects, not only considering the new issues which have arisen, but reconsidering and redetermining the old ones upon which we have heretofore expressed an opinion.” (Emphasis supplied.)
The nature and ownership of percolating waters was not dicta in the case of McKenzie v. Moore, 1918, supra, nor in the case of Brewster v. Salt River Valley Water Users’ Ass’n, 1924, 27 Ariz. 23, 229 P. 929. In Adams v. Salt River Valley Water Users’ Ass’n, 1939, 53 Ariz. 374, 89 P.2d 1060, one of the contentions made was that the Water Users Association could not pump subsurface waters from plaintiff’s lands to be used for irrigation but was limited to the right to pump only for drainage purposes. This contention was overruled, relying on the previous decisions of this court. Clearly, the rule therein announced was not dicta.
That the decisions of this court constitute a rule of property in this state where property rights have been acquired thereunder in reliance thereon was forcibly set forth by Justice McAlister in Schofield v. Gold, 1924, 26 Ariz. 296, 225 P. 71, 74, 37 A. L. R. 275, in the following words: “The decisions of this court having sanctioned such conveyances, and the people and bar of the state having relied upon these holdings, notwithstanding they were made in cases, in which the validity of such deeds was not discussed but rather accepted and recognized as a fact, it should not now be held that the court was wrong in pronouncing-them valid when to do so would undoubi*249edly result in disturbing many titles, and thus cause injitstice to a number of people, a condition that should never he permitted unless the law is such as to leave the court no alternative.” (Emphasis supplied.)
Requoted again, with approval in Blackman v. Blackman, 1935, 45 Ariz. 374, 43 P.2d 1011. See also Henderson v. Henderson, 1942, 59 Ariz. 53, 121 P.2d 437.
I respectfully submit that there is an alternative, namely, to leave matters in status quo. The legislature of this state has never attempted to regulate the use of percolating ground waters for irrigation, all present rights having been acquired by the inaction of the legislature and under the authoritative decisions of this court, the highest and ultimate authority in this state. A majority of the members of this court now conclude that there is no alternative but to now declare that percolating waters now are and always have been subject to' appropriation. They say: “To permit the present underground water race to continue unabated, without regulation or control, would inevitably lead' to exhaustion of the underground supply and consequently to economic disaster.”
In this position they assume the role of policy makers with a sure-fire remedy. If the decision is allowed to stand, it can conceivably over a period of years and much litigation constitute a “specific” remedy. All the later users of percolating waters who are finally determined to have no appropriative rights will be frozen out. There will then be enough water left for the “prior appropriators” with the danger always lurking that some of them on the bottom of the list will get “bumped”. With this situation there will be no necessity for a groundwater code looking toward a limitation of use to be applied ratably to all. Any groundwater code, to be constitutional, must acknowledge and confirm existing rights, and if any limitation or restriction of use is authorized or contemplated, it must apply equally to all of a class.
As I interpret the majority opinion, its author and those assenting thereto conclude that by virtue of the Desert Entry Land Act of 1877 referred to in the majority opinion, they are compelled to hold that underground percolating waters have always been subject to appropriation, and that, in the absence of any express state legislative enactment, are governed by the federal act. I think that the majority have misconceived the true holding of the Supreme Court of the United States in the case of California-Oregon Power Co., Petitioner, v. Beaver Portland Cement Co., 1935, 295 U.S. 142, 55 S.Ct. 725, 731, 79 L.Ed. 1356, in interpreting the effect of the Desert Land Act of 1877. The court said: “Nothing we have said is meant to suggest that the act, as we construe it, has the effect of curtailing the power of the states affected to legislate in respect of waters and water rights as they deem wise in the public interest. What we hold is that following *250the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those • since created out of the territories named, with the right in each to determine for itself to .what extent the rule, of appropriation or the common-law rule in respect of riparian rights should obtain. For since ‘Congress cannot enforce either rule upon any state,’ State of Kansas v. Colorado, 206 U.S. 46, 94, 27 S.Ct. 655, 656, 51 L.Ed. 956 [973], the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, 'and seeks to remove what otherwise might be an impediment to its full and successful operation. See State of Wyoming v. Colorado, 259 U.S. 419, 465, 42 S.Ct. 552, 66 L.Ed. 999 [1013],
In the case of State of Kansas v. Colorado, quoted in the above citation, the court had occasion to treat of the power of the federal government with respect to the reclamation of lands in the arid states. Referring to the power of any state, it said: “It may determine for itself whether the common-law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any state. It is undoubtly true that the early settlers brought to this country the common law of England, and that that common law throws light on the meaning and scope of the Constitution of the United States, and is also in many states expressly recognized as of controlling force in the absence of express statute. * * * ” . [206 U.S. 46, 27 S.Ct. 666.]
It is to be noted in the quotation above from the California-Oregon case that the Supreme Court said that the Desert Land Act does not bind or purport to bind the states to any policy. The opinion specifically 'acknowledges the right of a state to determine for itself to what extent the rule of prior appropriation should obtain or the common law rule in respect of riparian rights. If a state has a right to adopt the common law rule of riparian rights, why does it not have the right to adopt the common law rule- relating to' percolating waters? The majority opinion seems to conclude that the states are precluded from adopting any rule except that of prior appropriation although they apparently do acknowledge that the states may adopt a rule other than the rule of prior appropriation but that it must be done by state legislation. The Supreme Court in the California-Oregon Power Co. case, in construing the Federal Acts of 1866, 1870 and the Act- of 1877, said this: “The effect of these acts is not limited to rights acquired before 1866. They reach into the fttfure *251■as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain. * * * ”
(Emphasis supplied.)
I take it by this statement that these federal acts reach into the future and approve and confirm the policy not only of appropriation but any policy of the state recognized by local rules and customs and legislation and judicial decisions. As pointed out in the Southwest Cotton Co. case, and as reviewed therein, this state at no time has seen fit to legislate any rule with reference to percolating waters but has at all times eschewed the subject of their regulation. But we have at all times especially since the Howard v. Perrin case developed customs and usages under the decisions of this court. These customs, usages and decisions have become the common law of this state. “For after all, the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes.” State of Kansas v. Colorado, supra [206 U.S. 46, 27 S.Ct. 667.]
In the case of United States v. Rio Grande Dam & Irrig. Co., 1899, 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136, the court in part, was dealing with the question of riparian rights. The court said that it was within the power of any state to change the common-law rule and permit the appropriation of flowing waters for any purpose it deemed wise. This statement again confirms my conception of the holding in these cases in so far as they interpret the Desert Land Act of 1877.
To this date the state of Arizona is committed to the English doctrine governing the right to take and use percolating waters, this by virtue of our customs, usages and decisions of this court under which- many valuable property rights have accrued and on which many contractual rights are based. There is nothing to preclude the legislature from enacting any law that it desires regulating the use of percolating waters but neither this court nor the legislature has the power to destroy and take away vested rights nor may the legislature enact any law impairing the obligation of contracts for to do so would contravene the constitution of the United States and the constitution of this state. Any law that the legislature may enact for regulating the taking or using of percolating ground waters can only be prospective in effect
Under the previous rulings of this court, the trial court was left with no alternative but to dismiss plaintiffs’ first cause of action, as I have interpreted the issue made therein. On appeal to this court, the plaintiffs were justified in presenting the first two assignments of error and this court might very reasonably have undertaken *252to review its previous decisions and especially the holding in the Southwest Cotton Company case. The court in that case indicated that: “Whether percolating waters in Arizona since the adoption of the Howell Code have been governed by the old English common law in its strictest form, or by the American modification known as the rule of correlative rights, as explained and defined in Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236, 99 Am.St.Rep. 35, and the cases which follow it, based on the doctrine of sic utere tuo ut alienmn non laedas, we need not now decide. When the matter is properly before us, we will determine the rule which applies.” [4 P.2d page 376]
It occurs to me that under the complaint, as I have analyzed it, the matter is now properly before us, not exactly as stated in the Southwest Cotton Company case but rather whether our percolating waters should be governed by the old common-law rule in its strictest form or the American modification known as the rule of reasonable use. Plaintiffs are complaining of the fact that defendants are taking percolating waters from defendants’ adjoining lands and transporting them to distant places to> the injury of plaintiffs. What injury? The injury to their domestic wells fed from the common source of supply available to the parties as adjoining landowners. History, economic development, customs, statutory enactment and judicial decisions recognize a preferential priority or preference in the use of waters for domestic purposes. This springs from stern necessity. I believe that this court should have limited its decision and consideration solely to the issues made on the first cause of action, as I have- interpreted them. I also believe, had the court limited its decision to those issues, it should have modified our rule as first announced in Howard v. Perrin by holding that no> owner of land should be allowed to withdraw from the percolating waters thereunder water for irrigation or commercial purposes in such quantities as to reasonably interfere with or destroy the percolating waters used for domestic purposes on adjoining lands. Defendants, as far as the pleadings disclose, were proceeding in good faith and were not actuated by any malicious intent, having proceeded in accordance with the rules heretofore enunciated by this court, and should not be held liable in damages. The first cause of action should be reinstated for the sole purpose of allowing plaintiffs to prove the allegations of their complaint as stated in this cause of action for the purpose of proving, if they can, that the actiqns complained of on the part of the defendants have destroyed their domestic water supply. If these allegations are sustained, the trial court would be authorized and should grant the injunction prayed for or such other relief as mete and proper in the premises.
The court having failed to determine the issues made in the first cause of action ex*253cept by indirection, I am compelled to dissent.
I concur with the majority opinion in its disposition of the second cause of action.