(dissenting)—It is clear that the depreciation in values testified to by most of the property owners and by *292their real-estate expert will be occasioned, not by the taking of the water and the lowering of the lake, but by the possibility, or probability, that boating, bathing, swimming, and fishing will be prohibited or restricted. The trial court found that there would be no physical damage to the lands bordering on the lake by reason of the lowering of the water level, but held that the property owners are entitled to recover compensation for depreciation totaling $145,473 in the market value of their properties.
The water district on this appeal contends that the damages were assessed on a fundamentally wrong basis and that the depreciation in values will result, not from any taking or damaging of riparian property by the water district, but from the possibility of enforcement of restrictive regulations by the state board of health under the police power.
At the outset it should be understood, as pointed out by the majority, that the riparian owners own the bed of the lake, it being nonnavigable. The water in the lake, subject to rights hereinafter discussed, belongs to the state of Washington.
By way of background for any discussion of this case, we should take a quick look at some of the cases passing on the rights of riparian owners on nonnavigable lakes as against nonriparian users lawfully entitled to appropriate surplus waters from such lakes.
The water code of 1917 (Rem. Rev. Stat., § 7351 et seq.) declares the public policy of the state to be that, . . subject to existing rights all waters within the state belong to the public. ...” The water code then sets forth in detail the terms and conditions under which water may be appropriated to various uses.
Statutes of this character have been enacted by many of the western states. They, and the decisions under them, have abrogated the common-law rules as to riparian rights because such rules were inappropriate. In arid and semiarid areas, the right of nonriparian landowners to appropriate water represents the difference between aridity and fertility, between prosperous, thriving communities and des*293olation. It is natural that the public policy of the western states having such areas should be to limit the rights of riparian owners to their own necessary uses, and to subordinate other riparian rights to the right of appropriation for beneficial uses. As said in Gin S. Chow v. Santa Barbara, 217 Cal. 673, 22 P. (2d) 5, which gives a history of the limitation of riparian rights in many cases:
“There is nothing novel about the limitation of the riparian right to a reasonable, beneficial use of water. Other western states which first adopted the common-law doctrine of riparian rights have effectually changed it to meet modern conditions.
“In the state of Washington the earlier cases were not in harmony, but whatever confusion existed was set at rest in Brown v. Chase, 125 Wash. 542 [217 Pac. 23], where the court held, ‘that the waters of non-navigable streams in excess of the amount which can be beneficially used, either directly-or prospectively, within a reasonable time, are subject to appropriation for use on non-riparian lands’. This rule was reaffirmed in Proctor v. Sim, 134 Wash. 606 [236 Pac. 114], State v. American Fruit Growers, 135 Wash. 156, [237 Pac. 498], and Hunter Land Co. v. Laugenour, 140 Wash. 558 [250 Pac. 41].”
Out of some conflict and confusion in our earlier opinions as to the extent and character of riparian rights on nonnavigable streams and lakes, there came definitive declarations in Brown v. Chase, 125 Wash. 542, 217 Pac. 23 (dealing with riparian rights on nonnavigable streams), and Proctor v. Sim, 134 Wash. 606, 236 Pac. 114 (dealing with riparian rights on nonnavigable lakes). These opinions were designed to substitute exact and specific declarations for what Judge Holcomb, in Brown v. Chase, supra, referred to as the “mere loose and general expressions in some of our opinions.” Judge Holcomb—and Judge Bridges, who wrote the opinion in Proctor v. Sim, supra—reviewed the public policy of this and other western states as expressed by their legislative bodies and their courts, and laid down rules which were, again quoting Judge Holcomb, “in consonance with the general needs and welfare of the state, especially *294in the arid and semi-arid regions, and in harmony with the legislation upon the matter.”
In Proctor v. Sim, supra, after quoting Rem. Rev. Stat., § 7351, which reads:
“The power of the state to regulate and control the waters within the state shall be exercised as hereinafter in this act provided. Subject to existing rights all waters within the state belong to the public, and any right thereto, or to the use thereof, shall be hereafter acquired only by appropriation for a beneficial use and in the manner provided and not otherwise; and, as between appropriations, the first in time shall be the first in right. Nothing contained in this act shall be construed to lessen, enlarge, or modify the existing rights of any riparian owner, or any existing right acquired by appropriation, or otherwise. They shall, however, be subject to condemnation as provided in section 7354 hereof, and the amount and priority thereof may be determined by the procedure set out in sections 7364 and 7377 inclusive hereof”;
the court asked:
“What, then, are ‘the existing rights’ of the appellants as riparian owners which are to be considered as vested rights and may not be interfered with?”
and then answered its own question in these words:
“Our answer is that it is the right to the beneficial use of such portions of the waters of the lake as are either directly or prospectively, within a reasonable time, proper and necessary for the irrigation of their lands and for the usual domestic purposes. In Brown v. Chase, supra, we expressly so held with reference to the waters of a non-navigable stream.”
The court then held that any surplus water in a non-navigable lake, i.e., any water over and above that needed to meet the vested rights of the riparian owners as above defined, was subject to appropriation for irrigation and domestic use on nonriparian lands.
In Brown v. Chase, supra, the court quoted with approval from Professor Pomeroy’s work on riparian rights, § 158, as follows:
“ ‘Only the excess of the water remaining unconsumed after their needs have been reasonably supplied should be *295appropriated to the use of distant and non-riparian owners. But in such a case there is no necessity for any resort to the right of eminent domain, to the condemnation of water, nor to the payment of compensation. Communities of owners at a distance from the larger streams should be entitled to reach and appropriate this excess of their waters after the wants of the riparian proprietors are reasonably satisfied, without any condemnation or payment of compensation, since such a use would not substantially affect any rights held by the riparian proprietors on the streams.’ ”
These two cases, Brown v. Chase and Proctor v. Sim, seemingly completely disposed of the common-law concept that riparian owners on nonnavigable waters have a right as against nonriparian landowners to have the waters stand or flow in their natural and undiminished state upon or across their lands, or “to have the waters lap their shores as they were by nature wont to do.”
This would seem to indicate that riparian owners possess no vested rights of boating, bathing, swimming, and fishing that must be condemned by one lawfully appropriating water for irrigation and domestic uses. Respondents, however, rely upon certain later decisions which have left the state of the law somewhat less than crystal clear.
Chief of these cases is In re Martha Lake Water Co., 152 Wash. 53, 277 Pac. 382. The riparian owners in that case argued that there should be a public policy in the evergreen and copiously watered portions of the state different from that in the arid and semiarid areas, and that thousands of homeowners on the shores of nonnavigable lakes in western Washington ought to have “the right to have the waters lap their shores as they were by nature wont to do.” In that case this court distinguished Brown v. Chase, supra, and Proctor v. Sim, supra, by saying that the question involved in those cases was the ownership of the water; and then proceeded to hold that riparian owners are entitled to be compensated for any damages caused to their properties by the lowering of the water in a nonnavigable lake by a lawful appropriation of water therefrom. The situation was described in these words:
*296“The water’s edge would recede, and land which was covered with water at the time of their purchase would become dry land. Under the constitutional provision cited [Art. I, § 16], before their land can be thus damaged they are entitled to compensation.”
Respondents also rely upon Litka v. Anacortes, 167 Wash. 259, 9 P. (2d) 88, where the city pumped all of the water out of a lake, leaving it “practically a mud flat.” The city apparently relied upon its riparian rights in that case, and, so far as the briefs and opinion indicate, had not taken steps to comply with the provisions of Rem. Rev. Stat., § 7351 et seq., relative to the appropriation of water. The city in that case deprived the riparian owners of water for domestic use and irrigation, not only in violation of the vested rights defined in Proctor v. Sim, supra, but in violation of their rights as amplified in the Martha Lake case. In the Litka case, we held that the Martha Lake case was controlling, and, although there is reference to boating and swimming in the opinion, the Litka case does not constitute any extension of the rule laid down in the Martha Lake case.
Giving Proctor v. Sim, supra, and In re Martha Lake Water Co., supra, full force and effect, we said, in substance, that, while riparian owners on a nonnavigable lake do not have the right to have the waters thereof “lap their shores as they were by nature wont to do,” they are entitled to be compensated for any damage sustained by reason of the failure of the water so to do if the .lake is lowered by the appropriation of water therefrom for irrigation and domestic use.
The Martha Lake and Litka cases are of no assistance to the respondents here, because the trial court in its findings specifically eliminates any actual physical damage to the lands bordering upon the lake by the lowering thereof in consequence of the appropriation of water by the district. It may be, however, that we are confronted with and must answer the question: Do riparian owners on nonnavigable lakes have such rights in the waters of those lakes for boating, bathing, swimming, and fishing that they must be com*297pensated therefor by those lawfully apppropriating water therefrom for domestic and irrigation purposes?
The majority has assumed that the question must be answered, and has forthrightly said yes. That answer may be right, but I am not so persuaded by either the arguments advanced or the authorities cited. Boating, bathing, swimming, and fishing are uses made of the water itself, which belongs to the state, except for the limited beneficial uses thereto set forth in Proctor v. Sim, supra, and said to be vested rights of riparian owners.
Since the state owns the water, it might permit the appropriation for irrigation and domestic uses of all water in the lake over and above the limited quantity to which Proctor v. Sim, supra, holds that the riparian owners have a vested right for beneficial uses, i.e., such portions of the lake as are either directly or prospectively, within a reasonable time, proper and necessary for the irrigation of their lands and for the usual domestic purposes. It is clear that, under such circumstances, the lawful appropriators would not have to pay for the water taken (Proctor v. Sim, supra); and that they would have to pay for the damage, if any, to the land of the riparian owners caused by uncovering it by lowering the water level of the lake (In re Martha Lake, supra). But the question now is: Must the lawful appropriators compensate the riparian owners because the water remaining in the lake is insufficient for bathing, boating, swimming, and fishing, although sufficient for the irrigation of their lands and the usual domestic purposes?
While in the present case there is no question but that the quantity of water remaining in the lake, after the appropriation, is ample for boating, bathing, swimming, and fishing, the question in the form just stated forces a consideration of whether or not the right of a riparian owner to use water in excess of his own essential needs, which water belongs to the state, must be condemned by the lawful appropriators before it can be taken by them. However, it is my view that this question may not need to be answered, and I would prefer not to answer it until it has been more exhaustively briefed and argued.
*298Three situations are presented: (1) If there are such rights (bathing, boating, swimming, and fishing) as against lawful appropriators, and if the water district in this case sought to and did condemn them, the judgment should be affirmed; (2) if there are no such vested rights as against lawful appropriators, the judgment as to damages should be set aside because the damages were based upon the theory that the riparian owners possessed such rights; (3) if there are such rights and the water district did not seek to condemn them, the judgment as to damages should be set aside because the damages can be sustained only on the theory that the district was condemning those rights. Situations (1) and (2) require an answer to the question, whereas, in situation (3), if such rights, if any, were not condemned, no answer is required.
I am in doubt—and the trial court expressed a similar doubt—as to just what was being condemned; but, in reliance upon the repeated statements of counsel for the water district that it was not intended by the condemnation proceeding to take away the rights of the riparian owners to boat, bathe, swim, and fish, I would reserve any decision upon the question stated and propose the following alternative disposition of the case. If the water district would, within thirty days, file in the superior court and in this court a consent that the judgment shall specifically provide that the riparian owners (respondents here) are not thereby divested of the rights, if any, they may have to boat, bathe, swim, and fish in the waters of the lake, the order of this court would then be that the judgment as to damages be set aside, and that the trial court revise the judgment in accordance with the consent referred to, set aside the judgment so far as it relates to the amount of damages, and determine the damages, if any, sustained by the respondents exclusive of any consideration of the loss of the rights to boat, bathe, swim, and fish in the lake. If such a consent was not filed within the designated period, this court would then proceed to a consideration of the question heretofore stated, on the theory that the district *299had condemned those rights if they were such vested rights as required condemnation.
I am aware that my proposed disposition of the case would not meet the contention of the respondents that the appropriation of the water by the water district will result in the promulgation and enforcement of regulations by the state board of health prohibiting boating, bathing, swimming, and fishing in the lake, and that, regardless of what the condemnation decree may provide, they will ultimately be prohibited from exercising those rights, and that that fact has a present effect upon their property values.
The answer to that contention is that if in this action the district has not condemned the rights, if any, of boating, bathing, swimming, and fishing, the district cannot interfere with those rights. If some other authority, such as the state acting through its department of health, seeks to restrict or prohibit the exercise of such rights, the riparian owners may assert such rights for what they may be worth; but they are not entitled in this action to recover from the district any damages which they may sustain by the actual or prospective operation of reasonable regulations issued under the police power.
In Conger v. Pierce County, 116 Wash. 27, 198 Pac. 377, 18 A. L. R. 393, Judge Bridges, defining police power, said:
“It has been defined as an inherent power in the state which permits it to prevent all things harmful to the comfort, welfare and safety of society. It is based on necessity. It is exercised for the benefit of the public health, peace and welfare. Regulating and restricting the use of private property in the interest of the public is its chief business. It is the basis of the idea that the private individual must suffer without other compensation than the benefit to be received by the general public. It does not authorize the taking or damaging of private property in the sense used in the constitution with reference to taking such property for a public use. Eminent domain takes private property for a public .use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.”
*300The distinction between a “taking” or “damaging” for public use and the regulation of the use and enjoyment of property rights for the public benefit is well established.The former is within the realm of eminent domain, and the latter is within the sphere of the police power. Gin S. Chow v. Santa Barbara, 217 Cal. 673, 22 P. (2d) 5; California-Oregon Power Co. v. Beaver Portland Cement Co., 73 F. (2d) 555. Or, as has been said:
“The effect of the police power is to restrict £a property right as harmful, while that of eminent domain is to appropriate a property right because it is useful.’ ” 4 McQuillin, Municipal Corporations (2d ed.) 445, § 1572.
There is sometimes a difficult problem of differentiation, but in this instance the distinction is plain. If the quantity of water here involved was to be appropriated from the lake solely for irrigation purposes, so that there would be no question of future regulation by the state board of health, there would, under the evidence, be little or no depreciation in the value of respondents’ property. It is because the water is to be taken for domestic use and because the board of health may and probably will promulgate restrictive regulations that the respondents claim the value of their-property is depreciated.
It should be noted that there are limits to the extent to which the beneficial use of property may be interfered with under the,police power without compensating the property owners. Bountiful City v. De Luca, 77 Utah 107, 292 Pac. 194, 72 A. L. R. 657.
In passing upon the reasonableness of public health regulations, the public benefit sought to be promoted must be balanced against the seriousness of the restriction of the private right sought to be imposed. Willis v. Wilkins, 92 N. H. 400, 32 A. (2d) 321. In that case, regulations of the state board of health prohibiting swimming and bathing in “Pleasant Pond” and the maintaining of any fishing houses on, the ice thereof were challenged as arbitrary and unreasonable, and it was held reversible error to exclude evidence that the regulations reduced the value of .riparian *301property from fifty to seventy-five per cent, the court saying that it should have been received so that the master who heard the evidence might “balance it on the scales of reasonableness.”
We have before us no regulations of the state board of health, and I do not presume now to pass upon the reasonableness of any regulations that may hereafter issue. I merely point out that the extent to which respondents may be damaged by any prospective operation of the police power cannot be recovered in this action. It follows that, if the district concedes that it did not condemn the rights of the riparian owners to boat, bathe, swim, and fish in the lake, it was error to consider the effect of their being deprived of those rights as an element of damage in the condemnation proceeding.
To summarize: While I have grave doubts as to the majority’s determination thát the riparian owners 'have vested rights to bathe, boat, swim, and fish in the waters of Deer lake, as against a lawful appropriation of that water for domestic use, I do not believe that the question needs to be determined here, if the water district will disclaim any intention to condemn such vested rights, if any. If such vested rights exist and are not taken by condemnation, the fact that the police power may subsequently prevent their exercise is not an element of damage in the condemnation proceeding.