dissenting: Not to be outdone by the legislature in the confiscation of private property, the Supreme Court of Kansas today upholds the constitutionality of the 1945 Water Appropriation Act (G. S. 1949, 82a-701, et seq.) by decreeing an established property right (one which even the legislature and the city of Wichita recognized) to be nonexistent. Kansas decisions declaring the right of the landowner to the underground water in his land to be a common law vested property right are inferentially overruled, and, in effect, the new rule of law is given retroactive application to the time of origin of private land titles by patent from the U. S. Government — prior to the time Kansas was admitted to statehood. If such arbitrary exercise of the police power of the state withstands the federal constitutional test of due process, the formula has been found, and the precedent is established, by which all private property within Kansas may be communized without cost to the state.
It is a rule established in all just governments that when private property is required for public use, indemnity shall be given by the public to the owner.
In June, 1944, the Supreme Court of Kansas was confronted with *342an attempt by the state to regulate the subterranean waters within the geological formation known as the Equus Beds in Harvey and McPherson Counties in the case of State, ex rel., v. Board of Agriculture, 158 Kan. 603, 149 P. 2d 604. These waters are precisely the same waters which are the subject of this litigation.
After reviewing numerous Kansas authorities the court concluded:
“Under the above authorities underground waters are part of the real property in which they are situated. The owner of land may convey or grant tire underground water, or die right to take it from the land, by an appropriate instrument in writing to the same extent that he might convey or grant any other portion of the real property; or a party, having die right of eminent domain, may appropriate underground water to his use by condemnation proceedings.” (p. 609.)
The court further clarified the nature of these waters by the following discussion in its opinion:
“Defendants ask us to take judicial notice of the fact that:
“ ‘Both surface and underground waters are [to some extent] migratory and under natural laws of gravity seek their own lowest level.’
“Judicial notice may be taken of those facts as well as of the fact that by evaporation waters become elevated and mingle with die atmosphere. Defendants in their brief state:
“ ‘The corpus of the water in its natural state, and this includes water beneath the surface of the ground, is flowing, moving, circulating, oozing, filtering, percolating or falling from the physical confines of the realty owned by one person to realty owned by another.’
“As a general statement this may be conceded. They further assert:
“ ‘In this natural state the corpus of the water is not the exclusive property of any individual but is a public water resource.’
“This statement is too broad. An owner of land owns its surface and underground water by the same title as he owns the land itself, and the clay, gravel, coal or oil within it, even though these items of property differ in component parts. The land itself, or any of its parts, is a public resource in the sense that it may be taken for a public use, or the state may prohibit its waste or its use in a manner detrimental to others.
“Defendants further advise us:
“ ‘Defendants do not recognize any private property right in unused water or in unused sources of water supply and believe that only when an established right or appropriation authorizing a user to take and use from tiiat source is diminished or extinguished to point of causing injury to his prior established appropriation can the user recover any substantial damage or maintain any action for injunctive relief.’
“This doctrine seems somewhat startling. All we care to say about it is that we think it contrary to the law of this state, repeatedly stated in our decisions hereinbefore discussed.” (pp. 609, 610.) (Emphasis added.)
*343Thereupon the court reviewed the various statutes throughout the history of the state pertaining to waters, their ownership, disposition and use, and concluded that the statute then before the court, G. S. 1935, 74-509, did not authorize the defendants (the State Board of Agriculture, the Division of Water Resources within that board, and its chief engineer) to regulate, allocate or distribute, or otherwise interfere with the use and consumption of underground waters or to conduct a hearing upon the application of anyone desiring to use such waters, or for the allocation, distribution or regulation of the use of such waters.
The corut had previously in the opinion recognized that throughout the history of the state there had been no departure from the basic principle that water rights in this state were governed by the common law except as they may have been modified by statute. Thus, prior to the enactment of the 1945 Water Appropriation Act of Kansas, the common law of this state, as declared by the decisions of the Supreme Court, established the right of the landowner to the underground water in his land (whether such water was “used” or “unused”) as a private property right. The underground water was subject to conveyance or grant by an appropriate instrument in writing to the same extent that the owner of the land might convey or grant any other portion of the real property. A party, having the right of eminent domain, could appropriate the underground water to his use by condemnation proceedings, paying the fair market value therefor. The owner of the land owned the underground water by the same title as he owned the land itself, and the clay, gravel, coal or oil within it.
Later in Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441, in the year 1946, after the enactment of the 1945 Water Appropriation Act, the court said:
“. . . Under our decisions water in the land is a part of the land itself and any enforceable claim to water from appellee’s real estate based upon circumstances and conditions arising subsequent to the date of the execution of appellant’s lease would have to be based upon a grant in writing . . (p. 791.) (Emphasis added.)
The court then quoted from State, ex rel., v. Board of Agriculture, supra, and cited numerous other cases.
In the year 1949 constitutional questions regarding the 1945 Water Appropriation Act were before the court in State, ex rel., v. Knapp, 167 Kan. 546, 207 P. 2d 440. There a riparian landowner on the Republican River in Kansas, eighty miles downstream from *344the Harlan Dam in Nebraska, claimed a vested interest in flood waters of the river impounded in the Harlan Dam. Actually, the court did not there have the constitutional validity of the 1945 Water Appropriation Act before it. This is indicated by the following language in the opinion:
“We next observe that no complaint is made of section 702, which declares: ‘All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein provided.’ This is the heart of the statute. The rest of it treats of details and procedure. . . .
“Considering the portions of the statute dealing with details and procedure we find nothing seriously wrong with them. We have diffculty in seeing that the owner of land in Kansas riparian to the Republican river has a vested interest in floodwaters of the river impounded in the Harlan dam, eighty miles or more from his property. . . .” (p. 555.) (Emphasis added.)
The general rule of law is well settled that only those constitutional questions which are duly raised and insisted upon and are adequately argued will be considered by the Supreme Court on appeal. (State, ex rel., v. Richardson, 174 Kan. 382, 256 P. 2d 135; and State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537.) The court will not inquire into the constitutionality of a statute on its own motion. (Missionary Baptist Convention v. Wimberly Chapel Baptist Church, 170 Kan. 684, 688, 228 P. 2d 540; and see Coryell v. Hardy, 146 Kan. 522, 72 P. 2d 457.) Furthermore, a court will not undertake to pass upon the validity and effect of a statute unless it is necessary to the determination of an actual controversy. (Missionary Baptist Convention v. Wimberly Chapel Baptist Church, supra, and authorities cited therein.) The foregoing rules were the basis of the holding in the Knapp case.
Therefore, prior to the decision of the court herein it would be correct to say the constitutional validity of the 1945 Water Appropriation Act (L. 1945, Ch. 390), had not been determined, since the section of the act which is its very heart (G. S. 1949, 82a-702) is being challenged for the first time. Furthermore, the court in the Knapp case was dealing with a riparian owner on a surface stream who claimed rights to flood water impounded eighty miles upstream in another state pursuant to a tri-state compact (G. S. 1949, 82a-518). The court was not confronted with subterranean waters.
It could hardly be said the Supreme Court of Kansas would defer the determination of this vital question of state policy in the first *345instance to the federal courts. The construction of state statutory provisions is left to the states in the first instance, if the state has authority to enact such law. (Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 21, 360 P. 2d 456, cert. den. 368 U. S. 829, 7 L. Ed. 2d 32, 82 S. Ct. 51; and Williams v. Oklahoma, 358 U. S. 576, 3 L. Ed. 2d 516, 79 S. Ct. 421, rehearing den. 359 U. S. 956, 3 L. Ed. 2d 763, 79 S. Ct. 737.)
Thus, in A. B. Williams v. City of Wichita, Kansas, a Municipal Corporation, et al. [10th U. S. C. A. 1956], 230 F. 2d 959, where litigation between the parties to this action was pending in a court of this state, in which the questions and issues in the federal action might be determined, it was recognized that such questions and issues involved an interpretation of Kansas state laws (the 1945 Water Appropriation Act) and should appropriately be determined by the state courts. In a memorandum decision it was held that no action be taken on the motions to dismiss, and that action thereon be held in suspense for a reasonable time to await determination in the state courts of important questions of state law involved therein.
In Baumann v. Smrha [U. S. D. C., D. Kan. 1956] 145 F. Supp. 617, aff’d per curiam, 352 U. S. 863, 1 L. Ed. 2d 73, 77 S. Ct. 96, a three-judge Federal District Court for Kansas was requested in a declaratory judgment action to determine whether the 1945 Water Appropriation Act violated the Fourteenth Amendment to the United States Constitution. In the opinion the court said:
“We hold that the state could properly apply the doctrine of prior appropriation and application to beneficial use to unused and unappropriated waters so long as it recognized and afforded protection to rights which landowners had acquired at the time of tire effective date of the Act to appropriate and use water.
“Whether such a change in the law of Kansas is contrary to earlier decisions of the Supreme Court of Kansas, it is cognizant with the latest decision of the Supreme Court of Kansas in State ex rel. Emery v. Knapp, 167 Kan. 546, 207 P. 2d 440, which must be regarded as having overruled the earlier cases. (p. 625.) (Emphasis added.)
The foregoing assumption, of course, that the Knapp case overruled earlier decisions is not binding upon the Kansas Supreme Court which is called upon to construe its own decisions. (See Thompson v. Consolidated Gas Co., 300 U. S. 55, 81 L. Ed. 510, 57 S. Ct. 364, and authorities cited therein at note 21.)
G. S. 1949, 82a-702, provides:
*346“All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein prescribed.”
By the foregoing section of the Act the legislature has appropriated all water within the state of Kansas for and on behalf of the state. Without such an appropriation, or ownership of water taken in the name of the state, there could be no dedication of all water in the state of Kansas to the use of the people of the state. In other words, before all water in the state can be dedicated to public use the state must own such water.
Such an appropriation of all water in the state by the legislature is nothing short of an outright confiscation of all property rights in water which the legislature subsequently refuses to recognize as a “vested right” under the Act, because it makes no provision for the state to pay the owners of such water for the property rights taken.
In the instant case the plaintiff below concedes that he has no “vested rights” (water right uses) which are protected by the Act, and he makes no claim to any right under the Act. The court in its opinion says the 1945 Water Appropriation Act, which seeks to impose “the appropriation doctrine and the rule of priority of right,” was intended to apply only to such water as was not being “beneficially used at the time of the passage of the Act, that is, to our undeveloped and consequently unused water resources.”
The legislature, however, recognized that private property rights to “unused” water were taken from the common law owners in 82a-702, supra. This is disclosed by a further section of the Act, G. S. 1949, 82a-716, which as originally enacted reads in part:
“If any appropriation, or the construction and operation of authorized diversion works results in an injury to any common law claimant, such person shall be entitled to due compensation in a suitable action at law against the appropriator for damages proved for any property taken. An appropriator who has acquired a valid right under this statute may prevent, by injunction, a subsequent diversion by a common-law claimant of private rights without being required to first condemn possible private rights. . . .” (Emphasis added.)
The alteration made by the amendment to this section of the Act, now appearing as G. S. 1959 Supp., 82a-716, changed the second sentence above quoted to read as follows:
“. . . Any person with a valid water right or permit to divert and use water may restrain or enjoin in any court of competent jurisdiction a subse*347quent diversion by a common-law claimant without vested rights without first condemning those common-law rights. . . .” (Emphasis added.)
The common law claimant referred to in the first sentence of the above section is not described as a common law claimant having “vested rights” under the Act. And such claimant is said to have a cause of action against an appropriator, under the Act for damages proved for any property taken. That'this was the intention of the legislature is indicated by the,'second'sentence of the section, as amended, when it refers to. the common law claimant without “vested rights” under the Act as, having common law rights. Thus, the legislature in 1957 by the amendment, although expressly waiving the requirement of condemnation by an appropriator of water under the Act, elucidated in the Act'by expressly recognizing the existence of affected common law property rights. The legislature speaks of “vested rights” as that term is defined in the Act and continues to acknowledge the existence of private property rights of common law claimants. The common law property rights of these common law claimants were vested property rights (in the legal sense of the term) when the 1945 Water Appropriation Act was enacted by the legislature.
The term “vested right” under the Act is defined in G. S. 1959 Supp., 82a-701 as follows:
“(d) ‘Vested right’ means the right of a person under a common law or statutory claim to continue the use of water having actually been applied to any beneficial use, including domestic use, on or before June 28, 1945, to the extent of the maximum quantity and rate of diversion for the beneficial use made thereof, and shall include the right to take and use water for beneficial purposes where a person is engaged in the construction of works for the actual application of water to a beneficial use on June 28, 1945, provided such works shall be completed and water is actually applied for such use within a reasonable time thereafter by such person, his heirs, successors or assigns. Such a right does not include, however, those common law claims under which a person has not applied water to any beneficial use within the periods of time set out in this subsection.” (Emphasis added.)
The italicized portions of the above definition were added by the legislature in 1957, otherwise the section is substantially as it appeared in the original act.
Here again the legislature makes reference to common law claims regarding “unused” water (water not having actually been applied to any beneficial use as defined in the Act) and excepts the rights of such common law claimants from the definition of “vested right” under the Act.
*348A further indication that the legislature intended to recognize vested property rights of common law claimants in “unused” water as defined in the Act is found in the report of the governors committee, appointed to study the subject of water rights in 1944, which reads in part:
“The Committee believes that conditions, and the needs of the people in Kansas, have changed so greatly since the early adoption of the common law as applied to water use, that the time has come to modify the common law to the extent necessary to set up a system of appropriation, based on priority of right, but without depriving the commcm-law owner of relief by proper compensation for limitations placed on unused common-law rights(Emphasis added.)
(See State, ex rel., v. Knapp, 167 Kan. 546, 551, 207 P. 2d 440.)
In December of 1944 the report of the governor’s committee on the proposed Water Appropriation Act found it would be necessary: “(3) to allow a common law owner of unused water rights a means of recovery for such damages as he is able to prove he has suffered by an injury or impairment of his property or of any right to initiate a later use of water?’
The committee recognized the existence of private property rights in a common law owner of unused water and the impairment of such property or of any right to initiate a later use of water. This report was before the legislature and it may be assumed the enactment intended to meet the requirement of the foregoing finding of the committee.
The question is whether the legislature has met the federal constitutional requirement of due process of law relative to existent private property rights taken from common law owners by the 1945 Water Appropriation Act. This subject will be treated after further analysis of the record and of the court’s construction of the Act.
Recognition by the city of Wichita that the subterranean water here under consideration was the subject of existent private common law property rights in 1953 is indicated by the written instrument through which it acquired well sites. The deeds acquiring the five-acre sites for each of the ten water wells which are the subject of this action, except for the names of the grantors, are identical. Well site No. 47 which gave rise to this cause of action (later expanded to ten well sites) was acquired by the following “Indenture of Conveyance” which reads in part:
*349“This Indenture, made on this 21st day of May, 1953, by and between Frederic W. Cooper and Dorothy C. Cooper, man and wife, of the County of Harvey, State of Kansas, hereinafter called the Parties of the first part, and
“The City of Wichita, a municipal corporation, located in Sedgwick County in the State of Kansas, hereinafter called the Party of the second part;
“Witnesseth: That the Parties of the first part, in consideration of Two Thousand and no/100 Dollars, the receipt of which is hereby acknowledged, do by these presents, give, grant, bargain, sell and convey unto said Party of the second part, its successors and assigns:
“1. All of the water hearing sands and water rights now, or at any time, and at all times hereafter in or under said tracts hereinafter described.
“2. The right to use in the proper enjoyment of such water and water as much of the surface of said tracts of real estate- as may be necessary or desirable on the part of the Tarty of the second part to carry out the terms of this grant.
“3. The right in perpetuity to .drill for, produce, and transport sub-surface water therefrom.
“4. The right to go upon the surface of said lands above described to explore and drill for, procure and'extract any and all sub-surface water, either for experimental purposes or for a permanent supply, and to remove and transport the same for such use and uses in the City of Wichita and its environs, as the Party of the second part may from time to time elect to make of it, including all of the sub-surface water.
“(a) Which may at any time and at all times during the continuance hereof be stationary in and under said-land or any part thereof, and
“(b) Which may flow or percolate thereto from other lands, including the right of ingress and egress by the officers, agents and employees of the Party of the second part, and by any other party authorized by it to enter upon said premises to carry out the purposes of this grant.
[Provisions relating the rights to lay and maintain pipe lines; construct, operate and maintain measuring ‘wells; and to maintain and remove tanks, machinery, fixtures and improvements upon the land are omitted.]
“8. The tracts of real estate in, under and to which the foregoing rights and interests are granted are described as follows, to-wit: Five acres in square form in the southwest corner of the SWU of the SE1Í, Section 24, T24S, R3W, Harvey County, Kansas.
“It Is Understood and Agreed By and' Between the Parties that this indenture does not carry with it any oil and gas in place of the right to explore for or extract the same.” (Emphasis added.)
[The habendum, warranty and signature clauses are omitted.]
It is readily apparent the city o£ Wichita recognized the existent private property right of th'e landowner to the “unused” subsurface water in the land. The city paid $400 per acre for the property rights to this water. The deed was not a conveyance of land, but a conveyance of the water-bearing sands and water rights under the surface of the five-acre tract, together with a right to use so much of the surface as was necessary to extract and remove the *350water from the tract. By these written instruments of conveyance the city of Wichita recognizes the economic value of the property right of the common law owner to the “unused” subsurface water in the land, and such instruments of conveyance were all executed long after the enactment of the 1945 Water Appropriation Act. It is a fair indication the city of Wichita has not placed much faith in the constitutionality of the 1945 Water Appropriation Act, or that it has construed the Act differently than the construction given it by the court.
How did the court construe the 1945 Water Appropriation Act, and what happened to Kansas decisions which declared the subsurface water (whether “used” or “unused”) in the land to be a common law private property right of the landowner?
The court, after reviewing the evidence of the actual conditions and characteristics of the Equus Beds formation, and the facts concerning the extent and manner of withdrawals of water therefrom, concluded that from the evidence “emerges the salient and clear factual conclusion that these ground waters are percolating and hence migratory and fugitive,” and by reason thereof the court was “dealing with a right to use the underground waters as they pass through the owner’s soil.” Although the court recognized the common law rule prior to 1945, in that percolating ground water “belongs” to the owner of the land in which it is found, it concluded the decisions which dealt with the subject did not define the “ownership” of the corpus of the water, and said:
“The common law concept of ‘absolute ownership’ of percolating water while it is in one’s land is an anomaly — while giving him the right to abstract from his land all the water he can find there, it affords him no protection against the acts of his neighbors who, by pumping on their own land, manage to draw out of his land all the available water it contains. Much of the language in the cases pertaining to absolute ownership is obiter dicta and completely unnecessary to the respective decisions. Moreover, ownership as a concept is often vague and denotes only certain rights of use against certain persons with respect to certain physical phenomena. Thus the use of the term ‘ownership’ as applied to percolating water has never meant that the overlying owner had a property or proprietary interest in the corpus of the water itself. This necessarily follows from the physical characteristics of percolating water. It is migratory in nature and is a part of the land only so long as it is in it. There is a right of use as it passes, but there is no ownership in the absolute sense. . . .” (Emphasis added.)
From this point the rule for ground waters which have not been reduced to the possession and control of the overlying owner are *351said to be analogous to the rule applicable to surface water in a stream, citing Wallace v. City of Winfield, 98 Kan. 651, 159 Pac. 11, which is said to hold:
“. . . that a riparian owner had no title to the corpus of the water in the river; that the water was not ‘his,’ and until he reduced it to his possession and exercised control and management over it, did he obtain a property right in it; that his right was to the use of the water — a property right of a usufructuary nature that ‘attached’ to the riparian land; that as an incident of the land, the right of use accompanied a conveyance of the real property and since there was no ownership of the water, he could not recover the value of any such water wrongfully diverted.”
Reference is made to State, ex rel., v. Knapp, supra, which was said by the court to be concerned with the privileges of adjacent owners to a stream, while in the instant case the court was concerned with the privileges of surface owners, and the difference was said to be slight. The court concluded “The right of the plaintiff to ground water underlying his land is to the usufruct of the water and not to the water itself,-’ and held “it was within the competency of the legislature to define the vested rights’ of common-law water users, or to establish a rule as to when and under what conditions and to what extent a vested right should be deemed to be created in such a water user.” The suggestion that the plaintiff had such rights in ground waters underlying his land as must be acquired by eminent domain was said to be untenable.
By the foregoing process of'reasoning a vested common law property right has been decreed to be nonexistent.
In 1944 the ground water underlying a tract of land was said to be owned by the owner of the land “by the same title as he owns the land itself, and the clay, gravel, coal or oil within it, even though these items of property differ in component parts” (State, ex rel., v. Board of Agriculture, 158 Kan. 603, 609, 149 P. 2d 604). The foregoing rule of law was again approved in 1946 (Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441). The foregoing language, repeated throughout the decisions, was an outright recognition by the court of a common law private property right to ground water underlying the land. By declaring the landowner’s title to the ground water underlying a tract of land to be equivalent to the landowner’s title to the land itself, the most forceful language at the court’s command was employed. It established a common law vested property right to the ground water underlying the land.
In substance the court has overruled all prior decisions establish*352ing a common law private property right to the ground water underlying the owner’s land, and it has declared the new policy, or law, to be retroactive in point of time to the origin of all land titles in the state. The land titles in the Equus Beds area were not acquired from the state of Kansas, but from the public domain by a patent issued from the United States Government prior to the statehood of Kansas. These land titles have passed in succession by conveyance, or otherwise, to subsequent owners. The state of Kansas has never owned the land.
The Desert Land Act of 1877 ( 43 U. S. C. 321) enacted by the Congress of the United States, allowed entry and reclamation of lands within the western states and territories, which have since become states. It contained a proviso to the effect that the right to the use of water should depend upon bona fide appropriation, not to exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation, and declared the surplus should be held free for the appropriation and use of the public for stated purposes. This act was held in Power Co. v. Cement Co., 295 U. S. 142, 79 L. Ed. 1356, 55 S. Ct. 725, to sever, in effect, all waters upon the public domain, not theretofore appropriated, from the land itself, and that a patent issued thereafter for lands in a desert-land State or Territory, under any of the land laws of the United States, carried with it of its own force, no common law right to the water flowing through or bordering upon the lands conveyed. The court further held the owner of the public domain, the United States, had power to dispose of the land and water together or separately.
Kansas was not included as one of the states or territories covered by the Desert Land Act of 1877. Thus, all common law rights to the water in Kansas passed from the United States to the original owners by patent.
On October 31, 1868, Section 3, Chapter 119 of the General Statutes of 1868, now appearing without change as G. S. 1949, 77-109, became effective. It provided that the common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state.
Thus, upon enactment of the 1945 Water Appropriation Act the legislature was confronted with common law vested property rights to ground waters of the state.
*353Since Kansas was not affected by the Desert Land Act o£ 1877, the confiscatory nature of the 1945 Water Appropriation Act of Kansas is not overcome by the fact it makes no distinction between ground water and surface waters and applies the appropriation doctrine recognized by the laws of the seventeen western states, or by the fact that twelve of those western states now have statutes applying the appropriation doctrine to percolating ground waters. The states of Idaho and New Mexico accomplished the adoption of the appropriation doctrine with respect to percolating ground waters by judicial decision upon the strength of the Desert Land Act of 1877 which affected the prior development of their respective state laws. (Hinton v. Little, 50 Ida. 371, 296 Pac. 582; and Yeo v. Tweedy, 34 N. M. 611, 286 Pac. 970.)
Never in the history of Kansas law or of the common law has it been necessary to trace “particles” of water lying beneath the surface of the land to establish a property right to such water. Water is homogeneous in character — one gallon taken from the Equus Beds is the same as any other gallon. If the forces of nature cause the percolating ground water to move in a southerly direction for one day to the extent of three feet, the portion that percolates from the boundary of one’s land on the south is replaced by water of the same quality on the north. The only perceptible change, if any, is in the elevation of the water table beneath the surface of the land.
. Common law judges for generations past have been wise to the laws of nature. They recognized the forces of nature and the properties of' water in declaring the common law relative to ground water, just as in 1944 judicial’notice was taken by Justice W. W. Harvey writing for the court in State, ex rel., v. Board of Agriculture, supra.
Analogous situations are presented regarding commodities such as grain and money. One who holds a warehouse receipt for 1,000 bushels of wheat of a given grade and quality has a property right to such grain in the warehouse even though it is commingled with other grain of like grade and quality. The owner cannot trace the kernels of wheat he delivered, neither can the warehouseman. But the inability to trace the precise kernels of wheat and thereby identify the “corpus” of the grain which he delivered is immaterial in law to the proprietary interest of the holder of the warehouse receipt. Such grain is said to.be “Fungible grain” (G. S. 1949, 34-*354223), and the return of 1,000 bushels of grain of like grade and quality by the warehouseman upon demand of the owner is sufficient in the eyes of the law. (See Central States Corp. v. Luther, 215 F. 2d 38, cert. den. 348 U. S. 951, 99 L. Ed. 743, 75 S. Ct. 438.)
It must be recognized that the people of the state have no vested right in the decisions of a court. They can be overruled or modified. But a change in property law is usually given only prospective application, not retroactive application. This is particularly true where property rights have been established and vested in the owners by former decisions of the court. Heretofore the court has been extremely cautious and reluctant to interfere with any law or rule which might affect title to real estate, lest it disturb vested rights and create confusion and unrest.
It must also be recognized that the legislature has power to change a rule of common law by legislative enactment. But here again the act or new law is given prospective application, and not retroactive application.
This situation was presented in Frizell v. Bindley, 144 Kan. 84, 58 P. 2d 95, where Chapter 115 of tire Laws of 1886 (repealed, L. 1941, ch. 261) attempted to impose the principle of “appropriation” to water in a running stream for purposes of irrigation. The statute was held ineffective as against other owners of riparian lands held under United States patents which antedated the statute. These riparian owners’ rights to the waters of the creek were said to be dependent upon the law of this state at the time their lands passed into private ownership. Those rights were such as attached to riparian lands at common law. The court said:
“And since the common-law rule is that riparian rights are incidents of the land itself, quite different from easements which may be lost through nonuser . . ., those rights, so far as concerns the present litigants, were vested prior to the statute of 1886 and unaffected thereby. . . .” (p. 92.)
Vested property rights, previously established by the court’s decisions, are not destroyed by the legislative enactment. Where such vested rights are taken they must be recognized and indemnity given by the public to the owner, just as the governor’s committee in 1944 found it would be necessary for the legislature to do regarding the proposed water act.
But what the legislature feebly attempted to do in the 1945 Water Appropriation Act of Kansas by giving common law claimants a cause of action for damages proved for “any property taken” under the provisions of the Act, the court has “construed” away.
*355The court in its construction of the Act says:
“As we have seen, the ownership of land does not carry with it any ownership of vested rights to underlying ground' water not actually diverted and applied to beneficial use. Nor do. we regard such a landowner as having a vested right, as the plaintiff contends, to ground water underlying his land which he has not appropriated and applied to beneficial use. A common-law claimant such as the plaintiff who has not initiated any actual use of the water for any beneficial purpose is limited to an action at law against the appropriator subsequently developing water uses under a permit from the chief engineer for earlier appropriation uses perfected under the Act (82a-712, 716, 721 [a]). In the overall, rather than suffering an infringement of any right, the plaintiff is afforded rights and protection by the Act which did not exist under the common-law to which he was subjected prior to its passage.” (pp. 339, 340.)
The foregoing simply says the landowner has lost nothing under the Act which he had under the common law of Kansas as to the “unused” ground water underlying his land, but the Act gives him an action at law against an appropriator — an action which he did not have under the common law for rights which did not exist under the common law.
The landowner is told that nothing has been taken from him which is compensable. At best, the court has described what was taken under the Act from the common law claimant as a “privilege Obviously, the power of the state to regulate under the police power would not subject the state to liability for compensable damages for the denial or the withholding of a privilege. If the state is not obligated to pay compensable damages for the taking of a privilege from common law claimants, how can it shift a liability which does not exist to an appropriator under the Act? The answer is that the new cause of.action is not designed to compensate the owner of “unused’ water for those common law vested property rights which have been taken from him by the Act.
Long after the decision in Wallace v. City of Winfield, 98 Kan. 651, 159 Pac. 11, upon which the court relies for the proposition that a riparian owner had no title to the corpus of the water in the river, it was held in Frizell v. Bindley, 144 Kan. 84, 58 P. 2d 95, that the water rights of a riparian owner were incidents of the land itself and were vested in the common law owner, and that such vested rights could not be lost through nonuser. (See G. S. 1961 Supp., 82a-721a.)
Even though the legislature expressly recognized that its definition of a “vested right” did not include common law claims under *356which a person had not applied water to any beneficial use as defined in the Act, and such common law claimants were said to have a cause of action for damages proved for any property taken, the court holds that the legislature has power to declare what persons had vested rights under the law of Kansas at the time of the enactment.
The full thrust of the holding by the court is found in the statement, “Itis these recognized use rights [vested rights’ as defined in 82a-701(d), supra] that may not be taken or destroyed in the absence of due process of law.” (p. 334.) This is a tacit admission that common law rights to the “unused” waters of the state have been taken without due process of law — the payment of just compensation. As to these common law rights the court says, in substance, the state may take them without due process of law. It says, “The effect of the common-law doctrine in Kansas under the Act is little more than legal fiction.” (p. 339.) (Emphasis added.) Ey describing the 1945 Water Appropriation Act as a “regulatory Act” it is found by the court to be a proper and valid exercise of the police power.
Giving the holder of common law vested property rights a cause of action for a right which did not exist at the common law is no substitute for due process of law, and nowhere in the court’s opinion is it said to be a substitute. Such cause of action is not against the state, the one who confiscated such common law property rights, but against some unknown third party or person, an appropriator, who may not be capable of identification or acquire appropriation rights until long after the effective date of the Act.
Once the court decreed common law vested property rights to the “unused” percolating ground waters of the state to be nonexistent, it became relatively simple to answer whether the 1945 Water Appropriation Act of Kansas violated the due process clause of the Fourteenth Amendment to the Constitution of the United States, or any provision of the Constitution of Kansas, requiring indemnity to the owner where private property is taken for public use. ■
Under the court’s construction of the Act, the legislature is now in the position of having paid no attention to the admonition of the governor’s committee “to allow a common law owner of unused water rights a means of recovery for such damages as he is able *357to prove he has suffered by an Injury or impairment of his property or of any right to initiate a later use of water.”
A primary use of water from the large reservoir of the Equus Beds is so obvious that it has .been overlooked by both the legislature and the court. For this reason the term “unused” has heretofore been set out in quotation marks to identify the term as it has been used by the legislature and the court.
The uncontroverted evidence in the record as summarized by the court was that “a large amount of ground water is lost by evapotranspiration — the natural utilization of water by plants from absorption in their root systems. The process is accelerated by hot weather and winds.” (p. 324.) It is incorrect to say the utilization of water from the soil by plant growth is waste, or that the water is lost. It is by this process beneficially used. This use of the water from the reservoir in the Equus Beds is subirrigation. The water table throughout most of the Equus Beds area under normal conditions is at a sufficient elevation to effectively provide irrigation for the growing crops planted on the land in this area.
Scientific facts which may be judicially noticed are that the roots of the winter wheat plant penetrate the soil in the process of plant growth to a depth of eight feet or more. The roots of the alfalfa plant have been known under favorable conditions to go to a depth of twenty feet, and the roots of corn and other agricultural plant crops likewise go to sufficient depths to tap the reservoir of water.
It is by reason of this subirrigation that the Equus Beds area in Kansas is known as a garden spot with capability of producing abundant agricultural commodities, even though drouth conditions may prevail in given seasons.
The process of nature by , which plant growth takes place — a scientific fact — may also be judicially noticed. It is known that a large elm tree in the hot summer of Kansas will absorb from the soil as much as two hundred gallons of water in one single day and give it off into the air from its leaves by transpiration. This is the process by which plants grow, combining the elements in the soil and in the air with the energy from the sun through the medium of water into vegetative growth and seed production. Failure to recognize this natural use of water, which is actually a beneficial use of the water by the landowner who tills the soil and plants the crops, is simply a refusal to recognize the facts of nature. Such *358failure results in an arbitrary standard which deprives landowners of the right of full enjoyment of their land.
Can both the court and the legislature blindly close their eyes to this established use of underground water in the Equus Reds area and say that such application of water to a beneficial use is not a vested right in the common law owner? I think not. Even under the definition of “vested right” given by the legislature in G. S. 1961 Supp., 82a-701(d) this beneficial use of water is a vested right. Under the Act these common law claimants are entitled to continue the use of water which has actually been applied to a beneficial use. (See Heise v. Schulz, 167 Kan. 34, 204 P. 2d 706.)
Under the court’s construction of the Act the new cause of action (not being designed to compensate the common law claimant for rights taken from him by the Act) must be given some attention. The court says: “It is sufficient to say that while the Act denies injunctive relief to common-law claimants, such as the plaintiff here seeks, it affords protection to common-law owners who have not initiated any use of water for beneficial purposes by giving them a cause of action at law to recover due compensation against an ‘appropriator’ for damages proved for any property taken (82a-716), or for any injury done to their lands or to any water rights appurtenant thereto (82a-721a)." (p.335.) (Emphasis added.)
It is to be noted from the foregoing statement that common law claimants who have not initiated any use of water for beneficial purposes are said to have a cause of action at law for injury done to any water rights appurtenant to their land. The expression emphasized in the above quotation is the language used by the Act in G. S. 1961 Supp., 82a-721a. This is important because when the term “water right” is used in the Act it has a defined meaning, G. S. 1961 Supp., 82a-701 provides in part:
“When used in this act, unless the context indicates otherwise, the following words shall have the following meanings:
“(g) Water right’ means any vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance.” (Emphasis added.)
From the foregoing it is apparent even the court has recognized that a common law claimant, who has not initiated any use of water *359for beneficial purposes, has a cause of action for injury done to a water right appurtenant to his land, described by the Act as a real property right appurtenant to the land; or would it be better to say under the court’s construction of the Act that the new cause of action was only intended for those who have a “vested right” or an “appropriation right” as defined in the Act?
Confusion has no doubt crept into the court’s opinion through the fictional process of reasoning by which it hurtles from a discussion of ownership of the corpus of percolating ground water in the absolute sense to privileges, totally ignoring in the process the whole common law concept pf property rights that exist between these extremes.
The term “property” embraces every species of valuable right and interest, including real arid personal property, easements, franchises and hereditaments. A vested right of action is property in the same sense that tangible- things are property, and is equally protected against arbitrary interference by the prohibition of the Constitution. (Pritchard v. Norton, 106 U. S. 124, 27 L. Ed. 104, 1 S. Ct. 102.) For the same reason a water right under the common law is a vested property right.'
The favorable finding for the plaintiff in the lower court on all issues established a diminution of $200 per acre in the value of the plaintiff’s land by reason of the large withdrawals of underground water by the city of Wichita from the vicinity of the plaintiff’s land. The plaintiff, however, sought to show that such damages were inadequate and requested injunctive relief.
Assuming the 1945 Water Appropriation Act to be constitutional, does the new cause of action entitle the common law claimant to recover damages, such as the plaintiff s evidence herein established to the satisfaction of the trial court? If so, has a Pandora’s box of litigation been opened? What are the pitfalls? How can a landowner know which appropriator, where many permits have been issued, is causing the damage to his property? In many instances the landowner could not prove which appropriator or appropriators were causing his damage, any more than he could trace particles of water lying beneath the surface.
If the appropriator is the city of Wichita, for example, must the common law claimant comply with the provisions of G. S. 1961 Supp., 12-105, and is he limited in his cause of action to such damages as occur within three months prior to the filing of his *360claim with the city? Must suit be brought in the county where the city is located when it is foreign to the landowner, so that the landowner is at the mercy of jurors into whose pockets the city may reach to pay any verdict returned in favor of the landowner?
In spite of the evidence in this case, the court says: “If he [the plaintiff] thinks he has been damaged by the pumping of the ten water supply wells in question, the Act gives him a right to commence a suit for such damage (82a-716, 721a).” (Emphasis added.)
A great paradox is disclosed by reading Power Co. v. Cement Co., 295 U. S. 142, 79 L. Ed. 1356, 55 S. Ct. 725. In discussing the Desert Land Act of 1877 it is there said that the appropriation doctrine in arid land states was necessitated because of the need for irrigating wide stretches of parched and barren land, which never could be made to produce agricultural crops, except by the transmission of water for long distances and its consumption in the process of irrigation. Necessarily, the need for irrigation in these states involved the complete subordination of the common law doctrine of riparian rights to that of appropriation. It became the determining factor in the long struggle to expunge from our vocabulary the legend “Great American Desert,” which was spread in large letters across the face of the old maps of the Far West.
Here in Kansas, however, the court upholds an act which deprives owners of the garden lands of this state of the primary factor which makes them abundantly productive, subirrigation from ground waters, and it is done without any influence of the Desert Land Act of 1877 upon the prior development of Kansas law.
Fear to recognize a private property right in common law claimants, who have not applied water to a beneficial use prior to-the enactment of the 1945 Water Appropriation Act, bespeaks recognition of the numerous authorities construing the due process clause of the United States Constitution, which prohibits a state from enacting legislation which has the effect of taking one man’s property and giving it to another. (Thompson v. Consolidated Gas Co., 300 U. S. 55, 79, 80, 81 L. Ed. 510, 57 S. Ct. 364; Loan Association v. Topeka, 87 U. S. 655, 22 L. Ed. 455; Fletcher v. Peck, 10 U. S. 87, 3 L. Ed. 162; and Chicago, Burlington &c. R’D v. Chicago, 166 U. S. 226, 41 L. Ed. 979, 17 S. Ct. 581.)
There are acts which the federal or state legislature cannot do without exceeding their authority. They may not violate the right of private property. (Calder v. Bull, 3 U. S. 386, 1 L. Ed. 648.) *361The United States Supreme Court, speaking through Justice Holmes in the case of Penna Coal Co. v. Mahon, 260 U. S. 393, 67 L. Ed 322, 43 S. Ct. 158, 28 A. L. R. 1321, said:
“. . . In general it is not plain that a man’s misfortunes or necessities will justify his shifting the damages to his neighbor’s shoulders. . . . We are in danger of forgetting that'.a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. . . .” (p. 416.)
Once private property rights have attached, they cannot be subsequently invaded. (Sturr v. Beck, 133 U. S. 541, 551, 33 L. Ed. 761, 10 S. Ct. 350; and Fletcher v. Peck, supra.)
No legislature may constitutionally make any law disturbing or destroying existing or vested rights, whether such rights be statutory or embodied in judgments or judicial decisions; nor may a legislature so impair an existing remedy so as to destroy or materially impair such vested rights. (Fletcher v. Peck, supra; Loan Association v. Topeka, supra; Poindexter v. Greenhow, 114 U. S. 270, 29 L. Ed. 185, 5 S. Ct. 903; Chicago, Burlington &c. R’D v. Chicago, supra; and see 16A C. J. S., Constitutional Law, §§ 417 and 418, where the cases are accumulated.)
An exhaustive review and discussion of both the case and statutory law of Kansas was undertaken in Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, concerning water and water rights. In the opinion the court said:
“From these statutes it will be observed that the diversion and appropriation of water to beneficial uses has been recognized to be a public use, and the right of eminent domain may be invoked for the purposes sought to be accomplished; but, manifestly, proceedings under these statutes cannot operate to the destruction of previously vested common-law rights. Property in the flow of water acquired under the old system is protected by the constitution of the United States, and can be condemned for public uses only under the same restrictions as apply to the taking of other private property for public uses. (City of Emporia v. Soden, supra [25 Kan. 588].) And other interpretation of the statutes would render them void.” (p. 239.) (Emphasis added.)
Clark v. Allaman, supra, has been affirmed and cited with approval in Weaver v. Beech Aircraft Corporation [1956], 180 Kan. 224, 303 P. 2d 159.
The foregoing basic principles of our form of government were recognized and discussed in Irrigation Co. v. Klein [1901], 63 Kan. 484, 65 Pac. 684.
Kansas has not only recognized the common law doctrine of *362“riparian rights” and ownership of underground water by judicial decision and statute, but has actively insisted upon them in its own behalf and on behalf of the landowners of Kansas. This is disclosed by the Kansas-Colorado litigation which persisted for many years. (Kansas v. Colorado, 185 U. S. 125, 46 L. Ed. 838, 22 S. Ct. 552; Kansas v. Colorado, 206 U. S. 46, 51 L. Ed. 956, 27 S. Ct. 655; and Colorado v. Kansas, 320 U. S. 383, 88 L. Ed. 116, 64 S. Ct. 176; and see Senate Concurrent Resolution No. 14, appearing as L. 1901, Ch. 425.) These decisions indicate without question the law of Kansas to be that common law water rights are vested property rights. In view of such history there can be no question that property rights to water in Kansas were fully and completely vested long prior to 1945.
In the case of Dartmouth College v. Woodward, 17 U. S. 518, 4 L. Ed. 629, titles to land constituting part of the public domain, acquired by grants under the provisions of existing laws by private persons, were said to be beyond the reach of legislative revocation.
What have other states, not covered by the Desert Land Act of 1877, done?
The Supreme Court of Wisconsin in Water Power Cases, 148 Wis. 124, 134 N. W. 330, held a legislative enactment somewhat similar to the 1945 Water Appropriation Act of Kansas void. The statute placed all water power of the- state under the supervision of a commission which ultimately placed it in the state or municipality. Failure to provide for the acquisition of the rights of the riparian owner and compelling him to submit to the provisions of the Act were said to be invalid because it was a taking of private property without compensation and due process of law. In the opinion the court said:
". . . But such incorporeal riparian rights are not, as against the riparian owner, subject or subordinate to any salable or demisable right of the state, or to any claim of the state for compensation therefor, or to any grant of the state to a third person for the purpose of manufacturing or of using or selling water power. They may be taken for the latter uses when such uses are public, but only upon compensation. . . .” (p. 145.)
Further in the opinion it was said:
“. . . If the legislature could, by mere fiat, make any use of property a public use, all private property could in this way be subjected to these drastic regulations justified by a public use. . . .” (p. 148.)
It is generally recognized that a riparian right to water in a stream is property which cannot be taken except for the public use and *363upon the payment of just compensation. A statute declaring waters flowing in a natural channel public and subject to appropriation, so far as they are not being applied to a useful or beneficial purpose, or reasonably needed for such purpose, unconstitutionally deprives riparian owners of their property without due process of law. (See anno. 56 A. L. R. 264, and cases accumulated.)
The Supreme Court of South Dakota recognized the difference between “regulation” and “confiscation” in Ditch Co. v. Ditch Co., 32 S. D. 260, 143 N. W. 124. It said:
“. . . The right to use such waters cannot be thus confiscated or interfered with by tire state or the public and placed in the custody and control of a state engineer any more than could the land itself upon which such water happened to be. . . .” (p.267.)
Further in the opinion the court said a riparian right to use such waters of a flowing stream cannot be lost by disuse.
When the New York Court of Appeals in Forbell v. City of New York, 164 N. Y. 522, 58 N. E. 644, was confronted with subterranean waters similar to those of the Equus Beds, it recognized that the water supply of a great city was of much greater importance than the celery and water cresses of which the plaintiff’s land was so productive before the defendant city encroached upon his water supply. But the court held the defendant could employ the right of eminent domain and thus provide its people with water without injustice to the plaintiff.
The Supreme Court of Michigan in Schenk v. City of Ann Arbor, 196 Mich. 75, 163 N. W. 109, said it was imperative that the people of the city have water, but that it was not imperative that they secure it at the expense of those owning lands adjoining lands owned by the city.
In 1917 the legislature gave recognition to the common law in Kansas and declared “underground waters for all purposes to become appurtenant to the lands under which they flow." (Emphasis added.) (L. 1917, Ch. 172, § 6[d].) This legislation had the effect of settling the vested property rights of landowners in the Equus Beds to the water underlying their land. The foregoing provision, appearing as G. S. 1935, 24-903(d), was on the statute books until the enactment of the 1945 Water Appropriation Act, when the revisor of statutes noted that it was transferred to G. S. 1949, 82a-707. Nowhere in the statutes of Kansas is such provision repealed, except by implication in the 1945 Water Appropriation *364Act. A headnote following the title to the Act itself (L. 1945, Ch. 390) merely says G. S. 1935, 24-903, is amended.
It is respectfully submitted the 1945 Water Appropriation Act is unconstitutional and void. It is in contravention of the United States Constitution which forbids a state to deprive any person of life, liberty or property without due process of law, and to the substantial equivalent of the latter contained in the Kansas Constitution. The water underlying the plaintiff’s land is appurtenant to the land, and the plaintiff’s right thereto under Kansas law is a common law vested property right which the state has appropriaated without giving compensation to the owner. Arbitrary power and the rule of the Constitution cannot both exist. (Jones v. Securities Commission, 298 U. S. 1, 24, 80 L. Ed. 1015, 56 S. Ct. 654.)
Any cause of action which accrued to the plaintiff for the taking of his property accrued on the date of the taking in 1945 when the enactment became law (Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182), and the attempt of the legislature to provide a cause of action against unknown parties at some future date is wholly inadequate (Murrison v. Fenstermacher, 166 Kan. 568, 203 P. 2d 160). A fortiori, a new cause of action which did not exist at the common law would be inadequate and ineffectual as a substitute for compensation.
My dissent in this case is directed solely to the issue upon which the court decided the case — the constitutionality of the 1945 Water Appropriation Act on the federal issue of due process.
The plaintiff in the lower court sought an injunction upon the theory that the ground water in the Equus Beds constituted an underground stream. He relied upon Wallace v. City of Winfield, 96 Kan. 35, 149 Pac. 693; and City of Emporia v. Soden, 25 Kan. 588, for the propositions that (1) injunction is a proper remedy when damages are continuous and would entail frequent and almost continuous litigation, and (2) that the diversion of water by a city for the purpose of selling it is not a riparian use and is not authorized.
Although the plaintiff prevailed in the lower court by a general finding of the trial court in his favor, the evidence presented by the record does not support a finding that the waters of the Equus Beds constitute an underground stream. Instead, the evidence establishes the underground water to be percolating. There is no evidence to the contrary. For this reason the plaintiff on the record here presented is not entitled to injunctive relief. The common *365law relative to percolating ground water permits the city o£ Wichita at its own pleasure to pump the water from the ten well sites in question upon land under which the city has purchased the water rights. (City of Emporia v. Soden, supra, Syl. ¶3.)
As to percolating ground water the plaintiff made no attempt in the trial court to proceed On the theory that the common law of Kansas may have been modified by the “reasonable use” doctrine which had heretofore been applied to surface streams. (Clark v. Allaman, 71 Kan. 206, 80 Pac. 571.)
In result, I agree the judgment of the trial court must be reversed on the record here presented.