(dissenting).
*214I regret that I am unable to agree with the majority. I did not agree with the majority opinion in Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173, in which it was held that underground percolating waters belonged to the owner of the surface of the soil to which they are subjacent and I do not now agree with it because I think the majority ignored the Desert Land Act passed by Congress in 1877, 43 U.S.C.A. § 321 which effected a severance from the land of all waters upon and under the public domain. Neither did I agree with the majority opinion in Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764, wherein it was held that the Act known as the 1948 Water Code was constitutional. But as a member of this Court I am bound by both of those decisions.
Therefore as I interpret Bristor v. Cheat-ham, supra, it holds that the decision of this Court in Howard v. Perrin, 8 Ariz. 347, 76 P. 460, is that waters percolating through the soil beneath the surface are the property of the owner of the surface to which they are subjacent. The decisions in the Bristor case then proceeds to pronounce the law of that case under the doctrine of reasonable use to be that [75 Ariz. 227, 255 P.2d 180]:
“This rule [of reasonable use] does not prevent the extraction of ground water subjacent to the soil so long as it is taken in connection with a beneficial enjoyment of the land from which it is taken. * * * ” (Emphasis supplied.)
The Court then points out that:
“A great majority of the states which in recent years have been presented with this problem adhere to the principle that the owner of lands overlying ground waters may freely, without liability to an adjoining user, use the same without limitation and without liability to another owner, providing his use thereof is for the purpose of reasonably putting the land from which the water is taken to a beneficial use. * * * ” Citing cases. [Emphasis mine.]
The decision then states there is a marked tendency in American jurisdictions in later years away from the doctrine that the right of the owner is unqualified and that there is an ever increasing tendency toward the viewpoint:
“ ‘ * * * that their use must be limited to purposes incident to the beneficial enjoyment of the land from which they [percolating waters] are obtained. * * * ’ ”
The appellee in this case as I understand the record is taking the water from the well on land to which the waters therefrom have previously been applied and to which they were subjacent, and applying them to other lands not previously cultivated and permitting the land previously *215'Cultivated, from which said waters had been subjacent, to lie fallow. This appears to me to be a violation of the rule laid down in the Bristor case, supra, in that it withdraws the waters from one tract of land permitting them to be conveyed in alternate years or in alternate crops to another tract of land which never before had been in cultivation.
It is claimed that appellee is using no more water than he would use if applied to the original tract. I think the fact is too well established as a matter of public knowledge that lands in irrigation areas, as well as elsewhere, are required to have periods of rest or fallow in order to get the best results in productivity. There is nothing in this case to indicate how far the water is conveyed to the newly cultivated land. But it is also an undisputable fact that the farther water is carried in an open ditch from its source the greater is the loss, both from seepage and evaporation. This being true the conclusion is irresistible that a greater quantity of waters are withdrawn from the critical area than would be if the waters were applied to the land to which it is subjacent.
It is clear to me that the Bristor case kolds that the water must be applied to the soil to which it is subjacent.
I do not believe Chapter 160, Session Laws of 1954, have in any way modified the holding in the Bristor case, supra. On the other hand, Section 2, subsection (c) thereof indicates the contrary. It reads as follows:
“No permit shall be issued for drilling a new well for the purpose of irrigating land not already under cultivation, nor shall any permit be issued for any well to irrigate such land zahén such land lies within the restricted area described in sub-paragraph (b) hereof, pending the completion by the commissioner of the proceedings and actions required by sub-paragraph (b) hereof.” [Emphasis supplied.]
It seems that the above language justifies the interpretation that no waters from any well shall be permitted to irrigate any land other than that to which they are subjacent in an area designated as critical which is not then in cultivation until the water commissioner completes the survey directed therein to be conducted by him. The record is silent as to whether this survey has been completed.
The Bristor decision interpreting the applicable statutory law is a mandate to the water commissioner in my opinion to not permit the conveyance of percolating waters to lands from which such waters are not subjacent. I am therefore of the view that the commissioner is mandated to refuse the appellee the right to withdraw waters from beneath the surface of a tract of land upon which such water has been *216applied to a beneficial use and convey it or any part of it and apply it upon another tract not theretofore under cultivation. This is true whether it does or does not lessen the use of his neighbor to such percolating waters.
It is therefore my view that the judgment of the lower court should be reversed with directions to enter judgment for the appellant.