dissenting.
I regret that I must dissent. In doing so, I am aware that it is easier to take a contrary position in what is, at best, a hard and difficult case involving a body of law already burdened with many inconsistencies and uncertainties. I feel, however, that I cannot agree with the well-written opinion of the majority.
Before I discuss the main area of my disagreement, I wish to mention in passing two areas in which I feel a comment is indicated. First, I believe that as to the City of Tucson, the majority opinion is not only overly restrictive of the rights of the city, but fails to delineate what the City of Tucson must do if it is to obtain • the water necessary to meet the minimum needs of its people. As the majority opinion is written, there is an inference that the City of Tucson may never be able to increase the amount of water they may take from the South Side Field no matter what they *531do and how great the need. We have, in Jarvis II and III, allowed the city to take water from one basin to another under certain conditions, and I would allow the city to do likewise in the South Side Field.
Secondly, I feel that the time has come to consider again the doctrine of correlative rights under which the owners of land overlying a common supply of water are each limited to taking a proportionate share of the available water and which doctrine we rejected in Bristor II [Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953)]. Under existing law, two adjacent landowners may pump each other dry to the detriment of themselves and others nearby. The result is all too frequently that the access to water is not based on “first in time, first in right” as stated in the majority opinion, rather access to water is determined by a race for consumption controlled not by reasonable use but the physical ability to extract water from the common supply. This encourages wasteful over-consumption and proclaims a right that cannot be protected. In other words, the larger and deeper the well, the more powerful the pump, the more likely it will be that a generous amount of water will be available for use upon the land serviced by that pump while the water underlying the neighbor’s land is sucked down below the depth of his well. To the small or family farmer the right to water then becomes a cruel illusion, proclaimed by law, but unobtainable in practice.
However tempting it may be to discuss these two questions at length, I will confine myself primarily to a discussion of the meaning of “on the land” and “off the land” in the American doctrine of reasonable use which I belive the majority has, by implication, defined too narrowly.
Arizona has adopted the “reasonable use doctrine” with respect to percolating groundwaters. In reversing our holding in Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185 (1952) (Bristor I), to the effect that percolating groundwater is subject to appropriation, we stated:
“ * * * the American rule [is] that one may extract such water for a reasonable, beneficial use of the land from which the same is taken. * * *” Bristor v. Cheatham, 75 Ariz. 227, 235, 255 P.2d 173, 178 (1953). (Bristor II).
Reasonable use has been defined not by the beneficial use of the water alone, but by the beneficial use of the water on the land from which the water was taken. Thus we stated in Bristor II, supra:
“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. * * *” 75 Ariz. at 235, 255 P.2d at 178.
Water was then considered a part of the land from which it was taken and if it was put to beneficial use upon that land it was reasonable even if by doing so other adjacent landowners overlying the common supply were injured. Water could be taken off the land to alien land for other beneficial uses only if other landowners overlying the common supply were not injured thereby. In Bristor II, supra, we cited with approval:
“While there is some difference of opinion as to what should be regarded as a reasonable use of subterranean waters, the modern decisions are fairly harmonious in holding that a property owner may not concentrate such waters and convey them off his land if the springs or wells of another landowner are thereby damaged or impaired. * * * ” Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 134, 14 A.2d 87, 90 (1940).
And we reaffirmed this position in a more recent case:
“ * * * Percolating waters may not be used off the lands from which they *532are pumped if thereby others whose lands overlie the common supply are injured. (citations omitted).
“Such [i. e. percolating] waters can only be used in connection with the land from which they are taken, (citations omitted)” Jarvis v. State Land Department (Jarvis II), 106 Ariz. 506, 508-509, 479 P.2d 169, 171-172 (1970).
It would thus appear from a series of Arizona cases that no matter now beneficial the use, percolating waters could not be used off the land if other landowners were thereby injured. Water was a part of the land and while it could be pumped from many feet underground to the surface, it had to be used on the land from which it was pumped. The corollary, of course, was that water could be severed from the land from which it was taken and transported to other land for reasonable and beneficial use at that new place so long as the owners of land overlying the common supply were not thereby injured:
“ * * * It is the law of Arizona that percolating waters belong to the owner of the land on which they are found, (citations omitted) And he may convey them to other premises than those on which they are originally found, provided no other rights are injured thereby. (citation omitted)” Fourzan v. Curtis, 43 Ariz. 140, 147, 29 P.2d 722, 725 (1934). See also Neal v. Hunt, 112 Ariz. 307, 541 P.2d 559 (1975).
The strict limitation against taking groundwater off the land, if other landowners overlying the common supply are thereby injured, was considerably eroded by Jarvis II, supra.
In Jarvis II, supra, we allowed water to be taken from one groundwater area for use in another groundwater area even though it was assumed by the court that damage would result to the other landowners overlying the common supply. We stated:
“It is also frequently stated as a maxim of equity that equity follows the law. By this is meant that equity obeys and conforms to the law’s general rules and policies whether the common law or statute law. (citation omitted) By A.R.S. § 45-147 the relative value of uses in appropriable waters has been fixed by the Legislature as first, domestic and municipal uses, and second, irrigation and stock watering. The creation of such a priority clearly evidences a legislative policy that the needs of agriculture give way to the needs of municipalities. Hence, we hold that the decree in this case will be modified if Tucson purchases or acquires the title to land within the Avra-Altar Valleys which are now cultivated and uses the water which would have been used in cultivating such lands as a source of supply for its municipal customers. Tucson may withdraw an amount equal to the annual historical maximum use upon the lands so acquired.” Jarvis v. State Land Department, supra, 106 Ariz. at 510-511, 479 P.2d at 173-174.
And in Jarvis v. State Land Department, 113 Ariz. 230, 550 P.2d 227, filed 27 May 1976 (Jarvis III), this court further determined the amount that could be withdrawn by the City of Tucson.
There is, of course, no question that mining is a legal and proper use for water and can be a beneficial use. In the instant case, whether the mines could use the water in question depends upon whether their use is “on the land” or “off the land.”
Logically, the land from which the water may be taken can be defined so as to be quite restrictive. For example, the actual field or pasture upon which the well is situated could be considered the land from which the water is taken and an adjacent pasture or field could be considered “off the land.”
This appears to be the position taken by the majority when they state:
“The Court’s holding, therefore, that the Bristors’ cause of action stated sufficient facts to warrant relief must be interpreted in light of the allegation that the water pumped conferred no benefit to the defendants’ land on which the pumping was conducted.”
*533I believe that the “land from which the water was taken” is that land which overlies the judicially determined distinct body of groundwater from which the water was obtained. The rationale for this approach, which is, I believe, implicit in our previously published opinions, is, essentially, that damage to the available supply of groundwater occurs when water is permanently removed from the land overlying the common supply, so that it is prevented from returning through the ground to replenish the supply. There is no reason, according to the traditional legal understanding of groundwater hydrology, to prohibit the transporting of such water from one point to another, so long as both overlie the common supply. This is because the water is as available to replenish the common supply at the point of use as it would have been at the point of pumping. The transportation causes little diminution of the common supply, and no increase in damage to other landowners overlying the common supply. I believe that water used anywhere on land overlying the same common supply from which it was pumped is used “on the land” for the purposes of the reasonable use doctrine. I believe, then, that the finding of the trial court which read as follows:
“2. Water may be pumped from one parcel and transported to another parcel if both parcels overlie a common basin or supply and if the water is put to reasonable use. Jarvis II.”
should be upheld as representing not only the law as it existed before the majority opinion in this case, but common sense as well. I would affirm the decision of the trial court.
I feel that I must make one more comment concerning the majority opinion. The majority opinion, in an attempt to buttress its interpretation of the Bristor opinions, states:
“Appellee nonetheless argues that Bristor only established the limited principle that groundwater may not be conveyed to a point beyond lands overlying the common supply, compelling the conclusion that if the water so transported returns at least in part to replenish the common supply, this satisfies the American doctrine of reasonable use. Appellee argues that while a party owning land overlying the common underground water supply could not convey pumped waters ‘off the land’ or ‘off his land,’ this only meant land overlying the common source of supply. But there is no language in Bristor’s complaint which suggests the water pumped by defendant Cheatham was not used on lands overlying the common supply.
“The Bristors allege in their complaint that defendant was transporting water three miles from where it was pumped, and in paragraph 14 of their complaint:
‘that the water so pumped by defendant confers no benefit upon defendants’ lands where the pumping operation is conducted; that such use by defendants is an unreasonable use as to plaintiffs * * *.’
“The Court’s holding, therefore, that the Bristors’ cause of action stated sufficient facts to warrant relief, must be interpreted in light of the allegation that the water pumped conferred no benefit to the defendants’ land on which the pumping was conducted.”
The bench and bar of this State have an obligation to follow the law as we state it in our written opinions. However, the pleadings in the trial court, which this court did not, at the time, consider important enough to quote in the opinion of the court, should not be considered as part of the case law of this State. I disagree with the majority’s statement that the court’s holding in Bristor must be “interpreted in light of the allegation” contained in Bristor’s complaint. Bristor’s complaint was not quoted in the opinions of this court in Bristor I and II nor was the complaint part of the record in the instant case. Our opinions should speak for themselves, and counsel should not be required to resort to ancient records and unpublished pleadings in interpreting our prior decisions.