To sustain their cause of action the plaintiffs attack the decision in Huber v. Merkel, 117 Wis. 355, 94 N. W. 354, which was discussed in the companion case. It is contended that the decision in that case should not control in the present case for several reasons: (1) That the decision therein was not based upon the police power; (2) that the decision does not correctly state the common law; (3) that the decision has been severely criticized by writers and by the courts of other states; (4) that the decision was based upon a lack of understanding of underground water; (5) if it is decided that the Huber Case correctly stated the common law, it should be reversed.
It is true that the legislation attacked in the Huber Case was not based upon the police power. That issue was discussed in the companion case.
It is contended that the Huber Case did not correctly state the common law; that Acton v. Blundell (1843), 12 Mees. & W. 324, 152 Reprint 1223, was the first English decision *345determining the rule as to the rights to subterranean waters as between adjacent landowners, and that the common law is restricted to English statutes and decisions in effect at the time of the American Revolution. Sec. 13, art. XIV of our state constitution reads as follows:
“Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.”
The common law in effect at the time of the adoption of our state constitution is difficult of definition. We do not think that it is confined to English statutes and the decisions of English courts. In Feiges v. Racine Dry Goods Co. 231 Wis. 270, 285 N. W. 799, reference was made to Michigan statutes that were in force at that time. Perhaps the term “common law” is broad enough to embrace customs and usages and legal maxims and principles in vogue at that time. We do not find that the decision of Acton v. Blundell, supra, was mentioned in the Huber decision. It is true that it was cited in the appellant’s brief along with decisions from some of the eastern states. Assuming, however, but without deciding, that the Huber decision did not correctly state the common law, it did state a rule that was reached and is adhered to in several other states and which is often referred to as the common-law rule. It determined that the use of percolating water underneath an owner’s land is a property right and that water so obtained could be sold. We have operated thereunder for more than fifty years. Property rights thereunder have been acquired and sold. Under the rule of stare decisis, where property rights are involved, the courts are reluctant to engage in judicial legislation. If there is to be a change, it should come by action of the legislature. We know that the legislature is studying the problem and we can expect such legislation as it deems advisable in the interests of all of the people in the state.
*346The Huber decision has been severely criticized by some courts and by several writers. Most of that criticism is directed at the determination therein that an owner may waste water with malice toward his neighbor as his motive. It is unnecessary to give attention to such criticism because neither waste nor malice are issues in the case before us.
We must agree with the trial court that the result of the proposal of the city to withdraw water from the underground basin is unknown and that an injunction should not be granted under the circumstances.
By the Court. — Order affirmed.