(dissenting). I respectfully dissent in this case; and there are three points to be covered in the dissent.
I. The Majority Says That the Chancellor Decided Against the Preponderance .of the Evidence. I think the Chancellor decided according to the preponderance of the evidence; and I think the majority is using faulty logic in arriving at its conclusion. The majority says:
“The fact that every time the chicken processing plant put the wells on the Crouch property in use, the Jones and Ward wells went dry, and every time the Crouch wells were shut down the Jones and Ward wells again produced water, shows just about as conclusively as it is possible to prove anything by circumstantial evidence that the large amount of water taken from the Crouch wells to process the chickens caused the Jones and Ward wells to go dry.”
Now the quoted statement evidently presupposes that the only wells in the vicinity of Bloomer were the Ward well, the Jones well, and the Crouch wells. But the maps and plats introduced in evidence show over sixty wells within two thousand feet of the Ward and Jones wells. Approximately thirty of the sixty wells were ‘ ‘ dry, ’ ’ and about thirty were “wet” or producing. There is no showing whatsoever as to how much water was being taken from each of the thirty wells at the time the Crouch wells were pumping. In other words, for all the evidence in this case shows, some other wells might have been pumping besides the Crouch wells and might have been causing the trouble to the Jones and Ward wells, and also to some of the Crouch wells that went dry.
The defendant’s Exhibit No. 1, introduced by consent, shows the exact location of each well in the community of Bloomer, and which wells are dry and which wells are wet. The defendant’s Exhibit No. 2 shows how near the water level came to the ground level in each well. It is interesting to note some of the other nearby wells not involved in this litigation but shown on the exhibit; the Mikel well 110 feet deep had thirty feet of water, and the Bowen well — immediately adjacent and 109 feet in depth — was dry. Another interesting thing is: that one of the Tuggle wells 90 feet deep was dry, and another one 85 feet deep and immediately adjacent contained 55 feet of water. In short, the underground formation and strata in and around Bloomer was shown to be terribly scrambled to produce such conditions in the water wells.
The foregoing could be developed at length: and a reproduction of the plats would clearly demonstrate the correctness of the testimony of the defendant’s witnesses, Rutledge, Gibson and McConnell, to the effect that the water conditions in the vicinity of Bloomer for the past several years have been influenced by the drouth, rather than by the pumping' of the wells. The Chancellor found that the use of water by the Oz-Ark-Val Poultry Company from the wells on the Crouch property was not the cause of the failure of the Jones and Ward wells. I respectfully submit that the Chancellor was correct and that the majority is in error in holding that the Chancellor’s finding was against the preponderance of the evidence.
II. The Majority, By Judicial Fiat, Adopts the American Theory of “Reasonable Use” Rather Than the Common-law Rule of “ Takers-heepers.” In 56 Am. Jur. 595, “Waters, ’ ’ § 113, the common-law rule is stated:
“According to the doctrine known as the ‘common-law’ or ‘English’ rule, percolating water, as herein defined, is regarded as being as much a part of the freehold through which it courses or percolates as the clays, sand, gravel, and rocks found therein, and the owner, at least in the absence of malice and of any contractual or statutory restriction, has the absolute right to intercept the water before it leaves his premises and makes whatever use of it he pleases, regardless of the effect that such use may have on an adjoining or a lower proprietor through whose land the water, in its natural course, would filtrate, percolate, or flow.”
I think we should follow the common-law rule until the Legislature sees fit to change the common-law rule. It is well known in Arkansas that in the past two sessions of the Legislature, the question of legislation concerning water has been one of the most controversial issues. We have had a great deal of trouble trying to decide surface water cases; and subterranean water cases are far more difficult of decision. Act No. 81 of 1957 affects surface water; yet the majority, by this opinion, is adopting the “reasonable use” rule for percolating waters in advance of any action by the Legislature. I submit that we should follow the common-law until the Legislature prescribes otherwise, because Arkansas is a common-law State.
III. The third reason for my dissent is, that even if the majority adopts the “reasonable use” theory, still there is nothing in the record in this case to show that the poultry company was making an unreasonable use of tlic water. In 56 Am. Jnr. 600, ‘ ‘ Waters, ’ ’ § 117, this is stated:
“As applied in most jurisdictions, however, the rule of reasonable use or correlative rights prevents the withdrawal of percolating waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, . . .”
It was shown in this case that the poultry company used about 23,000 gallons a day at its peak load in processing the poultry. Mr. McConnell testified that only 5,000 gallons per day of this water came from the Crouch 10-acre property. So the question is, whether 5,000 gallons of water per day from seven wells is an unreasonable amount of water to use. That is less than 1,000 gallons of water per day per well. Mr. Gibson, the man who drilled most of the wells that had been drilled in Bloomer, testified that a fair home well would make 350 gallons per hour, and that a good well would make 900 gallons per hour, or fifteen gallons a minute. The poultry company was using less than 1,000 gallons per well in 24 hours, which is about 40 gallons an hour per well. If a fair home well produces 350 gallons per hour, and the poultry company was only using 40 gallons per hour, then certainly the poultry company "was not making an unreasonable use of water from the wells on the 10-acre tract here involved. Furthermore, the poultry company was talcing this water from its wells to its plant, a distance of approximate! y 2,000 feet. The poultry company was not selling the "water like a municipality or water company; it was using it for its own use. It bought the land; and I submit that there is nothing in this record to show an unreasonable use so as to justify the injunction that the majority is sanctioning.