dissenting.
I must respectfully dissent to the majority opinion. Although I would grant trans*965fer in order to clarify the Court of Appeals' holding on preemption, I would adopt its ruling that Section 858 of the Restatement (Second) of Torts is to be applied when determining liability for the use of ground water.
The Court of Appeals' determination that the Federal Surface Mining Control and Reclamation Act of 1977, 80 U.S.C. § 1201-1828 (1976, Supp. III), applies to the present case and preempts Indiana's common law rule on subterranean water rights should be clarified. In reaching its decision, the court overlooked the fact that the federal law was not in effect at the time the plaintiffs' cause of action arose. The Act did not become effective until May 8, 1978. 30 U.S.C. § 1252(c) (1976, Supp. III). Also, the effective interim portion of the Act did not include Section 1307,1 which the Court of Appeals invoked. Wiggins v. Brazil Coal and Clay Corp., (1982) Ind.App., 440 N.E.2d 495, 498-99. Additionally, the language in the federal Surface Mining Act indicates that Congress did not intend to occupy the field and thereby did not preclude state law. See 830 U.S.C. §§ 1258, 1255 (1976, Supp. III); Hodel v. Virginia Surface Mining & Reclamation Assoc., Inc., (1981) 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1. There is justification, however, in the Court of Appeals' decision that Indiana's common law contradicts the intent of the federal law, which the supremacy clause does not allow.
In Hodel, the Supreme Court determined that, pursuant to the commerce clause of the United States Constitution, Congress could regulate surface coal mining and that state law determinations conflicting with the federal law would be preempted. 452 U.S. at 200-91, 101 S.Ct. at 2867, 69 L.Ed. at 24-25. The rule applied by the majority does conflict with the congressional intent of the Surface Mining Act. Congress intended to protect the public and the environment from damages resulting from surface mining. 80 U.S.C. § 1201(c); Hodel, 452 U.S. at 277, 101 S.Ct. at 2360-61, 69 L.Ed.2d at 16-17. Consequently, Section 1807 provided a remedy for the damage plaintiffs have suffered. The majority, by relying on Indiana's common law, denies the plaintiffs any remedy. Thus, although the federal law could not have preempted Indiana law at the time this cause arose, the majority's holding now conflicts with the congressional intent regarding surface mining operations and conflicts with current Indiana law. See Ind.Code § 18-4.1-8-1 (Burns 1982 Supp.) Because of this conflict and for the following reasons, I dissent from the majority's adherence to Indiana's common law rule.
The majority steadfastly clings to the rule that ground water belongs to the owner of the land under which it flows and that it may be used as the owner wishes despite injury to neighboring owners of ground water, unless the injury is caused "gratuitously or maliciously". Majority opinion. The majority rationalizes its conclusion by noting that defendant's strip mining operation did not alter the character of the earth beneath and surrounding plaintiffs' lake, that defendant used standard mining procedures, and that defendant did not intend to injure plaintiffs. What the majority ignores, is that by denying plaintiffs any remedy, plaintiffs are forced to bear the cost of defendant's coal operation. This result is against the congressional intent of the federal Surface Mining Act, against the express provision of the Indiana Surface Mining Act, and against traditional property and tort theory. The majority dismisses any consideration of current statutes or public policy, however, and invokes a rule *966over a century old without discussing why it is applicable today.
As the Court of Appeals noted, the common law rule on ground water was formulated to relieve courts of the responsibility of decision making during an era when there was little scientific knowledge regarding hydrology. Wiggins v. Brazil Coal and Clay Corp., (1982) Ind.App., 440 N.E.2d 495, 499. See also State v. Michels Pipeline Construction Co., (1974) 68 Wis.2d 278, 217 N.W.2d 339. This rationale no longer applies. Also, the development of modern society has diminished the theory of absolute ownership of property, which is the basis for the rule. Today a landowner is subject to numerous laws and regulations concerning his property, including "conservation, nuisance, flood control, zoning, and pollution control laws". Wiggins, 440 N.E.2d at 499. Thus the theory of absolute ownership of percolating ground water conflicts with our modern views on property.
Furthermore, no other form of property enjoys the same degree of immunity from liability as does subterranean water rights. This immunity differs from our law on riparian rights to surface water and subterranean streams. The standard of reasonableness applied by the majority to percolating ground water looks only to whether the use is in excess of the reasonable and beneficial needs of the appropriator. Riparian water rights, on the other hand, are measured by the needs of all owners of the water. This Court has held:
"Each riparian proprietor is entitled to a reasonable use of water for purposes not domestic. The question whether the quantity which he is diverting is reasonable is not to be determined, in a case like this, by the requirement of his business, but rather by determining whether his use is reasonable and apportionate with reference to the quantity of water usually in the stream or body of water, and whether the complaining riparian owner is substantially damaged by being deprived of his reasonable use. If the business require [sic] and use [sic] more water than can be permanently diverted without injury to the right of another riparian proprietor, he has a cause of action. The necessities of one proprietor's business cannot be taken as the standard of another's rights in the water which have a right to use to a reasonable extent."
Valparaiso City Water Co. v. Dickover, (1896) 17 Ind.App. 233, 237-38, 46 N.E. 591, 592. I agree with the Court of Appeals that there is no logical reason to distinguish percolating ground water from any other form of water.
Nor is there any reason to distinguish the rule governing percolating ground water from other common law theories of property. Our nuisance law recognizes a right of action to recover damages for the interference with the use and enjoyment of property. Ind.Code § 34-1-52-1 (Burns 1978); Muehlman v. Keilman, (1971) 257 Ind. 100, 272 N.E.2d 591; Indiana Motorcycle Ass'n v. Hudson, (1980) Ind.App., 399 N.E.2d 775; Yeager & Sullivan, Inc. v. O'Neill, (1975) 163 Ind.App. 466, 324 N.E.2d 846. Under our nuisance law, like our riparian water rights law, we look to both parties to determine if circumstances justify shifting the loss from the victim to the party responsible for the interference with the use and enjoyment of the victim's property. See Argyelan v. Haviland, (1982) Ind., 435 N.E.2d 973, 989 (Hunter, J., dissenting); Muehlman, 257 Ind. at 108-09, 272 N.E.2d at 596. As our nuisance statute and case law indicate, property owners in Indiana are subject to the maxim sic utere tuo ut alienum non laedas (so use your property as not to injure the rights of another). Indiana Motorcycle Ass'n, 399 N.E.2d at 778; Albright v. Crim, (1933) 97 Ind.App. 388, 185 N.E. 304. It is time we applied this maxim to subterranean percolating water as well, rather than invoking an outdated rule that no longer serves a purpose.
The nature of the common law is to evolve to reflect changing times and circumstances. It is a court's duty to effectuate this change when necessary. As this Court stated in Brooks v. Robinson, (1972) 259 Ind. 16, 22-23, 284 N.E.2d 794, 797:
*967"Judicial devotion to the doctrine of stare decisis is indeed a justifiable concept to be followed by our courts. However, it cannot and must not be so strictly pursued to the point where our view is opaqued and reality disregarded. To do so is to envision the common law to be as immutable as the laws of the Medes and Persians, and thus render our system of jurisprudence forever impotent. The strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs."
A departure from stare decisis is necessary when the rationale for the original rule no longer exists. There is no longer any justifiable reason to distinguish percolating ground water from our other property concepts and, as evidenced by the facts of this case, to do so is manifestly inequitable.
An additional factor in this case is the conflict between the majority's holding and the federal and state legislative policy regarding surface mining operations. As required by the federal Surface Mining Act, Indiana has adopted the language of 80 U.S.C. § 1807 concerning water rights and replacements. Ind.Code § 13-4.1-8-1(25) (Burns 1982 Supp.) provides:
"[A permittee shall] Replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source if that water supply is affected by contamination, diminution, or interruption proximately resulting from his surface coal mining and reclamation operation. However, this does not affect the right of that person to enforce or protect his interest in the water by other means allowable under the law."
Although this statute was not in effect at the time defendant was pumping plaintiffs' lake dry, the statute does demonstrate both the state and federal legislatures' intent to provide a remedy to those persons injured by a surface mining operation. This remedy reflects the principle that innocent parties should not bear the cost of another's business operation. If the same action were taken today, defendant could not escape liability even under the majority's rule because Ind.Code § 18-4.1-8-1(25) would provide plaintiffs a remedy. It is inequitable to allow defendant to escape liability based on an outdated common law rule that conflicts with our legislative policy. Therefore, I would follow the Court of Appeals' course and adopt Section 858 of the Restatement (Second) of Torts.
The adoption of this Section would not only accommodate the legislative policy concerning surface mining operations, but also would bring the law of subterranean water rights in line with riparian principles. See Restatement (Second) of Torts, § 858, Comment d. Section 858 provides:
"(1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless "(a) the withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure, "(b) the withdrawal of ground water exceeds the proprietor's reasonable share of the annual supply or total store of ground water, or
"(c) the withdrawal of the ground water has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water."
Thus, as in our nuisance and riparian water rights laws, the rights of all property owners are considered.
Here the trial court found that defendant's use of the water was reasonable and necessary for the benefit of defendant's property. However, the harm caused to plaintiffs cannot be labeled reasonable. Plaintiffs lost the use and enjoyment of their lake. Furthermore, Findings 18, 19, and 22 of the trial court reveal that defendant continued to pump water after the pits were dewatered even though it was known that the pumps were causing the water level of plaintiffs' lake to drop. Defendant *968took no action to alleviate the situation but continued to pump water "to eliminate the possibility of again encountering excessive water in the pit". (Emphasis added). Based on these findings, defendant should be liable for the unreasonable harm it caused to plaintiffs' property.
Defendant argues that the adoption of Section 858 amounts to judicial legislation and would unfairly punish the company for relying on Indiana common law. What defendant essentially argues is that plaintiffs should be made to suffer the loss of the use and enjoyment of their lake so that defendant may carry on its business as usual. Justice should not allow this result. As the Court of Appeals stated:
"Equity demands a departure from stare decisis and the traditional common law rules We have no doubt that it was necessary for Brazil Coal to dewater its pits in order to mine coal. However, a principle of modern law is that a business should bear its own costs, burdens, and expenses of its operation because they can be distributed to the consumer through the price mechanism. Enos Coal Mining Co. v. Schuchart, (1962) 243 Ind. 692, 188 N.E.2d 406. To hold otherwise, would result in a shifting of the cost back upon the innocent landowners."
Wiggins, 440 N.E.2d at 501. Furthermore, defendant knew, or should have known, of the federal Surface Mining Act, enacted August 3, 1977, which required states to adopt regulations mirroring the federal provisions. That Act, although not in effect at the time this cause arose, should have put defendant on notice that its action was not sanctioned.
Additionally, when the equities of this case are weighed, it is obvious defendant should absorb the cost of its action. The majority's adherence to the common law ignores these equity considerations, ignores our other property concepts, and ignores both federal legislative intent and Indiana's legislative policy. The adoption of Section 858 would accommodate all of these factors and bring Indiana's subterranean water rights in line with our riparian water rights law and our nuisance statute and case law. Therefore, I dissent.
The Court of Appeals' decision should be vacated to clarify the preemption question, and this Court should adopt Section 858 of the Restatement (Second) of Torts, reverse the trial court and remand the cause of action.
, Section 501 of the Surface Mining Act, 30 U.S.C. § 1251 (1976, Supp. HII), established a two-tier regulatory scheme for surface mining operations. The first tier was an interim phase that mandated federal enforcement of some of the Act's provisions. These provisions were specified in 30 U.S.C. § 1252(c) and did not include § 1807. The second phase, or permanent phase, required the states to adopt a regulatory program that complied with all of the federal performance standards,. 30 U.S.C. § 1253 (1976, Supp. III). See Hodel v. Virginia Surface Mining & Reclamation Assoc., Inc., (1981) 452 U.S. 264, 269-71, 101 S.Ct. 2352, 2356-57, 69 L.Ed.2d 1, 11-13.