I cannot agree that the opinion heretofore handed down, in which I concurred, should remain as the opinion of the court. The result reached by the court is undoubtedly correct in each of the two cases. But a doctrine is announced which I consider unsound and unsupported by any authority, viz. that percolating waters are, and always have been, subject to the right of prior appropriation. That the waters here involved are percolating waters seems to be beyond dispute, as the district court found. These waters are the result of precipitation in the form of rain and snow over a large area west of the artesian basin involved, and they find their way by natural laws of gravitation into a pervious stratum lying between two impervious strata. In finding their way through this pervious stratum, these waters filter through small holes and interstices running from the size of a knitting needle down to openings microscopic in size (as stated by one witness). They finally are dammed off, and the pressure behind causes them to rise to the surface, when the permeable stratum is tapped by a well, and thus to become what we call artesian waters. They nevertheless remain percolating waters, and the process of percolation goes constantly on as the draft upon them continues through the wells.
The question then is whether percolating waters were subject to law of prior appropriation before the enactment of chapter 182, Laws 1927, as declared in the opinion of the court, or whether they were the property, either absolutely or relatively, of the owners of the soil through which they percolated. The first proposition advanced in the opinion to which I do not agree is that under the civil law of Spain and Mexico the right of prior appropriation of percolating waters existed. See 2 Wiel on Water Rights (3d Ed.) § 1099, citing and quoting from Acton v. Blundell, 12 Nees. W. 324, where it is said that the *Page 631 civil law was the same as the common law in regard to percolating waters.
In the second place, we did not acquire the territory in which this artesian basin lies from Mexico, but we acquired it from the Republic (afterwards state) of Texas. See 8 U.S. Stat. 511; 5 U.S. Stat. 797; 9 U.S. Stat. 108; Id. 446, the act establishing the territory of New Mexico, and under which the United States paid Texas $10,000,000 to establish its western boundary where it now is and to cede to the United States all its claims to territory west of that line, Texas having theretofore claimed to the Rio Grande from its mouth to its source. See 9 U.S. Stat. 1005, for proclamation by the President that said arrangement had been consummated. The United States has never received from Mexico any grant or cession of lands east of the Rio Grande. See Treaty of Guadalupe Hidalgo, Code 1915, p. 21, and the Gadsden Treaty, Code 1915, p. 32.
It thus appears that the civil law of Mexico has never been extended over the eastern part of New Mexico where the artesian basin in question is situated.
At the common law percolating waters were the absolute property of the owner of the fee, and he might use it or waste it at his pleasure. Dissatisfaction with this doctrine has developed in America, and what is called the American doctrine is generally accepted to the effect that the owner of the fee must make a reasonable use of the water, and the same may now be considered settled. But the right to use the water by the owner of the fee has in no way been destroyed or lessened by the adoption of the so-called American doctrine; he still has as against the world the right to capture and use it upon his own land for any useful purpose, even if by so doing he injures his neighbor. I do not deem it necessary to cite or discuss the cases in detail. They are all collected in a note to Clinchfield Coal Corp. v. Compton, 55 A.L.R. 1376, note beginning at page 1385.
There has never been any legislation in this state attempting to take away this right until the act of 1927, and *Page 632 there has been no decision of this court attempting to do so. I assume that, if the limits of the capacity of the artesian basin has been reached by the draft already made upon it, the Legislature might, perhaps, declare these waters public waters under its police power, and make them subject to appropriations already made, but providing for due compensation to owners whose rights are thus curtailed; but, in attempting so to do, as it has done in the act of 1927, it has violated almost every guaranty in the Bill of Rights in the federal and our state Constitution, only one of which need be mentioned, viz. private property may not be taken for the public use without just compensation.
I understand the position taken in the opinion to be entirely unnecessary to a decision of the case; and do not believe that this court should, when unnecessary, indulge in a discussion and announcement of a doctrine which, to say the least, is of a very doubtful soundness and very far-reaching in its consequences.