Plaintiff by this action seeks to quiet in himself title to certain artesian wells and so-called spring water upon his land together with damages because of the alleged unlawful interference therewith by the defendants and for injunctive relief prohibiting the defendants from pumping water from *Page 180 their land. By their answer defendants denied that they have damaged plaintiff, and also denied that they have interfered with any of plaintiff's water rights. Defendants also filed a counterclaim seeking to quiet in themselves the right to the use of the water which they have pumped and claim the right to continue to pump from their lands. Upon the issues thus joined a trial was had to the court sitting without a jury. Findings were made to the effect that plaintiff had acquired, by appropriation, a right to the use of the water flowing from the well and springs upon his land; that defendants by operating pumps upon their land had wrongfully interfered with plaintiff's water rights to his damage, but the amount of such damage could not be ascertained. A decree was entered quieting in plaintiff a first and prior right to the use of the water flowing from the artesian wells and springs upon his land. Costs and nominal damages in the sum of $6 were awarded plaintiff. Defendants were enjoined and restrained from operating any pumps upon their land "to the extent of interfering with the natural and normal flow of plaintiff's springs or wells." The defendants appeal.
By their assignments of error appellants attack a number of the findings, some of the conclusions of law, and the decree. All of the evidence received at the trial is preserved in a bill of exceptions and is brought here for review. The transcript of the evidence consisting of more than 1,100 pages together with numerous exhibits make a record so voluminous that it is impossible, within reasonable limits, to state even the substance thereof. In the main, the evidence is not in conflict. The following facts are either admitted or established by a clear preponderance of the evidence: Defendants are, and at the times complanied of were, joint owners of 544.8 acres of land situated in sections 28 and 29, township 16 south, range 3 east, Salt Lake Meridian, Sanpete county, Utah. Plaintiff is, and at the times complained of was, the owner of 127.05 acres of land situated in section 33, township 16 south, range 3 east, Salt Lake Meridian, in *Page 181 Sanpete county, Utah. The lands of plaintiff and defendants are coterminous; defendants' land being north of plaintiff's land. Plaintiff's land was segregated from the public domain on April 5, 1883, at which time plaintiff's predecessor in title entered the same as a homestead. Patent to plaintiff's land was issued on November 9, 1891. Defendants' land was segregated from the public domain on the following dates: 160 acres on May 6, 1873; 160 acres on March 27, 1883; 160 acres on August 27, 1888; 43.8 acres on May 4, 1891. The record is silent as to the date when 20 acres of defendants' land was segregated from the public domain.
Extending in an easterly and westerly direction through a part of plaintiff's land is what the witnesses describe as a swale. When Sanpete Valley was first settled, the swale was covered with a meadow consisting of wire, salt, and other native grasses. Some of the early settlers of Sanpete Valley went to the swale on what is now plaintiff's land and there made adobes for the construction of houses in what is now the city of Ephraim. During the process of making adobes, holes were excavated in the swale. These holes filled with water and during at least a part of some years the water flowed out of the adobe holes onto the meadow below. In about the year 1884, plaintiff's predecessor built a dam across the swale and by that means a small reservoir was created above the dam in which reservoir the water coming down the swale was confined. In about the year 1889, plaintiff's predecessor drilled six artesian wells. The water from five of the wells so drilled was stored in the reservoir theretofore constructed on plaintiff's land. At times the water from the reservoir flowed down onto the meadow below. In the year 1901, plaintiff drilled another well near his house, the water from which when not used for culinary purposes ran into the reservoir. Prior to 1916, the exact date not appearing, defendants drilled a number of wells on their premises. At various times a pump was installed in some of these wells. Beginning with the year 1916, defendants pumped water from some of their wells onto their land. In *Page 182 1927, defendants drilled a well 26 inches in diameter and 103 feet deep on their premises and installed therein an electric pump with a capacity of 1,000 gallons per minute. The pump so installed was operated during a part of the irrigation seasons of 1927, 1928, and 1929. The water so pumped was used for the irrigation of defendants' lands. Following are the approximate amounts of water pumped by the defendants during various years: 1916, 6,000,000 gallons; 1917, 12,000,000 gallons; 1918, 25,000,000 gallons; 1919, 40,000,000 gallons; 1920, 7,000,000 gallons; 1921, 10,000,000 gallons; 1922, 9,000,000 gallons; 1923, 1,000,000 gallons; 1924, 14,000,000 gallons; 1925, 17,000,000 gallons; 1926, 35,000,000 gallons; 1927, 20,000,000 gallons; 1928, 42,000,000 gallons; 1929, 53,000,000 gallons. The wells on the lands here in controversy are of various depths varying from 75 to 250 feet. In drilling the wells, artesian water was encountered at five or six different depths, clearly indicating that there are a number of water bearing strata underlying the lands here in question. Plaintiff's wells are located near his reservoir. The surface of the ground from the north, east, and south slopes towards the reservoir. The surface of the ground where plaintiff's wells are located is about 10 or 11 feet lower than the surface of the ground where most of the defendants' wells are located. Such is the case with respect to the large well in which defendants installed their large pump. As a result of the difference in elevation of the surface ground at the various wells, a number of them on defendants' land will not flow unless pumped. Water in the large well in which defendants installed their Kimball pump, the operation of which is here complained of, does not flow without being pumped, but rises in the pipe to a point 7 or 8 feet below the surface of the ground. When not interfered with by the operation of defendants' pumping operations, the total flow of water from plaintiff's wells varies from four to seven gallons per minute.
There is a difference in the opinions of the experts who testified at the trial as to the source of the water that feeds *Page 183 the artesian basin underlying the lands of the parties to this controversy. The expert who testified for the plaintiff expressed it as his opinion that the artesian basin in question was in the main fed by water applied in the irrigation of the lands lying to the east of the premises in question. He based his conclusions in such respect in great part upon the fact that the pressure of the water in the wells was weak and such as might be caused by water being confined between two impervious strata extending a short distance to the east of the wells. He indicated that, if the water became impounded between two impervious strata which extended farther to the east onto the higher ground of the foothills, the pressure in the wells would be much greater than it is. The expert evidence of the defendants is to the effect that the artesian basin in question is fed from water which becomes impounded between two impervious strata which extended into the foothills to the east and particularly into Pigeon Hollow; that the water so impounded finds its way to defendants' land in a subterranean stream or channel. The trial court found that the artesian basin in question is fed from both sources. There is ample evidence to sustain such finding. The evidence touching the source of the so-called springs on plaintiff's land is far from satisfactory. It is made to appear that at an early date water seeped into the swale on plaintiff's land from the surrounding territory. It is likewise clearly established that there was sufficient water in the swale to maintain a meadow thereon and that, except during dry seasons, some water flowed down the swale and over the meadow. The amount of the water so flowing is variously described as a mere seep and as sufficient to flow in one, two, or three rows. There is also evidence that at times there was no water in the swale and that the so-called springs were entirely dry. The presence of water, the amount thereof, or the lack of any water in the swale, on what is now plaintiff's land, at various times at an early date may well have varied from year to year and at different seasons of each year. The amount of precipitation in the vicinity of *Page 184 the land in question would of necessity affect the amount of water, if any, that from time to time found its way into the swale. The evidence also shows without conflict that for many years prior to about 1922, considerable waste water flowed onto the land in the vicinity of plaintiff's land. Some of such water was diverted onto plaintiff's land. Since 1922, the waste water has been diverted elsewhere. The total flow of the springs and seeps on plaintiff's land varies from about 100 to 180 gallons per minute. At the time of the trial the pond which plaintiff used as a reservoir in which to store the water from his artesian wells and so-called springs covered an area of about one acre. One witness described the pond as being, at the time it was first constructed, about twice the size of the courtroom; that the pond was enlarged and cleaned out from time to time is shown by the evidence without dispute. It is also made to appear that two drain ditches have been constructed on plaintiff's land, that a very substantial proportion of what plaintiff claims as spring water seeped into the drains and is discharged into plaintiff's pond. The evidence showing or tending to show that plaintiff's so-called springs are fed by water from an artesian basin is very meager. Plaintiff's expert witness apparently believed that the so-called spring waters were not fed from an artesian basin. Upon this record the only conclusion permissible is that a very substantial part, if not all, of the water which flows from plaintiff's so-called springs comes from the irrigation of the lands in the immediate vicinity, including the lands of the defendants.
The depth of plaintiff's pond or reservoir is variously estimated. Some witnesses placed its depth as one foot, others as four feet. The discrepancy may be accounted for by the fact that the pond was from time to time cleaned out and enlarged.
There is a conflict in the evidence as to the use plaintiff has made of the water which has flowed into the pond. Plaintiff testified that, when the pond filled up with water during the irrigation season, it was from time to time released and *Page 185 used to irrigate his land below the pond. The defendants' evidence is to the effect that such water as flowed out of the pond when it became full was permitted to flow down the swale with no apparent attempt to control it except on one or two occasions. The evidence is all to the effect that, during the years 1928 and 1929, the water which had theretofore flowed from plaintiff's wells was decreased by the pumping of water from defendants' wells. There is some evidence tending to show that plaintiff's wells and also his so-called springs were affected by defendants' pumping operations as early as 1925, but the evidence touching such matters is very unsatisfactory as applied to the so-called springs and also as applied to the wells prior to the year 1928. Defendants have expended approximately $12,000 in drilling wells, constructing an electric power line, and installing pumps in order that they may secure water with which to irrigate their land. On August 27 and 28, 1928, defendants' Kimball pump was operated continuously for a period of 36 hours discharging 700 gallons per minute. The pump was so operated for the purpose of determining what effect, if any, would be produced upon plaintiff's wells. As the result of such operation, most of plaintiff's wells ceased to flow. The flow returned to normal within a day or two after the pumping ceased. The foregoing statement of the admitted facts and the brief summary of the conflicting evidence, while incomplete, are deemed sufficient to make clear the questions which divide the parties to this litigation.
The complaint in this case was apparently drawn on the theory that the origin and source of plaintiff's right to the use of the water in question should be determined by the law applicable to the appropriation of public water. Such was apparently the theory adopted by the trial court. In my opinion the facts of this case clearly bring it within the doctrine of correlative rights as announced by this court in the case of Horne v. Utah OilRefining Co., 59 Utah 279, 202 P. 815, 31 A.L.R. 883. It will be noted that most of the land here involved was privately owned before the wells in controversy *Page 186 were drilled. In the case of Wrathall v. Johnson et al., (Utah) 40 P.2d 755, recently decided, numerous cases dealing with underground water are reviewed at considerable length by this court. It is not necessary to repeat what is there said. A brief statement of what I conceive to be the established law in this jurisdiction with respect to the matter in hand will be sufficient: Only public water is subject to appropriation. Such water consists of water on the public domain whether appearing in running streams, in lakes, in artesian basins, or as percolating water, and water flowing through privately owned land in natural channels either above or below the surface of the earth. On the other hand, water which appears in any of the following manners are not public and hence may not be appropriated after the land upon which such water occurs becomes privately owned: Water in ponds, in bogs, in marshes, in artesian basins, in springs arising upon and not flowing from private property, and percolating water generally. It would seem that as a necessary incident to the public ownership of water there must exist in the public or in a prospective qualified appropriator of public water a lawful means of acquiring the use thereof. It is quite generally held that a public easement exists along the course of a natural channel conveying water over or through privately owned land. So also when water is appropriated on the public domain one who thereafter acquires title to such land takes his title subject to an easement in favor of the appropriator to continue to take the water appropriated by him. However, after land passes into private ownership, such land is not burdened with a public easement to maintain thereon or therein a pond, a marsh, a bog, or an artesian basin. In such cases the water is a part of the land upon or within which it is found and belongs to the owner of the land. No right is reserved in the public, or for the benefit of one who desires to appropriate water, to go upon the land of another and appropriate water from a spring arising upon but not flowing from such land. Much less may the public, or any member thereof, lawfully go upon *Page 187 privately owned land and there prospect for or appropriate the percolating water therein. No provision is made for the condemning of private property for such purpose. It is quite evident that the case of Horne v. Utah Oil Refining Co., supra, proceeds upon the theory that the water of an artesian basin within privately owned land belongs to the landowner. The clear preponderance of the evidence shows that there is an artesian basin subjacent to the greater part of the lands of the parties to this litigation. Such was the finding of the trial court. Upon the authority of the Horne Case and for the reasons more fully stated in the case of Wrathall v. Johnson et al., supra, the rights of the parties in the instant case should be measured and determined by the doctrine of correlative rights and not by the law of appropriation.
Thus plaintiff's right to the use of the well water in controversy is bottomed upon the fact that the artesian basin from which he draws his water is subjacent to his land and not because his wells were driven before those of the defendants. It follows that the rights of the defendants in and to the water of the artesian basin are not inferior but are coequal with those of the plaintiff. Under the rule announced in the Horne Case, the amount of water to which each of the parties is entitled must be measured by the surface area which overlies the basin, provided he put such water to a beneficial use. No claim is here made that the defendants failed to beneficially use the water which they pumped from their well. The manner in which plaintiff has irrigated with his well water has apparently been somewhat crude and wasteful, but, the court below having found that such water was by the plaintiff put to a beneficial use, we, as a reviewing court, are not justified in disturbing that finding. It does appear that the practice prevailing in that locality of permitting artesian wells to flow to full capacity during non-irrigating seasons is not necessary and is calculated to seriously lessen the supply of water available for useful purposes. However, no point is made of such fact by either of *Page 188 the parties to this controversy, and therefore we need not be concerned with that phase of this case.
With respect to the well water, the primary, if not the sole, ground of plaintiff's complaint, is that because of defendants operating their pump the pressure of the water in plaintiff's wells was reduced and at times the water ceased to flow out of the pipe. By the decree appealed from defendants are enjoined from so operating their pump as to interfere with "the natural or normal flow of plaintiff's springs or wells." In view of the fact that defendants' pump draws water from the artesian basin which feeds plaintiff's wells, it would seem to follow that the pumping of any water by the defendants will, in all probability, interfere in some measure with the natural or normal flow of plaintiff's wells. Such seems to be plaintiff's contention, as he offered evidence tending to show that his supply of water began to fail as early as 1916 when defendants began to operate their first pump, and that the decrease of his supply became quite obvious as early as 1925. It will be remembered that plaintiff's wells are located in a swale where the surface of his ground is about 11 feet lower than the surface of the ground where defendants operated their Kimball pump at the time complained of. As a result plaintiff's wells naturally and normally flow out of the pipe while the water in defendants' well naturally and normally stands in the pipe 7 or 8 feet below the surface. If, therefore, defendants may not operate their pumps, they will be deprived of the use of their just proportion of the water in the artesian basin. To hold that defendants have a right to their proportion of the water of the artesian basin and at the same time deny them the right to employ the only available means of using such water would be a farce. Having recognized the doctrine of correlative rights, it necessarily follows that one who possesses a right to water in an artesian basin may withdraw his lawful share thereof through flowing wells, by means of pumps, or other device, even though in so doing he may interfere with the pressure or flow in his neighbor's wells. However, a landowner should be permitted *Page 189 to interfere with his neighbor's means of securing underground water to the extent, and only to the extent, that is necessary to secure to each his just proportion of such water. Any other rule defeats or tends to defeat the entire doctrine of correlative rights. Applying the foregoing rule to the case in hand, the defendants should be permitted to operate their Kimball pump to such an extent, and only to such an extent, as may be necessary to furnish them with their share of the water of the artesian basin which is subjacent to their land and the land of the plaintiff. It may well be that, if defendants pump their share of the water from the basin, plaintiff will likewise, at times, find it necessary to pump some of his water. Such a result is a necessary incident to the doctrine of correlative rights. If the rights to the corpus of underground water are correlative, so likewise must the means of securing the use thereof be correlative. I am not unmindful of the fact that in many cases it is difficult to ascertain the extent of an artesian basin and the actual available supply of water therein. Similar difficulties are encountered with respect to underground water which is subject to appropriation.
In his oral opinion in the instant case, the learned trial judge indicated that he was unable to ascertain from the evidence adduced the extent of the artesian basin here in question or the total amount of available water therein. It also appears that the parties to this suit were not disposed to incur the expense and delay necessary to ascertain such facts. Upon this appeal all of the parties urge us to dispose of this cause upon the case made. Under such circumstances we should, if possible, determine the rights of the parties upon the record before us.
The court below found that the flow of the springs on plaintiff's land was also interfered with by the operation of defendants' pump. There is some evidence which tends to support that finding. It is clear that a substantial portion of the water which finds its way into plaintiff's drains and so-called springs comes from the irrigation of the lands in *Page 190 that vicinity, including defendants' land. Defendants and the other landowners in that vicinity are under no legal obligations to plaintiff to continue to irrigate their lands or to supply water to feed plaintiff's springs and seeps. Obviously, no rights of plaintiff are interfered with if the defendants pump water from their lands which water is the result of the irrigation of such land. After a careful review of the evidence, I am of the opinion that plaintiff has failed to show that defendants by their pumping operations have unlawfully interfered with his so-called springs.
During the course of the trial defendants through their attorneys stated that if the "court finds that there is an unlawful interference with any of the flow of Justesen's wells, or either of them, that we ask for the permission to replace such water * * * by either driving the plaintiff's wells deeper, having the permission to determine the log of the country at his wells, or to install an electric pump at that place and to operate it at the defendants' expense." So far as appears the offer was not withdrawn. Plaintiff did not, and so far as appears, was unwilling to accept the offer. In the light of such offer, some further observations are pertinent. Even though the doctrine of correlative rights be repudiated and it be held that plaintiff has acquired by appropriation the right to the water which has been flowing from his wells, still he should not be permitted to prevent others from using any of the excess water of the basin. The clear preponderance of the evidence shows that the supply of water within the basin is in excess of plaintiff's claim conceding that his rights have been acquired by appropriation. Plaintiff has been receiving from his wells only from 4 to 7 gallons of water per minute. For a period of 36 hours defendants pumped 700 gallons per minute without exhausting the water in the basin. The nominal flow of plaintiff's wells returned within a short time after the pumping ceased. It is the settled law in this jurisdiction not only that acquired water rights be fully protected but also that all available water be put to a beneficial use. Under the law of appropriation *Page 191 one acquiring the right to the use of public water is entitled to only such water as he beneficially uses. So long as an appropriator receives his water at his place of use without additional expense to him he has no just cause to complain merely because the method or means of delivering the water is changed.Salt Lake City v. Gardner, 39 Utah 30, 114 P. 147; UnitedStates v. Caldwell (Upper Blue Bench Irr. Dist.), 64 Utah 490,231 P. 434. In the instant case the well in which defendants installed and operated their pump at the time complained of was about 1,900 feet distant from plaintiff's well. The surface of the ground where defendants' pump was installed is about 11 feet higher than is the surface of the ground where plaintiff's wells are located, so that water will readily flow by gravity from defendants' pump to plaintiff's place of use. If a pipe line were constructed underground from defendants' pump to plaintiff's place of use and such water as plaintiff may be entitled to receive were delivered to him through such pipe line during the time defendants' pumps are being operated and until plaintiff's wells again begin to flow, it would seem that plaintiff's rights would be fully and amply protected. It may be that this court is without authority to make such an order in the absence of the consent of the parties, but, even if it be held that plaintiff has acquired rights to the water in controversy by appropriation, an injunction should not issue depriving defendants from operating their pump where plaintiff may, without cost to himself and without any injury to his premises, receive the water at his place of use.
In my opinion the judgment appealed from should be reversed. The taxable costs incurred in this court and in the court below should be taxed one-fifth thereof to plaintiff and one-fifth thereof to each of the defendants. This cause should be remanded to the district court of Sanpete county, with directions to that court (in the absence of the parties agreeing to some such an arrangement as that above indicated) to permit the parties to present further evidence touching the amount of water that each of the parties to this *Page 192 proceeding is entitled to draw from the artesian basin, and also touching the manner in which defendants may operate their pump so as not to cast any unnecessary burden on the plaintiff in securing his proportion of the water, and for such other proceedings not inconsistent with the views here expressed as may be proper.