case in which the Crescent Company could claim a right by virtue of any sort of interest in common with the defendant Silver King Company. If the Crescent Company had owned a right to the water by prior appropriation under some law authorizing appropriation, as in the case of Sullivan v. Northern Spy Min. Co. 11 Utah, 438, 30 L.R.A. 186, 40 Pac. 709, or in Stowell v. Johnson, 7 Utah, 215, 26 Pac. 290, in which a question analogous in principle was determined by the court, or a right in common as above stated, a different case would have been presented, resulting, perhaps, in a different determination.

Another Utah case relied on is that of Willow Creek Irrig. Co. v. Michaelson, 21 Utah, 248, 51 L.R.A. 280, 81 Am. St. Rep. 687, 60 Pac. 943, in which it was held that percolating water arising in private land after the owner of the land obtains his patent thereto is not the subject of appropriation by others. The case is exactly similar in principle to the Crescent Min. Co. Case, which we have just reviewed, except that the decision in the Willow Creek Case is clearer cut as to the exact point in controversy. Both of these cases, together with many other Utah cases, received a somewhat extended review by this court in the recent case of Stookey v. Green, 53 Utah, 311, 178 Pac. 586, and need not be further considered in this connection.

Herriman Irrig. Co. v. Keel, 25 Utah, 96, 69 Pac. 719, perhaps goes farther than any other case decided by this court in support of the doctrine that to the owner of the soil belong the waters percolating therein as against one claiming a prior appropriation. The case is unsatisfactory as an authoritative decision for several reasons: (1) It was rendered by a divided court, each of the three justices delivering a separate opinion disagreeing in essential particulars; (2) in the main it was decided upon a question of fact partially sustaining a finding of the trial court to the effect that the driv

ing of defendant's tunnel did not interfere with the water to which plaintiff was entitled; (3) it does not appear that the real basis of plaintiff's right to the water by prior appropriation, namely, the laws of Congress, or of the state, authorizing appropriation, or authorities in support thereof, were presented to, or considered by, the court. On the other hand, it does appear that the common-law doctrine relied on by defendants was ably presented by defendants' counsel, and also considered by the court.

In any event, the doctrine enunciated in that case, in so far as it appears to support the common-law rule relating to percolating waters relied on by appellant in the instant case, has been seriously discredited, if not overruled, by this court in more recent decisions. Rasmussen v. Moroni Irrig. Co. 56 Utah, 140, 189 Pac. 572; Mountain Lake Min. Co. v. Midway Irrig. Co. 47 Utah, 371, 154 Pac. 584; Bastian v. Nebeker, 49 Utah, 390, 163 Pac. 1092; Peterson v. Lund, 57 Utah, 162, 193 Pac. 1087; and Stookey v. Green, supra. It cannot be denied that the decided trend of the decisions of this court in recent years has been to reaffirm the doctrine enunciated in the earlier cases,-Stowell v. Johnson and Sullivan v. Northern Spy Min. Co. supra,-which, in effect, hold that the common-law doctrine, both as to riparian rights and percolating water, are inapplicable to conditions existing in this jurisdiction, and cannot prevail as against a right acquired by prior appropriation. Even if the doctrine enunciated in the Herriman Case had not been modified or overruled by later decisions, the relative conditions of the parties and properties involved in that case were such as to render the decision wholly inapplicable to the conditions existing in the case at bar. We need not occupy time and space in making the distinction; it will readily occur to the reader upon the most casual examination of the facts and conditions referred to. It is sufficient to say that the

instant case is sui generis in this jurisdiction. The questions involved have never been determined by any previous decision of this court. It, however, is not a case of the first impression. The identical question presented here has been adjudicated and determined in other jurisdictions of the country, and its determination strongly foreshadowed in the opinions of this court in Peterson v. Lund, 57 Utah, 162, 193 Pac. 1087, and Garns v. Rollins, 41 Utah, 260, 125 Pac. 867, Ann. Cas. 1915C, 1159.

As a prelude to this phase of the case, we refer to the conflicting doctrines of the old common law, one to the effect that he who owns the soil owns it to the lowest depth; and the other, that he who owns the soil owns the percolating waters therein, and may use the same as he pleases, even though he thereby diverts and appropriates water percolating in the land of an adjacent proprietor. The two doctrines are in hopeless conflict, and utterly and utterly incompatible one with the other. This, perhaps, has had more to do than anything else in evolving what is now known as the "American doctrine," the doctrine of "reasonable use. This doctrine recognizes the correlative rights of adjacent landowners to the underground waters percolating in and through their respective tracts of land.

The earliest, most notable enunciation of the doctrine, according to our examination of the cases, is found in the exceedingly able opinion of Mr. Justice Bartlett of the supreme court of New Hampshire, in Bassett v. Salisbury Mfg. Co. 43 N. H. 569, 82 Am. Dec. 179. The doctrine was reaffirmed by the same court in Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276, in which the Bassett Case is referred to as a "well-considered case." Opportunity will not permit of more than a bare reference to these early cases. The opinion in the Bassett Case was afterwards adopted in full by the California supreme court in the famous case of Katz v. Walkinshaw, reported first

in 141 Cal. 138, 64 L.R.A. 236, 99 Am. St. Rep. 52, 79 Pac. 663, and afterwards, on rehearing, in 141 Cal. 116, 64 L.R.A. 247, 90 Am. St. Rep. 35, 74 Pac. 766. The doctrine as enunciated in all of these cases, and many others to the same effect, seems to find its principal authority in the maxim "sic utere tuo ut alienum non lædas," or "so use your own as not to injure another's property."

As the Walkinshaw Case is generally held to be the leading case in the arid region upon this question, and as the physical and climatic conditions existing in that case, as described in the opinion, are strikingly similar to those existing here, we have deemed it important to give the case something more than a passing notice. The case, stated by Mr. Justice Temple, as the same is abstracted by the court (141 Cal. at page 138), as far as material here, reads as follows:

"The action was brought to enjoin defendant from drawing off and diverting water from an artesian belt, which is in part on or under the premises of plaintiffs, and to the water of which they have sunk wells, thereby causing the water to rise and flow upon the premises of plaintiffs, and which they aver had constantly so flowed for twenty years before the wrong complained of was committed by defendant. The water is necessary for domestic purposes and for irrigating the lands of plaintiffs, upon which there are growing trees, vines, shrubbery, and other plants, which are of great value to plaintiffs. All of said plants will perish, and plaintiffs will be greatly and irreparably injured, if the defendant is allowed to divert the water.

"These facts are admitted, and, further, that defendant is diverting the water for sale, to be used on lands of others distant from the saturated belt from which the artesian water is derived."

It being conceded in that case that the water was underground percolating water, as distinguished

from water flowing in subterranean channels, the defendant relied upon previous California decisions which asserted and applied literally the maxim, "cujus est solum," etc., and cited the following cases: Hanson

v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Southern P. R. Co. v. Dufour, 95 Cal. 616, 19 L.R.A. 92, 30 Pac. 783; Gould v. Eaton, 111 Cal. 641, 52 Am. St. Rep. 201, 44 Pac. 319; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585.

These same cases are also cited and relied on by defendant in the instant case. Concerning them, it is sufficient to say they were all, in effect, overruled by the Walkinshaw Case in so far as they tend to support defendant's contention in the present case. Many other cases relied on by defendant here, in addition to those enumerated, were carefully reviewed by the California court, and either distinguished or the doctrine enunciated by them held to be inapplicable to conditions existing in California. The court decided the issues in favor of plaintiff, and reversed the judgment which had been entered for defendant in the court below.

The facts in that case, as appears from the brief abstract above quoted, together with the remedy sought, are almost an exact parallel with those existing in the instant case. The holding of the court is correctly reflected in five paragraphs of the syllabus, which we here quote at length:

1. "Each owner of soil lying in a belt which becomes saturated with percolating water is entitled to a reasonable use thereof on his own land, notwithstanding such reasonable use may interfere with water percolation in his neighbors' soil; but he has no right to injure his neighbors by an unreasonable diversion of the water percolating in the belt for the purpose of sale or carriage to distant lands."

2. "The maxim, 'sic utere tuo ut alienum non lædas,' is applicable as between adjoining users of perco

lating water, whenever justice requires its application."

3. "The owners of artesian wells sunk in an artesian belt of percolating water, the waters from which are necessary for domestic use and irrigation of their lands, on which are growing trees, vines, shrubbery, and other plants of great value, are entitled to an injunction to restrain the diversion of the water percolating in the artesian belt, by an owner of land situated in the belt, for the purpose of conveying the same to distant lands for sale, to the irreparable injury of the plaintiffs."

4. "Where the complaint for the injunction stated in substance that plaintiffs had wells in their respective tracts, from which water flowed to the surface of the ground, which was necessary for domestic use and irrigation of their lands, and that the defendant by means of wells and excavations on her own lands drew the waters from plaintiffs' lands and conveyed them to distant lands, it states a cause of action for an injunction to restrain the diversion of percolating water; and an averment that the diversion was from an underground stream may be regarded as surplusage. (Italics ours.)"

5. "The common-law rule that fiedly to the owner of the soil, and percolating water belongs unqualithat he has an absolute right to extract and sell it, is not applicable to the conditions existing in a large part of this state, where artificial irrigation is essential to agriculture, and artesian wells in percolating belts are necessarily used for that purpose."

Assuming that the doctrine enunciated in the Walkinshaw Case is a sound exposition of the law applicable to conditions existing in this jurisdiction, then it must be conceded that the complaint in the instant case tested by the rule laid down in the fourth paragraph last above quoted meets every requirement and states a cause of action for equitable relief.

There, perhaps, was never a case decided by the supreme court of

California with more painstaking care and mature deliberation than the Walkinshaw Case, as indicated by the following excerpt from the first part of the court's opinion (141 Cal. at page 120):

"A rehearing was granted in this case for the purpose of considering more fully, and by the aid of such additional arguments as might be presented by persons not parties to the action, but vitally interested in the principle involved, a question that is novel and of the utmost importance to the application to useful purposes of the waters which may be found in the soil.

"Petitions for rehearing were presented not only in behalf of the defendant, but also on behalf of a number of corporations engaged in the business of obtaining water from wells and distributing the same for public and private use within this state, and particularly in the southern part thereof. Able and exhaustive briefs have been filed on the rehearing. The principle decided by the late Justice Temple in the former opinion, and the course of reasoning by which he arrived at the conclusion, have been attacked in these several briefs and petitions with much learning and acumen. It is proper that we should here notice some of the objections thus presented."

The court then proceeds to a consideration of the questions involved, finally arriving at the conclusion that the doctrine of reasonable use of underground percolating water should be adhered to, as expressed in the former opinion of the court.

The Walkinshaw Case, and subsequent decisions of the California court relating to conditions almost identical or cognate to a limited extent, have been subjected to an exhaustive analysis by Mr. Wiel in his excellent work on Water Rights in the Western States. The analysis begins in volume 2, 3d ed. at § 1043, and concludes with § 1065, all of which is well worth a careful perusal by the reader who desires a thorough acquaintance with the law as

declared by the California court. It will be found upon examination that many of the cases are distinguished from the Walkinshaw Case, and, for that reason, in some cases the relief sought for was denied. The writer, however, has failed to find that the Walkinshaw Case, as to the doctrine of "correlative rights" or "reasonable use," has been overruled, or even modified, by any subsequent case where the facts and conditions were substantially similar. As the work referred to may not be within the easy reach of all who may desire to make a careful investigation of the cases reviewed by the author, we cite the cases in this connection in the order in which they appear in the author's analysis. Katz v. Walkinshaw, supra; McClintock v. Hudson, 141 Cal. 275, 74 Pac. 849; Cohen v. La Canada Land & Water Co. 142 Cal. 437, 76 Pac. 47, id., 151 Cal. 680, 11 L.R.A. (N.S.) 752, 91 Pac. 584; Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113; Newport v. Temescal Water Co. 149 Cal. 531, 6 L.R.A. (N.S.) 1098, 87 Pac. 372; Burr v. Maclay Rancho Water Co. 154 Cal. 428, 98 Pac. 260; Barton v. Riverside Water Co. 155 Cal. 509, 23 L.R.A. (N.S.) 331, 101 Pac. 790; Hudson v. Dailey, 156 Cal. 617, 105 Pac. 748; Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755; Miller v. Bay Cities Water Co. 157 Cal. 256, 27 L.R.A. (N.S.) 772, 107 Pac. 115. Previous to his review of the cases cited, the same author, in §§ 1039 and 1040, briefly defines and discusses the "English rule" both as to percolating water and watercourses, and carefully makes the distinction. In § 1041, the "American rule" is referred to as a modification of the English rule, and reference is made to a list of cases from seventeen American jurisdictions where the English rule "has been either expressly departed from or doubted in one form or another." The cases are cited in the note to § 1066, and are from the following states: California, Colorado, Delaware, Georgia, Idaho, Indiana, Iowa, Kansas,

Meeker v. East Orange, 77 N. J. L. 623, 25 L.R.A. (N.S.) 465, 134 Am. St. Rep. 798, 74 Atl. 379, is referred to by Mr. Wiel in § 1066 of his work as a case "specially worth reading." It is unquestionably a most interesting case, and directly in point upon the question as to whether the "English rule" or the "American rule" concerning percolating waters should prevail in that jurisdiction. The case may be said to be the leading case upon that question in the nonarid region of the country. The opinion is by Chancellor Pitney, of the New Jersey court of errors and appeal, now a Justice of the Supreme Court of the United States. In view of the weight that should be given to the case, both on account of the similarity of conditions and the high standing of the distinguished writer of the opinion, we deem it worth while to state the facts in the language of the court:

"Plaintiff brought two actions in one of the district courts of the city of Newark to recover damages for the diversion by the defendant of percolating underground water. In each case the district court rendered judgment in favor of the defendant, and upon appeal to the supreme

court the judgments were affirmed. By writs of error the records are brought here for review.

"The cases were submitted to the trial court upon agreed statements of fact. In one case it is stipulated that plaintiff owns and occupies a farm of about 100 acres, situate in the valley of Canoe brook, in the townships of Milburn and Livingston, in the county of Essex. He is a milkman, and has for a number of years used his farm for the pasture and support of his cows and horses. Canoe brook and two small streams tributary thereto flow through his farm. Upon the farm there is also a spring, inclosed by a springhouse, the water of which has for years been used by the plaintiff for drinking purposes and for the storing and keeping of his milk. His cattle in pasture have for years resorted to the brook and its tributaries for drinking water. The defendant, the city of East Orange, under the authority of 'An Act to Enable Cities to Supply the Inhabitants Thereof with Pure and Wholesome Water,' approved April 21, 1876, and the acts supplemental thereto and amendatory thereof (P. L. 1876, p. 366; Gen. Stat. 1895, pp. 646-650, §§ 902-917), acquired a tract of land containing about 680 acres situate in the valley of Canoe brook in the township of Millburn, and installed thereon a water plant consisting of about twenty artesian wells, situate further down the stream than plaintiff's farm and distant upwards of a mile therefrom. In the construction of these wells, and of the works, mains, and reservoirs connected therewith, the city has expended more than $1,000,000. A few years prior to the commencement of the action, the city began to take water from the wells, and has thus taken percolating underground water which, but for its interception, would have reached the plaintiff's spring or stream. No water other than percolating water has been taken, and no water has been taken out of any surface stream or from the spring of the plaintiff aft