increased number and capacity of defendant's wells, the supply of water in the district was being rapidly exhausted and the pressure thereby becoming so reduced that the plaintiffs were being deprived of water to which they were entitled, to their great and irreparable injury. It was further alleged in the complaint in that case that the purpose of defendant was not to use the water from its wells on the land upon which the wells were located, but to conduct the water beyond the boundaries of said artesian district to its oil-refining plant, and there use it for commercial and manufacturing purposes. Plaintiffs prayed for injunctive relief. It is not necessary to state defendant's contention in that case. It is sufficient to say that the trial court entered judgment for the principal relief prayed for, from which judgment defendant appealed. In this court, on the appeal, we held that each of the owners of lots in said artesian district, including the defendant, was entitled to a quantity of said water in proportion to the surface area of his land, as long as he put the water to a beneficial use. The question as to whether or not the defendant had the right to convey its portion of the water beyond the boundaries of the artesian district in which its land was situated was not determined by the court. There is a suggestion, however, in the opinion of the court that the doctrine enunciated in the case of Cohen v. La Canada Land & Water Co. 142 Cal. 437, 76 Pac. 47, that percolating waters might be conveyed away for use on alien lands if it could be done without injury to an adjoining owner, appeared to be "a just and equitable application of the doctrine of reasonable use."

The plaintiff in the case at bar is the owner of a lot in the artesian district in question, and has driven a well thereon, and alleges that, according to the surface area of her lot as compared with the whole surface area of land in said artesian district, she is entitled to use, and

has used, 6.58 gallons of water per minute of time. She further alleges, in substance, that by virtue of her ownership of said lot she is entitled to an additional quantity of said water, which, together with the 6.58 gallons per minute, amounts in the aggregate to such a proportion of the entire waters of the district as the surface area of her lot bears to the surface area of all the lots owned by persons actually using water for beneficial purposes on their said lots. In other words, plaintiff's claim, as alleged in her complaint, is based upon the theory that the waters of the artesian district belong to the owners of the land therein who are using the water upon their land for beneficial purposes, and should be allotted to such persons in proportion to the surface area owned by such persons, to the exclusion of the other lot owners who are not using the water upon their lands within said district. The complaint of plaintiff further shows that she can beneficially use, and intends to use, 15 gallons of water per minute upon her said lot, and that that quantity of water is necessary for the purpose for which it will be used. The complaint alleges that defendant has purchased, or contracted to purchase, from more than one hundred lot owners in said artesian district, their rights to the water, and purposes driving wells on said lots and conducting the waters thereof to a point beyond the boundaries of said artesian district and there use the same for commercial and manufacturing purposes. Plaintiff prays that defendant be enjoined from using any of said waters for any purpose beyond the limits of said district, and that plaintiff be decreed the right to use an additional quantity of said waters in accordance with her claim as above set forth.

Defendant filed a general demurrer to the complaint, and the court sustained the demurrer. Plaintiff elected to stand upon her complaint. The court entered the judgment dis

missing the action, and plaintiff appeals.

As manifestly appears from the foregoing statement, there is but one question to be determined. Has the defendant the right to purchase from the owners of lots in said artesian district their rights to the water owned by them, and conduct the water to its oil refinery beyond the limits of said district, and there use the same?

As heretofore stated, it was suggested in the opinion in the Horne Case that such appeared to be a just and equitable application of the doctrine of reasonable use, so long as the owners of adjoining lots in said district were not injured thereby. We still adhere to that view of the question, and perhaps, in the last analysis, the real question is: What would constitute an injury to adjoining owners or persons owning water rights within said artesian district? This precise question has never been determined in this jurisdiction, and we think it will be conceded that little or no assistance can be derived by an examination of cases from other jurisdictions. Much is said in many of the cases, mostly in the nature of dicta, against the right to convey such water to alien lands away from the land in which the waters are found. Much is also said, as in the Cohen-La Canada Land & Water Case, supra, in favor of the right, so long as correlative owners are not injured thereby. But little or nothing has been said as to what, in such cases, constitutes an injury. This question, however, would be simple ard free from complication were it not for the claim made by plaintiff that she is not only entitled to 6.58 gallons of water per minute, which would be the limit of her right if every other lot owner was using his correlative portion of water within the district, but she also claims that if any co-owner disposes of his right to one who intends to convey it to a point outside of the district, then the right of the would-be purchaser immediately becomes the property

(to the extent of their reasonable necessities) of those who remain and continue to use the water upon their lots. It is this claim of plaintiff that complicates the question as to what constitutes an injury to an adjoining owner. If plaintiff's contention was that defendant contem.. plated taking a portion, or all, of plaintiff's 6.58 gallons of water per minute, the injury would clearly appear, and the complaint would unquestionably state a cause of action.

Counsel for appellant assumes in his brief that the question as to the right of correlative owners in and to the waters of an artesian district to convey them away to be used upon alien lands was settled and determined by the decision in the Horne Case, and quotes from the opinion, at page 301 of 59 Utah ante, 897, 202 Pac. 824, the following language: "The consensus of opinion among the authorities seems to be that the doctrine of correlative rights or reasonable use of percolating waters includes the idea that the water cannot be conveyed away, either for waste or use, from the land in which the water is found in its natural state. In that respect it is somewhat analogous to the doctrine of riparian rights."

The language quoted by counsel, standing alone, does not fairly reflect the views of the court, for immediately following the excerpt quoted, and in the same connection, the court says: "In Cohen v. La Canada Land & Water Co. supra, a California case subsequent to the Walkinshaw Case, 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663, it was held that percolating waters may be taken for use upon other land if it can be done without injury to adjoining owners. This seems to the court to be a just and equitable application of the doctrine of reasonable use. This question is, perhaps, of no practical importance in the case at bar, and it is only referred to here lest it might be inferred that we are committed to the proposition that in no case can percolating water, as

matter of right, be conveyed to alien lands. The question is reserved until it becomes necessary to determine it."

The language of the paragraph, considered as a whole, is far from unqualifiedly indorsing counsel's contention. It is somewhat singular that a proposition which was expressly reserved by the court for future determination should be considered as having been conclusively settled and determined.

It is unquestionably true that the consensus of opinion is as stated in the language first above quoted. It is also true that in jurisdictions where the consensus of opinion referred to exists, the common-law doctrine of riparian rights has not been entirely abol

Water-artesian

-right to convey ished, as in the state out of district. of Utah. Stowell v. Johnson, 7 Utah, 215, 26 Pac. 290; Snake Creek Min. & Tunnel Co. v. Midway Irrig. Co. 260 U. S. 596, 67 L. ed. 423, 43 Sup. Ct. Rep. 215. Such is not the case in California and some other states on the Pacific coast. 2 Wiel, Water Rights, 3d ed. § 1108.

This court in the Horne Case did not intend, as its language expressly indicates, to hold that the water of correlative owners in an artesian district could in no case be conveyed away for use on other lands; nor did it intend to indorse the view that there is any analogy between the correlative rights of owners in such cases and the common-law doctrine of riparian rights. In the opinion of the writer the analogy, if any, is too remote for serious consideration, especially in jurisdictions where riparian rights have been entirely abolished. Every student of the law of riparian rights is cognizant of the fact that the doctrine rests upon the fundamental idea that every riparian owner is limited, in the first place, in the quantity of water he may use, and, in the second place, must so use it that the return waters therefrom will find their way back into the stream from which they were di

verted. The axiomatic principle is that the waters of the stream must be permitted to flow in quantity and quality as they "were wont to flow from time immemorial." The physical attributes of the condition under which artesian water finds its way to the surface are such as to preclude the idea of returning the water, or any part thereof, to the basin from which they were taken. So that, while the consensus of opinion referred to in the Horne Case finds some analogy between correlative rights to percolating water and riparian rights under the common law, there is, in the opinion of the writer, little or no analogy whatever, especially as affecting the question under review, in this jurisdiction.

Counsel for appellant cites and quotes at length Wiel on Water Rights, 3d ed. §§ 1118, 1122, and also, in part, §§ 1124 and 1090, all in volume 2 of the work referred to. As was to be expected, the cases referred to by the distinguished author are generally California cases in which the doctrine of riparian rights is still recognized to a considerable extent, and upon which the law of correlative rights has been established because of some supposed analogy in principle. The leading case cited by the author is the case of Katz v. Walkinshaw, 141 Cal. 117, 64 L.R.A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663. Counsel for appellant also cites the Katz v. Walkinshaw Case, and it is no doubt the leading case in that state upon the questions therein decided. Since that time the case has been followed by numerous decisions generally adhering to the doctrine therein announced. In the Horne Case, at pages 292 and 301 of 59 Utah, ante, 891, 897, 202 Pac. 820, 824, we quote at considerable length from the Walkinshaw Case, showing the exact nature of the case and that defendant in that case was actually taking water from plaintiffs which they had been using for domestic and irrigation purposes, and which was necessary for such use.

The

court held in that case that the complaint stated a cause of action for injunctive relief. The complaint in the instant case shows no such grounds for relief. There the defendant assumed to interfere with an existing use for beneficial purposes and with a right which was recognized in the state of California, and, as stated by Mr. Wiel in the volume supra (§ 1122), the "defendants by means of other wells on other land drew off the water from plaintiff's well, for use on a distant tract, causing plaintiff's wells to dry."

No such question is presented in the case at bar. If such question If such question were presented here, as already stated, the complaint would unquestionably state a cause of action. Plaintiff admits that she is receiving and will continue to receive water in proportion to her surface area, notwithstanding the contemplated use by defendant on alien lands. Plaintiff does not claim that defendant purposes interfering with a right which plaintiff is enjoying at the present time, but with a right which plaintiff hopes to get, in the event that those who now own the right should abandon it or dispose of it to be used outside the artesian district. The case in that respect is different from any case we have thus far examined.

Before leaving entirely the question of the supposed analogy between riparian rights as understood at common law and correlative rights under the doctrine of reasonable use, a few observations further may not be out of place. In California, and some other states on the Pacific coast, the common law of riparian rights, in many instances, is recognized and enforced. This seems to be the principal reason why correlative rights to the use of water in those states is said to be analogous to riparian rights, and that the same principles of law should be applied. If this be true, what becomes of the theory that correlative rights should be determined by the law of riparian rights

in this jurisdiction where riparian rights have been abolished as incompatible with local conditions? It is axiomatic that when the reasons for a law cease to exist the law itself should be either abolished or repealed. The principal point made by the writer of the opinion in Stowell v. Johnson, supra, against the application of the law of riparian rights in the then territory of Utah, was because it subjected the waters to a restricted use, and was, therefore, incompatible with our local conditions. If the law of riparian rights in the state of Utah was abrogated, as stated in Stowell v. Johnson, because it was incompatible with local conditions, then, for the same reasons, the rule contended for by appellant, if it ever was recognized and in force in this jurisdiction, should be abrogated and abolished. But, like the doctrine of riparian rights, the court is of opinion it has never been recognized here, nor has any attempt been made to enforce it until the present controversy arose.

artesian water.

Appellant also contends as additional grounds for relief that to permit the water of a correlative owner to be conveyed to lands outside the district "is to deprive her land of the advantage of position which nature has given it, and certainly depreciates its value." We are not prepared to say, in this case, at least, that such con- -injury by fortention should pre- eign use of vail. Carried to its logical sequence it might ultimately deprive plaintiff and others situated on higher lands in the same district of their just proportion of the water as determined by the surface area. It is alleged in the complaint that defendant's 10 rods square is situated at about the lowest point in the district. If the bottom of the waterbearing stratum in the artesian basin is parallel with the surface of the ground, and defendant is situated at the lowest point upon the surface, defendant, in the future, if necessary, could just as consistently contend that it is entitled to the