advantage of its position, and therefore operate its wells to the point of completely draining the upper portion of the basin. We do not here decide that such conduct on the part of defendant would be permissible, but only to illustrate the fact that "advantage in position" should not, perhaps, be considered as a controlling factor in cases involving the correlative use of water.

In addition to Wiel on Water Rights, supra, and the Walkinshaw Case, appellant relies on San Bernardino v. Riverside, 186 Cal. 7, 198 Pac. 784.

The court is of opinion that enough has been said in the preceding pages of this opinion to clearly demonstrate that notwithstanding our estimate of the high standing and eminent ability of the California supreme court, its opinions upon questions analogous to the one at bar should have no decisive influence in determining the judgment of this court in cases arising here. This we state, with all due deference because of the varying conditions to which we have referred.

As

What has been said should not be regarded as a concession that the California court is committed to the doctrine contended for by appellant. On the contrary, we have not been able to find a single case that goes to the extent of holding that a correlative owner of artesian water cannot convey such water to be used on alien lands, except in cases where such use would injuriously affect the rights of an adjoining owner. bearing upon this question see the following authorities cited by respondent: 2 Kinney, Irrig. 2d ed. SS 1166 et seq.; 2 Wiel, Water Rights, supra, §§ 1068 et seq.; Schenck v. Ann Arbor, 196 Mich. 75, L.R.A.1917F, 684, 163 N. W. 109, Ann. Cas. 1918E, 267; Patrick v. Smith, 75 Wash. 407, 48 L.R.A. (N.S.) 740, 134 Pac. 1076, 6 N. C. C. A. 108; Meeker v. East Orange, 77 N. J. L. 623, 25 L.R.A. (N.S.) 465, 134 Am. St. Rep. 798, 74 Atl. 379; Katz v. Walkinshaw, supra; Cohen V. La Canada Land &

Water Co. 142 Cal. 437, 76 Pac. 47; San Bernardino v. Riverside, supra, and cases therein cited.

It is unnecessary to prolong the discussion as to this feature of the case. We come back almost to the point from which we started. The question is: What are plaintiff's rights in the artesian district, and does the complaint show that her rights will be injured by the contemplated use of water by the defendant company? The more we consider this question the more we are convinced that the rule declared by this court in the Horne Case, as to the measure of each correlative owner's rights in the waters of an artesian district, is correct, and in most cases will mete out substantial justice. There may exceptions arise not now foreseen by the court. If so, they will no doubt be so clearly differentiated as to take them out of the general rule and call for such modifications as justice may require. The plaintiff, under the rule laid down in the Horne Case, according to her complaint, is clearly entitled to 6.58 gallons of water per minute, and every other owner of a like surface area in the artesian district is entitled to the same quantity as long as he puts it to a beneficial use, whether he uses it within the district, or at some point outside. We are not inclined to subscribe to the doctrine that the owner of a water right within an artesian district cannot use it, or dispose of it for use, beyond the boundaries of the district, without the right thereto being forfeited to other users within the district. The contention of appellant in that regard, in the opinion of the court, is utterly incompatible with the right of private property and the established policy of the state, which permits a change of place in the use of water as long as the rights of others are not injured thereby. In the instant case the rights of plaintiff, as defined in the Horne Case and in this opinion, will not be injured by the contemplated change in the place of use.

and consequently it follows that plaintiff's complaint does not state facts sufficient to constitute a cause of action.

The demurrer thereto was properly sustained, and the judgment of

the trial court is affirmed at appellant's costs.

Weber, Ch. J., and Gideon and Cherry, JJ., concur.

Frick, J., did not participate.

Artesian wells are generally thought of as artificial wells in which water from the lower stratum rises by its own pressure and flows continuously above the surface of the ground. The word "artesian" is, however, often used to refer to underground water, which rises above the level on which it ordinarily flows, though not to the surface, if the stratum is pierced by an artificial well. See Burr v. Maclay Rancho Water Co. (1908) 154 Cal. 428, 98 Pac. 260. The annotation is not, therefore, limited to cases dealing with the right to conduct the water which by natural force flows from the well, but includes cases dealing with the right to conduct water from a well the source of supply of which is the underground "artesian" water, as that term is used in its broader sense.

ar

It has been said that percolating waters, as distinguished from tesian waters, filter through the ground and collect in underground cavities, forming springs, or what are commonly known as wells, whose source of supply is limited, depending upon the annual rainfall, such formations in general not being extensive; while artesian waters are located in well-defined strata, and do not in general depend upon the annual rainfall. Erickson v. Crookston Waterworks, Power & Light Co. (1908) 105 Minn. 182, 17 L.R.A. (N.S.) 652, 117 N. W. 435, infra. While the courts,

in discussing rights in respect to artesian waters, often speak of such as percolating waters, the general question of the right to use or conduct percolating waters at or to distant points is not within the scope of the annotation. A few cases are included in which, as will be observed, the waters the use of which was in question were not strictly of artesian origin. See Forbell v. New York (1900) 164 N. Y. 522, 51 L.R.A. 695, 79 Am. St. Rep. 666, 58 N. E. 644, and other New York cases cited infra.

The law in respect to the rights of property owners to percolating subterranean waters seems to be of comparatively recent development, both in England and in America; under the doctrine laid down by the earlier cases, which was known as the English or common-law rule, water which percolates through the soil without. any definite channel was regarded as a part of the freehold, and the owner in the freehold had, in the absence of malice, the absolute right to intercept such water and make whatever use of it he pleased, regardless of the effect which it might have upon other proprietors. 27 R. C. L. 1171. This rule seems to be based upon the maxim, "cujus est solum, ejus est usque ad cœlum et ad infernos;" it has also been upheld from considerations of public policy. 27 R. C. L. 1173. And although this doctrine was sustained by the earlier American cases, the tendency of the modern decisions is to break away from this rule and to adopt the doctrine of reasonable use of subterranean waters percolating through the owner's land, limiting it to a bene ficial use upon his own land, or some useful purpose connected with its use

and occupation. 27 R. C. L. 1175. As to construction and application of this rule, see 27 R. C. L. 1176 et seq.

The doctrine of reasonable use of percolating waters, based on the idea that the rights of adjoining owners in such waters are correlative, is peculiarly applicable to the use of artesian waters, which, for the most part, are found in arid regions where the application of the doctrine of absolute ownership would be likely at least to retard, if not entirely to stop, the development of lands overlying the basin; and the courts have, with few exceptions, adopted this view, which, when applied to cases involving the right to conduct artesian waters out of the basin, permits one owner to conduct the water to alien lands, so long as he does not interfere with his neighbor's supply of water, which he needs for reasonable uses on his land.

In Katz v. Walkinshaw (1903) 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663, infra, it was stated that it was obvious at once that no analogy could be drawn between the right to remove a part of the soil from the land for sale, and to remove and sell percolating water, for one may remove a part of the soil without affecting or diminishing the land of his neighbor, but when he drains out and sells water on his land, he also draws to his land and sells water which is the property of his neighbor, and which is necessary to the beneficial enjoyment of his land; the effect of permitting one person to withdraw all the water would render the neighborhood uninhabitable, and it would be an anomaly in the law if one person were permitted to destroy the community for his own individual profit.

There are cases involving the right to the use of waters from artesian wells, in which the facts show that the owner of the well was conducting the water out of the artesian district, or basin, that make no point of that fact, but turn upon the general

question of the right of the owner of the well to use the water therefrom.

Thus, in Willis v. Perry (1894) 92 Iowa, 297, 26 L.R.A. 124, 60 N. W. 727, a municipality sank a well on property belonging to it, a short distance from a well owned by the plaintiff, and thereafter erected pumping machinery which it used to pump quantities of water flowing therefrom for its supply, and as a result of such use the flow of water from the plaintiff's well was diminished, and at times stopped; in an action to recover for diverting water from the plaintiff's well, it appearing that she used the water from her well for a public bathhouse, and for other such artificial uses, the court held that the liability of the defendant for interference with the plaintiff's supply of water depended upon the reasonableness of the defendant's use of the well, which was to be determined in view of all the facts and circumstances, and in view of the number and wants of other well owners on the stream.

In Houston & T. C. R. Co. v. East (1904) 98 Tex. 146, 66 L.R.A. 738, 107 Am. St. Rep. 620, 81 S. W. 279, 4 Ann. Cas. 827, it was held that a railroad company which dug a deep well on a right of way owned by it, and pumped therefrom daily a large quantity of water, which was used in its locomotives and machine shops, had committed no actionable wrong, although by pumping the water from the well, which was supplied entirely by percolating water drawn from the surrounding land, the wells on the property of adjacent owners had been exhausted. The court said that the defendant was making a reasonable and legitimate use of the water, and in the absence of any claim of malice or wanton conduct on its part, no reason existed why the general doctrine announced in Acton v. Blundell (1843) 12 Mees. & W. 324, 152 Eng. Reprint, 1223, 13 L. J. Exch. N. S. 289, 15 Mor. Min. Rep. 168, that any inconvenience caused to near-by property owners by the act of one property owner in digging into the surface of his land and applying all that

he found therein to his own purposes was damnum absque injuria, should not govern the case at bar. And see Clarke County v. Mississippi Lumber Co. (1902) 80 Miss. 535, 31 So. 905, infra.

II. Doctrine of reasonable use; correlative rights.

a. In general.

The great weight of authority recognizes the right of the owner of an artesian well to use water therefrom as being correlative with the rights of other property owners within the basin, and will not permit him to conduct the water out of the artesian basin if, in so doing, he will injure the rights of the owners of other overlying lands. Katz v. Walkinshaw (1903) 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663; Burr v. Maclay Rancho Water Co. (1908) 154 Cal. 428, 98 Pac. 260, later appeal in (1911) 160 Cal. 268, 116 Pac. 715; San Bernardino v. Riverside (1921) 186 Cal. 7, 198 Pac. 784; Schenk v. Ann Arbor (1917) 196 Mich. 75, L.R.A.1917F, 684, 163 N. W. 109, Ann. Cas. 1918E, 267; Bernard v. St. Louis (1922) 220 Mich. 159, 189 N. W. 891; Erickson v. Crookston Waterworks, Power & Light Co. (1908) 105 Minn. 182, 17 L.R.A. (N.S.) 652, 117 N. W. 435; Meeker v. East Orange (1909) 77 N. J. L. 623, 25 L.R.A. (N.S.) 465, 134 Am. St. Rep. 798, 74 Atl. 379; HORNE v. UTAH OIL REF. Co. (reported herewith) ante, 883; GLOVER V. UTAH OIL REF. Co. (reported herewith) ante, 900.

No case has, however, gone so far as to hold that an owner can in no case convey water to alien land, but, on the contrary, the courts recognize the corollary of the above proposition, and hold that one owner has the right to conduct the water out of the district, so long as he does not injure the other overlying owners. Schenk v. Ann Arbor (1917) 196 Mich. 75, L.R.A.1917F, 684, 163 N. W. 109, Ann. Cas. 1918E, 267, supra; Bernard v. St. Louis (1922) 220 Mich. 159, 189 N. W. 891, supra; Meeker v. East Orange (1909) 77 N. J. L. 623, 25 L.R.A. (N.S.) 465, 134 Am. St. Rep.

798, 74 Atl. 379, supra; GLOVER v. UTAH OIL REF. Co. (reported herewith) ante, 900.

An adjoining owner who is not using the underground water may prevent any exporter from obtaining an adverse claim to the use of the water by obtaining a judgment declaring his own right to be paramount, although he cannot enjoin such exportation, since he is not injured thereby. San Bernardino v. Riverside (1921) 186 Cal. 7, 198 Pac. 784, supra.

The real question, as suggested in the opinion in the reported case (GLOVER V. UTAH OIL REF. Co. ante, 900), seems to be as to when, or in what circumstances, the use of water outside the district, by or under the authority of an owner of property in the district, inflicts an injury, in a legal sense, upon the other owners within the district. That case adopts the view that there is no such injury if, despite the use outside the district, the other owners within the district receive all the water to which they would have been entitled if those who used, or transferred their right to use, water outside the district, had made full use within the district of all the water to which they were entitled; in other words, the decision permits an owner who is willing to forego the use of his share of the water within the district, to use, or transfer the right to use, such share outside the district, and denies to the other owners within the district the advantage of its nonuse therein.

It is difficult to determine just to what extent that view is supported or combated by the other cases, for the reason that they do not clearly present the conditions necessary to raise the distinctive question, i. e., upon the one hand, a use of water outside the district when there is not sufficient water for reasonable beneficial requirements within the district; and, upon the other hand, a use of water outside the district for a purpose, and in an amount, which would be within the right of the owner in question if the use had been made withiu the district.

Riverside

In San Bernardino v. (Cal.) supra, it was said that it is now established that, in respect to the right of persons to take water from an artesian basin for use on land outside of the watershed of the basin, no one has the right to take the water for such purpose if, by taking, he will deprive any of the landowners within the basin of water. But the owner of overlying land who does not use such water is not entitled to enjoin such exportation, unless the appropriator is taking water in such quantities, or in such manner, as to destroy or endanger the source of supply.

The leading case on the right to conduct and use water from an artesian well out of the artesian district is Katz v. Walkinshaw (1903) 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663, which adopts the doctrine of correlative rights between the property owners, as to percolating waters, and holds that the owner of a tract of land which is saturated below the surface with an abundant supply of percolating water cannot remove water from an artesian well on his property for sale, if the remainder of the tract is thereby deprived of water necessary for its profitable enjoyment. This case contains an exhaustive discussion of the general right to percolating waters, and especially of the California cases on the question. Upon the whole it seems opposed to the doctrine of the Utah supreme court in GLOVER V. UTAH OIL REF. Co. (reported herewith) ante, 900, although it does not so clearly appear in the California case as in the Utah case that the complaining owner was receiving, despite the withdrawal of water by the defendant, the amount of water which he would have received had the defendant used within the basin the amount to which he was entitled.

On account of the peculiar geological formation of the land making up the artesian basin in the Walkinshaw Case (Cal.) supra, any withdrawal of the water from the artesian district

to other districts would result in consequent injuries to the productive quality of the land within the district, and the court, in discussing the principle of absolute ownership of percolating waters laid down in the English cases, stated that perhaps in England, and in the eastern states, a minute and thorough consideration of the equities of the parties would not be required, while in the case at bar, involving water rights in an arid country, the relative importance relative importance of percolating water and waters flowing in definite watercourses is different; and it was said that the law of riparian rights, which required each owner to permit the water to flow in its accustomed flow, was clearly applicable to subsurface water in such situation, and under that rule no one could drain his land, for he would thereby prevent the water from flowing in its accustomed flow by percolation to his neighbor.

But in GLOVER v. UTAH OIL REF. Co. (reported herewith) ante, 900, the court observed that the analogy between correlative rights to percolating water and the riparian rights under the common law, if any, was too remote for serious consideration, especially in a jurisdiction where the common-law doctrine of riparian rights has been entirely abolished, for that doctrine rested upon the fundamental idea that every riparian owner is limited in the quantity of water he may use, and must use it in such way that it will return to the stream from which he took it, in order that the stream may be permitted to flow in its accustomed quantity, while the physical attributes of the conditions 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 it was taken.

The question of the right to transfer a riparian right to use water from a stream to a nonriparian owner is the subject of an annotation in 14 A.L.R. 330.

On rehearing in the Walkinshaw Case (Cal.) supra, it was contended