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that, as the common law had, by stat- artesian basin cannot convey water ute, been adopted as the law of the away from such land for a commercial state of California, the rule of the use, to the injury of the owners of common law that each landowner other overlying lands. But it will be owns absolutely the percolating water observed that the court states that it in his land, with the right to extract would seem to be a just and equitable same and dispose of it as he chooses, application of the doctrine of corbecame a part of the law of the state, relative rights in, or reasonable use and it was beyond the power of the of, percolating waters, to hold that court to abrogate or change it; in such waters can be taken for use upanswer, the court stated that when- on other lands, if it can be done ever it was found that, owing to local without injury to the adjoining landfeatures and characteristics of the owners. This statement is, however, state, such as, in this case, peculiarity qualified, by stating that it was only of the soil and climate, where the made lest it might be inferred that the application of a given common-law court was committed to the proposirule would cause injustice and wrong, . tion that in no case could percolating the fundamental principles on which water, as a matter of right, be conthe law is founded require that a veyed to alien lands; that that quesdifferent rule should be adopted; so tion was reserved until necessary to that the question whether or not the determine it. rule contended for was a part of the In Minnesota the rule has been common law depended upon whether adopted that the law of correlative it was suitable to local conditions. rights applies to the use by adjoining
It has been said that the decision landowners of waters drawn from an in the Walkinshaw Case (1903) 141 artesian basin, with the result that Cal. 116, 64 L.R.A. 236, 99 Am. St. they must so use their wells as not Rep. 35, 74 Pac. 766, 70 Pac. 663, unreasonably to injure their neighsupra, was rendered because of the bors. There is, however, some uncerconviction that the doctrine that the tainty in the application of this rule, owner of the soil was the absolute which, it is said, always depends upowner of percolating waters therein on the circumstances of the particular was unsuited to local conditions in case, and the court need not be conarid regions, and would constantly cerned if it fails to find an exact produce injustice and render title to precedent, or cannot apply all of the water supplies devoted to a beneficial principles of the common law in refuse insecure, and the doctrine of erence to surface streams; and while correlative rights adopted for the pro- questions peculiar to rights in surface tection of the present and future uses streams do not arise in connection of such water against unreasonable with the rights in underground invasion, which would be allowable waters, yet the criterion that one under the contrary doctrine. Barton cannot use his own property so as to v. Riverside Water Co. (1909) 155 injure the rights of others is equalCal. 509, 23 L.R.A.(N.S.) 331, 101 Pac. ly applicable to either case. Erickson 790, where the court stated that, while v. Crookston Waterworks, Power & it fully approved of that doctrine, it Light Co. (1908) 105 Minn. 182, 17 desired to say that only a clear case L.R.A.(N.S.) 652, 117 N. W. 435. would justify an injunction to pre- Thus, in Erickson V. Crookston vent a continuance of the beneficial Waterworks, Power & Light Co. use of such waters, which was be- (1907) 100 Minn. 481, 8 L.R.A.(N.S.) gun in good faith before the rendi- 1250, 111 N. W. 391, 10 Ann. Cas. tion of that decision, and which at 843, the plaintiff owned an artesian the time of that decision was in full well from which he drew water for operation.
domestic purposes; the well, which And HORNE V. UTAH OIL REF. CO. was one of a number in the surround(reported herewith) ante, 883, holds ing territory, was fed by water from that an owner of land overlying an an artesian basin underlying part of the city and surrounding territory. shaw (1903) 141 Cal. 116, 64 L.R.A. The defendant water company, for the 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 purpose of supplying the city of Pac. 663, supra. It appears, however, Crookston with water, sank a number from the facts of the case, that the of artesian wells on a lot owned by artesian basin underlay only a part it and pumped large quantities of of the city which the defendant was water therefrom, the effect of which supplying with water, and, as the was to lower the water in the plain- defendant was undertaking to supply tiff's well below the head, and it was the whole city, the case is regarded held that, as the law of correlative as strictly within the scope of the rights applies to the use of waters annotation, so far as its facts are confrom artesian basins, the water com- cerned. pany had no right to deprive the And the doctrine of reasonable use plaintiff of his water by the use of of waters from artesian wells was apartificial force in pumping water plied in the case of Burr v. Maclay from its wells in order to supply the Rancho Water Co. (1908) 154 Cal. city with water as merchandise. But 428, 98 Pac. 260, where the owner of on a subsequent appeal in the same three blocks of land, situated over a case in (1908) 105 Minn. 182, 17 subterranean basin, which he had acL.R.A.(N.S.) 652, 117 N. W. 435, the quired because of the natural advancourt said that, in determining what tages of the underlying basins, sought was a reasonable use, it was neces- to enjoin an adjacent landowner sary to consider the rights of all the from pumping water from artesian inhabitants of the city, and that they wells situated on its land and transhad rights in the artesian basin which porting the water to distant lands; were coextensive with those of the it appeared that the complainant owner of the well, and the conclusion had wells on only one block of his was that if, in order to furnish the land, and until a short time before the inhabitants with an ample supply suit had not irrigated the other lands of pure water, it was reasonably from that well. In regard to the relnecessary to lower the level of the ative rights to the use of the water, water in the artesian basin, and to it was held, first, following Katz v. subject the owner to the burden of Walkinshaw (Cal.) supra, that the pumping water from his well with a right of the landowner to a quantity power pump, he should submit to the
of percolating water necessary for the burden. It was stated that the sole use on the tract on which the well question before the court on the first was located was paramount to that of appeal was whether the rule of cor- the adjoining landowner, who sought relative rights applied to the owners to take the water to distant lands; of land which contained a well-defined and, second, that the adjoining landwater basin, upon which source of owner's appropriation of the water supply all were dependent, while in for distant lands was also subject to the case at bar the question was of the the reasonable use of the water upon proper application of the law to the other overlying land, on which the the facts as found. It is to be ob- water therefore had not been used. served that the trial court found as a The court stated, however, that if the fact that the water supply within the adjoining overlying owner did not artesian basin was inexhaustible and use the water, the appropriator could sufficient for all purposes of all the take all the regular supply and transparties concerned. And it was said port it to land outside of the district that the question might be different until the adjoining owner was pre where the water collected by the water pared and did begin to use the water, company was to be transported to a for it was not the policy of the law to distance for the benefit of those hay- permit any of the available waters ing no connection with the immediate of the country to remain unused, or locality, and that in that respect the to allow one having a natural advancase differed from Katz v. Walkin- tage of the situation to prevent another from using the water, while he 74 Atl. 379, where a municipal corpohimself did not desire to do so. But ration, which, for the purpose of supas it was manifest that if one were plying its inhabitants with water, acpermitted to take an unlimited quanti- quired a tract of land and sunk therety of water from the basin exceeding on a number of artesian wells, from the annual amount contributed to the which it drew water that, but for such underground store from the artesian interception, would have supplied watershed, and transport it outside springs on the plaintiff's property, as the district, the underground store well as furnished moisture for crops would be gradually depleted and ex- on his land, was held liable in an achausted, the judgment was modified tion for such diversion. The court, to limit the amount taken by the de- after an eleborate review of the Amerfendant to a quantity, as nearly as ican and English authorities on the could be ascertained, equal to the question of right to percolating waters, average constant supply from the states: “Upon the whole, we are conrainfall, and was further modified so vinced not only that the authority of as to prevent the lowering of the per- the English cases is greatly weakened manent level of water in the wells on by the trend of modern decisions in adjoining property. And in a subse
this country, but that the reasoning quent appeal of this case, it was said upon which the doctrine of ‘reasonthat under the doctrine established in able user' rests is better supported Katz Walkinshaw (Cal.) supra, upon general principles of law, and the existence of the common supply more in consonance with natural jusof water in a state of percolation, of tice and equity. We therefore adopt such character that the taking from the latter doctrine. This doe not one overlying tract will subsequently prevent the proper user by any landdiminish the quantity available in an- owner of the percolating waters subother overlying tract, gives a correla- jacent to his soil, in agriculture, tive right in the common supply, and manufacturing, irrigation, or othercreates a right in one property owner wise; nor does it prevent any reasonto prevent another from taking the
able development of his land by minwater to distant lands not overlying ing or the like, although the underthe common supply, if such taking is ground water of neighboring proprieinjurious to him. Burr v. Maclay
tors may thus be interfered with or Rancho Water Co. (1911) 160 Cal.
diverted; but does prevent the 268, 116 Pac. 715.
withdrawal of underground waters One who acquires adjoining prop
for distribution or sale for uses not erty after the appropriation of water
connected with any beneficial ownerhas begun takes subject to the right which the appropriator then had, but
ship or enjoyment of the land whence the appropriator does not, because of
they are taken, if it thereby result his first taking, have any right to
that the owner of adjacent or neightake an additional quantity there- boring land is interfered with in his after. Ibid.
right to the reasonable user of subPercolating underground waters surface water upon his land, or if may not be withdrawn for distribu- his wells, springs, or streams tion or sale if it thereby results that thereby materially diminished in flow, the owner of adjacent or neighboring or his land is rendered so arid as to land is interfered with in his right be less valuable for
valuable for agriculture, to the reasonable user of subsurface pasturage, or other legitimate uses." water, or if his wells and springs are This reversed the decision of (1908) thereby materially diminished in flow, 76 N. J. L. 435, 70 Atl. 360, which or his land rendered so arid as to be held that a city had the absolute right less valuable for agriculture or other to take the water from the wells in legitimate uses. Meeker East question and conduct it away to a disOrange (1909) 77 N. J. L. 623, 25 tance, for the city's use, and that any L.R.A.(N.S.) 465, 134 Am. St. Rep. 798, injury thereby sustained by an ad
joining property owner was damnum owner of the soil could divert absque injuria.
the percolating water and consume it Where the common-law doctrine of or use it with impunity was to be apriparian rights has been abrogated, plied in respect to most ordinary uses water in an artesian district may be of land and to ordinary operations conveyed away for use outside of the carried on upon the land, but that, district so long as the rights of other under the circumstances in this owners of property within the district case, the right of the landowner to are not injured. GROVER V. UTAH OIL use the percolating water was qualiREF. Co. (reported herewith) ante, fied by the doctrine of reasonable 883. The court remarks that it user, which, it was said, was a modihas been unable to find a case which fication of the common-law rule. The goes to the extent of holding that court, however, did not grant an inan owner of artesian water cannot junction against the city, but modified convey it to be used on alien lands the decree of the lower court denying except in cases where such use would an injunction so as to permit the injuriously affect the rights of adjoin- plaintiff thereafter to apply to the ing owners.
court for further equitable relief, it An absolute injunction will not be appearing that the city, at the time granted to enjoin the abstraction of the action was instituted, had so modisubterranean waters for use at fied its use of the water that it was distance, where the rights of the pub- not injuring the plaintiff's use. lic are involved, and the court can And in Bernard v. St. Louis (1922) arrive in terms of money at the loss 220 Mich. 159, 189 N. W. 891, where which the ocal landowner has sus- the city had sunk wells on land adtained. Newport v. Temescal Water jacent to that of the plaintiff to secure Co. (1906) 149 Cal. 531, 6 L.R.A.(N.S.) water for the use of its inhabitants, 1098, 87 Pac. 372. And the proceed- and by such use had diminished the ing will be regarded as one to se- pressure of water flowing from an cure compensation to the local owners artesian well upon the plaintiff's for their injuries. Ibid.
property, the court, holding that the A municipal corporation cannot city had a right to divert percolating pump percolating water from land waters from its land for its inhabitowned by it, for distribution to its ants so long as adjoining property inhabitants at a distance from the owners were not injured, modified a land, when the water is secured in decree of the lower court absolutely such quantities as are unreasonable enjoining the city from pumping with respect to the owners of adjoin water from its wells in such manner ing property. Schenk v. Ann. Arbor as to diminish the pressure in the (1917) 196 Mich. 75, L.R.A.1917F, plaintiff's well so as to require the 684, 163 N. W. 109, Ann. Cas. 1918E, defendant not to interfere with an 267. In this case the city had pur- adequate supply of water for the chased a tract of land overlying a plaintiff's reasonable use, and ordered large bed of water-bearing gravel, that the plaintiff be compensated for and had sunk a number of large wells any damage which he might have susfrom which the water flowed freely, tained by reason of having to install and by use of artificial means had se- pumping machinery or other applicured an additional flow therefrom, ances on account of the act of the all of which it conveyed to the city, plaintiff. which was without the artesian dis- And it has been held that one whose trict; the result of the city's opera- land is situated in an artesian basin tions in this respect was to stop the may enjoin another from interfering flow of water from the wells on the with the natural plan by which the land of adjoining property owners, as
artesian wells on his property are supwell as to cause damage to crops plied. Miller v. Bay Cities Water Co. from lack of moisture. The court (1910) 157 Cal. 256, 27 L.R.A.(N.S.) stated that the common-law rule that 772, 107 Pac. 115, where it is held
that the owner of land under which In an action between a city situthere is a water-bearing stratum sup- ated in an artesian basin overlying plied by the flood water of a stream subterranean waters, and a city lohas a primary right to the full flow cated outside of the artesian basin, to of such waters in order to bring his enjoin a diversion of the artesian stratum up to its water-bearing ca- water for outside uses, it was held pacity, which is paramount to that of that, as each party stood in the charan appropriator to divert any of the acter of an appropriator, its rights water from the stream for use beyond were to be determined by the law rethe watershed.
lating to appropriators so that the Flood or storm waters of a river trial court should not undertake to are not subject to appropriation as provide for the future apportionagainst the rights of owners of land ment of waters of the basin, or for the containing a saturated stratum of ascertainment of a surplus or deficiengravel, the water from which is used cy, but should confine itself to the for irrigation and is supplied from the quantity of water to which each was river, if such flood water is indispen- then entitled, but should make no sable in keeping the stratum in the declaration as to the right of any necessary state of saturation, and the party to take in the future waters fact that the land overlying the to which it had no present right. saturated stratum is not riparian to San Bernardino v. Riverside (1921) the stream from which it is supplied 186 Cal. 7, 198 Pac. 784. does not prevent the owner thereof
b. Estoppel to object to use. from maintaining an action to enjoin the appropriator from withdraw
Under the rule that one whose ing water from the stream for com
property has been taken for a public mercial purposes so as to cut off the use has stood by without objection, supply of such stratum. And an in
knowing of the taking and use, and junction for such diversion cannot be allowed the undertaking to be carried denied on the ground that the plaintiff on at great expense, and permitted stood by and permitted the develop
those benefited thereby to adopt themment of water to be brought to succes
conditions, convenful operation without objection, pro- iences, and advantages, cannot therevided he brought the action as soon
after maintain an action to enjoin the as it reasonably appeared that the
continuance of such public use or reproposed diversion would affect his cover the property so taken, the court supply. Ibid.
in Barton v. Riverside Water Co. A company which by long-continued (1909) 155 Cal. 509, 23 L.R.A.(N.S.) use, by means of cuts and trenches, 331, 101 Pac. 790, denied the owners has acquired the right to take water
of land over a subterranean basin, from a saturated stratum where the
who had been accustomed to use water water of a subterranean basin flows
therefrom, an injunction to restrain therefrom, may in cases of drought, as
the taking of water from the basin against the persons having rights sub
by a public service corporation to sequently acquired, sink artesian wells supply people beyond its limit, in the stratum and conduct the water through wells which it had sunk to to a place without the artesian district, maintain the amount of an origiso long as it takes no more than the nal appropriation during periods of quantity of water to which it is en- drought, where with full knowledge of titled, for, in sinking the wells, the the facts, the property owners had defendant is simply adopting a differ- stood by until large amounts of money ent means of collecting the water to had been expended upon the wells and which it had by means of long use, they had been in operation for at acquired an undoubted right. Barton least two years notwithstanding that, v. Riverside Water Co. (1909) 155 because of the diversion of the waters, Cal. 509, 23 L.R.A.(N.Ş.) 331, 101 Pac. the plaintiffs were greatly damaged. 790.
But water taken solely to fulfil the