that, as the common law had, by statute, been adopted as the law of the state of California, the rule of the common law that each landowner owns absolutely the percolating water in his land, with the right to extract same and dispose of it as he chooses, became a part of the law of the state, and it was beyond the power of the court to abrogate or change it; in answer, the court stated that whenever it was found that, owing to local features and characteristics of the state, such as, in this case, peculiarity of the soil and climate, where the application of a given common-law rule would cause injustice and wrong, the fundamental principles on which the law is founded require that a different rule should be adopted; so that the question whether or not the rule contended for was a part of the common law depended upon whether it was suitable to local conditions.

It has been said that the decision in the Walkinshaw Case (1903) 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663, supra, was rendered because of the conviction that the doctrine that the owner of the soil was the absolute owner of percolating waters therein was unsuited to local conditions in arid regions, and would constantly produce injustice and render title to water supplies devoted to a beneficial use insecure, and the doctrine of correlative rights adopted for the protection of the present and future uses of such water against unreasonable invasion, which would be allowable under the contrary doctrine. Barton v. Riverside Water Co. (1909) 155 Cal. 509, 23 L.R.A. (N.S.) 331, 101 Pac. 790, where the court stated that, while it fully approved of that doctrine, it desired to say that only a clear case would justify an injunction to prevent a continuance of the beneficial use of such waters, which was begun in good faith before the rendition of that decision, and which at the time of that decision was in full operation.

And HORNE v. UTAH OIL REF. Co. (reported herewith) ante, 883, holds that an owner of land overlying an

artesian basin cannot convey water away from such land for a commercial use, to the injury of the owners of other overlying lands. But it will be observed that the court states that it would seem to be a just and equitable application of the doctrine of correlative rights in, or reasonable use of, percolating waters, to hold that such waters can be taken for use upon other lands, if it can be done without injury to the adjoining landowners. This statement is, however, qualified, by stating that it was only made lest it might be inferred that the court was committed to the proposition that in no case could percolating water, as a matter of right, be conveyed to alien lands; that that question was reserved until necessary to determine it.

In Minnesota the rule has been adopted that the law of correlative rights applies to the use by adjoining landowners of waters drawn from an artesian basin, with the result that they must so use their wells as not unreasonably to injure their neigh

bors.

There is, however, some uncertainty in the application of this rule, which, it is said, always depends upon the circumstances of the particular case, and the court need not be concerned if it fails to find an exact precedent, or cannot apply all of the principles of the common law in reference to surface streams; and while questions peculiar to rights in surface streams do not arise in connection with the rights in underground waters, yet the criterion that one cannot use his own property so as to injure the rights of others is equally applicable to either case. Erickson v. Crookston Waterworks, Power & Light Co. (1908) 105 Minn. 182, 17 L.R.A. (N.S.) 652, 117 N. W. 435.

Thus, in Erickson V. Crookston Waterworks, Power & Light Co. (1907) 100 Minn. 481, 8 L.R.A. (N.S.) 1250, 111 N. W. 391, 10 Ann. Cas. 843, the plaintiff owned an artesian well from which he drew water for domestic purposes; the well, which was one of a number in the surrounding territory, was fed by water from an artesian basin underlying part of

the city and surrounding territory. The defendant water company, for the purpose of supplying the city of Crookston with water, sank a number of artesian wells on a lot owned by it and pumped large quantities of water therefrom, the effect of which was to lower the water in the plaintiff's well below the head, and it was held that, as the law of correlative rights applies to the use of waters from artesian basins, the water company had no right to deprive the plaintiff of his water by the use of artificial force in pumping water from its wells in order to supply the city with water as merchandise. But on a subsequent appeal in the same case in (1908) 105 Minn. 182, 17 L.R.A. (N.S.) 652, 117 N. W. 435, the court said that, in determining what was a reasonable use, it was necessary to consider the rights of all the inhabitants of the city, and that they had rights in the artesian basin which were coextensive with those of the owner of the well, and the conclusion was that if, in order to furnish the inhabitants with an ample supply of pure water, it was reasonably necessary to lower the level of the water in the artesian basin, and to subject the owner to the burden of pumping water from his well with a power pump, he should submit to the burden. It was stated that the sole question before the court on the first appeal was whether the rule of correlative rights applied to the owners of land which contained a well-defined water basin, upon which source of supply all were dependent, while in the case at bar the question was of the proper application of the law to the facts as found. It is to be observed that the trial court found as a fact that the water supply within the artesian basin was inexhaustible and sufficient for all purposes of all the parties concerned. And it was said that the question might be different where the water collected by the water company was to be transported to a distance for the benefit of those having no connection with the immediate locality, and that in that respect the case differed from Katz v. Walkin

shaw (1903) 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663, supra. It appears, however, from the facts of the case, that the artesian basin underlay only a part of the city which the defendant was supplying with water, and, as the defendant was undertaking to supply the whole city, the case is regarded as strictly within the scope of the annotation, so far as its facts are concerned.

And the doctrine of reasonable use of waters from artesian wells was applied in the case of Burr v. Maclay Rancho Water Co. (1908) 154 Cal. 428, 98 Pac. 260, where the owner of three blocks of land, situated over a subterranean basin, which he had acquired because of the natural advantages of the underlying basins, sought to enjoin an adjacent landowner from pumping water from artesian wells situated on its land and transporting the water to distant lands; it appeared that the complainant had wells on only one block of his land, and until a short time before the suit had not irrigated the other lands from that well. In regard to the relative rights to the use of the water, it was held, first, following Katz v. Walkinshaw (Cal.) supra, that the right of the landowner to a quantity of percolating water necessary for the use on the tract on which the well was located was paramount to that of the adjoining landowner, who sought to take the water to distant lands; and, second, that the adjoining landowner's appropriation of the water for distant lands was also subject to the reasonable use of the water upon the other overlying land, on which the water therefore had not been used. The court stated, however, that if the adjoining overlying owner did not use the water, the appropriator could take all the regular supply and transport it to land outside of the district. until the adjoining owner was prepared and did begin to use the water, for it was not the policy of the law to permit any of the available waters of the country to remain unused, or to allow one having a natural advantage of the situation to prevent an

other from using the water, while he himself did not desire to do so. But as it was manifest that if one were permitted to take an unlimited quantity of water from the basin exceeding the annual amount contributed to the underground store from the artesian watershed, and transport it outside the district, the underground store would be gradually depleted and exhausted, the judgment was modified to limit the amount taken by the defendant to a quantity, as nearly as could be ascertained, equal to the average constant supply from the rainfall, and was further modified so as to prevent the lowering of the permanent level of water in the wells on adjoining property. And in a subsequent appeal of this case, it was said that under the doctrine established in Katz v. Walkinshaw (Cal.) supra, the existence of the common supply of water in a state of percolation, of such character that the taking from one overlying tract will subsequently diminish the quantity available in another overlying tract, gives a correlative right in the common supply, and creates a right in one property owner to prevent another from taking the water to distant lands not overlying the common supply, if such taking is injurious to him. Burr v. Maclay Rancho Water Co. (1911) 160 Cal. 268, 116 Pac. 715.

One who acquires adjoining property after the appropriation of water has begun takes subject to the right which the appropriator then had, but the appropriator does not, because of his first taking, have any right to take an additional quantity thereafter. Ibid.

Percolating underground waters may not be withdrawn for distribution or sale if it thereby results that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water, or if his wells and springs are thereby materially diminished in flow, or his land rendered so arid as to be less valuable for agriculture or other legitimate uses. 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, where a municipal corporation, which, for the purpose of supplying its inhabitants with water, acquired a tract of land and sunk thereon a number of artesian wells, from which it drew water that, but for such interception, would have supplied springs on the plaintiff's property, as well as furnished moisture for crops on his land, was held liable in an action for such diversion. The court, after an eleborate review of the American and English authorities on the question of right to percolating waters, states: "Upon the whole, we are convinced not only that the authority of the English cases is greatly weakened by the trend of modern decisions in this country, but that the reasoning upon which the doctrine of 'reasonable user' rests is better supported upon general principles of law, and more in consonance with natural justice and equity. We therefore adopt the latter doctrine. This does not prevent the proper user by any landowner of the percolating waters subjacent to his soil, in agriculture, manufacturing, irrigation, or otherwise; nor does it prevent any reasonable development of his land by mining or the like, although the underground water of neighboring proprietors may thus be interfered with or diverted; but it does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it thereby result that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pasturage, or other legitimate uses." This reversed the decision of (1908) 76 N. J. L. 435, 70 Atl. 360, which held that a city had the absolute right to take the water from the wells in question and conduct it away to a distance, for the city's use, and that any injury thereby sustained by an ad

Where the common-law doctrine of riparian rights has been abrogated, water in an artesian district may be conveyed away for use outside of the district so long as the rights of other owners of property within the district are not injured. GROVER V. UTAH OIL REF. Co. (reported herewith) ante, 883. The court remarks that it has been unable to find a case which goes to the extent of holding that an owner of artesian water cannot convey it to be used on alien lands except in cases where such use would injuriously affect the rights of adjoining owners.

An absolute injunction will not be granted to enjoin the abstraction of subterranean waters for use at a distance, where the rights of the public are involved, and the court can arrive in terms of money at the loss which the local landowner has sustained. Newport v. Temescal Water Co. (1906) 149 Cal. 531, 6 L.R.A. (N.S.) 1098, 87 Pac. 372. And the proceeding will be regarded as one to secure compensation to the local owners for their injuries. Ibid.

A municipal corporation cannot pump percolating water from land owned by it, for distribution to its inhabitants at a distance from the land, when the water is secured in such quantities as are unreasonable with respect to the owners of adjoining property. Schenk v. Ann. Arbor (1917) 196 Mich. 75, L.R.A.1917F, 684, 163 N. W. 109, Ann. Cas. 1918E, 267. In this case the city had purchased a tract of land overlying a large bed of water-bearing gravel, and had sunk a number of large wells from which the water flowed freely, and by use of artificial means had secured an additional flow therefrom, all of which it conveyed to the city, which was without the artesian district; the result of the city's operations in this respect was to stop the flow of water from the wells on the land of adjoining property owners, as well as to cause damage to crops from lack of moisture. The court stated that the common-law rule that 31 A.L.R.-58.

the percolating water and consume it or use it with impunity was to be applied in respect to most ordinary uses of land and to ordinary operations carried on upon the land, but that, under the circumstances in this case, the right of the landowner to use the percolating water was qualified by the doctrine of reasonable user, which, it was said, was a modification of the common-law rule. The court, however, did not grant an injunction against the city, but modified the decree of the lower court denying an injunction so as to permit the plaintiff thereafter to apply to the court for further equitable relief, it appearing that the city, at the time the action was instituted, had so modified its use of the water that it was not injuring the plaintiff's use.

And in Bernard v. St. Louis (1922) 220 Mich. 159, 189 N. W. 891, where the city had sunk wells on land adjacent to that of the plaintiff to secure water for the use of its inhabitants, and by such use had diminished the pressure of water flowing from an artesian well upon the plaintiff's property, the court, holding that the city had a right to divert percolating waters from its land for its inhabitants so long as adjoining property owners were not injured, modified a decree of the lower court absolutely enjoining the city from pumping water from its wells in such manner as to diminish the pressure in the plaintiff's well so as to require the defendant not to interfere with an adequate supply of water for the plaintiff's reasonable use, and ordered that the plaintiff be compensated for any damage which he might have sustained by reason of having to install pumping machinery or other appliances on account of the act of the plaintiff.

And it has been held that one whose land is situated in an artesian basin may enjoin another from interfering with the natural plan by which the artesian wells on his property are supplied. Miller v. Bay Cities Water Co. (1910) 157 Cal. 256, 27 L.R.A. (N.S.) 772, 107 Pac. 115, where it is held

that the owner of land under which there is a water-bearing stratum supplied by the flood water of a stream has a primary right to the full flow of such waters in order to bring his stratum up to its water-bearing capacity, which is paramount to that of an appropriator to divert any of the water from the stream for use beyond the watershed.

Flood or storm waters of a river are not subject to appropriation as against the rights of owners of land containing a saturated stratum of gravel, the water from which is used for irrigation and is supplied from the river, if such flood water is indispensable in keeping the stratum in the necessary state of saturation, and the fact that the land overlying the saturated stratum is not riparian to the stream from which it is supplied does not prevent the owner thereof from maintaining an action to enjoin the appropriator from withdrawing water from the stream for commercial purposes so as to cut off the supply of such stratum. And an injunction for such diversion cannot be denied on the ground that the plaintiff stood by and permitted the development of water to be brought to succesful operation without objection, provided he brought the action as soon as it reasonably appeared that the proposed diversion would affect his supply. Ibid.

A company which by long-continued use, by means of cuts and trenches, has acquired the right to take water from a saturated stratum where the water of a subterranean basin flows therefrom, may in cases of drought, as against the persons having rights subsequently acquired, sink artesian wells in the stratum and conduct the water to a place without the artesian district, so long as it takes no more than the quantity of water to which it is entitled, for, in sinking the wells, the defendant is simply adopting a different means of collecting the water to which it had by means of long use, acquired an undoubted right. Barton v. Riverside Water Co. (1909) 155 Cal. 509, 23 L.R.A. (N.S.) 331, 101 Pac. 790.

In an action between a city situated in an artesian basin overlying subterranean waters, and a city located outside of the artesian basin, to enjoin a diversion of the artesian water for outside uses, it was held that, as each party stood in the character of an appropriator, its rights were to be determined by the law relating to appropriators so that the trial court should not undertake to provide provide for the future apportionment of waters of the basin, or for the ascertainment of a surplus or deficiency, but should confine itself to the quantity of water to which each was then entitled, but should make no declaration as to the right of any party to take in the future waters to which it had no present right. San Bernardino v. Riverside (1921) 186 Cal. 7, 198 Pac. 784.

b. Estoppel to object to use. Under the rule that one whose property has been taken for a public use has stood by without objection, knowing of the taking and use, and allowed the undertaking to be carried on at great expense, and permitted those benefited thereby to adopt themselves to

new conditions, conveniences, and advantages, cannot thereafter maintain an action to enjoin the continuance of such public use or recover the property so taken, the court in Barton v. Riverside Water Co. (1909) 155 Cal. 509, 23 L.R.A. (N.S.) 331, 101 Pac. 790, denied the owners of land over a subterranean basin, who had been accustomed to use water therefrom, an injunction to restrain the taking of water from the basin by a public service corporation to supply people beyond its limit, through wells which it had sunk to maintain the amount of an original appropriation during periods of drought, where with full knowledge of the facts, the property owners had stood by until large amounts of money had been expended upon the wells and they had been in operation for at least two years notwithstanding that, because of the diversion of the waters, the plaintiffs were greatly damaged. But water taken solely to fulfil the