private contractual obligations of the appropriator to deliver water to lots which it had sold with water rights is a private use, and not a public use, and the rule of estoppel upon him who, without protest and knowingly, allows his property to be taken for a public use, expensive works to be installed, and public service begun, is inapplicable. Burr v. Maclay Rancho Water Co. (1911) 160 Cal. 268, 116 Pac. 715.

In Newport v. Temescal Water Co. (1906) 149 Cal. 531, 6 L.R.A.(N.S.) 1098, 87 Pac. 372, where the defendant had expended large sums of money in sinking wells in a natural basin overlying subterranean water, and in building conduits and flumes to conduct the water from these wells to a point without the basin for commercial purposes, an injunction was denied against the diversion of water at the instance of other property owners whose land overlay the basin, who had remained acquiescent while the company was digging its wells and constructing its equipment, as well as for a period of time thereafter, although the court found that, due in part to the operations of the defendant, the water saturation in the basin had been lowered several feet. The findings of the trial court established that the land overlying the basin was alkaline, and unfit for agricultural purposes.

The right to take subterranean water for use at a distance cannot be determined by the relative area or value of the local lands and those to which the water is taken. Ibid.

c. New York rule.

The New York courts have adopted the rule that the owner's absolute right to use percolating waters is limited to a beneficial use on the premises and does not extend to giving a city or water company the right to conduct the water from lands where the wells are situated, to distant points for commercial purposes, to the injury of the adjoining landowner.

Thus, it has been held that a city which digs wells and, by installing pumping works, withdraws water

therefrom which it uses to supply its inhabitants, and thereby exhausts the natural supply of underground or percolating waters, from the surrounding regions, thus preventing adjoining property owners from raising crops upon the land, is liable for damages which the property owners sustain thereby, and that they are entitled to an injunction against the continuance of such wrong. Forbell v. New York (1900) 164 N. Y. 522, 51 L.R.A. 695, 79 Am. St. Rep. 666, 58 N. E. 644. It appears that the city authorities knew, from an examination of the surrounding territory, of the flow of water on its own and the plaintiff's land, and that it could, by the wells and appliances which it installed, draw the water into its own wells and thus deprive the plaintiff of his natural supply, and it was said that this fact distinguished the instant case from the ordinary case where the property owner was using under surface waters. The court observed: "In the cases in which the lawfulness of interference with percolating waters has been upheld, either the reasonableness of the acts resulting in the interference, or the unreasonableness of imposing an unnecessary restriction upon the owner's dominion of his own land, has been recognized. In the absence of contract or enactment, whatever it is reasonable for the owner to do with his subsurface water, regard being had to the definite rights of others, he may do. He may make the most of it that he reasonably can. It is not unreasonable, so far as it is now apparent to us, that he should dig wells and take therefrom all the water that he needs in order to the fullest enjoyment and usefulness of his land of land, either for purposes pleasure, pleasure, abode, productiveness of soil, trade, manufacture, or for whatever else the land, as land, may serve. He may consume it, but must not discharge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in the plaintiff's land, and in all the region

as

thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and the others whose lands are thus clandestinely sapped, and their value impaired."

And in a case involving facts similar to those in the Forbell Case, supra, it was held that the so-called English rule in respect to the right of a property owner to percolating water is to be applied only where the use relates to a beneficial use of the land connected with its enjoyment, such as the ordinary purposes of agriculture, mining, domestic use, or improvements, whether the same be public or private, and is not to be extended to give an absolute right to take percolating water by natural means, or by means of pumps, and conduct it to distant points for the benefit and profit of the taker, and for the enjoyment of persons who have no claim of right to it, as against the property owners' adjoining land from whence the water was taken. Smith v. Brooklyn (1897) 18 App. Div. 340, 46 N. Y. Supp. 141, affirmed in (1899) 160 N. Y. 357, 45 L.R.A. 664, 54 N. E. 787, 6 Am. Neg. Rep. 663.

And in connection with Forbell v. New York, supra, see Westphal v. New York (1902) 75 App. Div. 252, 78 N. Y. Supp. 58, affirming 34 Misc. 684, 70 N. Y. Supp. 1021, which was affirmed in (1904) 177 N. Y. 140, 69 N. E. 369, 15 Am. Neg. Rep. 399.

And in Dunbar v. Sweeney (1921) 230 N. Y. 609, 130 N. E. 913 (memorandum opinion), it was held that while one has the right to draw and use subterranean waters such as may be necessary for, and incidental to, the full use and enjoyment of his premises, which would include the right to use water for refrigerating purposes in a storage plant and for the manufacture of ice to be used in refrigerator cars to preserve products stored by the property owner, such right did not include the right to use percolating water, and thereby drain. the spring of an adjacent property

owner, for the purpose of manufacturing ice for sale.

But it has been held that where two corporations, owning adjoining land, are both engaged in the collection of percolating water, not for use upon the land itself, but for purposes of transportation and sale to third persons who have no right or interest in the use of the water as connected with the land, that one such corporation is not entitled to enjoin the other corporation from sinking additional wells on its property for the purpose of withdrawing water for sale, notwithstanding that the result of such acts is to diminish the supply of water percolating through the land, and thereby to lower the level of the plaintiff's well. Merrick Water Co. v. Brooklyn (1898) 32 App. Div. 454, 53 N. Y. Supp. 10, affirmed without opinion in (1899) 160 N. Y. 657, 55 N. E. 1097. The court stated that the effect of the decision in Smith v. Brooklyn, supra, was to limit the right to divert percolating water by an adjoining landowner to cases where the diversion was produced by the exercise of a legal right to improve the land or to make some beneficial use in connection therewith, while in the case involved both were seeking to use the water for commercial purposes from which they expected to derive a profit, so that, under the circumstances, if one succeeded in getting a greater supply than the other and thereby diminished the common supply, the situation would be the same as if each had sought to improve his own land and one had secured more water than the other, or as if one was damaged and the other not, which would not give a cause of action. The doctrine of reasonable use and relative rights was expressly repudiated.

III. Doctrine of absolute ownership.

There are a few cases which uphold the right of an owner of an artesian well to use the waters therefrom in such quantities or manner as he chooses, regardless of the effect of the use on his neighbor.

Thus, it has been held that a land

owner has the right to dig an artesian well on his land and use the water therefrom as he chooses, or to allow it to flow away, regardless of the effect of such use upon his neighbor's wells and that such right is not affected by any malicious intent on his part. Huber v. Merkel (1903) 117 Wis. 355, 62 L.R.A. 589, 98 Am. St. Rep. 933, 94 N. W. 354. The plaintiff in this case brought a bill in equity to restrain the .defendant from wasting or unreasonably using water from artesian wells on his lands, and thereby interfering with the flow of water from the plaintiff's well situated over the same artesian basin, but on a higher level than the defendant's; the petition alleged that the defendant intentionally and maliciously wasted a part of the water, and that he sold part thereof. The opinion, however, makes no point of the fact that the defendant sold the water. It was said that the right of the owner to sink the well and use the water therefrom as he chose, regardless of the effect upon his neighbor's well, was a property right, arising out of the ownership of land and protected by the common law, as such, which could not be taken away from him or impaired by an act of the legislature unless by the exercise of the power of eminent domain or police power. And the court held that a statute purporting to regulate the use of water from artesian wells did not constitute an exercise of the power of eminent domain, or justify an exercise of the police power, and was, therefore, unconstitutional, on the ground that in effect it constituted the taking of private property for private use without just compensation.

And it has been said that one who sinks an artesian well on his property is the absolute owner of the water flowing therefrom, which he may con

trol as he sees fit so long as he does no injury thereby to others, and that his right to use such water cannot be confiscated or interfered with by the state or the public, and placed in the custody and control of the state engineer, any more than could the land itself upon which the water happens to be. St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co. (1913) 32 S. D. 260, 143 N. W. 124. This statement was made in reference to a statute providing in substance that all waters within the limits of the state, with the exception of navigable waters, belong to the public and may be used after an application to the state engineer for a permit, which the court held was unconstitutional as violating the due process clause. The question as to the right to divert water from artesian wells without the district was not before the court.

And in Clarke County v. Mississippi Lumber Co. (1902) 80 Miss. 535, 31 So. 905, the defendant sank an artesian well for the purpose of obtaining water to supply a pond for a sawmill and planer, and by the use of compressed air secured a flow of water which greatly exceeded the natural flow therefrom, and which diminished the supply of water from other artesian wells on surrounding lots, and the court held that neither an injunction nor an action for damages would lie against the defendant at the instance of other property owners, the decision being based upon the maxim, "cujus est solum, ejus est usque ad cœlum." It does not appear from the case, however, whether the place where the defendant was using the water was beyond the limits of the artesian district, and no mention of this fact was made in the opinion. And see Houston & T. C. R. Co. v. East (Tex.) supra, 1., and New York cases supra, II. c. G. S. G.

"Notary Public in and for the State of Washington, Residing at Seattle."

Both executions were returned by the sheriff, "No property found." This action was then commenced against C. H. Steffen, appellant, as a notary public, and his bondsmen, upon the theory that his act in administering an oath to Agkaloff, knowing such affidavit to be false, was wrongful, and enabled Agkaloff to place his property beyond the reach of the writ of execution and defeat recovery on the judgment. From a judgment for the full amount prayed, Steffen and his bondsmen have appealed.

The only question that it is necessary to discuss is whether, conceding the affidavit to be false, and that the notary knew this to be a fact at the time of administering the oath, the appellant Steffen, because of the act, became liable on his bond as a notary public to answer for the loss the respondent suffered. In support of his position respondent cites Kangley v. Rogers, 85 Wash. 250, 147 Pac. 898; Ehlers v. United States Fidelity & G. Co. 87 Wash. 662, 152 Pac. 518; State ex rel. Gardner v. Webb, 177 Mo. App. 60, 164 S. W. 184; and Williams v. Parks, 63 Neb. 747, 56 L.R.A. 759, 89 N. W. 395.

An examination of these cases shows that none of them is in point. The two cases from this court involved the taking of false acknowledgments, wherein the notary certi

fied to his acquaintance with and knowledge of the person signing. The Webb Case involved the forging of affidavits to clear up a title, and an examination of the case also discloses the fact that there, too, the notary signed a false certificate. In the case of Williams v. Parks, the supreme court of Nebraska held a notary liable for failing to give notice of dishonor on protested paper, a duty imposed upon him by statute.

No case has been cited to us, and an independent investigation has disclosed none, wherein a notary

public has been held Notary public

liability.

liable on his bond -attesting false for signing a ju- adavitsrat to an affidavit wherein the affiant swore falsely. It may be that a notary public, who was also an attorney, who counseled or knowingly permitted a client to sign a false affidavit for the purpose of defrauding judgment creditors, could be held accountable; yet such liability would not be imposed because of his official position as a notary public, so as to hold him on his bond.

In signing a jurat, such as the one on the affidavit in question here, the notary has fulfilled the duty he owes as a public officer when he swears the affiant. In such a jurat he does not certify to the truth of the statements made in the affidavit, nor even to the identity of the person signing. Inasmuch as respondent bases his right to a recovery solely upon the alleged wrongful act performed by appellant as a notary public, it necessarily follows, from what we have said, that his action must fail. The appellant, in signing the jurat even though he knew the statements in the affidavit to be false, was guilty of no violation of law or duty as such officer.

Reversed and remanded, with instructions to dismiss.

Parker, Mitchell, Tolman, and Bridges, JJ., concur.

Petition for rehearing denied.