Title: Canada v. City of Shawnee - Supreme Court of Oklahoma, 1936
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004445/00001
 Material Information
Title: Canada v. City of Shawnee - Supreme Court of Oklahoma, 1936
Physical Description: Book
Language: English
Publisher: Water Resources
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Canada v. City of Shawnee - Supreme Court of Oklahoma, 1936 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 8
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004445
Volume ID: VID00001
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Full Text


or storer to recapture. Suppose he makes
no effort to recapture. What rights may
be acquired to the water? Elgin v.
Weatherstone, 123 Wash. 429, 212 P.
562 (1923) held that abandoned waters
from another watershed are vagrant waste
waters, that do not become a part of the
natural waters of the creek in their new
watershed, and since they belong to no
person, the first taker has the better right.
In Coryell v. Robinson, 118 Colo. 225,
194 P.2d 342 (1948) the court held that
once-used foreign water becomes a part
of the supply of the second stream, to be
distributed to existing priorities.
3. "Developed waters" are those that
have been added to a stream by man, gen-
erally from subterranean sources or from
seepage that was previously prevented
from reaching the stream. They are uni-
versally held to belong to the person who
by his labors has made them available.
Churchill v. Rose, 136 Cal. 576, 69 P.
416 (1902); Platte Valley Irrigation Co.
v. Buckers Irrigation, Milling & Im-
provement Co., 25 Colo. 77, 53 P. 334
(1898); St. John Irrigating Co. v. Dan-
forth, 50 Idaho 513, 298 P. 365 (1931).
Foreign waters that have passed out of
the control of the importer are not de-
veloped waters. Rock Creek Ditch &
Flume Co. v. Miller, 93 Mont. 248, 17
P.2d 1074 (1933). As to whether drain-
age of waste irrigation water is developed
water, see Hagerman Irrigation Co. v.
East Grand Plains Drainage Dist., 25
N.M., 649, 187 P. 555 (1920); In re
Nix, 95 Colo. 540, 45 P.2d 176 (1935).
The burden of proof of the fact that the
water would not have reached the stream
is on the person who claims the benefit.
of developed water, Leadville Mine De-
velopment Co. v. Anderson, 91 Colo. 536,
17 P.2d 303 (1932), and merely hasten-
ing the flow by draining swamps that are
the source of a stream is not development
of water, Smith v. Duff, 39 Mont. 382,
102 P. 984 (1909). "Salvaged waters"
that are actually saved from loss by evapo-

ration or seepage by means of stream
channel improvements belong to the per-
son who made the improvements. Reno
v. Richards, 32 Idaho 1, 178 P. 81

Supreme Court of Oklahoma, 1936.
179 Okl. 53, 64 P.2d 694.
PHELPS, Justice. The defendant, City
of Shawnee, purchased 70 acres of land
some 7 or 8 miles from the city. The
plaintiffs for 30 years or more have owned
farms adjoining and near the defendant's
70-acre tract. The plaintiffs' farms and
all of the surrounmdinc country hA l l-
ways been abundantly supplied with
clear, pure cold water in wells and eush-
ing springs. The supply of water was
described as apparently inexhaustible.
For the purpose of augmenting its wa-
ter supply, the defendant city due 12
wells on its 70-acre tract and equipped
each we with a 712 horse power motor
and pump. Enormous volumes of water
were thereby pumped from under the
lands of the defendant and of plaintiffs,
which water was by the defendant trans-
ported in pipe lines to the city and there
sold to the inhabitants.
Soon thereafter the wells on all of
plaintiffs' lands went dry. The springs
ceased to produce water. Plaintiffs had
no water for their stock, or for irrigation,
or household or personal uses. There
was some evidence that the land itself,
even that early, began to dry out, so
that it became less productive. The over-
whelming weight of the evidence was that
the injury thereby inflicted upon plaintiffs
was very real, substantial, and irreparable.
The plaintiffs brought this action to en-
join the defendant from numpine its
wells. The trial court denied them
relief and they ap;. al. The main argu-

I ---^-- ------v--cr~-r*r~-r~--rrrr~rm

See. 4


ment on appeal involves the law of wa-
ters, the defendant contending that the
rules thereof entitle it to draw as much
water as it pleases from its own land,
regardless of the effect on plaintiffs and
their property.
In legal consideration subterranean
waters are divided into two classes: (1)
percolating waters, and (2) underground
streams. Percolating waters are those
which seep, ooze. filter and otherwise
circulate through the subsurface strata
without definite channels. Underground
streams are simply what their name im-
plies; water passing through the ground
beneath the surface in defined channels.
Different rules are ordinarily prescribed
for the two classes of water. The cases
and authorities are generally agreed that
subterranean water will be presumed to
be percolating water unless it is definitely
shown to be of the other class. There
was no such showing here, and the parties
concede that this action is governed by
the rules applicable to percolatin water.
Often this class of water will be found
in great abundance at shallow depths, due
to an underlying hard strata which is im-
mune to percolation. Its movements are
induced probably more by gravity and
porosity of the soil than by anything else,
but it is unnecessary to consider the
scientific phases of the subject further than
to notice that artificially induced pressure
or vacuity at any point in the saturated
region will repel or attract water to or
from that point throughout the entire
water region.
The English or common-law rule con-
cerning rights in percolating waters was
first announced in the case of Acton v.
Blundell (1843), 12 Mees. & W. 324,
152 Eng.Reprint 1223, 15 Mor.Min.Rep.
168. It is in effect in probabhlv he ma-
jority of American states today. That
rule is that rights in percolating waters
are regarded as belonging to the owner
of the freehold like the rocks, soil. and

minerals found there, and that such owner
may, in the absence of malice, intercept,
impede, and appropriate such waters
while they are upon or beneath his prem-
ises, and make whatever use of them he
pleases, regardless of the fact that his
use cuts off the flow of such waters to
adioninei land and deprives the adjoining
landowner of their use.
At an early day. however, the courts ex-
pressed dissatisfaction with the comman-
law or English rule. and hepn anplyin.
what they called, variously. the rule of
"reasonable use" or rule of "correlative
rights" or the "American rule." The
digests reveal that in those cases and
states where the English rule was adopted
the decisions, with a few exceptions, were
promulgated prior to the year 1900, while
those recognizing and using the rule of
reasonable use, or American rule, are of
more recent origin. It is further signifi-
cant that in recent years six of the states
(California Florida. Indiana. New Jer-
sey, New York. and Utah). which had
formerelv adhered to the English rule,
adopted the rule of reasonable use.
Stated generally, the rule of reasonable
use is that each landowner is restricted to
a reasonable exercise of his own rights
and a reasonable use of his own property,
in view of the similar rights of others.
This does not mean that there shall be an
apportionment of subterranean percolat-
ing water between adjacent landowners,
for such a thing is often, if not always,
impossible, and it was this same impossi-
bility which gave rise to the English rule
itself. The rule of reasonable use as to
percolating waters is merely the applica-
tion of the same rule as it affects all
property, for ownership of property does
not vest one with the right to injure his
neighbor with the use of that property.
If the rule of reasonable use should at-
tempt in actual practice an apportionment
of percolating water between adjacent
landowners, it would but serve to illus-
trate the necessity of the English rule,


Pt. 1,. Ch. 1


and so it happens that the virtue of the
rule of reasonable use lies not so much in
its statement as in its application to con-
crete cases. The history of law is replete
with illustrations of how a new rule was
born from the unfair and unjust use of
an existing rule; it was those who sought
an unfair and unconscionahle advantage
from the English rule who necessitated
a limitation on that rule, and as we view
it, the rule of reasonable use as it is actu-
ally applied is not a different rumi from
the English rule at all, but is merely a
liitation there *
The defendant asserts that because of
section 11785, O.S.1931, the trial court
could have entered no judgment except
in its favor. We do not agree, and the
remarks of the trial judge as set forth in
the record do not indicate that the judg-
ment was based upon that section. It
reads: "The owner of the land owns
water standing thereon, or flowing over
or under its surface, but not forming a
definite stream. Water running in a defi-
nite stream, formed by nature over or
under the surface, may be used by him
as long as it remains there; but he may
not prevent the natural flow of the stream,
or of the natural spring from which it
commences its definite course, nor pursue
nor pollute the same." *
The first sentence in the section is the
only part referring to subterranean per-
colating waters. Its substance is that the
owner of the land owns the percolating
water thereunder. It speaks of ownership
only and is silent as to use. The next
sentence, referring to underground
streams, speaks of use only and is silent
as to ownership. Since the second sen-
tence, relating to streams, restricted the
use thereof, and since no restriction of
use as to percolating waters was expressed
in the first sentence, was it thereby in-
tended that there was to be no restriction
upon the use of percolating water? Such
may have been the intention, as far as
the Legislature intended to legislate, but



no further. We do not believe. however,
that the landowner's ownership of perco-
lating water was given him as a weapon
with which to unreasonably maim his
neighr; nor do we believe it was in-
tended that such ownership was to be un-
circumscribed by the limitations usually
imposed upon the use of property of
other classes.
When we consider questions pertain-
ing to the use of property and its injuri-
ous effect, our problems are not solved
by merely determining ownership of the
property so used. In all classes and forms
of property, the rights derived from
ownership thereof, in so far as use by
the owner is concerned, are subject to cer-
tain qualifications and conditions respect-
ing the rights of others in the ownership
and enjoyment of their own property and
lives. It is not true that one may always
use that which he owns in Any manner he
plas, for his use becomes definitely
restricted when it unreasonably conflicts
with the same right existing in other per-
sons and their right to a reasonable use of
their property. One may own a vacant
lot, or a building, or an automobile, but
he does not by such ownership become
vested with the legal right to injure his
neighbor by an unreasonable use. Equity
would not permit him to ruin his neigh-
bor's property, by maintaining a nuisance
on his vacant lot, nor would the law coun-
tenance such a use of his automobile as
would injure others, simply because he
owned it. These things are fundamental.
We should therefore be slow indeed to
place such a construction upon this stat-
ute as would give it the effect of associat-
ing arbitrary and unlimited power of use
with mere ownership.
By whatever is meant when the stat-
ute says that the landowner "owns" that
elusive and unstable substance, percolat-
ing water, beneath his land, it must like-
wise be true that the adjacent landowner
is given the same with respect to that
which underlies his land. If one owner

~sn~e~a ~- ~ ,,-;--_- I-------- ---- ---- -


invades the natural movement. placement,
and percolation of such water by creating
artificial suction with powerful motor
driven numps. it i nnl- lnno. intil he is
taking that water which was but a moment
before "owned" bv hi neishborini land-
owner. We do not say that this is for-
bidden. so lone as the taking is rea-
sonab; but we do say that it exposes
the futility of attempting to justify the
complete exhaustion of a common st-
ply of water on the ground that the land-
owner who has taken it all "owned" that
part therof underlying his land when the
operations commenced. His neighbor
likewise had an ownership.
If the theory of ownership of percolat-
ing water is that of ownership in place, it
is self-evident that the defendant should
be enjoined. If the theory is that of
ownership by capture, such as is usually
applied in exploration for oil, it still is
not at all necessary that we blindly follow
such theory to such extremes as will lead
to gross injustice to innocent persons.
We make no attempt to reconcile the re-
sult herein with the law of oil and as,
other than to point out that if oil had
been sucked from beneath plaintiffs' prop-
erty their land as land, and their farms
as farms, and their live stock, and their
personal health and sanitation could not
have thereby become impaired wie the
opposite must happen if they are deprived
of water And still less are we inclined
to countenance such a result when the
life-giving water, so extracted, is pulled
from beneath the neighbor's land for
sale at a distance. *

On Rehearing.
PHELPS, Justice. On rehearing the
question of propriety of remedy has been
raised, and it has been suggested that if
the same kind of action were instituted by
owners of property surrounding the oth-
er sources of defendant's water supply, it
might result in deprivinp the inhabitants
of the city of water. There is merit in

this contention; however, it was pointed
out above that the city has its statutory
and constitutional means of obtaining the
water. The city defended this action on
the theory, that no liability existed at all,
and briefed it on the same theory, which
theory, if affirmed, would necessitate total
disregard of plaintiffs' injury. The city
did not tender, or attempt to tender, the
issue of eminent domain; its theory has
been that it was under no duty or obliga-
tion whatsoever to the plaintiffs.
There is no doubt that the city of
Shawnee might have commenced an action
in condemnation to acquire the right. in
the nature of an easement, to draw water
from plaintiffs' land, if such is necessary
for the public good. We have not held
that this could not be done; and it is
not yet too late to accomplish the same
result. A public or municipal corpora-
tion having the right to invoke the power
of eminent domain may tender such issue
by answer and cross-petition.
In the petition for rehearing the rule of
law laid down in the original opinion is
not questioned, and in view of the state-
ment therein that the city is able to pay
such damages as the plaintiff may lawfully
be entitled to, we adhere to our decision
reversing and remanding the cause and
direct that the trial court set a reasonable
time within which the defendant may
tender the issue of eminent domain and
proceed to determine the the damages in the
manner provided by statute and constitu-
tion for that purpose, failing in which, or
in paying the damages awarded, let appro'
private injunction issue, unless the proof on
a re-trial hereof in accord with the pro-
cedure prescribed by law shall warrant
a materially different determination of the
1. The "English rule" of absolute
ownership of ground waters was first
stated in cases in which the basic con"
flict was between comnctin lannd uses,


%- a

Pt. 1, Ch. 1

....... V_ .............._


and not between water users cornering
r the supply. The leading cases in
Eng an and America both involved de-
fendants who were lowering the water
table as a result of pumping water from
mines so that mining operations could
be carried on; in each case the plaintiff
was deprived of well or spring water for
use in manufacturing. Acton v. Blun-
dell, 12 Mees. & W. 324, 152 Eng.Rep.
1223 (1843); Wheatley v. Baugh, 25
pa.St.Rep. 528 (1855). In the leading
case establishing the American rule of
reasonable use, Forbell v. City of New
Y ik. 164 N.Y. 522. R5 N.E. 644
(1900), plaintiff and defendant were
competing for the water, which plaintiff
used for subirrigation of crops and de-
fendant transported away from its land
to the city forale. Acton v. Blundell
is sll the law in New York applicable
to similar fact situations: in Flanigan v.
State, 113 Misc. 91, 183 N.Y.S. 934
(N.Y.Ct.CI.1920) it was held that the
digger of a canal is not liable for cutting
off the supply of percolating water to
nearby wells.
2. Percolating waters were once de-
fined as "vagrant. wandering drops mov-
ing by gravity in any and every direction
along the line of leg reastmnce," City of
Los Angeles v. Hunter, 156 Cal. 603, 105
P. 755 (1909), or as waters which "ooze,
seep or filter through the soil beneath the
surface, without a defined channel. or in
a course that is unknown and not discov-
erable from surface indications," Clinch-
field oal Corp. v. Compton, 148 Va.
437, 139 S.E. 308 (1927). A leading
case on the English rule, Chatfield v.
Wilson, 28 Vt. 49 (1855), justified abso-
lute ownership as follows: "T wS
the existence of water under ground. and
of its progress while there, are not uni-
form, and cannot be known with any de-
gree of certainty, nor can its progress be
re ated. The secret. chance-
able, and uncontrollable character of un-
derground water and its operations, is so

diverse and uncertain that we cannot well
subict it to the relations of law. nor
build upon it a system of rules as is
done in the case of surface streams."
Underground streams are subject to the
law of surface streams, riparian or ap-
propriative. Verdugo Canyon Water Co.
v. Verdugo, 152 Cal. 655, 93 P. 1021
(1908); Pima Farms Co. v. Proctor, 30
Ariz. 96, 245 P. 369 (1926). In Clinch-
field Coal Corp. v. Compton, supra, the
court required proof of the existence of
an underground stream to be by reason-
able inference from existing and observed
facts on the natural surface of the ground,
without recourse to abstruse speculation
of scientific persons. But in Maricopa
County Minina1_. Water Conservation
Dist. No. 1 v. Southwest Cotton Co.. 39
Ariz. 65. 4 P.2d 69 (191), th court
opened the way to engineering and o-
loic opinions and scientific ata gathered
from wells or borings and the effect of
some wells on the flow of others, but
still required reasonable certainty in the
location of he bed and banks of the
stream However. a broad anifer filling
an entire valley floor has been called an
underground lake. City of Los Angeles
v. Hunter, 156 Cal: 603, 105 P. 755
19 One form of an underground
stream is the subflow of a surface stream,
percolating from the banks and support-
ing the stream, so that drawing off the
subsurface water would appreciably and
directly diminish the surface flow. Mon-
tecito Valley Water Co. v. City of Santa
Barbara, 144 Cal. 578, 77 P. 1113
3. The high point of the Ennlig~ rul
came in Huber v. Merkel. 117 Wis. 55,
94 N.W. 354 (1903), in which the
court held that not only did the property
right of the owner include the right to
let an artesian well flow for the purpose
of maliciously injuring neighbors, ut
that a statute forbidding the waste of arte-
sian water was unconstitutional as depriv-
ing the landowner of this property with-

~a~411C ;-.~... -.~--~.-~~.-I~..

gee. 4


out due process of law. The case was
followed, at least in its statement of the
basic English rule, in Menne v. City of
Fond du Lac, 273 Wis. 341, 77 N.W.2d
703 (1956), in which the dissenting
judge called the Huber decision "thor-
oughly discredited" and quoted 3 Farn-
ham, Waters and Water Rights 2718
(1904): "There is absolutely no principle
on which that decision can be founded.
It is opposed to good morals, good sense,
and all common-law principles which are
applicable to analogous subjects."
The principal agricultural use of
ground water in Wisconsin is for irriga-
tion of potato and vegetable crops in the
central area of the state, a plain of sandy
soil that in glacial times was the bed of a
huge lake. Annual withdrawals, to sup-
plement erratic summer rainfall, are 6
inches per acre. Annual precipitation in
the area is 30 inches. Wisconsin cities
withdrawing ground water are protected
from interference by the "high-capacity
well law", Wis.Stat. 144.03(6) (7) and
(8). As to the validity of this statute,
see City of Fond du Lac v. Town of
Empire, 273 Wis. 333, 77 N.W.2d 699
4. Texas has long adhered to the Eng-
lish rule of absolute ownership, at least to
the extent that while the overlying land-
owner may not maliciously take water for
the sole purpose of injuring his neighbor,
he can use all the percolating water he
can capture for beneficial purposes on or
off the land, and can likewie sell it, as
he can other property, for ue off the land
and outside the basin where produced.
In City of Corpus Christi v. City of
Pleasanton, 154 Tex. 289, 276 S.W.2d
798 (1955), the court permitted Corpus
Christi to purchase land overlvin an
artesian basin drill wells which flow 10,-
000,000 gallons of water per day, flow
the water into a river in which 63V% to
74% of the water is lost by evaporation
and seepage, and take the remainder of
the water into its municipal system 118

miles away, despite the existence of a
statute prohibiting the waste of artesian
5. Arizona, with statutory modifica-
tions to be noticed later, adhered to the
American rule of reasonable use in Bris-
for v. Cheatham, 75 Ariz. 227, 255 P.2d
173 (1953): "This rule does not prevent
the extraction of round water subiacent
to the soil so lone as it is taken in con-
nection with a beneficial enjoyment of
the land from which it is taken. If it
is diverted for the purpose of making
reasonable use of the land from which
it is taken, there is no liability incurred
to an adjoining owner for a resulting
6. In Whitten v. Coit, Colo. -,
385 P.2d 131 (1963), the court in dic-
tum approved a statement that ground
water not tributary to a natural stream is
not the property of the public but of the
landowner, that the landowner's property
is a vested right which cannot be taken
away by mere legislation but is subject
only to the reasonable use doctrine and
that farmers may sink wells on their
farms to make reasonable use of the
ground water.

Supreme Court of California, 1903.
141 Cal. 116, 70 P. 663, 74 P. 766.
TEMPLE, J. This appeal is taken
from a judgment of nonsuit entered
against plaintiffs on motion of defendant.
The action was brought to enjoin de-
fendant from drawing off and diverting
water from an artesian belt which is in
part on or under the premises of plain-
tiffs, and to the water of which they have
sunk wells, thereby causing the water to
rise and flow uon tli premiss of pian-
tiffs, and which the ver hnd constantly
so flowed for 20 years before the wrong
complained of was committed by defend-
ant. The water is necessary for domestic
on- Il

ill IIIIII- F~B ~ Aim I~.

Pt. 1, Ch. 1


purposes, and for irricatin the lands of
nainti s, upon which there are growing
trees, vines, shrubbery, and other plants,
which are of great value to plaintiffs.
All of said plants will perish, and plain-
tiffs will be greatly and irreparably in-
jured, if the defendant is allowed to di-
vert the water. These facts are admitted,
and further that defendant is diverting the
water for sale, to be used on lands of
others distant from the saturated belt
from which the artesian water is derived.
* *
The defense, conceding that the water
held in the earth is percolating water, re-
lies upon certain decisions which assert
and apply literally the maxim, "Cujus est
solum, ejus est usque ad inferos," and
that water percolating in the ground, or
held there in saturation, belongs to the
landowner as completely as do the rocks,
ground, and other material of which the
land is composed, and therefore he may
remove it and sell it, or do what he
pleases withit. *

SHAW, J. A rehearing was granted
in this case for the purpose of considering
more fully, and by the aid of such addi-
tional arguments as might be presented
by persons not parties to the action, but
vitally interested in the principle in-
volved, a question that is novel, and of
the utmost importance to the application
to useful purposes of the waters which
may be found in the soil.
Petitions for rehearing were presented
not only in behalf of the defendant,
but also on behalf of a number of cor-
porations engaged in the business of ob-
taining water from wells and distributing
the same for public and private use with-
in this state, and particularly in the south-
ern part thereof. Able and exhaustive
briefs have been filed on the rehearing.
The principle decided by the late Justice
Temple in the former opinion, and the
course of reasoning by which he arrived
at the conclusion, have been attacked in

these several briefs and petitions with
much learning and acumen. *
Many arguments, objections, and criti-
cisms are presented in opposition to the
rules and reasoning of the former opin-
ion. It is contended that the rule that
each landowner owns absolutely the per-
colating waters in his land, with the right
to extract, sell, and dispose of them as
he chooses, regardless of the results to his
neighbor, is part of the common law, and
as such has been adopted in this state
as the law of the land by the statute of
April 13, 1850 (St.1850, p. 219, c. 95),
and by section 4468 of the Political Code,
and that, consequently, it is beyond the
power of this court to abrogate or change
it. The question whether or
not the rule contended for is a part of the
common law applicable to this state de-
pends on whether it is suitable to our
conditions under the rule just stated.
* *

It is clear that the difficul-
ties arising from the scarcity of water in
this country are by no means ended, but,
on the contrary, are probably just begin-
nig. The application of the rule con-
tended for by the defendants will tend
to aggravate these difficulties, rather than
solve them. Traced to its true founda-
tion, the rule is simply this: That, owing
to the difficulties the courts will meet in
securing persons from the infliction of
great wrong and injustice by the diver-
sion of percolating water if any prop-
erty right in such water is recognized, the
task must be abandoned as impossible,
and those who have valuable property ac-
quired by and dependent on the use of
such water must be left to their own re-
sources to secure protection for their prop-
erty from the attacks of their more power-
ful neighbors, and, failing in this, must
suffer irretrievable loss; that might is
the only protection.
"The good old rule
Sufficeth them, the simple plan,

LI I -_- -- -----.- .-- .

Sec. 4


That they should take who have
the power,
And they should keep who
The field is open for exploitation to
every man who covets the possessions of
another, or the water which sustains and
preserves them, and he is at liberty to
take that water if he has the means to
do so, and no law will prevent or inter-
fere with him, or preserve his victim
from the attack. The difficulties to be
encountered must be insurmountable to
justify the adoption or continuance of a
rule which brings about such consequenc-
es.* *
We do not see how the doctrine con-
tended for by defendant could ever be-
come a rule of property of any value. Its
distinctive feature is the proposition that
no property rights exist in such waters
except while they remain in the soil of
the landowner; that he has no right either
to have them continue to pass into his land
as they would under natural conditions,
or to prevent them from being drawn out
of his land by an interference with nat-
ural conditions on neighboring land.
Such right as he has is therefore one
which he cannot protect or enforce by
resort to legal means and one which he
cannot depend on to continue perma-
nently or for any definite period.
It is apparent that the parties who have
asked for a reconsideration of this case,
and other persons of the same class, if the
rule for which they contend is the law,
or no-law, of the land, will be constantly
threatened with danger of utter destruc-
tion of the valuable enterprises and sys-
tems of waterworks which they control,
and that all new enterprises of the same
sort will be subject to the same peril.
They will have absolutely no protection in
law against others having stronger pumps,
deeper wells, or a more favorable situa-
tion, who can thereby take from them un-
limited quantities of the water, reaching

to the entire supply, and without regard
to the place of use. We cannot perceive
how a doctrine offering so little protec-
tion to the investments in and product of
such enterprises, and offering so much
temptation to others to capture the water
on which they depend, can tend to pro-
mote developments in the future or pre-
serve those already made, and therefore
we do not believe that public policy or a
regard for the general welfare demands
the doctrine. An ordinary difference in
the conditions would scarcely justify the
refusal to adopt a rule of the common
law, or one which has been so generally
supposed to exist; but where the differ-
ences are so radical as in this case, and
would tend to cause so great a subversion
of justice, a different rule is imperative.
The doctrine of reasonable use, on the
other hand, affords some measure of pro-
tection to property now existing, and
greater iustihcation for m
make new developments. It limits the
right of others to such amount of water
as may be necessary for some useful pur-
pose in connection with the land from
which it is taken. If, as is claimed in
the argument, such water-bearing land is
generally worthless except for the water
which it contains, then the quantity that
could be used on the land would be nom-
inal, and injunctions could not be ob-
tained, or substantial damages awarded,
against those who carry it to distant lands.
So far as the active interference of others
is concerned, therefore, the danger to
such undertakings is much less, and the
incentive to development much greater,
from the doctrine of reasonable use than
from the contrary rule. No doubt there
will be inconvenience from attacks on
the title to waters appropriated for use on
distant lands made by persons who claim
the right to the reasonable use of such
waters on their own lands. Similar dif-
ficulties have arisen and now exist with
respect to rights in surface streams, and
must always be expected to attend claims

Pt. 1, Ch. 1


to rights in a substance so movable as
water. But the courts can protect this
particular species of property in water as
effectually as water rights of any other
It may, indeed, become necessary to
make new applications of old principles
to the new conditions; and, in view of
the novelty of the doctrine and the scope
of argument, it is not out of place to
indicate to some extent how it should be
done, although otherwise it would not be
necessary to the decision of the case. The
controversies arising will naturally divide
into classes. There will be disputes be-
tween persons or corporations claiming
rights to take such waters from the same
strata or source for use on distant lands.
There is no statute on this subject, as there
now is concerning appropriations of sur-
face streams; but the case is not without
precedent. The principles
which, before the adoption of the Civil
Code, were applied to protect appropria-
tions and possessory rights in visible
streams, will, in general, be found appli-
cable to such appropriations of percolat-
ing waters, either for public or private
use, and will suffice for their protection
as against other appropriators. Such
rights are usufructuary only, and the first
taker who with diligence puts the water
in use will have the better right. And
in ordinary cases of this character the law
of prescriptive titles and rights and the
statute of limitations will apply. In con-
troversies between an appropriator for use
on distant land and those who own land
over ing the water-bearing strata, ther
may be two classes of such landowners-
those who have used the water on their
land before ne attempt to appropriate,
and those who have not previously used
it, but who clain the riht afterwards to
o so. Under the decision in this case
Sights of the first class of landowners
are paramount to that of one who takes
the water to distant land, but the land-
owner s right extends only to the quan-

tity of water that is necessary for use on
his land. and the appropriator may take
the surplus. As to those landowners who
begin the use after the appropriation, and
who, in order to obtain the water, must
restrict or restrain the diversion to distant
lands or places, it is perhaps best not to
state a positive rule. Such rights are
limited at most to the quantity necessary
for use, and the disputes will not be so
serious as those between rival appropri-
ators. Disputes between overlying land-
owners, concerning water for use on the
land, to which they have an eumaLright,
in cases where upply is insufficient
for all. are to be settled by giving to
each a fair and iust roportion. And
here again we leave for future settlement
the question as to the priority of rights be-
tween such owners who begin the use of
the waters at different times. The parties
interested in the question are not before
The objection that this rule of correla-
tive rihts will throw unon the court a
duty impossible of performance-that of
aportionine an insufficient supply of wa-
ter among a large number of users-is
largelyconiectural. No doubt cases can
be imagined where the task would be ex-
tremely difficult, but, if the rule is the
only just one-as we think has been
shown-the difficulty in its application in
extreme cases is not a sufficient reason
for abandoning it and leaving property
without any protection from the law.

With regard to the doctrine of reason-
able use of percolating waters. we adhere
to the views expressed in the former
The judgment of the court below is re-
versed, and a new trial ordered.

1. In Olson v. City of Wahoo, 124
Neb. 802, 248 N.W. 304 (1933), the
trial court ruled that plaintiff had failed

II~- I-------

Sec. 4


to prove that pumping from defendant's
well had materially lowered the water
level in plaintiff's gravel pit. The su-
preme court affirmed on the evidence,
and in the course of the opinion said:
"The American rule is that the owner of
land is entitled to aropriate subter-
ranean waters found under hi. land, but
he cannot extract and appropriate them in
excess of a reasonable and beneficial use
upon the land which he owns especially
it such use is injurious to others who
have substantial rights to the waters, and
if the natural underground supply is in-
sucient or a owners each is en-
titled to a reasonable proportion of the
whole, and while a lesser number of
states haveadopted his l. it is in our
opinion, supported by the better reason-

2. In Erickson v. Crookston Water-
works Power & Light Co., 105 Minn.
182, 117 N.W. 435 (1908) the court
adopted the rule of correlative rights,
and stated that it would applv the prece-
dents and analogies of riparian law in
streams, so far as applicable tn di,,te
between takers nf ~,'tr fmrm the ame
artesian stratum. But see Minn.Stat.
Ann. 105.41.

Supreme Court of New Mexico, 1950.
55 N.M. 12, 225 P.2d 1007.
BRICE, Chief Justice. The State of
New Mexico, upon relation of its State
Engineer John H. Bliss, brought separate
suits against Bert Troy Dority, Loman
Wiley and S. A. Lanning, Jr., the purpose
of which was to enjoin the respective
defendants from unlawfully using for ir-
rigating lands, waters drawn from what
is known as the Roswell Artesian Basin,
and the valley fill above it, which plain-
tiff asserts under Ch. 131, N.M.L. 1931,
1941 Comp. 77-1101 et seq., are sub-

ject to appropriation as provided therein.
* *

Defendants' lands are situated in
Chaves County, New Mexico, and are
located within the external boundaries of
two underground water sources, one of
which is an artesian basin lying between
confining strata, the waters of which are
commonly referred to as artesian water;
and the other, plaintiff asserts, is an un-
derground reservoir or lake in the valley
fill overlying such artesian basin, the
waters of which are commonly referred to
as shallow ground water. About 45,000
acres are irrigated from shallow ground
water and 55,000 acres from artesian
water. [T]he plaintiff asserts
that the defendant Dority is irrigating
96.7 acres of land illegally, in that he has
not been granted the right to so use the
water; that the defendant Wiley was in
like manner illegally using water to irri-
gate 48.7 acres of land; and the defend-
ant Lanning was illegally using water to
/ irrigate 120 acres. The defendants admit
that they have been using, and will con-
tinue to use, the water without a permit
unless enjoined from so doing. They
deny that their use of it is in violation of
law. The principal contention is that
the New Mexico statutes providing for
the appropriation of sub-surface water is
unconstitutional upon several rounds
The statutes of New Mexico declaring
that the artesian and shallow ground
water from which defendants obtained
the water to irrigate their land belongs
to the public and providing for their ap-
propriation for beneficial use, are as fol-
"The waters of underground streams,
channels, artesian basins, reservoirs, or
$,'rtTvil lakes, having reasonably ascertainable
boundaries, are hereby declare to be
public waters and to belong tthe public
and to be subject to anrropriation for
beneficial use." Sec. 77-1101, N.M.Sts.

Pt. 1, Ch. 1


"Beneficial use is the basis, the measure
and the limit to the right to the use of the
waters described in this act." Sec. 77-
1102, N.M.Sts.1941.
"Any person, firm or corporation desir-
ing to appropriate for irrigation or indus-
trial uses any of the waters described in
this act shall make application to the
state engineer in a form to be prescribed
by him in which said applicant shall desig-
nate the particular underground stream,
channel, artesian basin, reservior or lake
from which water is proposed to be ap-
propriated, the beneficial use to which
it is proposed to apply such water, the
location of the proposed well, the name
of the owner of the land on which such
well will be located, the amount of water
applied for, the use for which it is de-
sired and if the proposed use is irriga-
tion, the description of the land to be
irrigated and the name of the owner
thereof. (Then follows a provision for
the publication of notice of any objec-
tions to granting the permit, a provision
that such application should be granted
if there are any waters subject to ap-
propriation, and the manner of hearing
protests on such application, if any.)"
Sec. 77-1103, N.M.Sts.1941.
"Existing water rights based upon ap-
plication to beneficial use are hereby rec-
ognized. Nothing herein contained is in-
tended to impair the same or to disturb
the priorities thereof." Sec. 77-1104,
"Any person, firm or corporation claim-
ing to be the owner of a vested water right
from any of the underground sources in
this act described, by application of waters
therefrom to beneficial use, may make and
file in the office of the state engineer a
declaration in a form to be prescribed by
the state engineer setting forth the bene-
ficial use to which said water has been
applied, the date of first application to
beneficial use, the continuity thereof, the
location of the well and if such water has
been used for irrigation purposes, the de-

scription of the land upon which such
water has been so used and the name of
the owner thereof. (Then follows pro-
vision for verification of the declaration,
and the recording thereof.)" Sec. 77--
1105,N.M.Sts.1941. *
"Any person using or appropriating
water without a permit, contrary to the
provisions of section 1 of chapter 70, of
the New Mexico Session Laws of 1943,
designated as section 77-1103 of the
New Mexico Statutes, 1941, Annotated;
or who changes the location of his well
or use of the water except as provided
and permitted by section 77-1107 of said
New Mexico Statutes, 1941, Annotated;
or who appropriates to his own use with-
out a permit from the state engineer
forfeited water or water rights under the
provisions of section 77-1108 of said
New Mexico Statutes, 1941, Annotated,
shall be guilty of a misdemeanor and, on
conviction thereof in any court of compe-
tent jurisdiction, shall be punished
* *." Laws 1943, Ch. 70, Sec. 2;
Laws 1947, Ch. 21, Sec. 1, Sec. 77-1112,
N.M.Sts.1941. *
The State Engineer has the jurisdiction
and authority to determine the boundaries
of any of the underground waters declared
to be public waters, and no judicial deter-
mination is necessary to the jurisdiction
given him by the laws in question.
No right to the use of water from
such sources was obtained by its use by de-
fendants in violation of law, nor can it be.
The statutory manner of securing such
rights is exclusive. Pecos Valley Artesian
Cons. District v. Peters, 50 N.M. 165,
173 P.2d 490. We so held as to the ir-
rigation law of 1907 in Harkey v. Smith,
31 N.M. 521, 247 P. 550. The same
legal principles apply here.
The principal question raised is wheth-
er the Act of 193 which we. have ouot-
ed, that declared the ownership of the
waters in question to be in the public,
violates the 14th Amendment tthe on-

IC I- I I -

Sec. 4


stitution of the United States and Sec. 18
of Art. 2 of the Constitution of New

Mexico, m that it authorizes the state to

deprive its citizens and others of their
property without due nrres of law nd
den--ies them the equal protection of the
laws: and violates Sec. 20 of Art. 2 of
the Constitution of New Mexico in that
it authorizes the taking of private prop-
erty for ubic use without just compensa-
The whole argument is based on the
assumption that the water described in
Sec. 1 of the Act of 1931 belongs to the
owners of the overlying land. Each of
the defendants claims that the under-
ground water under his land is his prop-
erty acquired through mesne conveyances
from the United States, beginning with
the patent from the Government and
that such patent and mesne conveyances
transferred to him the water underlying
te land convey. In other words, that
te common law, or at least the law of
correlative rights in such waters, is the
law of this state.
Without going into unnecessary detail
and without referring to the many cases
cited by the parties to this suit, we state
that the patents from the United State to
public lands issued after 1866, andpar-
ticularly those issued after thf na r-
Land Act of 1877, 43 U.S.C.A. 321 et
seq., conveyed no interest in. or rht to,
the use of surface or underlvin water
with which land: could be irrigated ex-
cept such portions thereof as were used to
reclaim the particular land applied for
under the Act. The substance of the
contention of each of the appellants is
that he has a vested interest in the title
to the water under his lands, to the cen-
ter of the earth, of which he cannot be
deprived by any legislative act.
This question was settled by this court
in Yeo v. Tweedy, supra. It was held
in that case that the title to the water
described in Sec. 1 of the 1931 Act be-

longed to the public and was subject to
appropriation for beneficial uses. We do
not deem it necessary to go into this
question extensively again, but because of
decisions of this and other courts on the
question since Yeo v. Tweedy, which was
decided April 16, 1930, we will review
It was stated in Yeo v. Tweedy that
Sec. 1 of Ch. 182. N.M.L.1927, almost
identical with the 1931 Act, had always
been the law in this jurisdiction. Wheth-
er this is correct or not, it is of little im-
portance, as the waters involved in this
suit were reserved for the people of New
Mexico, to be disposed of under its laws
and the decisions of its courts, by an act
of the United States Congress of 1877.
This act was known as the Desert Land
Act *.
The Desert Land Act provided that
all waters uBon the public lands (except
navigable waters) were to remain
free for the amrogriation and
use of the public. It was not intended
to be taken literally that such waters must
be upon the surface of the earth to be
subject to such use. Waters of under-
ground rivers with defined banks have
always been subject to appropriation. We
conclude that all water that may be used
for irrigation was reserved by the Desert
Land Act to be used beneficially by the
i public, as provided by the laws of the
arid states. No interest in such waters
was conveyed by a United States patent.
We hold that under the Federal law
and that of New Mexico the waters de-
scribed in Sec. 1 of the Act of 1931 are
subject to appropriation under that Act.
There is another consideration which
requires the affirmance of the trial court's
decree. The decision of Yeo v. Tweedy,
supra, has become a rule of property. In
the nineteen years since that decision it
may be assumed that many thousands of

Pt. 1, Ch. 1


acres of the one hundred thousand irri-
gated with water from the Roswcll Ar-
tesian basin and the valley fill have been
sold to purchasers who relied on that
decision as determining title to the right
to use the water here involved, and the
water rights to which would be injured
or destroyed if Yeo v. Tweedy is over-
ruled. Whether it stated the correct rule
of law (and we are of the opinion that
it did), it is now a rule of property that
we will not disturb. *
The parties have stipulated in this
court to facts that show all lands of de-
fendants involved here were patented aft-
er March 1877, the date of the Desert
Land Act; and before the Act of 1931.
We have concluded that the water in-
volved was reserved, on or before the
date the Desert Land Act became effective,
to the State of New Mexico as trustee for
the public, and subject to its use by the
public at any time thereafter hy aiithnrity
of the state statutes, even though passed
after the date of the patents to the lands
of the defendants. The patets to de-
endants' lands carried no right to the
use of water, except as to that actually ap-
plied to the reclaiming of land under the
Desert Land Act, and not thereafter aban-
doned. All other water belonged to the
State as trustee for the public. *
The decree of the district court is af-
firmed, and it is so ordered.

1. Knight v. Grimes, 80 S.D. 517,
127 N.W.2d 708 (1964), took a more
direct approach to the constitutionality of
superimposing a ground water appropria-
tion statute upon the rule of absolute
ownership of percolating waters. In view
of a statute, in effect since territorial days,
that "The owner of the land owns water
standing thereon, or flowing over or un-
der its surface, but not forming a definite
stream," the court said that beyond doubt
the statute is an invasion of a pre-existing
Trelease, B. & G., Cs.Natural Resources ACB-8

right or interest, but that nevertheless the
legislature was fully justified in finding
that the public welfare requires the maxi-
mum protection and utilization of its
water supply, and that the police power
permitted the adoption of a statute im-
posing regulations that are not unreason-
able or arbitrary.
2. Harnsberger, Nebraska Ground
Water Problems, 42 Neb.L.R. 721, 745-
747 (1963): "In 1939, fourteen Western
states followed common law doctrines in
connection with the regulation and use of
ground waters, but during the past twenty-
five years the trend has rapidly been
toward the appropriative system. The
first ground water appropriative statutes
were enacted by Oregon 8 and New
Mexico2 in 1927; and the following
public administrative control statutes reg-
ulating ground waters have been enacted
since: Utah, 1935; 30 Nevada, 1939; a3
Kansas, 1945; 3 Washington, 1945; 33
Wyoming, 1947; 3 Oklahoma,
1949; 35 Idaho, 1951; 36 North Dakota,
1955; 3 South Dakota, 1955; 38 *

280r.Laws, c. 410 (1927) (the original act
was limited to "counties lying east of the
summit of the Cascade Mountains").
29N.M.Laws, c. 182 (1927). For technical
reasons, this statute was found unconstitu-
tional in Yeo v. Tweedy, 34 N.M. 611, 286 P.
970 (1929). To satisfy the court's objections,
a second statute was enacted in 1931. N.M.
Laws, c. 131 (1931). See generally Harris, New
Mexico's Role in the Development of the Law
of Underground Water, 31 Dicta 41 (1954).
30 Utah Laws, c. 105 (1935).
31 Nev.Stats. c. 178 (1939).
32Kan.Laws, c. 390 (1945). For articles
discussing the Kansas Water Appropriation
Act, see generally Symposium on Water Law,
5 Kan.L.Rev. 492-673 (1957).
33 Wash.Laws, c. 263 (1945).
34 Wyo.Laws, c. 107 (1947). Sec generally
Note, 1 Wyo.L.J. 111 (1947).
35 Okl.Laws, tit. 82, c. 11 (1949).
36 Idaho Laws, c. 200 (1951).
37 N.D.Laws, c. 345 (1955).
38 S.D.Laws, c. 431 (1955).


Sec. 4


and Montana, 1961.39
"Separate Underground Water Codes
exist in Idaho,40 Montana,41
Nevada,42 New Mexico,43 Oklahoma,44
Oregon,45 Washington,40 and Wyoming.47
In Kansas,48 North Dakota 49 and Utah 50
the general appropriative statutes apply to
ground water. South Dakota has a sep-
arate act pertaining to ground water but
it merely applies the appropriative doc-
trine to ground water and then adopts
the procedures which govern those for
appropriating surface waters.51
"All the states establish a permit sys-
tem and, with the exception of Idaho,
make securing a permit the exclusive
means by which a valid appropriative
right may be acquired. In Idaho, an ap-
propriation may be perfected either by
obtaining a permit or by diverting water
and applying it to beneficial use." 52
Hawaii has adopted the form of ap-
propriation and administrative control of
ground water recommended in the Model
Water Use Act, Handbook of the Na-
tional Conference of Commissioners on
Uniform State Laws 198 (1958); Rev.

39 Mont.Laws, c. 237 (1961).
40 Idaho Code, 42-226 to -239 (Supp.
41 Mont.Rev.Codes Ann. 89-2911 to -2936
42 Nev.Rcv.Stat. 534.010-.190 (1957).
43 N.M.Stat.Ann. 75-11-2 to -7, -9 to -12,
-14 to -19, -21 to -22 (1953), N.M.Stat.Ann.
f 75-11-1, -13, -20 (Supp.1959), and N.M.
Laws, c. 32 (1961).
44 Okl.Stat.Ann. tit. 82, 1001-1001-19.
45 Or.Rev.Stat. 537.505-.745 (1961).
46 Wash.Rev.Code, 90.44.010 to 90.44.010-
.210 (1951).
47 Wyo.Stat.Ann. 41-121 to 41-127, 41-
129 to 41-141, 41-143 to 41-147 (1957); Wyo.
.Stat.Ann. 41-128, 41-142 (Supp.1961).
48 Kan.Gen.Stat.Ann. 82a-707 (Supp.1961).
49 N.D.Cent.Code 01-01-02, -01-01 (1900).
50 Utah Code Ann. 73-1-1, -3-1 (1961).
51 S.D.Code, 1.0-104 (Supp.1900).
a5 Idaiho Code, 42-229 (Supp.1961).

Laws Haw. 87B-1 to 87B-36 (Supp.
Clark, Groundwater Legislation in the
Light of Experience in the Western States,
22 Mont.L.R. 42 (1960), analyzes and
gives in tabular form the trend toward
the prior appropriation doctrine and to
public control of groundwater.
3. City of Colorado Springs v. Bend-
er, 148 Colo. 458, 366 P.2d 552, 555
(1961): "As already shown, the water
in the channel making up the aquifer, is
a part of the flow of Fountain Creek. It
is a well-established principle in this ju-
risdiction that all waters are part of a
natural water course, whether visible or
not, constituting a part of the whole body
of moving water. Safranek v. Town of
Limon, 123 Colo. 330, 228 P.2d 975.
The relative priorities among appropria-
tors of such waters are to be protected by
the judiciary even though they have never
been made the subject of a statutory ad-
judication. Black et al. v. Taylor, 128
Colo. 449, 264 P.2d 502, 507. The opin-
ion in the last cited case also approved
the following statement which is pertinent
to the present controversy:
It has been frequently held
by our appellate courts, from a very early
date down to the present time, that all
underground waters which by flowage,
seepage or percolation will eventually, if
not intercepted, reach and become a part
of some natural stream either on or be-
neath the surface, are governed and con-
trolled by the terms of the constitution
and statutes relative to appropriation, the
same as the surface waters of such
stream.' "
4. Prior to statutory changes, Hunt
v. City of Laramie, 26 Wyo. 160, 181
P. 137 (1919), was frequently cited as
adopting the English rule as Wyoming
law. In that case Pope, digging in a wet
and seeped spot on his land, opened up
a substantial flowing spring. The water
flowed in a draw across the lands of

Pt. 1, Ch. 1


Hunt, who filed an application for a per-
mit to appropriate it by means of a ditch.
Pope transferred all his rights in the wa-
ter to the city. In holding that the per-
mit to appropriate could not be issued,
the court said:
"The vital question in the case was a
question of fact as to whether Pope Spring
was a natural spring or a spring artificially
developed by nieans of excavations by
Pope, upon whose land it was situated..
From the evidence it appears the spring
was developed by digging into a sub-
surface stratum or formation through
which and from which the waters perco
lated and found their way out to the sur-
face at the point where the excavation
was made. The contention of the appel-
lants in the court below was that Pope
Spring was a natural spring, but the trial
court found against them and found it to
be a spring artificially developed by Pope,
and that its waters were private waters and
the property of Pope, upon whose land
it had been developed, and who, with oth-

ers associated with him, had given the
city the right to purchase the same by the
contract heretofore referred to. *
"Hunt could, of course, ap-
propriate only public waters of the state,
and, as the spring in question was not a
natural spring, he could acquire no rights
by his application. *
"That percolating waters developed
artificially by excavation and other arti-
ficial means, as was done in this case, be-
long to the owner of the land upon which
they are developed, is supported by abund-
ant authority."
In Bower v. Big Horn Canal Ass'n, 77
Wyo. 80, 307 P.2d 593, 598 (1957),
the court said of this case: "[T]he deci-
sion, as we analyze it, basically stands for
a single principle, i. e., that one who by
excavation and effort brings to the surface
waters which would not otherwise be
available will not be deprived of them
by one who has contributed nothing to
their production". See also Wyo.Const.
Art. 8, 1, and Art. 1, 32.

- 4?j ~ ttp~-R~'slsFjlR.pl* -J --'-

Sec. 4

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