Title: Canada et al. v. City of Shawnee No. 24873 - Supreme Court of Oklahoma, Dec. 15, 1936
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Permanent Link: http://ufdc.ufl.edu/WL00004461/00001
 Material Information
Title: Canada et al. v. City of Shawnee No. 24873 - Supreme Court of Oklahoma, Dec. 15, 1936
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Language: English
Publisher: 64 Pacific Reporter, 2d Series
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Canada et al. v. City of Shawnee No. 24873 - Supreme Court of Oklahoma, Dec. 15, 1936 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 24
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004461
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occupied except for residence purposes held.
not to prohibit drilling of well for oil and
gas upon such lots (St.1931, $ 9698).

Syllabus by the Court.
1. Every estate in land granted by deed
shall be deemed an estate in fee simple, un-
less limited by express words. Section 9698,
2. Covenants limiting the use of proper-
ty must be construed strictly and not extend-
ed by implication.
3. Restrictions on the use of property be-
ing in derogation of the fee, conveyed, will
not be extended by implication to include
anything not clearly expressed.
4. A restrictive covenant contained in
plat restrictions upon certain lots in Howe's
Capitol addition to the city of Oklahoma City,
providing that "no building shall ever be
used or occupied except for that of residence
exclusively," does not prohibit the drilling of
a well for oil and gas upon said lots.
and GIBSON, JJ., dissenting.

Appeal from District Court, Oklahoma
County; Lucius Babcock, Judge.
Action by Charles B. Cooke against
Agnes Kutin and others. Judgment for
defendants, and plaintiff appeals.
Application for leave to file second pe-
tition for rehearing denied; BAYLESS,
V. C. J., and GIBSON, J., dissent.
HURST, J., not participating.
Shirk, Danner & Earnhart, Charles
Swindall, and J. H. Jarman, all of Okla-
homa City, for plaintiff in error.
Howard B. Hopps, of Oklahoma City,
for defendants in error.

OSBORN, Vice Chief Justice.
[1-4] It is conceded by the parties that
the issues of law and fact in this case are
identical with the issues involved in the
case of Charles B. Cooke v. John B.
Kinkead et al., 64 P.(2d) 682, this day de-
cided by this court, and that the opinion
of the court in that case is controlling of
the issues involved in this case.
Accordingly, the judgment is affirmed.

CORN, JJ., concur.

LESS, and GIBSON, JJ., dissent.

No. 24873.

Supreme Court ot Oklahoma.
Dec. 15, 1936.

Rehearing Denied Jan. 26, 1937.
As Corrected March 4, 1937.
I. Waters and water courses e=99
Subterranean waters consist of "perco-
lating waters" which are those which seep.
ooze, filter, and otherwise circulate through
subsurface strata without definite channels
and "underground streams" which are wa-
ters passing through ground beneath surface
in definite channels.
(Ed. Note.-For other definitions of
"Percolating Waters" and "Underground
Stream," see Words & Phrases.]

2. Waters and water courses =107(3)
In actions involving water rights, subter-
ranean water is presumed to be percolating
water unless definitely shown to be an under-
gr6und stream.

3. Waters and water courses @=101
Landowner may use as much of perco-
lating waters beneath his land as he needs
so long as use bears some reasonable relation-
ship to natural use of his land in agricultur-
al, mining, industrial, or other pursuits, but
may not exhaust entire water supply of com-
munity for purpose of selling water at a dis-
tance therefrom.

4. Waters and water courses =1|01
Municipality owning land is subject to
same rules concerning rights in percolating
water thereunder as private individual.

5. Property =7
Owner's rights to use property are sub-
ject to qualification that rights of others in
ownership, use, and enjoyment of their prop-
erty shall not be unreasonably impaired to
their injury.

6. Waters and water courses e101
Statute vesting ownership of percolat-
ing water in owner of land above it held not
to vest city owning land with right to ex-
haust common water supply, from which
neighboring farms were supplied, by sale of
water in city several miles distant, since use
of water was subject to same restrictions as
in case of ownership of other property (St.
1931, 11785).

694 -Okl

64 P.
7. Estoppel @93(7)
Where city's wells had exhausted near-
by percolating water supply, owners of ad-
joining land held not stopped from enjoining
city from pumping its wells by their silence
when .ity began drilling or by accepting wa-
ter from city after their water supply had
been impaired as result'of digging of wells.

On Rehearing.

8. Eminent domain 0=293(2)
A public or municipal corporation hav-
ing right to invoke power of eminent domain
may tender such issue by answer and cross-
petition in injunction suit.

9. Eminent domain C=306
Where city was able to pay damages re-
sulting from exhaustion of percolating wa-
ters by wells drilled by city in augmenting
its water supply, city would not be enjoined
from pumping wells without being given op-
portunity to tender issue of eminent domain
and to pay damages resulting from its acts
(St.1931,. 707).

Syllabus by the Court.
1. In legal consideration subterranean
waters are divided into two classes: (1) Per-
colating waters, and (2) underground
streams. Percolating waters are those which
seep, ooze, filter, and otherwise circulate
through the subsurface strata without def-
inite channels. Underground streams are
waters passing through the ground beneath
the surface in definite channels.
2. In actions involving water rights, sub-
.terranean water is presumed to be percolat-
ing water unless it is definitely shown to be
an underground stream.
3. The owner of land may draw from be-
neath its surface as much of the percolating
waters therein as he needs, even though the
water of his neighbor is thereby lowered, so
long as the use to which he puts it bears
some reasonable relationship to the natural
use of his land in agricultural, mining, or in-
dustrial and other pursuits, but he may not
forcibly extract and exhaust the entire water
supply of the community, causing irreparable
injury to his neighbors and their lands, for
the purpose of transporting and selling said
water at a distance from and off the premis-
4. A municipal corporation owning land
is subject to the same rules of law concern-
ing rights in percolating water thereunder as
is a private individual.

5. The rights derived from owiiership of
property, in so far as use by the owner is
concerned, are subject to the qualification
and condition that the rights of others in the
ownership, use, and enjoyment of their own
property shall not unnecessarily and unrea-
sonably be impaired to their injury.
6. Section 11785, O.8.1931, vesting own-
ership of percolating water in the owner of
the land above it, does not thereby vest said
owner with the right to such an unreasonable
use as will enable him to destroy his neigh-
bor's property by forcibly extracting and ex-
hausting the common supply of water for
sale at a distance; such use being subject
to the same restrictions as are imposed up-
on ownership of other classes of property.
7. Plaintiffs, owning land adjacent to
land from under which defendant extracted
and exhausted the entire percolating water
supply held not stopped from obtaining in-
junction by their silence when defendant be-
gan drilling, or by accepting water from de
fendant after their water supply had become
impaired by the defendant.
OSBORN, V. 0. J., and BAYLESS and
GIBSON, JJ., dissenting in part.

Appeal from District Court, Pottawa-
tomie County; Hal Johnson, Judge.
Injunction action by C. L. Canada and
others against the City of Shawnee. Judg-
ment for defendant, and plaintiffs appeal
Reversed and remanded with directions.
Park Wyatt and Byron Lamun, both of
Shawnee, for plaintiffs in error.
Randall Pitmann, City Atty., and Reily
& Reily, all of Shawnee, for defendant
in error.

PHELPS, Justice.
The defendant, City of Shawnee, pur-
chased 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 surround-
ing country had always been abundantly
supplied with clear. nure cold water in
wells and gushin springs. The supply
of water was described as apparently in-
For the purpose of augmenting its water
supply, the defendant city dug 12 wells on
its 70-acre tract and equipped each well
with a 71/2 horse power motor and pump.


Enormous volumes of water were thereby
pumped from under the lands of the de-
fendant and of plaintiffs, which water was
by the defendant transported in pipe lines
to the city and there sold to the inhabit-
Soon thereafter the wells on all of plain-
tiffs' lands went dry. The springs ceased
to produce water. Plaintiffs had no water
Sfor their stock, or for irrigation, or house-
hold 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 overwhelming weight
of the evidence was that the injury thereby
inflicted upon plaintiffs was very real, sub-
stantial. and irreparable.
The plaintiffs brought this action to en-
join the defendant from numping its wells.
The trial court denied them relief and they
appeal. The main argument on appeal in-
volves the law of waters, the defendant
contending that the rules thereof entitle
it to draw as much water as iteases fro
its own land, regardless of the effect on
plaintiffs and their property.
[1] In legal consideration subterranean
waters are divided into two classes:
(1) percolating waters, and (2) under-
ground streams. Percolating waters are
those which seep, ooze, filter, and other-
wise circulate through the subsurface
strata without definite channels. Under-
ground streams are simply what their name
implies; water passing through the ground
beneath the surface in defined channels.
[2] Different rules are ordinarily pre-
scribed 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 def-
initely 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 percolating
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 scien-
tific 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 probably the majority 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 fourid
there, and that such owner may. in the
absence of malice, intercept, impede, and
appropriate such waters while they are
upon or beneath his premises, and make
whatever use of them he pleases, regard-
less of the fact that his use cuts off the
flow of such waters to adjoining land and
deprives the adjoining landowner of their
At an early day, however, the courts ex-
pressed dissatisfaction with the common-
law or Engish rule. and began applying
what they called, variously, the rule of
"reasonable use" or rule of "correlative
rights" or the "American rule." The
Adgests reveal that in those cases and states
where the English rule was adopted the de-
cisions, with a few exceptions, were pro-
mulgated 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 Jersey,
New York, and Utah), which had formerly
adhered to the English rule, adopted the
rule of reasonable use.
[3] Stated generally. the rule of rea-
sonable use is that each landowner is re-
stricted 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
percolating water between adjacent land-
owners, for such a thing is often, if not
always, impossible, and it was this same
impossibility which gave- rise to the
English rule itself. The rule of reason-
able use as to percolating waters is mere-
ly the application 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 attempt in actual practice an
apportionment of percolating water be-
tween adjacent landowners, it would but
serve to illustrate the necessity of the
English rule, and so it happens that the

696 Okl.

64 P
virtue of the rule of reasonable use lies
not so much in its statement as in its ap-
plication to concrete 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 uncon-
scionable 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 actually applied is not a dif-
ferent rule from the English rule at all,
but is merely a limitation thereon.
We spoke above of the fact that the rule
of reasonable use is best illustrated in its
application. As typical of the situations
wherein it has been used, the New Jersey
court had before it a case in which per-
colating water was forcibly being ex-
tracted from the land in large volumes and
sold at a distance, resulting in drying up
adjacent farms. Meeker v. East Orange,
77 N.J.Law, 623, 74 A. 379, 385, 25 L.R.A.
(N.S.) 465, 134 Am.St.Rep. 798. The court
said that the rule of reasonable use as ap-
plied to percolating waters "does not pre-
vent 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 under-
ground 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 re-
sult that the owner of adjacent or neigh-
boring land is interfered with in his right
to the reasonable user of subsurface water
upon his land o 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."
In Flanigan v. State, 113 Misc. 91, 183
N.Y.S. 934, it was held that there are no
correlative rights in percolating waters,
such waters being at the absolute dis-
position of the owner of the soil, with the
exception that when such waters are ex-
tracted for use at a distance from and off
the land from which they are derived, the
rule of reasonable use is applied. An oft-
cited case is Katz v. Walkinshaw, 141
Cal. 116, 74 P. 766, 64 L.R.A. 236, 99 Am.
St.Rep. 35, wherein it was held that one
64 P.(2d)--44%

could not withdraw percolating water for
purposes of sale if surrounding land was
thereby deprived of water necessary for
roitable eniovment. It clearly appears
from the cases that the American rule is
used merely as a check upon the unreason-
able use of the English rule; that few if
any cases can be found where American
courts have denied a landowner the right
to draw as much percolating water from
under his land as he needs, even though
it hurts his neighbor, so long as the use
to which he puts it bears some reasonable
relationship to the natural use of his land,
and even though such use of the land be
industrial and not agricultural. But the
majority of recent decisions stop short at
and forbid the harmful extraction of per-
colating water for sale at a distance. As
stated in the annotation at 55 A.L.R. 1404:
"Practically all the cases in which this
rule of correlative rights or reasonable use
has been applied were cases in which per-
colating water was being extracted from
land for the purpose of sale at a distance,
for use in supplying water to cities and
towns, or in irrigating other lands than
those in which such water was found.
This was held to be an unreasonable use f
percolating water, which violated the
rights of adjoining oi adjacent land-
owners. *" Some of the cases so
announcing are: Katz v. Walkinshaw,
supra; Schenk v. Ann Arbor, 196 Mich.
75, 163 N.W. 109, L.R.A.1917F, 684, Ann.
Cas. 1918E, 267; Bernard v. St. Louis,
220 Mich. 159, 189 N.W. 891; Erickson
v. Crookston Waterworks, Power & Light
Co., 100 Minn. 481, 111 N.W. 391, 8 L.R.A.
(N.S.) 1250, 10 Ann.Cas. 843; Meeker v.
East Orange, supra; Forbell v. New York,
164 N.Y. 522, 58 N.E. 644, 51 L.R.A. 695,
79 Am.St.Rep. 666; Dinger v. New York,
42 Misc. 319, 86 N.Y.S. 577; Id., 182 N.Y.
542, 75 N.E. 1129; Rouse v. Kinston, 188
N.C. 1, 123 S.E. 482, 35 A.L.R. 1203;
Horne v. Utah Oil Ref. Co., 59 Utah, 279,
202 P. 815, 31 A.L.R. 883; Patrick v.
Smith, 75 Wash. 407, 134 P. 1076, 48
LR.A.(N.S.) 740.
[4] It is worthy of note that many of
the above cases involve municipalities.
As said by us in Gulf, C. & S. F. Ry. Co.
v. Richardson et al., 42 Okl. 457, 463, 141
P. 1107, 1110, where the trial court had
ruled that a municipal corporation was ex-
empt from the rules applicable to surface
waters: "The law makes no distinction in
such cases between natural and artificial


persons in the duty it imposes. The law
holds the proprietor of the estate to the
same obligation in the disposition of sur-
face waters, whether he be a farmer, a
municipality, or a railway corporation.
The trial court overlooked this important
fact in discharging the municipality of
Wynnewood from liability." The cases
are in accord that a municipality as no
heater right (in the absence of condemna-
tion proceedings) to thus lay waste the
farms of private individuals than has a
water company or a private individual.
Even if the rule were otherwise, it is prob-
able that some showing of public neces-
sity would be a condition precedent to
absolving the municipality, and there was
no such showing in this case. In fact, the
evidence might lead to the opposite con-
clusion, for this "well farm," as it was
called, was used only in an auxiliary
manner, to augment the city's main water
supply, and was closed down and not op-
erated during most of the two or three
years while this action was lying dormant
and untried in the district court. The de-
lay in bringing it to trial was at the in-
stance of defendant, under a voluntary
agreement made by defendant with plain-
tiffs, to the effect that a temporary re-
straining order then in force would re-
main in force unless and until the defend-
ant should again commence pumping the
wells. However, as stated above, the
fact that defendant is a municipal corpora-
tion creates no distinction in its favor in
this kind of case. The Gulf, C. & S. F.
Ry. Co. Case, supra, is authority that the
general rule prevails in this state. In
commenting upon this phase of the ques-
tion, the Michigan court said, in Schehk
v. City of Ann Arbor, 196 Mich. 75, 163
N.W. 109, 114, LR.A.1917F, 691, Ann.
Cas.1918E, 267: "There is no apparent
reason for saying that, because defendant
is a municipal corporation, seeking water
for the inhabitants of the city, it may
THeretore do what a private owner of the
land may not do. The city is a private
owner of this land, and the furnishing of
water to its inhabitants is its private busi-
ness. It is imperative that the people of
Mh city'have water; it is not imperative
that they secure it at the expense of those
owning lands adjoining lands owned by
the city."
The defendant asserts that because of
section 11785, 0. S. 1931, the trial court
could have entered no judgment except in
its favor. We do not agree, and the re-

marks 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."
If we avoid confusion by eliminating
the parts of the section not material here,
it reads in this manner: "The owner of
the land owns water flowing under its sur-
face, but not forming a definite stream.
Water running in a definite stream under
the surface, may be used by him as long
as it remains there; but he may not pre-
vent the natural flow of the stream, or of
the natural spring from which it com-
mences its definite course, nor pursue the
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 percolating
water was given him as a weapon with
which to unreasonably maim his neighbor;
nor do we believe it was intended that
such ownership was to be uncircumscribed
by the limitations usually imposed upon the
use of property of other classes.
[5] When we consider questions per-
taining to the use of property and its in-
jurious 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-

698 Okl.


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
eases, for his- ise 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 neighbor's property,
by maintaining a nuisance on his vacant
lot, nor would the law countenance such a
use of his automobile as would injure
others, simply because he owned it. These
things are fundamental. We should there-
fore be slow indeed to place such a con-
struction upon this statute as would give
it the effect of associating arbitrary and
unlimited power of use with mere owner-
[6] By whatever is meant when the
statute says that the landowner "owns"
that elusive and unstable substance, per-
colating water, beneath his land. it must
likewise be true that the adjacent land-
owner is given the same with respect to
that which underlies his land. If one
owner invades the natural movement,
placement, and percolation of such water
by creating artificial suction with powerful
motor driven pumps, it is not long until
he is taking that water which was but a
moment before "owned" by his neighbor-
ing landowner. We do not say that this
is forbidden, so long as the taking is rea-
sonable; but we do say that it exposes
te futility of attempting to justify the
complete exhaustion of a common supply
of water on the ground that the landowner
who has taken it all "owned" that part
thereof underlying his land wh the r-
ations commenced His neighbor likewise
lad 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 result
herein with the law of oil and gas, other

than to point out that if oil had been
sucked from beneath plaintiffs' property
their land as land, and their farms as
farms, and their live stock, and their pr-
sonal health and sanitation could not hve
thereby become impaired, while the op-
posite must happen if they are derived of
wtr 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
[7] The defendant asserts that plain-
tiffs should be stopped to seek relief. We
cannot agree with this contention. The
fact that plaintiffs accepted water in pipes
from the defendant's wells, after their own
water supply had been dirmnm.sh or after
the wells had already been put into opera-
tion, should not stop them, for the impres-
sion which we gain from the record is
that plaintiffs had little choice in the
matter; there was little else they could
do. They had to have water. Further-
more, the water supply through the pipes
was unsatisfactory and somewhat intermit-
tent, and the defendant attempted to
charge several of the plaintiffs for such
service, and cut off the service to one or
more of the plaintiffs upon their refusal to
pay for it.
It is pointed out by defendant that plain-
tiffs stood by while defendant expended
money and labor in the project, and made
no attempt to halt the work. At that time
the plaintitts had no right to halt the
work; they had not been damaged and
had no means of known whether th
would later be damaged; as stated by sev-
eral ot the witnesses, the water supply
appeared- to be "inexhaustible," though one
of the plaintiffs did testify that he was
fearful of the result. Silence does not
create an estoppel unless there is a duty to
speak. The result of .the undertaking
was not one which should necessarily have
been anticipated by the plaintiffs, and the
defendant was as familiar with that sub-
ject, if not more so, than the plaintiffs.
On the whole, there is no inference per-
missible from this record that the alleged
silence of the plaintiffs influenced the de-
fendant in any of its actions. For that
matter, there was not complete silence of
plaintiffs. It appears that when the plain-
tiffs attempted to consult with the city
authorities they were told that no ill effects
would come of the venture, and that if it
should happen that their water supply

Okl. 699


should become impaired, the defendant
would shut .down its wells.
We cannot escape the conclusion that
the rihts of thesF citizens hiave een
seriously infringed upon. and that it is
the duty o his court to as zealously guard
the rights of the individual as it is to faci-
litate the needs of the municipality. The
inhabitants -- the city must have water,
but by our statutes and our Constitution
the city is afforded a means of obtaining it
without pauperizing those innocent private
citizens who have devoted their lifetimes
to imoroving- developing. and maintaining
their homesteads.
The judgment is reversed and the cause
is remanded for further proceedings not
inconsistent with the views herein ex-

and CORN, JJ., concur.

and GIBSON, JJ., dissent.

WELCH, J., absent.

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 sur-
rounding the other sources of defendant's
water supply, it might result n dpri;ving
the inhabitants of the city of water. There
is merit in this contention; however, it
was pointed out, above, that the ity 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' in-
jury. 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 obligation whatsoever to the
la ntitts.
[8,9] There is no doubt that the city
of Shawnee might e commencedan
action in condemnation to acquire the
rilht. in the nature of an asemen to
draw water from plaintiffs' land, if such
is necessary for the public -nod. 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 cor-
poration having the right to invoke the
power of eminent domain may tender
such issue by answer and cross-petition.
Collier v. Merced Irrigation District, 213
Cal. 554, 2 P.(2d) 790, 794. For full dis-
cussion of that question, see that case, and
City of New York v. Pine, 185 U.S. 93, 22
S.Ct. 592, 46 L.Ed. 820; Newport v. Tem-
escal Water Co., 149 Cal. 531, 87 P. 372, 375,
6 L.R.A.(N.S.) 1098. As stated in those
cases, though the action be instituted in
equity the issue of eminent domain may be
raised by the municipality by answer or
cross-petition, in keeping with the funda-
mental principle of equity jurisdiction
that once the hand of equity is invoked it
will retain jurisdiction to determine the
entire controversy and award full and final
relief, thus bringing all possible litigation
over the subject-matter within the compass
of one judicial determination. 1 Pomeroy,
Equity (4th Ed.) 242; 14 R.C.L. 322.
Though invasions of water rights are gon-
erallv held subject to iniunction, here
the defendant is a municipality having
the right to institute eminent domain Dro-
ceedings, equity will usually afford the
municipality the opportunity to tender that
issue and will hold the extraordinary writ
of injunction in abeyance or grant what is
sometimes referred to as an alternative. n-
jction. Clark v. Nash, 198 U.S. 361,
25S.Ct. 676, 49 L. Ed. 1085, 4 Ann.Cas.
1171; 14 R.C.L. 323; Hart v. City of
Seattle, 45 Wash. 300, 88 P. 205, 13 Ann.
Cas. 438; cases cited at 32 C.J. 385, 653.
The elasticity of equity jurisdiction in the
form of relief to be granted is recognized
in our section 707, O.S. 1931, wherein in-
junction as a "provisional" remedy is au-
thorized. In an annotation at 13 Ann.Cas.
439, citing and discussing many cases
wherein the remedy of unconditional in-
junction seemed proper according to the
general rules of law, yet where public in-
convenience would necessarily have re-
sulted from such a decree, it is pointed
out that the remedy of conditional or al-
ternative injunction is almost entirely re-
stricted to situations wherein the right of
eminent domain is involved, such as in
the instant case.
The Collier Case, supra, involved sub-
stantially this same question. It was there
said (quoting from another decision [New-
port v. Temescal Water Co., 149 Cal. 531,
87 P. 372, 6 L.R.A.(N.S.) 1098]): "And,
finally, upon this proposition it may be said

700 Okl.

64 P.(2d)

that, where the interests of the public are
involved and the court can arrive in terms
of money at the loss which plaintiff has
sustained, an absolute injunction should
not be granted, but an injunction condi-
tional merely upon th failure of the de-
Jendant to make good .the damage which
results from its work.
In the petition for rehearing the rule ol
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 di-
rect that the trial court set a reasonable
time within which the defendant may ten-
der the issue of eminent domain and pro-
ceed to determine the damage in the man-
ner provided by statute and constitutinr
for that purpose, failing in which, or it
paving the damages awarded, let appro-
priate injunction issue, unless the proof or
a re-trial hereof in accord with the proce-
dure prescribed by law shall warrant a ma-
terially different determination of the facts
OSBORN, C. J., and RILEY an(
WELCH, JJ., absent.

No. 26175.

Supreme Court of Oklahoma.
Jan. 26, 1937.

I. Trial @=377(2)
In suit on notes ard for foreclosure ol
mortgage wherein holder of mortgage inter.
vened and plaintiff relied on doctrine of sub
rogation to extent of principal and Interesl
paid by him on notes secured by mortgage
held by intervener, refusal to reopen case
after judgment for intervener, to permit
plaintiff to develop evidence explaining pur.
pose of new mortgage which he had taker
from mortgagor to secure mortgagor's in-
debtedness to him as to which he had object-
ed to cross-examination by intervener, hel
not abuse of discretion.
2. Appeal and error <0=1047(4)
Trial =>377(2)
Request to reopen case for introduction
of additional evidence is addressed largely t(

sound discretion of court and-ruling thereon
will not be disturbed unless it clearly appears
that trial court abused its discretion.

3. Subrogation e=41(5)
In suit on notes and for foreclosure of
mortgage wherein holder of mortgage Inter-
vened and plaintiff relied on doctrine of sub-
rogation to extent of payments made on notes
secured by mortgage held by intervener, fail-
ure of intervener to plead waiver of right to
subrogation by taking of new mortgage held
unnecessary to entitle intervener to prevail,
since, when equitable jurisdiction is properly
Invoked, court should administer complete
Relief on all questions raised by evidence, re-
- gardless whether they are pleaded.
S4. Appeal and error e=1009(4)
In case of purely equitable cognizance,
SSupreme Court will not reverse fact finding
l unless against clear weight'of evidence.

L Syllabus by the Court.
1. A request to reopen the case for the
introduction of additional evidence is ad-
Sdressed largely to the sound discretion of the
court, and its ruling thereon will not be dis-
turbed by this court unless it clearly appears
that the trial court abused its discretion.
d 2. It is a fundamental rule that equity
having once attached in a proper proceeding,
will administer complete relief on all ques-
tions properly raised by the evidence.
3. In a case of purely equitable cogni-
zance this court will not reverse the finding
of fact unless the same is against the clear
weight of the evidence.

Appeal from District Court,
County; O. C. Wybrant, Judge.


Action on notes and for foreclosure of
mortgage by O. O. Deems against Mary
Milligan, n6e McConnell, and others,
wherein H. H. Champlin intervened.
Judgment for intervener on the notes and
foreclosing the mortgage, and the. plaintiff
Moss & Powell, of Oklahoma City, and
Wedgwood & Houk, of Enid, for plaintiff
in error.
Scarritt & Champlin, of Enid, for de-
fendant in error H. H. Champlin.
Plaintiff in error (plaintiff below) ap-
peals from a judgment rendered in the dis-

Okl. 701


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