Williams v. City of Wichita , 190 Kan. 317 ( 1962 )

The opinion of the court was delivered by

Fatzer, J.:

This action was commenced January 16, 1958, and was before this court as Williams v. City of Wichita, 184 Kan. 53, 334 P. 2d 353. No extended review of that opinion is necessary, and its place in the chronicle of events will appear in the following statement of the nature, facts and history of the action.

The action was brought for an injunction to prevent the city of Wichita from drilling and pumping a water well in the Wichita well-field area, Harvey County, Kansas. The issue was subsequently enlarged to include a total of ten municipal water-supply wells. The case was tried by the district court and it found “each and all of the issues of fact and law in favor of the plaintiff and against the defendant, the City of Wichita.” Judgment was rendered that the 1945 Water Appropriation Act of Kansas (G. S. 1949, 82a-701, et seq., as amended), hereafter referred to as the Act, was unconstitutional and that the city be permanently enjoined from pumping its water wells, but in the event it appealed to the supreme court, the injunction should be suspended until the appeal was determined on its merits. The defendant, hereafter referred to as Wichita, timely appealed following the overruling of its motion for a new trial.

The petition alleged the plaintiff is the owner of land in Harvey County “in the vicinity of” a municipal water well then being drilled by Wichita through Layne Western Company, a drilling contractor (although named as a defendant, the latter did not appear in the proceedings below and is not a party to this appeal). It later developed from amended pleadings and from the evidence that well No. 47, the well initially singled out, was approximately one and a half miles from plaintiff’s 80-acre tract of land, and was one of a group of ten wells being drilled by Wichita. The petition further alleged that Wichita, contending the Act was constitutional and valid, filed an application with the chief engineer of the Division of Water Resources of the State Board of Agriculture for an appropriator’s permit to beneficially use the water from the ten wells in question. During oral argument counsel for plaintiff stated that since Wichita’s application was prior in time, and if the Act were found to be valid, the chief engineer had no alternative but to grant the application, and Wichita should prevail.

In support of his claim for injunctive relief, plaintiff alleged that the pumping of the wells would divert subterranean water from under his land resulting in his irreparable injury, and that he had no remedy at law by which the damage could be adequately recovered. He further alleged that the Act was unconstitutional and invalid in that it violated Sections 1, 18 and 20 of the Bill of Rights and Art. 2, Sec. 16 of the Constitution of Kansas, and that it violated the Ninth and Fourteenth Amendments and Sec. 10 of Art. 1 of the Constitution of the United States, as hereafter more specifically noted. The prayer was that the defendant be permanently enjoined from drilling or completing the well or any other wells until Wichita acquired a lawful and valid right to drill said wells and divert waters from under the plaintiff’s land and other land in the vicinity of the proposed well or wells.

Shortly after the petition was filed, Wichita, appearing specially, filed a motion to quash the summons, and later, as a part of its answer, challenged the jurisdiction of the court and demurred to the petition. Those defenses were denied, and Wichita has specified them as error. With respect to the merits, Wichita’s answer was a general denial.

Wichita advances eighteen specifications of error; however, in oral argument counsel stated a willingness to abandon all specifications of error except those asserting that the district court erred in holding the Act unconstitutional and in granting judgment on the merits in favor of plaintiff. Such narrowing of the scope of the appeal is in keeping with the statement of plaintiff’s counsel that the constitutionality of the Act is actually the single decisive issue of the case.

This court takes judicial notice of the many years of protracted litigation that has taken place in state and federal courts over Wichita’s municipal well operations in the Equus Beds in Harvey County and is of the opinion that a ruling here on the constitutionality of the Act will have a settling effect on the general controversy which has too long kept ground water users throughout the state in uncertainty and confusion. The need of stability in the water laws of Kansas cannot be overstressed.

The position taken by Wichita is a withdrawal of questions concerning the validity of the service of summons and the amenability of a city to a suit of this nature in a county other than that where the defendant city is situated. Also, it makes it unnecessary to pass on the interesting question of whether a discussion which occurred in chambers between Wichita’s counsel and the district judge constituted a general appearance, when the subject of the discussion was a temporary injunction that never became operative because of plaintiff’s failure to post a statutory injunction bond as provided in G. S. 1949, 60-1110, and as ordered by this court (Williams v. City of Wichita, supra).

Before turning to the merits, a preliminary matter requires attention. The plaintiff filed a motion to dismiss or limit the scope of the appeal on the ground that the transcript of the evidence had not been filed with the clerk of the district court as required by G. S. 1949, 60-3311. The parties conceded that the plaintiff obtained a copy of the transcript from the district court reporter at the same time it was furnished Wichita. Also, that the transcript was filed below prior to the hearing of the appeal and plaintiff’s counsel stated during oral argument that no actual prejudice resulted. Under those circumstances, the motion is denied (Hanson v. Kramer, 131 Kan. 491, 292 Pac. 788).

With the issues joined, the parties stipulated that the first question to be decided was one of law, that is, the constitutionality and validity of the Act. Respective statements of the parties were filed and arguments were made following which the district court held that the Act was unconstitutional and invalid for the reasons and upon the grounds alleged by plaintiff, and that Wichita had no rights thereunder. The cause then proceeded to trial by the court upon the pleadings for injunctive relief.

In his opening statement the plaintiff enlarged the issues. Although no substantial change in plaintiff’s theory of the case was advanced in his supplemental petition and in his opening statement, he asserted that because of the pumping of the Wichita wells, he has sustained damages, both from the loss of productivity and diminution in the land value itself; however, that an action for the recovery of those damages was not adequate because of “the non-claim statute as it affects cities; that it would require a multiplicity of claims and litigation not only in the past, present, but for all time in the future as long as the City (Wichita) would continue its operations; that by reason thereof an action for damages is not adequate and that an injunction therefor is the only proper and appropriate remedy.”

The water source involved in this action is the Equus Beds, or more correctly described as pleistocene deposits. These beds are an underground water reservoir composed of extremely permeable sand, gravel, clay and silt, with a storage co-efficient of twenty percent, that is, a cubic foot of material contains one-fifth cubic foot of water. The beds are located primarily in the McPherson channel of the ancestral Smoky Hill River. They were formed when that channel was gouged out by water in the early stages of the glacial period, and during intervening glacial and interglacial periods it filled up with the soil mixture of which the beds are presently comprised. Generally speaking, they are bounded by Hutchinson on the west, Newton on the east, Wichita on the south, and Lindsborg on the north (roughly, 25 miles east and west, and 55 miles north and south). They are recharged by rainfall and the Little Arkansas River is their natural spillway or drain.

For information and convenience of the reader, on page 322 is a generalized geologic map of the Equus Beds, which designates the Wichita well-field area.

The essential features of the factual situation are clear. There was little conflict in the evidence. Most of the testimony was adduced by the plaintiff and he is, of course, bound by his own witnesses. Plaintiff has owned an eighty-acre tract in fee simple since 1955 by virtue of a deed from his father. Prior thereto, and since 1939, his father owned a life estate but agreed that plaintiff should, conduct the farming operations. Plaintiff’s opinion was that prior to 1952 the land was worth $300 per acre. In the fall of that year Wichita made application to the chief engineer of the Division of Water Resources pursuant to the Act (G. S. 1949, 82a-709), for an appropriation permit to drill and pump twenty municipal water supply wells, the one nearest the plaintiff’s land (well No. 47) was to be located at a site about one and one-half miles distant. Although none of the wells were completed and equipped until 1958 (or actually pumped until the forepart of 1959) plaintiff considered that Wichita’s 1952 application had the immediate effect of reducing the value of his land $100 per acre. That opinion was shared by plaintiff’s expert witness on land value. Plaintiff and his expert witness were also in agreement that the actual drfiling of the wells in 1958 caused an additional decrease of land value of $100 per acre. In terms of land productivity, plaintiff ascribed the lowering of the underlying water table as the cause of failure of his corn and alfalfa crops. In the case of alfalfa, he stated that the stands were gone by the year 1946 which, although many years prior to the Wichita wells which brought on this lawsuit, was subsequent to some twenty earlier wells, farther removed but in the same general area, which were placed in operation in 1940. Plaintiff’s 1955 effort to irrigate corn and alfalfa was unsuccessful.

Plaintiff’s witness, R. H. Hess, director of Wichita’s water department, testified that in October of 1952 the city had filed an application with the chief engineer of the Division of Water Resources for an appropriation permit to drill and pump twenty new wells in Harvey County, ten of which were those complained of by plaintiff. Pumping of those ten wells was commenced in early February of 1959. All of the twenty wells for which application was made in 1952 were located upon tracts of land acquired by purchase from the landowner pursuant to a written, acknowledged instrument entitled “Indenture of Conveyance.” Under the terms of that instrument Wichita acquired:

(a) A tract of land of five acres in square form;

(b) All of the existing and future water bearing sands and water rights in or under said tract;

(c) The right to use as much of the surface of the tract as is necessary or desirable to carry out the terms of the conveyance;

(d) The right in perpetuity to drill for, produce and transport subsurface water from the tract described;

(e) The specific right to extract subsurface water and to transport the same for such use and uses in the city of Wichita and its environs as the city may from time to time elect to make of it, specifically including further all of the subsurface water which may be stationary in and under the tract conveyed together with all water which may flow or percolate thereto from other lands; and

(/) The right in install and operate such pipelines, tanks and pump houses as are necessary or desirable for the handling and transportation of water extracted.

The foregoing rights were included in grantor’s unrestricted warranty.

The most important part of plaintiff’s evidence was the testimony of his expert witness, G. J. Stramel, whose qualifications were impressive. Now employed by Wichita’s water department as a hydrologist, Stramel formerly was a hydrologic engineer with the United States Geological Survey from 1949 to 1956. During that time and in that capacity he made an intensive study of the Wichita well field in the Equus Beds area in Harvey and Sedgwick Counties. His study encompassed the geology of the water-bearing formation with particular attention to changes in the level of the water table and the artificial and natural causes of those changes. His findings were published in a bulletin, several maps and drawings, some of which were received in evidence as plaintiff’s exhibits.

Mr. Stramel’s testimony is summarized: Equus Bed ground waters are designated as percolating which means that they do not uniformly move in one direction at a constant rate. The waters may flow in any number of directions and are not confined to a definite channel. Their movement within the Wichita well field is about two to three feet a day. Their direction may be influenced and changed by the pumping of any well, which causes a gradient to be created and waters flow toward the well bore. Thus is created what is known as a cone of depression which is deepest at the point of intake and spreads out. The area of the cone varies with the rate and volume of pumping and the amount of recharge into the formation.

If there is no pumping there is no room in the formation for new (recharge) water, in which event, new water would be discharged into the Little Arkansas River. Also, a large amount of ground water is lost by evapotranspiration — the natural utilization of water by plants from absorption in their root systems. The process is accelerated by hot weather and winds.

There are now a total of 138 wells in this area of the Equus Beds: 55 belong to Wichita, 18 to other municipalities, and 65 to various irrigators. All have the effect of creating cones of depression when pumped. Whether the continued pumping of the ten Wichita wells nearest plaintiff’s land will further change the direction of flow and lower the water table depends principally upon rainfall. At present the recharge and discharge are about equal, and if rainfall stays the same, continued pumping will cause no change.

The current rate of Wichita’s total pumping is approximately 30,000,000 gallons a day. The aggregate amount of water withdrawn from irrigation wells is roughly the equivalent of that taken from the Wichita wells. The latter are pumped in rotation to minimize the cones of depression. Nevertheless, the ten wells placed in service in early 1959 have clearly affected the direction of flow. It is not possiblé that any of the exact particles of water under plaintiff’s land in early 1959 have been withdrawn through the nearest Wichita well.

From an observation well close by plaintiff’s land which has been maintained since 1950 it has been determined that the water table reached a low of 11.38 feet below land surface in October of 1956. The severe drought which commenced in 1951 finally ended in the spring of 1957 and since then the rainfall has been normal or above. By December 1, 1958, the water table had risen to 5.31 feet below land surface. Since then it has declined 1.5 feet from the 1958 level so that now there is a net increase of 4.57 feet over the October 1956 low. In that drought period there would have been a decline of two to three feet in the level from purely natural causes without any pumping whatsoever.

This is the supreme court’s first exposure to evidence of the actual conditions and characteristics of the Equus Beds formation and of facts concerning the extent and manner of withdrawals of waters therefrom. From that evidence emerges the salient and clear factual conclusion that these ground waters are percolating and hence migratory and fugitive. Any finding of the district court to the contrary is clearly not supported by the evidence. Thus, we are dealing with a right to use the underground waters as they pass through the owner’s soil.

Throughout his brief plaintiff contends that being the owner of the underground waters lying under and in his land constituted a property right which was fully and completely vested long prior to the enactment of the 1945 Water Appropriations Act, and that such law, as applied, permitted Wichita to invade his property and to take it under the authority of the Act in violation of the Fourteenth Amendment and Section 18 of the Bill of Rights of the Kansas Constitution. In making the claim he asserts that the Equus Bed is actually an underground stream, with known limits, course, and direction, located in the “McPherson Channel.” As we have seen, the assertion is not supported by the evidence.

The following are excerpts from plaintiff’s brief asserting the basis of his claim of the unconstitutionality of the Act: That State, ex rel., v. Knapp, 167 Kan. 546, 207 P. 2d 440, which sustained the validity of the Act, did not rule on the critical section, namely, “G. S. 1949, 82a-702, which purportedly destroys all prior property rights in water and expropriates (by dedication to the use of the people of the state) vested property rights in water, and in the use thereof, under the long established law of the state, as set forth in the many decisions of this court and the many statutes”; that “the state cannot take appellees’ property by legislative fiat, nor give it to another through the means of an administrative agency”; that “no legislature may constitutionally enact any law disturbing or destroying existing or vested rights, whether such rights be statutory or embodied in judgments or judicial decisions (16 A. C. J. S. 99, Constitutional Law, Sec. 417); nor may a legislature so impair an existing remedy so as to destroy or materially impair such vested rights . . . therefore, any law, regardless of alleged necessity, which attempts to impair or destroy a vested right is absolutely void”; that “Kansas has not only recognized the common-law doctrine of riparian rights’ and ownership of underground water by judicial decision and statute, but has actively and aggressively insisted upon them in its own behalf and on behalf of landowners of Kansas”; that “in view of such a history, there can be no question that appellee’s property rights were fully and completely vested long prior to 1945, and were not subject to being disturbed or taken away by legislative fiat or any other process than ‘due process of law’”; that “appellee respectfully submits that under the Kansas law, both by statute and by decision, his ownership and right to the use of waters of the Equus Beds and the rights of the landowners therein, had fully and completely vested long prior to 1945.”

Before discussing the Act, we note again that plaintiff’s evidence established the fact that the ground waters of the Equus Beds are percolating in character. Percolating waters have been judicially described as those which, “Ooze, seep or filter through the soil beneath the surface without a defined channel.” (Clinchfield Corp. v. Compton, 148 Va. 437, 139 S. E. 308, 311.) See, also, Anno: 29 A. L. R. 2d 1357.

The contitution of Kansas contains no provision relating to the dedication, control, application or administration of either surface or underground waters, and the common law has been fundamental in this jurisdiction in determining rights of riparian and overlying owners.

In 1877 this court adopted the doctine of riparian rights and first applied the “natural flow” rule to surface streams that “every man through whose land a stream of water runs is entitled to the flow of that stream without diminution or alteration” (Shamleffer v. Peerless Mill Company, 18 Kan. 24). As a result of legislation first enacted in 1886, not necessary here to further identify, and a series of subsequent decisions (Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, 70 L. R. A. 971; Railway Co. v. Shriver, 101 Kan. 257, 166 Pac. 519; Heise v. Schulz, 167 Kan. 34, 204 P. 2d 706), the “natural flow” rule was modified to the “reasonable use” doctrine for the “laudable purpose of encouraging irrigation.”

Prior to 1945 this court adopted and applied the English or common-law rule that percolating ground water “belongs” to the owner of the land in which it is found. Only three Kansas decisions (City of Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265 [1881]; Jobling v. Tuttle, 75 Kan. 351, 360, 89 Pac. 699; State, ex rel., v. Board of Agriculture, 158 Kan. 603, 149 P. 2d 604) have dealt with the subject, but the “ownership” of the corpus of the water was not defined.

In the Soden case the appellee-landowner purchased the flowage rights of an upper riparian owner and at considerable expense impounded water by a dam across the Cottonwood River. Power therefrom was used to operate his mills. The city of Emporia dug a well some 75 to 100 feet from the banks of the pond. One pipe was sunk into the well and another extended directly into the pond. The well was used to supply the citizens of Emporia with their ordinary water needs and the pipe to the pond was intended to be used only in case of fire. The use of the well by the city in certain seasons of the year depleted the water in the pond to the extent that the power machinery would not operate and the owner was forced to suspend work. The court noted the distinction between appropriating by well or otherwise that which is merely underground and percolating water, and diverting from a natural stream by means' of an adjacent well, and held that the latter could not be permitted. Syllabus ¶ 3 reads:

“While the general doctrine in respect to underground water percolating through the soil is, unquestionably, that the owner of the land may appropriate it to any use, and in any amount, and without reference to the effect of such appropriation upon his neighbor’s land or supply of water, yet it is limited to this extent, that he may not thus indirectly destroy or diminish the flow of a natural surface stream to the injury of a riparian owner thereof.”

In the opinion Mr. Justice Brewer stated:

“. . . that as the water enters only by percolation through the soil, the law will permit no inquiry into the source of supply, of the effect of such percolation upon the quantity of water in any other tract of land. It is doubtless true, as a general proposition, that the law takes no cognizance of percolating water. The impossibility of proving with reasonable certainty the sources of supply, is a strong if not the principal reason therefor. 'But upon whatever founded, the doctrine may be considered settled. Chief Justice Chapman, in delivering the opinion of the court in the case of Wilson v. New Bedford, 108 Mass. 265, says: ‘The percolating water belongs to the owner of the land as much as the land itself, or the rocks and stones in it; therefore he may dig a well, and make it very large, and draw up the water by machinery or otherwise, in such quantities as to supply aqueducts for a large neighborhood. He may thus take the water which would otherwise pass by natural percolation into his neighbor’s land, and draw off the water which may come by natural percolation from his neighbor’s land.’ . . .” (l. c. 608.)

In support of the court’s holding, Mr. Justice Brewer cited the English cases of Acton v. Blundell, 12 M. & W. 324, 152 Eng. Rep. 1223 [1843], and Chasemore v. Richards, 7 H. L. 349 [1859] which are generally regarded as the first reported underground water cases in the English speaking world.

The Jobling case is relatively unimportant so far as ground water law of this state is concerned. It did not involve any question of relative rights of neighboring landowners overlying a common ground water supply. Rather, it involved an oral agreement and a claim of prescriptive rights to the use of mineral spring waters in an overlying owner’s land. The Soden case was cited with approval, and the common-law rule was reaffirmed, “That percolating waters, such as these springs are, belong to the owner of the land as much as the land itself, admits of no doubt.”

In State, ex rel., v. Board of Agriculture, supra, the issue before the court did not directly involve ground water rights but instead was whether the then existing statutes gave authority to the Division of Water Resources and its chief engineer to regulate the talcing of ground waters from the Equus Beds for beneficial uses and to allocate the same among existing users, and it was held:

“We have no statute which authorizes the Division of Water Resources of the State Board of Agriculture or its chief engineer to regulate, allocate or distribute, or otherwise interfere with the use and consumption of underground waters, or to conduct a 'hearing upon the application of anyone desiring to use such waters for the allocation, distribution or regulation thereof.”

The opinion referred to many of our earlier cases pertaining to irrigation and the common-law rights of riparian owners and observed that there had been no departure from the basic principal that water rights were governed by the common law except as modified by statute; that underground waters were a part of the real property in which they are situated, and that the owner of land owns its surface and ground water by the same title as he owns the land itself. From the foregoing it may be said that the English or common-law rule was still the law in this state with respect to ground waters in 1945.

The foregoing rule announced in our cases was derived from a series of English cases of which Acton v. Blundell, supra, and Chasemore v. Richards, supra, are the most frequently cited. The essence of the English or common-law rule was that the owner of the surface might extract as much water as he wished from the underlying strata without liability (in the absence of malice) to adjoining owners for the interception and stoppage of the flow of the percolating waters to and in such adjoining tracts.

The confusion, if any, in our decisions that has resulted in the application of the common-law rule may be attributed to a lack of understanding of the meaning of the term “ownership” as applied to percolating waters. In Acton v. Blundell, supra, it was held that the owner of the surface might apply subterranean waters as he pleased and that any inconvenience to his neighbor from doing so was damnum absque injuria. Lord Chief Justice Tindal said:

“. . . (The case) rather falls within that principle, which gives to the owner of the soil all that lies beneath his surface; that the land immediately helow is his property, whether it be solid rock, or porous ground, or venous earth, or part soil, part water; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure. . . .” (p. 354.)

However, the qualified sense in which such concept of ownership was actually regarded by the English Courts is found in the remarks of Lord Wensleydale in the Chasemore case, supra. Commenting on the opinion in Acton v. Blundell, supra, he stated:

“. . . Surely the use of flowing water in each case (subterranean as well as surface), and not the property in it, belongs to the proprietor of the surface.” (Emphasis supplied.) (p. 384.)

In the opinion Lord Wensleydale enunciated the principle as to percolating water in the following language:

“. . . which gives to the owner of the soil all that lies beneath his surface . . . that the person who owns the surface may dig therein . . . and that if, in the exercise of such right, he intercepts or drains off die water collected from underground springs in his neighbour’s well, this inconvenience to his neighbour falls within the description of damnum absque injuria, which cannot become the ground of an action.” (p. 377.)

In 93 C. J. S., Waters, § 90, p. 765, the rule is stated thus:

“There can be no ownership in seeping and percolating waters in the absolute sense, because of their wandering and migratory character, unless and until they are reduced to the actual possession and control of the person claiming them. Their ownership consists in the right of the owner of the land to capture, control, and possess them, to prevent their escape, if he can do so, from his land. ... If percolating waters escape naturally to other lands, the title of die former owner is gone; while a landowner may prevent the escape of such waters from his land, if he can do so, yet he has no right to follow them into the lands of another and there capture, control, or reduce them to possession.”

See, Anno: Subterranean and Percolating Waters, 55 A. L. R. 1385, 1390.

The common law concept of “absolute ownership” of percolating water while it is in one’s land is an anomaly — while giving him the right to abstract from his land all the water he can find there, it affords him no protection against the acts of his neighbors who, by pumping on their own land, manage to draw out of his land all the available water it contains. Much of the language in the cases pertaining to absolute ownership is obiter dicta and completely unnecessary to the respective decisions. Moreover, ownership as a concept is often vague and denotes only certain rights of use against certain persons with respect to certain physical phenomena. Thus the use of the term “ownership” as applied to percolating water has never meant that the overlying owner had a property or proprietary interest in the corpus of the water itself. This necessarily follows from the physical characteristics of percolating water. It is migratory in nature and is a part of the land only so long as it is in it. There is a right of use as it passes, but there is no ownership in the absolute sense. It belongs to the overlying owner in a limited sense, that is, he has the unqualified right to capture and control it in the quantity desired and with an immunity from liability to his neighbors for doing so. When it is reduced to his possession and control, it ceases to be percolating water and becomes his personal property. Rut if it flows or percolates from his land, he loses all right and interest in it the instant it passes beyond the boundaries of his property, and when it enters the land of his neighbor it belongs to him in the same limited sense (City of Emporia v. Soden, supra; Utah Copper Co. v. Stephen Hayes Estate, Inc., et al., 83 Utah 545, 31 P. 2d 624, certiorari denied 295 U. S. 742, 79 L. Ed. 1688, 55 S. Ct. 654; 1 Wiel, Water Rights in the Western States, Note 18, § 18; Justesen v. Olsen et al., 86 Utah 158, 40 P. 2d 803; Scurlock, Constitutionality of Water Rights Regulation, 1 Kan. L. Rev. 298, 300, 301).

In Wallace v. City of Winfield, 98 Kan. 651, 159 Pac. 11, it was held that a riparian owner had no title to the corpus of the water in the river; that the water was not “his,” and until he reduced it to his possession and exercised control and management over it, did he obtain a property right in it; that his right was to the use of the water — a property right of a usufructuary nature that “attached” to the riparian land; that as an incident of the land, the right of use accompanied a conveyance of the real property and since there was no ownership of the water, he could not recover the value of any such water 'wrongfully diverted.

The foregoing holding is, by analogy, applicable to ground waters which have not been reduced to the possession and control of the overlying owner. It would be the height of inconsistency to apply the foregoing holding in the case of flowing stream waters and deny its like application in the case of percolating waters. Possession and control are as essential to one as to the other. See, Wood v. Fowler, 26 Kan. 682, 690, Syl. ¶ 3.

Hence, tibe true nature of the law of percolating water rights under the English or common-law rule as applied in the Soden case, and unreversed as of June 28, 1945, was that an owner had no legal right to complain of the diminishment of the subterranian water underlying his land through pumpage of wells by irrigators, municipalities and other water users in the area. Further, that such users had a corresponding right to utilize from tibeir own land, all the water they desired and were capable of extracting without regard, in the absence of malice, to any resulting diminishment of the source of supply available to neighbors, irrigators, municipalities or other users of water. (City of Emporia v. Soden, supra, p. 608.)

The unsuitability of such a rule to modem day conditions was self-evident, and as a result of the decision in State, ex rel., v. Board of Agriculture, supra, decided June 10, 1944, the governor appointed a committee to study the various statutes and decisions and to formulate a new law to dispel the resulting inequities to individuals, the lack of control of wastage and the harmful effects the unmodified common law would produce to the economy of the state. The committee completed its work, and in December, 1944, made its report entitled “The Appropriation of Water for Beneficial Purposes,” which was the basis for the enactment of the 1945 Water Appropriation Act.

Before discussing the features of the appropriation doctrine as it is embodied in the Act another point requires attention. This concerns the basic power of the legislature to modify and change common-law rules with respect to water usage. From the earliest days of Kansas history, flexibility in the common law has been carefully preserved (G. S. 1949, 77-109). Indeed, the great office of statutes is to remedy defects in the common law as they are developed and to adapt it to the changes of time and circumstances. That the legislature may change the principle of the common law and abrogate decisions made thereunder when in its opinion it is necessary to the public interest is well settled (O’Neil v. North’n Colorado Irrigation Co., 242 U. S. 20, 26, 27, 61 L. Ed. 123, 37 S. Ct. 7; Silver v. Silver, 280 U. S. 117, 74 L. Ed. 221, 50 S. Ct. 57; Komorowski v. Boston Store of Chicago, 341 Ill. 126, 173 N. E. 189; Katz v. Walkinshaw, 141 Cal. 116, 74 Pac. 766; Power Co. v. Cement Co., 295 U. S. 142, 79 L. Ed. 1356, 55 S. Ct. 725; U. S. v. Gerlach Live Stock Co., 339 U. S. 725, 94 L. Ed. 1231, 70 S. Ct. 955, 20 A. L. R. 2d 633; State, ex rel., v. Knapp, 167 Kan. 546, 207 P. 2d 440).

The committee report of December, 1944, included a synopsis of our statutes and decisions pertaining to water, irrigation, and the rights of riparian owners, and expressed the view that our law should be adjusted to present needs, from which we quote, in part:

“The Committee believes that conditions, and the needs of the people in Kansas, have changed so greatly since the early adoption of the common law as applied to water use, that the time has come to modify the common law to the extent necessary to set up a system of appropriation, based on priority of right, but without depriving the common-law owner of relief by proper compensation for limitations placed on unused common-law rights.”

In Baumann v. Smrha, 145 F. Supp. 617, affirmed 352 U. S. 863, 1 L. Ed. 2d 73, 77 S. Ct. 96, the broad reach of state legislative power was positively stated as follows:

“The power of a state either to modify or reject the doctrine of riparian rights because unsuited to the conditions in the state and to put into force the doctrine of prior appropriation and application to beneficial use or of reasonable use has long been settled by the adjudicated cases.” (p. 624.)

The inherent power to legislate being clear, we inquire if that power has been constitutionally exercised. The scope of that inquiry must conform to the issues presented by the record. As previously indicated, plaintiff principally contends that G. S. 1949, 82a-702 takes his property — the unused ground water in his land —by legislative fiat and gives it to another through the means of an administrative agency.

The committee which drafted the Act, and the legislature which adopted it, considered the problem of water use rights in the light of present day knowledge concerning the interrelationship of ground and surface water and approached it with the realities of hydrology and natural processes rather than an adherence to outmoded legal concepts. Foley, Water and the Laws of Nature, 5, Kan. L. Rev. 492 (1957), states:

“. . . one cannot separate ground water and surface water. What is surface water at one time is ground water the next. What is ground water today becomes surface water tomorrow. Any concept dealing with all water must correlate ground water and surface water.” (p. 497.)

That scientific premise is implicit in the Act. The Act makes no distinction whatsoever between ground water and surface waters but applies to both the principles and procedures which are recognized by the laws of the seventeen western states as the appropriation doctrine. See 1 Kinney (2d Ed.), Irrigation and Water Rights, § 587, pp. 1009-1011. Twelve of those states now have statutes applying the appropriation doctrine to percolating ground waters (Hutch-ins, Ground Water Legislation, 30 Rocky Mt. L. Rev. 416.)

The Act was entitled “An Act to conserve, protect, control and regulate the use, development, diversion and appropriation of water for beneficial and public purposes, and to prevent waste and unreasonable use of water. ...” A detailed analysis of the Act is unnecessary since that was done in State, ex rel., v. Knapp, supra. All subsequent references to the Act found in G. S. 1949, 82a-701, et seq., as amended, is to G. S. 1961 Supplement, unless otherwise designated. While it was amended in several particulars in 1957, the amendments treated of procedure, and did not affect the general scheme to establish the appropriation doctrine in Kansas, and to reduce the advantage of location of lands riparian to surface streams and overlying ground waters as against appropriations of water for beneficial use on nonriparian and nonoverlying lands. The general purport of the Act was stated in the committee’s report as follows:

“The paramount purpose of the proposed act is to set up an orderly system of appropriation of water based upon the rule of priority of right. The Committee finds it would be necessary: (1) to determine, define and protect existing common law uses; (2) to place limitations upon unused common law rights as now recognized in this state and subordinate them to appropriation rights; (3) to allow a common law owner of unused water rights a means of recovery for such damages as he is able to prove he has suffered by an injury' or impairment of his property or of any right to initiate a later use of water; (4) to deny injunctive relief to common-law owners who have not initiated any use of water or who have not begun the construction of any diversion works; (5) to authorize injunctive relief for the protection of an appropriator under the act as against a common-law owner who seeks to initiate a common law use after the effective date of this act; (6) to clothe a central state administrative agency with the authority to control the appropriation of water as directed by the act and in conformity with the legislation now in practical operation in many states; (7) to establish principles for appropriation and use of water with a view toward conservation of this natural resource for the greatest benefit of its people and to prevent waste of water by permitting its flow on toward the ocean.”

It is evident that the legislature, in placing into effect the committee’s recommendations, exercised the police power of the state in determining its policy that “All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein provided” (G. S. 1949, 82a-702), and in providing that “Subject to vested rights, all waters within the state may be appropriated for beneficial use . . .,” and that nothing in the Act “shall impair the vested right of any person except for nonuse” (G. S. 1949, 82a-703). This declaration makes it clear that Kansas has embarked upon a new approach to the problem of use of the water resources of the state. In passing the Act it is manifest that two major factors were uppermost in the minds of the legislators: First, that the doctrine of appropriation should be based upon the time of use and the actual application of water to beneficial use without regard to the ownership of land contiguous to the streams or the overlying lands, and Second, that unused water could not wisely be held in perpetuity for a common-law owner who may never have use for it, without resulting in underdevelopment permitting the water to flow out of the state and on toward the ocean, as an economic waste and loss of a valuable natural resource. To achieve that result, the doctrine of appropriation for beneficial use based upon the rule of priority of right (first in time is first in right) was established, and adequate administrative controls were provided to prevent overdevelopment of any source of supply with resulting injury to established uses.

The scheme of the Act was that vested rights of common-law users would be ascertained by the chief engineer of the Division of Water Resources (82a-704) based upon pre-1945 usage for beneficial purposes. When such water-use rights are determined, the Act recognizes a superior vested right of such users to continue their pre-1945 uses in the same amounts and at the same rate of diversion that were then in effect. Hence it may be said that the appropriation doctrine and the rule of priority of right were intended to apply only to such water as was not being beneficially used at the time of the passage of the Act, that is, to our undeveloped and consequently unused water resources. That is made clear by Sec. 82a-701 (d) which adopted the committee’s recommendation that the “existing common-law uses” be determined, defined and protected. It is these recognized use rights that may not be taken or destroyed in the absence of due process of law.

The term “vested right” is defined in 82a-701 (d) and is the right of any person under a common-law or statutory claim to continue the use of water having actually been applied to any beneficial use, including domestic use, on or within three years before June 28, 1945, or within a reasonable time thereafter by means of diversion works then under construction, to the extent of the maximum quantity and rate of diversion for the beneficial use made thereof, but such right does not include common-law claims such as the plaintiff asserts, where he has not applied water to any beneficial use within the period prescribed by the Act. The definition is premised upon the beneficial use of water and not upon nonuse. As the record indicates, the plaintiff does not base his claim of vested rights in ground water upon any application of such water to beneficial use. He neither alleged nor proved any water-use rights under the Act to any water in the Equus Beds. Hence, the term “vested rights” does not include unused common-law rights such as the plaintiff asserts. This is made clear by the Act which expressly excludes “those common law claims under which a person has not applied water of any beneficial use within the period of time set out in this subsection” (82a-701 {cl)).

There are many procedural and other terms of the Act which implement the doctrine of appropriation. For the purpose of this case, however, it is not necessary that these be detailed. It is sufficient to say that while the Act denies injunctive relief to common-law claimants, such as the plaintiff here seeks, it affords protection to common-law owners who have not initiated any use of water for beneficial purposes by giving them a cause of action at law to recover due compensation against an “appropriator” for damages proved for any property taken (82a-716), or for any injury done to their lands or to any water rights appurtenant thereto (82a-721a). Likewise the act (82a-712, 716, 717 [a]) affords vested right owners and appropriation users injunctive relief against later common-law claimants of right to use stream or underground waters although a claimant may, of course, make application for an appropriation permit to apply water under his land for beneficial purposes (82a-709).

While no specific water-use rights were involved in State, ex rel., v. Knapp, supra, and none were adjudicated, the Act was sustained upon all questions submitted for determination, when challenged on the ground that the proposed diversion by the defendant irrigation district from the Republican River would infringe upon the rights of the owners of riparian lands lying in and downstream from the district. The chief engineer of the Division of Water Resources had approved the irrigation district’s application for a permit to divert and appropriate water from the river after notice and hearing. It was held that, among other things, the Act was not unconstitutional as a taking of pre-existing vested riparian rights of downstream owners; or as providing for the diversion of water to irrigate nonriparian lands against and without acquisition of the rights of lower riparian owners; or as requiring an owner of riparian lands to apply and obtain the approval of the Division of Water Resources for the use of water in order to preserve such rights, or as improperly conferring legislative or judicial power upon the chief engineer. Speaking through Mr. Chief Justice Harvey the court said:

“We next observe that no complaint is made of section 702, which declares: ‘All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein provided.’ This is the heart of the statute. The rest of it treats of details and procedure. It forms the basis for a different approach to the solution of questions concerning water rights than we have had in some of our opinions. Heretofore we have approached the questions largely on the basis of individual interest alone. Under this declaration and other provisions of the act we now approach them upon the basis of the interest of the people of the state without losing sight of the beneficial use the individual is making or has the right to make of the water. Unused or unusable rights predicated alone upon theory become of little if any importance. Broad statements found in some of our opinions, such as ‘Every man through whose land a stream of water runs is entitled to the flow of that stream without diminution or alteration’ (Shamleffer v. Peerless Mill Company, 18 Kan. 24), must be disregarded or modified to harmonize with this declaration. The change is an appropriate one for the legislature to make. Individuals do not live alone in isolated areas where they, at their will, can assert all of their individual rights without regard to the effect upon others.” (l. c. 555.)

Under the legislative declaration of 82a-702 and other provisions of the Act, the beneficial use which the individual is making or has the right to make of the water is now the important phase of his water rights.

The case of Baumann v. Smrha, supra, decided April 30, 1956, affirmed by the Supreme Court of the United States on October 15, 1956, involved lands overlying the same Equus Beds. When the action was commenced there were some 225 water wells in the general area of the plaintiff’s land withdrawing water from the Equus Beds which resulted in a “draw-down” of the water table under their lands. Twenty-five of the wells were owned and operated by Wichita to produce and supply water for the municipal needs of that community. All of the wells were operated pursuant to either vested right determinations or appropriation permits of the chief engineer. The plaintiffs contended that the Act, and the vested right determinations and appropriation permits of the chief engineer, deprived them of property rights in violation of the due process clause of the Fourteenth Amendment.

A point strongly pressed by the plaintiffs was that the Act did not require that they be notified of the granting of an appropriation permit by the chief engineer, hence they were denied the opportunity of a hearing in opposition to the appropriation applications with which they were concerned. Answering the contention, Chief Judge Phillips said:

“. • • permits are necessarily granted subject to valid existing vested rights and to prior appropriations, and provision for the protection of those rights, either by actions for damages or for injunction, is carefully made by Sections 82a-712 and 82a-716.”

As previously indicated, the court unequivocally held that a state had the power to depart from the common-law doctrine of riparian rights and establish the doctrine of appropriation and application to beneficial use, and on that point it was said:

“[3] Of course, such a modification in the law of the state must recognize valid existing vested rights, but we do not regard a landowner as having a vested right in underground waters underlying his land which he has not appropriated and applied to beneficial use.

“[4] We hold that the state could properly apply the doctrine of prior appropriations and application to beneficial use to unused and unappropriated waters so long as it recognized and afforded protection to rights which landowners had acquired at the time of the effective date of the Act to appropriate and use water.

"Whether such a change in the law of Kansas is contrary to earlier decisions of the Supreme Court of Kansas, it is cognizant with the latest decisions of the Supreme Court of Kansas in State, ex rel. Emery v. Knapp, 167 Kan. 546, 207 P. 2d 440, which must be regarded as having overruled the earlier cases.

“[5] There is no vested right in the decisions of a court and a change of decision does not deprive one of equal protection of the laws or property without due process of law.

“[6] Even though prior decisions of a state court have established a rule of property, a departure therefrom in a subsequent decision does not, without more, constitute a deprivation of property without due process of law under the Fourteenth Amendment.

“[7, 8] The Fourteenth Amendment in guaranteeing equal protection of the laws does not assure uniformity of judicial decisions or immunity from judicial error. Likewise, it is well settled that a legislature may change the principle of the common law and abrogate decisions made thereunder when in the opinion of the legislature it is necessary in the public welfare.

“[9] Adequate water supply is a necessity. In the arid and semi-arid regions of the West it is imperative that all available water be utilized beneficially and without waste. The accomplishment of those ends is well within the competency of the legislature.

“Plaintiffs have not seen fit to invoice the remedies afforded them by the Act. Those remedies are adequate, we think, to afford protection to any vested rights of the plaintiffs.

“[10] We conclude that the Act is constitutional.”

The notion that the surface owner is the owner of the underlying water greatly confounds the situation with respect to the power of the state to dedicate water to beneficial use and to regulate that use. As we have seen, under the common law the overlying owner does not have absolute title to the underground water that may permeate below the surface. He has the unqualified right to drill a well on his own land and take from the strata below all the water that he may be able to reduce to possession including that coming from land belonging to others, but the right to take and thus acquire ownership is subject to the power of the state to provide that it will be put to beneficial use and to prevent its unnecessary loss or waste, by requiring that the unused portion be made subject to the doctrine of appropriation.

The privilege of using water is unquestionably an element of the value of the land. To take away that right might be tantamount in a semi-arid country to confiscation of property. But the Act is not compulsory in its provisions. It does not compel or require a surface owner to obtain a permit in order to make use of the underlying water. Neither does it require that a permit be obtained for the installation of a well or pump or other works by means of which water can be diverted from its source to its place of use. However, such an owner, by electing not to come under the protection of the Act, is subject to the hazard of injunction in the event his usage impairs rights recognized and protected under the Act. To that extent, the plaintiff may presently drill wells to capture and divert underlying water and apply it to beneficial use without waste, subject, however, to the preferential use rights of a vested right user or the appropriation right of one who applies water from the same source to beneficial use (82a-712, 716, 717 [a]).

It is not for this court to decide matters of policy, nor, indeed, to weigh the beneficial results which may follow the adoption of any particular legislative policy (Topeka Laundry Co. v. Court of Industrial Relations, 119 Kan. 12, 237 Pac. 1041; Quality Oil Co. v. duPont & Co., 182 Kan. 488, 322 P. 2d 731; State, ex rel., v. City of Pittsburg, 188 Kan. 612, 364 P. 2d 71; State v. Hill, 189 Kan. 403, 369 P. 2d 365). It is our duty to declare the law as it exists. We are not responsible for its consequences. Regardless of the form of the underground water, the power of the legislature to establish a new basis for adjusting the privileges and rights of surface owners is vindicated by the same consideration as was involved in State, ex rel., v. Knapp, supra, which justified this court in sustaining the Act and abolishing the riparian doctrine in favor of the appropriation doctrine. What was said in Knapp which sustained the Act and substituted the appropriation doctrine for the riparian doctrine is equally applicable to the instant case. The difference is slight. There we were concerned with the privileges of adjacent owners and here with the privileges of surface owners. In either case, the privileges are amenable to reasonable regulation. We hold that it was within the competency of the legislature to define the “vested rights” of common-law water users, or to establish a rule as to when and under what conditions and to what extent a vested right should be deemed to be created in such a water user (Kansas v. Colorado, 206 U. S. 46, 94, 51 L. Ed. 956, 973, 27 S. Ct. 655; Sternberger v. Seaton Co., 45 Colo. 401, 403, 102 Pac. 168; Re Water Rights of Hood River, 114 Ore. 112, 227 Pac. 1065; State, ex rel., v. Knapp, supra; Baumann v. Smrha, supra). The effect of the common-law doctrine in Kansas under the Act is little more than legal fiction. The right of the plaintiff to ground water underlying his land is to the usufruct of the water and not to the water itself. Legislation limiting the right to its use is in itself no more objectionable than legislation forbidding the use of property for certain purposes (Euclid v. Ambler Co., 272 U. S. 365, 71 L. Ed. 303, 47 S. Ct. 114, 54 A. L. R. 1016; Mugler v. Kansas, 123 U. S. 623, 31 L. E. 205, 8 S. Ct.273).

As we have seen, the ownership of land does not carry with it any ownership of vested rights to underlying ground water not actually diverted and applied to beneficial use. Nor do we regard such a landowner as having a vested right, as the plaintiff contends, to ground water underlying his land which he has not appropriated and applied to beneficial use. A common-law claimant such as the plaintiff who has not initiated any actual use of the water for any beneficial purpose is limited to an action at law against the appropriator subsequently developing water uses under a permit from the chief engineer for earlier appropriation uses perfected under the Act (82-712, 716, 721 a). In the overall, rather than suffering an infringement of any right, the plaintiff is afforded rights and protection by the Act which did not exist under the common-law to which he was subjected prior to its passage.

We find nothing in the Act which in any manner offends the Fourteenth Amendment to the constitution of the United States or in any way violates the constitution of Kansas. There is no inhibition in our constitution against legislation such as this regulatory Act which we find to be a proper and valid exercise of the police power.

The plaintiff contends that the title of the Act is defective and in violation of Art. 2, Sec. 16 of the constitution of Kansas. The contention is untenable. The compass of the enactment is one of comprehensive regulation of water usage. The Act contains only one subject which is clearly expressed in the title. Any attempt to say otherwise places a forced construction on words of simple and unambiguous meaning.

The plaintiff claims that to require him to make application and furnish information for an appropriation permit to use water from his own land for beneficial purposes is a denial of due process. The contention is without substance. The Act, regulatory in purpose and nature, requires that water users make application and furnish information to the chief engineer of the Division of Water Resources concerning the proposed use (82a-709). Such a requirement is not a confiscation of water rights by legislative fiat. Rather, it is a proper and reasonable exercise of the police power of the state in controlling water use for the purpose of preventing waste and to conserve a valuable natural resource. Moreover, the point was decided adversely to the plaintiff in State, ex rel., v. Knapp, supra, where it was said:

“. . . If the state is to control and regulate the waters of the state other than for domestic use it must ascertain what other use is being made of the water by riparian owners, and the act is not invalid because it authorizes the chief engineer to ascertain what other use is being made of the property and to require the owner to furnish a statement of such use and to obtain the approval of the chief engineer thereto, with the right of the owner to appeal to the district court from the determination of the chief engineer. . . .” (Emphasis supplied.) (l. c. 556.)

The plaintiff further contends that just compensation is required to be made for the talcing of unused water underlying his land, and lack o£ provision therefor so permeates the Act that it is void in toto. We do not agree. If he thinks he has been damaged by the pumping of the ten water supply wells in question, the Act gives him a right to commence a suit for such damage (82a-716, 721 a). The suggestion that he has such rights in ground water underlying his land as must be acquired by eminent domain is untenable (State, ex rel., v. Knapp, supra).

As previously indicated, this was an action to enjoin Wichita from drilling or pumping water supply wells when its prior application for an appropriator’s permit therefor had been regularly made to the chief engineer of the Divison of Water Resources. The plaintiff concedes that he has no water-right uses which are protected by the Act and he makes no claim to any right under the Act. While he introduced evidence of damage to his land, he did so only after the district court held the Act to be unconstitutional, to establish that his remedy at law was inadequate and that injunctive relief was proper. The Act not being unconstitutional, the district court should have entered judgment in favor of Wichita.

The judgment is reversed.