FAIRCHILD, C.J. (dissenting).
The majority opinion is grounded upon the thoroughly discredited decision of this court in Huber v. Merkel (1903), 117 Wis. 355, 94 N.W. 354, which I consider it is the duty of this court to repudiate by expressly overruling the same.
The plaintiff's in this case seek the aid of equity in protecting their property rights in the percolating waters from which they draw their water supply. They are entitled to such protection regardless of whether or not the legislature ever exercises its police power to regulate percolating waters.
3 Farnham, Waters and Water Rights, p. 2718, sec. 938, makes this observation with reference to Huber v. Merkel:
"There is absolutely no principle on which that decision can be founded. It is opposed to good morals, good sense, and all common-law principles which are applicable to analogous subjects, and the later and better considered cases are beginning to recognize correlative rights in percolating waters and confine landowners to a reasonable use of it."
Even more caustic is the following comment of the Minnesota court in Erickson v. Crookston Waterworks Power Light Co. (1907), 100 Minn. 481, 489, 111 N.W. 391:
"The merits of that opinion [ Huber v. Merkel] justify little more than reference to it."
In the case of Hathorn v. Natural Carbonic Gas Co. (1909), 194 N.Y. 326, 87 N.E. 504, property owners, who were obtaining water from naturally flowing springs, brought an action in equity to restrain the defendant corporation from accelerating, or increasing by means of pumps and other apparatus, the flow of water and carbonic-acid gas from their own deep wells so as to destroy or diminish the flow of water in plaintiffs' springs. The lower court entered an order granting to the plaintiffs a preliminary injunction. The defendant corporation appealed and cited Huber v. Merkel. The New York court of appeals affirmed, and in its decision it reviewed Huber v. Merkel, and made this statement with respect thereto (p. 339):
"If, however, some of the broad statements made in the opinion [in Huber v. Merkel] should be deemed pertinent to such facts as are disclosed here and to sustain the right of a proprietor to use at will subterranean waters under the circumstances disclosed in this case, it must be said, as was intimated in the Wisconsin case itself, that the courts of this state and of that one disagree on this subject."
The rationale of the Huber v. Merkel decision was that a property owner has the unlimited right to make whatever use of his own property he sees fit. This is directly counter to the principle so long recognized in the law of nuisance that one must not so unreasonably use his own property as to injure that of another. This principle is well stated in 6-A American Law of Property, p. 65, sec. 28.22, as follows:
"Since the rights of neighbors are correlative, the uses of one must not impair the substantially equal uses of the others. The balance between their interests is struck by the maxim — sic utere tuo ut alienum non laedas. When the balance is upset by an activity which exceeds the bounds of reasonableness and does substantial and disproportionate injury to the peaceable possession of others, such activity is said to be a nuisance and is actionable by those whose property interests it impairs."
The case whose facts are probably most nearly parallel to those of the instant case is that of Schenk v. Ann Arbor (1917), 196 Mich. 75, 163 N.W. 109. In that case the city of Ann Arbor acquired 130 acres of land in a marsh area some three miles distant from the city, under which were beds of water bearing gravel, for the purpose of augmenting the city's water supply. Test wells were driven by the city and some 3,700,000 gallons of water were pumped daily for a while from such wells. As a result the wells of some of the adjoining landowners went dry and the water supply in other near-by wells was seriously diminished. The plaintiff was an adjoining landowner and brought an action against the city for an injunction. At the time of trial the city was then not pumping water, and, therefore, plaintiff was sustaining no damage. Because of this the lower court denied an injunction. The Michigan supreme court held that the city had the right to drill and remove water from nonadjacent property, but that such was subject to the reasonable-user rule. The judgment below was modified by directing the circuit court to retain jurisdiction in equity so as to permit the plaintiff and all members of the class to apply for relief in the event of sustaining future harm from the further pumping operation of the city.
I believe that the rule laid down in Schenk v. Ann Arbor provides a precedent which should be followed by this court in the instant case. As this matter comes to us as the result of the interposition of the demurrer by the defendant city, such demurrer should be overruled and a trial be had on the merits.
I am authorized to state that Mr. Justice CURRIE joins in this dissent.