The opinion
Holmes, J.,
concurring. While examining the law of percolating waters as a member of the Tenth Appellate District in Huelsmann v. State (1977), 56 Ohio App. 2d 100 [ 10 O.O.3d 126 ], I stated that the modern day needs of our growing industrialized state may dictate a change in the law to provide for a greater conservation of one of our greatest natural resources. Id. at 105. At that time, however, it was my view that the General Assembly should accept the challenge to reconstruct the law pertaining to water rights. Since our legislators have not acted, I agree with this court’s adoption of Section 858 of the Restatement of the Law 2d, Torts.
Percolating waters have been defined as subsurface waters which, without any permanent, distinct or definite channel, percolate in small veins and filter from one owner’s land to that of another. Callahan, Principles of Water Rights Law in Ohio (Ed. 1979) 27, Section 50, citing Frazier v. Brown (1861), 12 Ohio St. 294 . The withdrawal of percolating water by a property owner may in some cases drastically diminish the water supply of an adjoining landowner. Until today, the traditional approach in Ohio was that the owner of the soil had absolute ownership in the percolating water beneath it. Frazier, supra; Elster v. Springfield (1892), 49 Ohio St. 82 ; Logan Gas Co. v. Glasgo (1930), 122 Ohio St. 126 . This approach stemmed from the common-law principle set forth in the English case of Acton v. Blundell (Exch. 1843), 12 M. & W. 324, 152 Eng. Rep. 1223. See, also, Note, Establishing Liability for Damage Resulting From the Use of Underground Percolating Water: Smith-Southwest Industries v. Friendswood Development Company (1978), 15 Houston L. Rev. 454.
The Restatement standard preserves the general rule of nonliability, i.e., the privilege to use the water beneath one’s land, and it also recognizes the exception when there is usually enough water for all users but one landowner removes an excess to the detriment of others. It is that owner who should bear the costs necessitated by a lowering of the water table.
The adopted rule will justly meet the changing needs of the users of water. What is a reasonable use of the water can be redetermined as surrounding circumstances change. The flexibility of the rule will allow for the utilization of water where it is most necessary.
The Restatement theory also provides security that one’s source of ground water cannot be usurped by a neighbor. A damaged proprietor will be able to recover costs necessitated by the lowering of the water table. The solution is for the person causing the harm to supply the needs of the person harmed, and placing liability on the person causing the harm will encourage this result.
*389 In addition, the rule promotes economic efficiency and encourages the reasonable use of water. Industries which utilize large amounts of underground waters will not be liable unless their use is unreasonable and creates a burden to neighboring landowners. Rural owners are also protected from commercial users who drastically lower the water table. A court’s task will be to make whole the damaged property owner.
Finally, a primary goal of water law should be that the legal system conforms to hydrologic fact. Scientific knowledge in the field of hydrology has advanced in the past decade to the point that water tables and sources are more readily discoverable. This knowledge can establish the cause and effect relationship of the tapping of underground water to the existing water level. Thus, liability can now be fairly adjudicated with these advances which were sorely lacking when this court decided Frazier more than a century ago.