actually navigable in fact they are subject to this right of the public for the purpose of highway and navigation when they can be employed in travel, trade or commerce. Such waters are treated as publici juris in so far as they may be properly used for such purposes in their natural state. The public right, however, arises only in case of their navigability. And whether they are navigable or not depends entirely upon their capacity for a substantial use for that purpose.1

§ 47. Ponds. Ponds are of two kinds, natural and artificial. A natural pond has all of the characteristics of a small lake, and the terms "lake" or "pond" are frequently used interchangeably. But the word pond is at best indefinite. It may mean a natural or an artificial body of water, constructed for any purpose, either permanent or temporary. In both cases the limits of such bodies of water may vary at different times and seasons, by use or by natural causes.2

120 Ill., 509; Atwood vs. Canandaigua, 56 Hun., 293; Smith vs. Rochester 92 N. Y., 463; Smith vs. York, by statute, the State's title to its navigable waters is in trust for the owners of the upland as well as for the public, and the State can only convey the soil under such water, whether they are lakes or tide-waters, to the owner of the adjoining land. Rumsey vs. N. Y. Ry. Co. 114 N. Y., 423; Right vs. Eldred 46 Hun., 12. In Cobb vs. Davenport 32 N. J. L., 369, 380, it was held that the soil under the waters of fresh water lakes within the State of New Jersey, is in the riparian proprietors, and not in the State. In Pennsylvania a pond is not a "private pond" which covers the soil of a person who stocks it with fish and also the soil of others. It is an entirety, and the whole or none is private. Reynolds vs. Commonwealth 93 Penn. St., 458. See also

Heath vs. Williams 43 Am., Dec. 269 and note.

1 The title to the bed of the river, lake or sound in such cases, and all special privileges and advantages incident thereto may vest and remain in the owner thereof, subject only to their public right of navigation. He may use the land and whatever is incident to it, including the water over it in such lawful ways as he will, if in so doing he does not impede or interfere with navigation. The limited right of the public is paramount and must not be abridged. State vs. Narrows Island Club, 100 N. C., 477; 6 Am. St. Rep., 618; Broadax vs. Baker, 94 N. C., 678; 55 Am. Rep., 655; Hodges vs. Williams, 95 N. C., 331; 59 Am. Rep., 242, distinguishing State vs. Glenn, 7 Jones (N. C.) 321; Gould on Waters sections 86, 87, 90, 110. 2 Waterman vs. Johnson, 13 Pick. 261. Pond: A body of stagnant water; a pool. Bouvier's Law Dic.

§ 48. Subterranean or Underground Water-Courses.-Subterranean or underground water-courses are, as their names indicate, those water currents that flow under the surface of the earth. A large portion of the great plains and valleys of the mountainous regions of the west is underlaid by a stratum of water-bearing sand and gravel, and fed by the water from the mountain drainage. This water-bearing stratum is of great thickness, the water is moving freely through it, is practically inexhaustible, and, if it can be brought to the surface, will irrigate a large portion of the country overlying it. In and near the mountains many streams have a bed which was originally a rocky canyon, but has been filled up with boulders and coarse gravel. In this debris a large portion or all of the water sinks from sight, to reappear only when some rocky reef crosses the channel and forces the water to the surface. The movement of this water through the porous gravel, owing to the declivity of the stream, is often quite rapid, and a considerable volume may thus pass down the channel hidden from sight.

These water-courses are divided into two distinct classes; those whose channels are known or defined, and those unknown and undefined. It is necessary to bear this distinction in mind in our discussion, as they are governed by entirely different principles of law. And in this connection it will be well to say that the word "defined" means a contracted and bounded channel, though the course of the stream may be undefined by human knowledge; and the word "known" refers to knowledge of the course of the stream by reasonable inference.1 Regarding the laws governing these two classes, it must be known that if underground currents of water flow in well defined and known channels, the course of which can be distinctly traced, they are governed by the same rules of law that govern streams flowing upon the surface of the earth.2

1 Black vs. Ballymera Commissioners, 17 L. R. Ir. 456; Roath vs. Driscoll, 20 Conn. 533; Brown vs. Illius, 25 Conn. 594; Haldeman vs. Bruckhart, 45 Penn. St. 518.

2 Dickinson vs. Grand Junction Can. Co., 7 Exch. 282; Chasemore vs. Richards, 2 Hurl. & N. 186; Cole S. M. Co. vs. Virginia W. Co., I Sawyer 470; Smith vs. Adams, 6

The owner of land under which a stream flows can, therefore, maintain an action for the diversion of it if such diversion takes place under the same circumstances as would enable him to recover if the stream had been wholly above ground. But for this purpose the underground water must flow in known and well defined channels, SO as to constitute regular and constant streams, in order that the riparian owner or appropriator may invoke the same rules as are applied to surface streams, or otherwise the presumption will be that they have their sources in the ordinary percolations through the soil. This rule practically disposes of the second class of subterranean waters,-those whose channels are unknown and undefined-although there are undoubtedly a great many underground streams whose waters flow in confined channels but whose courses are not known, and following the above rule, these are all classed with percolating waters.

§ 49. Percolating Waters.-Percolating waters are those which pass through the ground beneath the surface without definite channels, although the same rules of law govern those which have definite channels, but the course of which is unknown and unascertainable.

Paige 435; Wheatley vs. Baugh, 25 Penn. St. 528; Whetstone vs. Bowser, 29 Penn. St. 59; Saddler vs. Lee, 66 Georgia 45; 42 Am. Rep. 62; Action vs. Blundell, 12 Mees. & W. 324; Haldeman vs. Bruckhart, 45 Penn. St. 514; Hanson vs. McCue, 42 Cal. 303; Hale vs. McLea, 53 Cal. 578.

In the case of Strait vs. Brown, 16 Nev. 317, the Court held that the distinction between running water and water percolating through the soil was that percolating waters were a part of the soil, and upon the principle that the owner has the land, even to the sky and to the lowest depths, the courts have permitted him to dig as deep and

Where there is nothing to

No

build as high as he please, and hence the waters were not governed by the same laws that pertained to running streams. distinction exists between waters running under the surface, in defined channels, and those running in distinct channels upon the surface. The distinction is made between all waters running in distinct channels whether upon the surface or subterranean, and those oozing or percolating through the soil in varying quantities and uncertain directions.

1 Ibid; Hanson vs. McCue, 42 Cal. 303.

2 Wheatley vs. Baugh, 25 Penn. 528.

show that the waters of a spring or well are supplied by any defined flowing stream the presumption will be that they have their source in the ordinary percolations of water through the soil.1 Percolating waters, and those whose sources are unknown, belong to the realty in which it is found.2 The reason for this rule is that, as percolations spread themselves in every direction through the earth it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land the law does not therefore forbid their disturbance.3

1 Hanson vs. McCue, 42 Cal. 303. 2 Mosier vs. Caldwell, 7 Nev. 363; Wheatley vs. Baugh, 25 Penn. St., 528; 64 Am. Dec. and note; Chasemore vs. Richards, 7 H. L. Cas., 349; Dickinson vs. Grand Junc. Canal Co., 7 Exch. 282; Action vs. Blundell, 12 Mees. & W., 324; Taylor vs. Welch, 6 Ore., 198; Hammond vs. Hall, 10 Sim., 552; Chase vs. Silverstone, 62 Me., 175: Taylor vs. Fickas, 64 Ind., 167,

Delhi vs. Youmans, 45 N. Y., 362; 5 Barb., 316; Colman vs. Chadwick, 80 Penn. St., 81; Trout vs. McDonald, 83 Penn. St., 126; Frazier vs. Brown, 12 Ohio St., 294; Chatfield vs. Wilson, 28 Vt., 49: Emporia vs. Soden, 25 Kan., 608, 612.

3 Ibid; Colman vs. Chadwick, 80 Penn. St., 81; Angell on Watercourses, 109; 2 Am. L. Reg. 65; 3 Am. L. Reg., 223; Post secs. 298, 299, cases cited.