grantees would each hold his portion of the estate, under the changed conditions, subject to the same burdens, the former relieved from, but the latter burdened with the stream.1 § 239. Subterranean streams No easement in.-The law as to subterranean waters differs from that affecting the rights of surface streams.2 It has been established by a long line of English cases, based upon the Roman law, and followed in this country, that the owner of land through which water flows in a subterraneous course has no rights therein sufficient to support an action against an adjoining landowner who drains such water from the land of the first owner, by reason of conducting mining operations on his own land, in the usual and customery manner. The damage, in such case, if any, is damnum absque injuria.5 The enforcement of such rights would lead to the most 1 Roberts v. Roberts, 55 N. Y. 275; Lampman v. Mills, 21 N. Y. 505; Story v. Odin, 12 Mass. 157; Blanchard & Weeks Ld. Cas., etc., p. 751. 2 Delhi v. Youmans, 50 Barbour, 316. 3 See opinion of Wensledale, J., in Chasemore v. Richards, 7 H. L. Cases, 349; Pothier's Ed. 1782 (Vol. 3), p. 20. 4 Chasemore v. Richards, 7 H. L. Cases, 349; Acton v. Blundell, 12 M. & M. 324; Smith v. Henrich, 7 C. B. 515; Bolston v. Bensted, 1 Comp. 463; Dickinson v. Grand Junc. Canal Co., 7 Ex. Ch. 282; Haldeman v. Bruckhart, 45 Pa. St. 514; Chase v. Silverstone, 62 Me. 175; Parker v. B. & M. R. R., 3 Cush. 107; Greenleaf v. Francis, 18 Pick. 117; Delhi v. Youmans, 50 Barb. 316; Frasier v. Brown, 12 Ohio St. R. 294; Routh v. Driscoll, 20 Conn. 533; Brown v. Illius, 25 Coun. 593; Ellis v. Duncan, 21 Barb. 230; Wheatley v. Baugh, 25 Penn. St. 528; Haldeman v. Bruckhart, 45 Penn. St. 518; Chatfield v. Wilson, 28 Vt. 49; Clark v. Conroe, 38 Vt. 469; B. & W. L. C. 750 et sub. 5 Ante, idem. The owner of land through which water flows or percolates in an underground course, has no right or interest in it which will enable him to maintain an action against a landowner, who by mining in the usual manner on his own land drains away the water from the spring or well of the owner of the neighboring land and leaves it dry." Acton v. Blundell, 12 M. & W. 324; B. & W. L. C. 758; M. M. D. 407. speculative results and would be contrary to every reasonable consideration of the subject. The rights recognized by the courts, in surface streams, is based upon the consent of others interested, to the exercise of the first appropriator's rights, and the utility and enjoyment of the same.1 In the case of subterraneous streams no consent of the owners of the land over which such streams run could be presumed, for the course and extent of such streams could only be a matter of conjecture and the enjoyment and utility of an unknown stream is itself a mere speculation.2 But if the subterraneous stream flowed in a natural and defined water-course, like some of the Western streams that flow for for miles through limestone caverns and then emerge to the surface, the rule applying to face water would obtain and the rights of the appropriator would be protected by the courts. And even in sur 1 Acton v. Blundell, 12 M. & W. 324; Smith v. Kenrick, 7 C. B. 515; 3 Kent's Com. 439-455; Tyler v. Wilkinson, 4 Mason, 400; Wright v. Howard, 1 Lim. & S. 190; Mason v. Hill, 5 B. & Ad. 1; Shury v. Pigott, 3 Bulstr. 339. "Where subterranean waters were not shown to exist in the form of a stream, but consisted of water percolating through a large area of porous soil, with no regular stratification, an adjoining owner of such soil cannot enjoin another from diverting such water on the ground of an infringement of plaintiff's riparian rights therein. Katz v. Walkinshaw (Cal. 1902), 70 Pac. Rep. 663. 2 See opinion of Lord Wensleydale in Chelmsford v. Richards, 7 H. L. Cases, 349; Acton v. Blundell, 12 M. & W. 324; Dickinson v. G. I. G. Co., 7 Exch. 282, where the court observed: "That the existence and state of underground water is generally unknown before a well is made; and after it is made there is a difficulty in knowing, certainly, how much, if any, of the water of the well, when the ground was in its natural state, belonged to the owner in right of his property in the soil, and how much belonged to his neighbor. These practical uncertainties make it very reasonable not to apply the rules which regulate the enjoyment of streams and waters above ground to subterranean waters." B. & W. L. C. 757. 3 Wood v. Wand, 4 Exch. 748; Dickinson v. The Grand Junction Canal Co., 9 Eng. Law. & Eq. 521; Holdeman v. Bruckhart, 45 Pa. St. 514; Wheatly v. Baugh, 25 Penn. 531; Duddree v. Guardians, etc., 1 Hurl. the case of subterraneous unknown streams the party draining and diverting the water may be rendered liable if such diversion is accompanied with any malice or he has been grossly negligent in his mining operations,1 and perhaps the best test for measuring the liability in such cases is the reasonableness of the uses to which the diverted stream is adopted and the diverter's good or bad faith in the transaction.2 § 240. As to percolations. Where water has percolated through one tract of land to another, and collected in a swamp or marsh, the rules of law governing the rights of parties to the water of regular streams, flowing in a natural channel, whether such streams are above or beneath the surface, do not apply. No rights can be acquired in such water that would prevent its diversion. The owner of the land on which the same has collected may draw off the water from the swamp, or divert the percolation so as to collect the water in a more desirable place on his land notwithstanding it may result in serious detriment to the adjacent proprietor, providing such diversion be without malice.4 & N. 627; Frasier v. Brown, 12 Ohio, 300; Whetstone v. Bowser, 29 Price, 59; Delhi v. Youmans, 45 N. Y. 362. 1 Delhi v. Youmans, supra. "No person can wantonly and maliciously cut off on his own land the underground supply of a neighbor's spring or well, without any purpose of usefulness to himself. Greenleaf v. Francis, 18 Pick. 117; approved in Wheatley v. Baugh, 25 Penn. 531, and Roath v. Driscoll, 20 Conn. 533; Parker v. Boston & Maine R. R. Co., 3 Cush. 107; Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195." B. & W. L. C. 758 et sub. 2 Ante, idem. 3 Dickinson v. Canal Co., 7 Ex. Ch. 300; Hodgkinson v. Ennor, 4 B. & S. 229; Smith v. Kendrick, 7 C. B. 566; Acton v. Blundell, 12 Mees. & W. 324; Chose v. Silverstone, 62 Me. 475; 16 Am. Rep. 419; Greenleaf v. Francis, 18 Pick. 117; Luther v. Winnisimet Co., 9 Cush. 171; Tiedeman on R. P., § 615; Chasemore v. Richards, 5 H. & M. 982. 4 Ante, idem; Parker v. Boston & M. R. R., 3 Cush. 107; Rooth v. Nor would an action lie for draining surface water over adjoining lands through natural channels, although the owner of the adjoining land would have the right to prevent the overflow of his land by the erection of barriers or other suitable means.1 However, one is not permitted, in the drainage of such water, to direct the flow upon adjoining land by means of drains or ditches, although it is permissible by such means to empty the water into a natural stream, and if the volume of the stream is thereby increased to such an extent as to cause damage to the riparian owners below, they are without remedy.2 As to the rights § 241. Artificial water-courses. acquired by the use of the water the same rule obtains in the case of artificial water-courses that applies to percolations. No one has the right to establish an artificial water-course upon the land of another, but if the landowner should assent to its construction, he would not thereby acquire an easement in the water, and could not thereby compel its perpetual maintenance, however much he might be injured from its discontinuance. The party creating the artificial stream can stop or divert it at his pleasure and since it is constructed for certain purposes, Driscoll, 20 Conn. 533; Delphi v. Youmans, 45 N. Y. 362; 6 Am. Rep. 100; Ellis v. Duncan, 21 Barb. 230; Wheatley v. Baugh, 25 Pa. St. 528; Frazier v. Brown, 12 Ohio, 311. Gannon v. Hagadon, 10, 1 Greeley v. Maine Cent. R. R., 53 Me. 200; Allen, 106; Parks v. Newburyport, 16 Gray, 29; 439; Goodale v. Tuttle, 29 N. Y. 459; Bowlsby v. Hoyt v. Hudson, 27 Wis. 656. But see Gerrish v. Clough, 48 N. H. 9; 2 Am. Rep. 165, and Ogburn v. Connor, 4 Cal. 346; 13 Am. Rep. 213. 2 Dickinson v. Worcester, 7 Allen, 19; Waffle v. N. Y. Cent. R. R. 53 N. Y. 11; 13 Am. Rep. 467; Miller v. Laubach, 47 Pa. St. 154; Butler v. Peck, 16 Ohio St. 334; Pettigrew v. Evansville, 25 Wis. 223; 3 Am. Rep. 50; Smith v. Kendrick, 7 C. B. 515; Tiedeman R. P., § 615, p. 480. the adjoining owner could not, by mere use and enjoyment, acquire a prescriptive right to its continuance.1 1 Arkwright o. Gell, 5 Mees. & W. 203; Mayor v. Chadwick, 11 A. & E. 571; Elliott v. N. E. Ry., 10 H. L. Cas. 333; Beasten v. Wheat, 5 E. & B. 986; Wright v. Williams, 1 Mees. & W. 77; Saunders v. Newman, 1 B. & Ald. 258; Napier v. Bulwinkle, o Rich. 317; Tiedeman R. P., § 616; Washburn on Easements and Servitudes, 294. "While, in such cases as Arkwright v. Gell, the landowner over which the water flows would have no right to divert the water - since to him it is, as to the riparian proprietors below, as a natural stream—it would not be competent for the mine-owner, though he might stop it, to foul or corrupt the same, to the injury of the proprietors upon the stream. To that extent, if suffered to flow, it had the incidents of a natural stream, even as against the one who had created it." (Washburn on Easements and Servitudes, 296.) Blanchard & Weeks Ld. Cas. on Mines, Mineral and Water Rights, p. 822. 21 |