the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be protected in the same, and the right of way for the construction of ditches and canals for the purposes aforesaid are hereby acknowledged and confirmed. This statute has been construed as recognizing vested rights, and of impressing the public lands with an easement for the purposes mentioned, subject to which easement the locator acquires his title to property forming a part of the public domain.2

3

This question includes the well-settled rule that he who first appropriates water and puts it to a beneficial use, to the extent so used, whether for hydraulic mining or for propelling machinery, acquires a superior right to it, to the extent that he has put it to a beneficial use, to the exclusion of any other appropriator, whether the same is conveyed to his property through surface or subsurface channels; and he is entitled to have it flow without material interruption," and is protected from damage by subsequent locators above or below him; and where he has diverted it for a particular claim, he may afterwards change the place of diversion, so as to use it on another claim, without losing his priority of right.7

Discussing this statute the United States supreme court say: "We are of opinion that it is the established doctrine of this court that rights of miners, who had taken posses

1R. S. U. S., § 2339; 14 Stat. at L.

253.

2 Broder v. Natoma Water Co., 101 U. S. 274; Jennison v. Kirk, 98 U. S. 453; Forbes v. Gracy, 94 U. S. 762; Basey v. Gallagher, 87 U. S. 452. And he has the right to appropriate it through natural channels or by artificial means. Hoffman v. Stone, 7 Cal. 46. And the doctrine of riparian rights does not apply. Atchison v. Peterson, 20 Wall. 507, 87 U. S. 414.

3 Ortman v. Dixon, 13 Cal. 33.

4 Jennison v. Kirk, supra; Broder v. Natoma Water Co.. supra; Hobart v. Ford, 6 Nev. 77. See also Barnes v. Sabron, 10 Nev. 217; Ezmond v. Chew, 15 Cal. 137.

5 Bear River & Auburn W. & M. Co. v. New York M. Co., 8 Cal. 327.

6 Hill v. King, 8 Cal. 336; Hill v. Smith, 27 Cal. 476; Suffolk G. M. & M. Co. v. San Miguel Cons. M. & M. Co., 9 Colo. App. 407, 48 Pac. Rep. 828.

7 Davis v. Gale, 32 Cal. 26.

.

sion of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations, are rights which the government had by its conduct recognized and encouraged and was bound to protect before the passage of the act of 1866, and that the section of the act which we have quoted was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one."1

The supreme court of Utah recognized this rule to the extent of allowing a person who dug out a spring on public land to the depth of two or three feet, from which he obtained a fair flow of water, to hold the waters flowing from such spring or well to the exclusion of subsequent locators of the ground upon which it is situated.'

The statute of Oregon classes interests in ditches for mining purposes as real estate, and the supreme court of that state, in construing this section, has held, what would seem to be a logical construction of it, that, such rights being real estate, interests in them can only be conveyed by deed.

§ 331. Percolating waters part of soil-Owner of soil not liable for diversion of. It is a well-settled rule of law that percolating water is a part of the soil and belongs to the owner thereof. The water of wells, as also that tapped in a tunnel, shaft or incline, is generally classed under this head. It is well settled in this country that the mine owner, who in the due course of mining, and without malice or negligence, taps and drains or decreases the flow of underground channels supplying the spring upon adjoining lands, is not liable to any other party whose spring is thus de

1 Broder v. Natoma Water Co., ante, p. 229, note 2.

2 Sullivan v. Northern Spy M. Co., 11 Utah, 438, 40 Pac. Rep. 709.

3 Hill's Annotated Code of Oregon, § 3833.

4 Mattis v. Hosmer (Oreg.), 62 Pac. Rep. 17.

'Sullivan v. Northern Spy M. Co.. 11 Utah, 438, 40 Pac. Rep. 709; Acton v. Blundell, 12 M. & W. 324.

stroyed. As said by the supreme court of Pennsylvania: "Percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land. Accordingly, the law has never gone so far as to recognize in one man a right to convert another's farm to his own use for a filter. Such a claim, if sustained, would amount to a total abrogation of the rights of property. "2 And again: "The proprietor of land may, in the proper use of his land for mining, or any other useful purpose, cut off or divert subterraneous water flowing through it to the land of his neighbor without any responsibility to that neighbor." It would seem well settled, then, that for the diversion of percolating water, in the ordinary course of mining, the mine owner is not liable so long as he pursues his mining operations in a legitimate manner, even though he may destroy his neighbor's well or spring. In such case the injury done his neighbor is damnum absque injuria.

§ 332. Distinction between percolating waters and underground currents.- Distinction has been sought to be made between underground percolating water and water flowing through an underground current; the authorities. generally holding that while a party who destroys the flow of his neighbor's well, by diverting percolating waters under

1 Haldeman v. Bruckhart, 45 Pa. St. 514; Chase v. Silverstone, 62 Me. 175; Roath v. Driscoll, 20 Conn. 533; Mosier v. Caldwell, 7 Nev. 363. Compare Herriman Irr. Co. v. Butterfield M. Co., 19 Utah, 453, 57 Pac. Rep. 537.

2 Wheatley v. Baugh, 25 Pa. St. 528; Chasemore v. Richards, 7 H. L. C. 349; Wood v. Wand, 3 Exch. 748; Wright v. Howard, 1 S. & S. 190.

3 Haldeman v. Bruckhart, supra. Hansen v. McCue, 42 Cal. 303; Crescent M. Co. v. Silver King M.

Co., 17 Utah, 444, 54 Pac. Rep. 244; Wheatley v. Baugh, supra; Village of Delhi v. Youmans, 50 Barb. 316, 45 N. Y. 362; Southern Pac. Ry. Co. v. Dufour, 95 Cal. 615, 30 Pac. Rep. 783; Cross v. Kits, 69 Cal. 217, 10 Pac. Rep. 409; Ellis v. Duncan, 21 Barb. 230; Ely v. Ferguson, 91 Cal. 187, 27 Pac. Rep. 587.

5 Acton v. Blundell, 12 M. & W. 344, 348; Strait v. Brown, 16 Nev. 317; Balston v. Bensted, 1 Campbell, 463; Rostrum v. Taylor, 11 Exch. 369; Chatfield v. Wilson, 28 Vt. 49.

neath the ground upon which it is dug, is not liable therefor, still, if such water flows underneath his neighbor's ground through a defined current or course, he is liable for such diversion. The reasoning of the courts in these cases seems to be to the effect that water flowing through subsur face channels, capable of being defined and established, does not differ from that flowing upon the surface, the same rule of law being applicable to both. Thus, in an early California case it was held that underground currents of water flowing in definite channels are known to exist in considerable volume, particularly in limestone regions; and where their existence is shown, there is no doubt, either upon reason or authority, that the rules of law which govern similar streams flowing upon the surface are applicable to them; and that no one, merely because he is the proprietor of the soil through which it passes, can claim the corpus of the water or the flowing stream, or intercept it in its natural descent to the lands of the proprietor below.*

The supreme court of Nevada has gone pretty nearly to the danger line in holding that where water flowing from a spring had sunk into the earth above the lands of the plaintiff, and found its way, underneath the surface, to his lake or slough, from which slough he had taken water for several years, he had thus acquired a right to take water by prior appropriation, and that another party would not be permitted to divert this water above the point where it sunk into the earth. This case seems to have been decided upon the theory that it was established in the court below that this water flowed through an underground current which was well defined. This being true, of course the case would fall within the rule of the other cases upon the subject. But we think an examination of this, and the other cases on the

See authorities ante, § 331. 2 See authorities in note 5, ante, p. 301.

3 Hansen v. McCue, infra; Dickinson v. Grand Junction Canal Co., 7 Exch. 282, 21 L. J. Exch. 241; Last

Chance Water Ditch Co. v. Heilbron, 86 Cal. 1, 26 Pac. Rep. 523.

4 Hansen v. McCue, 42 Cal. 303, 308. See also Herriman Irrig. Co. v. Butterfield M. Co., 19 Utah, 453. 5 Strait v. Brown, 16 Nev. 317.

subject, will demonstrate, what we have always understood to be the true rule, that the existence or non-existence of an underground channel must always be a question of fact, to be proved like any other fact in the case, and that the burden of establishing the existence of such underground channels would be upon the party asserting it.

To constitute a water-course above or below the surface in which rights can be acquired, the flow must possess that unity of character by which it can be identified.1

1 Briscoe v. Dwight, 11 Ir. C. L. R. 250. See also Ewart v. Belfast Poor Law Guardians, 9 L. R. Ir. 172;

McNab v. Robertson, 66 L. J. P. C. 27, 75 L. T. 666.