147 P. 496 | Idaho | 1915
— This is an appeal from a judgment entered in the district court of the fourth judicial district in Twin Falls county, in favor of the respondents, perpetually injoining appellants from driving or maintaining an artesian well on lot 5; or from in any manner or by any means interfering with the waters flowing or which might flow from respondents’ wells, which are located on lot 4, adjoining appellants-’ said lot; or from doing any act that would interfere with the flow or use of the water flowing from the wells of respondents.
It appears from the record that some years prior to the commencement of this action, respondents- sunk several artesian wells upon lot 4, section 31, township 11 south, range 20 east, B. M. Two of these wells were dug to a depth of 360 feet, and are but a few feet apart, discharging the water flowing therefrom into a cement tank built around said wells. It further appears that before the cement tank was built, a well was dug where the tank now stands and still discharges some water underneath the tank. There is another well located about ten feet north of the cement tank and still another about 100 feet west of said tank. All of the wells outside the cement basin flow a limited amount of water and vary in depth from 110 feet to 320 feet. A measurement of all of the water flowing from respondents’ wells was made prior to the bringing of this suit, and showed a combined flow of 254 inches.
Before the commencement of this action in the district court, and prior to the issuance of the injunction herein, appellants had commenced the drilling of an artesian well upon said lot 5, adjacent to the property of the respondents and within 300 feet of respondents’ wells, and had reached a depth of approximately 200 feet when they were enjoined from further prosecuting said work.
There is evidence in the record to the effect that 'when the respondents’ large well, which is located within the cement tank, was drilled, it was of sufficient size to admit an eight-inch easing down to a depth of about 85 feet, and that eight-inch casing was used to that depth, at which point it became necessary to reduce the diameter of said well to six inches, from which point a six-inch casing was continued down to the present depth of the well. Said six-inch casing was telescoped inside the eight-inch casing, and when the water-gate, or valve, which controls the flow of the water at the top of the pipe was placed, the same was screwed into- the eight-inch casing, instead of the six-inch casing, and when this valve is closed to shut off the flow of water, the pressure forces the water down between the casings and it escapes at the bottom of the eight-inch casing, about eighty-five feet below the surface of the ground. At the time this action was- brought, the appellants’ well was flowing about three inches of water. When the respondents’ large well within the cement tank is shut -off, or partially shut off, within a few minutes thereafter the appellants’ well will commence to flow an increased amount of water to the extent of twenty-five or thirty inches, and the small wells heretofore referred to, on- the respond
Appellants filed a demurrer to respondents’ complaint and the same was by the trial judge overruled. We have examined the respondents’ complaint and in our opinion it states a cause of action. Therefore, the court did not err in overruling appellants’ demurrer.
It is next contended that the court erred in overruling a motion for nonsuit made by the appellant at the close of the introduction of respondents’ evidence.
The first, third and fourth assignments of error set out in support of appellants’ motion for nonsuit are, as we view the facts in this ease, without merit, and we do not consider said assignments of sufficient importance to discuss them at this time, other than to say that they involve questions that will be considered and determined by this court in reaching its conclusion upon the merits of this case.
The second assignment of error urged in support of appellants’ motion for nonsuit is entitled to consideration, and is as follows: “The evidence shows without conflict that the plaintiffs were not the owners of the water coming from what are called the Bowers wells, but that such water is owned by the Artesian Water Company, an Idaho corporation, and that no rights to any of the waters of said wells which plaintiffs may have, have ever been interfered with by the sinking of defendants’ well.” Counsel for appellants contend that the plaintiffs below, by reason of having conveyed by deed the right to the use of the waters flowing from the wells located upon plaintiffs’ premises to the Artesian Water Company, a corporation, during the irrigation season and for the balance of the year such an amount only as was necessary for domestic purposes, prior to the commencement of this action
It appears from the record in this case that about September, 1909, the respondents, by -deed, conveyed to the Artesian Water Company, a corporation, 262 inches of water flowing and to flow from the wells in question, located upon respondent’s land, for use during irrigation season, and during the balance of the season such an amount of water as was necessary for domestic purposes; the grantors retaining control of the waters and the possession of the land upon which the wells are situated, and also retaining the right to- control the flow of the water to the place or places of distribution to the consumers. It also appears that the respondents were virtually the owners of all of the capital stock of said Artesian Water Company, and that Bower and his wife were president and secretary, respectively, of said corporation.
Sec. 4090, Bev. Codes, provides: “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by this code.” In the case of Van Camp v. Board of County Commrs., 2 Ida. 29, 2 Pac. 721, this court said: “ .... It would be the duty of the court to look beyond the mere title to ascertain who are interested and affected as parties.” We think the general rule to be that “Although a legal title is necessary for a standing as piaintifE in a court of law, it does not follow that the complete legal title is necessary. Thus, any person may sue for an interference with the possession if he has the right to the immediate possession as against defendant.” (30' Cyc., p. 34, par. 3.) Sec. 4105, Eev. Codes, provides that “ . When the question is one of a common or general interest of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” And as said by the court in the case of Olds v. Cummings, 31 Ill. 188: £ £ Courts of equity will not be confined to legal forms and legal titles, but look beyond these, to the substantial, equitable rights of parties.” In the case of Gilpin v. Sierra Nev. Con. Min. Co., 2 Ida. 696, 23 Pac. 547, 1014, it is said: “ . . . . Nonjoinder
From the above statement of facts, and under the authorities cited, it clearly appears that the respondents were the real parties in interest, and had the right to maintain this action against the appellants for interfering with the water of said wells, the same being lawfully in their possession, although they were obligated under their deed to deliver water to the users thereof at some distant point. The respondents were entitled to the right to the use of water flowing from said wells by reason of prior appropriation, provided said water had been put to a beneficial use. Therefore, the court did not err in denying appellants ’ motion for a nonsuit.
The trial court in its findings of fact, among other things, found that the loss of water in respondents’ well was caused directly or indirectly by the sinking of appellants’ well, which was manifested by the increased flow therefrom; that the further sinking of appellants’ well would endanger the supply of the water flowing from the respondents’ well, in case the appellants should secure a portion of the artesian flow now coming through the respondents’ well, which they could not, by gravity flow, replace in the cement tank or basin surrounding the large wells of the respondents, and that the construction of appellants’ well had opened a direct channel or communication with the same artesian belt or basin tapped by the respondents. Appellants insist that the findings of the court are not supported by the evidence, and the testimony without material.conflict establishes the fact that if any loss occurred in the Bower wells by the sinking of appellants’ well, such loss was the fault of the respondents, by permitting a defective easing to exist in the large well; that there was no evidence to support the court’s findings that the further sinking of appellants’ well will endanger the supply of water flowing from respondents’ well; that there is no evidence to show that the water, if obtained in appellants’ well, could not be made to flow by gravity to and into the tank surrounding the respondents’ well, and that the evidence utterly fails
There is a substantial conflict in the testimony involving the loss of the flow of water in the large wells of respondents within the cement tank or basin, as to whether the loss was caused by defective construction of respondents’ large well, or by cIoSt ing the valve at the top of the large well, thus forcing the water out of the well at the point where the eight and six-inch pipes are joined, eighty-five feet below the surface of the ground, resulting in the water percolating through the soil into the appellants’ well increasing the flow; or whether the loss was occasioned by appellants’ well, during the construction thereof, coming in direct contact with the underground channel, artesian belt or basin of water from which respondents’ wells are supplied. This being true, under the accepted rule, “Where there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed.” (Heckman v. Espey, 12 Ida. 755, 88 Pac. 80; Hufton v. Hufton, 25 Ida. 96, 136 Pac. 605; Henry Gold Min. Co. v. Henry, 25 Ida. 333, 137 Pac. 523.) When the evidence is extensive and in conflict, findings of the trial court will not be reversed on appeal. (Commercial Trust Co. v. Idaho Brick Co., 25 Ida. 755, 139 Pac. 1004.)
It is now necessary to decide whether the findings of fact made by the trial court are sufficient to support the judgment, and in doing so there are three pertinent questions to be considered: First, the right of a land owner to drive a well on his own land in order to obtain subterranean waters; second, to what depth and under what conditions may a well be driven before a permanent injunction will lie at the instance of an adjoining land owner, who is a prior appropriator of subterranean waters, for an interference with the flow of water in said adjoining land owner’s well; third, are subterranean waters in this state subject to appropriation for a beneficial use.
Percolating waters have been defined by the supreme court of California, in the case of Los Angeles v. Hunter, 156 Cal. 603, as “vagrant, wandering drops moving by gravity in any
While the law governing the right to the use of percolating waters is new in this state, there are many decisions, both in England and in the United States, defining the common law and the various statutory enactments which govern the right to the use of percolating waters. In the case of Broadbent v. Ramsbotham, 11 Exch. Rep. 602, the court held: “All the water flowing from Heaven and shed upon the surface of the hill at the foot of which a brook runs must, by the natural course of gravity, find its way to the bottom and so into the brook; but this does not prevent the owner of the land on which it falls from dealing with it as he may please and appropriating it. He cannot do so if the water has arrived at and is flowing in some definite channel.” In the case of Acton v. Blundell, 12 Mees. & W. 324, the court of exchequer was of the opinion that the owner of the surface might apply subterranean water as he pleased, and that any inconvenience to his neighbor from so doing was damnum absque injuria; further observing “that the existence and state of underground waters is generally unknown before a well is made; and after it is made there is the difficulty of knowing exactly 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 belonging to his neighbor. These practical uncertainties made it very reasonable not to apply the rules which regulate the enjoyment of streams and waters above ground to subterranean waters. ’ ’ It might, however, be said that the common law of England was to the effect that percolating waters belonged to the persons owning the land, and could be used by such persons as they might please, without liability to anyone.
Percolating water has not received the attention of legislative bodies that has been given to running water in natural channels or surface water generally, for the reason that it is invisible and requires practical demonstration to determine to what extent, if any, the sinking of additional wells; the
In the ease of Acton v. Blundell, supra, the court held that percolating water “falls within the principle which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it be solid rock, or porous ground, or venous earth, or part soil, part water; that the person who owns the surface may dig therein, and apply all that is found to his own purposes at free will and pleasure. ’ ’
Some courts have gone so far as to hold that one may purchase land in order to secure the percolating water for the purpose of furnishing a municipal water supply, and not be liable to the owners of the adjoining land, although the wells thereon be destroyed. In the case of Huber v. Merkle, 117 Wis. 355, 98 Am. St. 933, 94 N. W. 354, 62 L. R. A. 589— a comparatively recent case — the supreme court held in substance, that a land owner has the right to sink a well on his own land and use the water therefrom for any purpose he chooses, or even to allow it to flow away, regardless of the effect on his neighbor’s wells, and that such right is not affected by malicious intent. The reason for the rule is announced in the case of Chatfield v. Wilson, 28 Vt. 49, as follows: “The secret, changeable, and uncontrollable character of underground water in its operations is so diverse and uncertain that we cannot well subject it to the regulations of law, nor build upon it a system of rules, as is done in the case of surface streams.” In the case of Greenleaf v. Francis, 18 Pick. (Mass.) 117, where the lots of the plaintiff and defendant adjoined each other, the plaintiff’s well was dug fourteen years prior to the time the defendant dug his well. By the digging of defendant’s well the water in plaintiff’s well was very materially diminished. The court held in effect that everyone has the liberty of doing in his own ground whatsoever he pleases, even though it should occasion to his neigh
Under the common law of England, adopted in whole or in part as the law of this country by several of the states in the Union, confusion has resulted rather than uniform enactment of legislation controlling the right to the use of percolating waters. The supreme court of California, in the case of Katz v. Walkinshaw, found in 141 Cal. 116, 99 Am. St. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, refused to follow the English rule or to recognize decisions of the state of Wisconsin and the rule of law as announced of a similar character by several other states relative to the ownership of percolating waters in California. However, in that case there were some facts which differ from the facts in the case at bar. There was also involved the further proposition, viz., whether one who has developed artesian wells within a catch or artesian basin has the right to conduct the water beyond the artesian belt or basin, and thus deprive land owners within such artesian belt or basin of the right to the use of underlying waters for beneficial purposes. That court adopted what it was pleased to term the doctrine of “reasonable use,” or “correlative rights,” for the purpose of affording protection to the owners of property within an artesian belt or basin, in order to encourage proper development of the lands located within such basin; holding in effect that each land owner of soil lying in a belt which became saturated with percolating water was entitled to a reasonable use thereof on his own land, notwithstanding such reasonable use inter
Where percolating water exists in a state of nature generally throughout a tract of land that has been subdivided, the ownership of which is held in different proprietors, it would seem to be an impossible rule to adopt, whereby each proprietor is given the absolute right to withdraw all of the percolating waters underneath the ground owned by each one, by the driving of wells and installing of powerful pumps, or the withdrawal of the waters in any other manner that might be possible by reason of recent inventions, and thus destroy the benefits made possible by the proper regulation of percolating waters obtained by any of the above methods, for a beneficial use; and an injunction will issue to restrain any permanent interference by an adjacent land owner with the right to the use of subterranean waters acquired by a prior appropriator. No doubt, in many instances, it can be positively demonstrated that underground waters exist in large quantities, and where that can be done, a solution of the difficulties incident to the right to the use of percolating waters might be readily arrived at. However, where there exists great uncertainty as to the amount of underground water and the damage incident to the destruction and entire loss of the flow of the same—
The appellants are the owners in fee of an acre of land located in lot 5, section 6, township 12 south of range 20, east of Boise meridian, in Cassia county, Idaho, situated within 300 feet of the cement basin within which the large wells of the respondents are located.- This acre of lan d was purchased, as appears from the record, for the express purpose of constructing thereon a flowing well or wells in order to obtain water to irrigate a considerable tract of land owned by the appellants about a mile and one-quarter northeast of said lot 5. After appellants had sunk their well about 200 feet, respondents brought suit in the district court and secured an order restraining appellants from further prosecuting the work of sinking their well, alleging that in so doing the flow of water in respondents’ wells was interfered with and materially lessened.
A land owner may discover by the use of modem appliances in driving wells, a flow of water sufficient in quantity to properly irrigate a considerable tract -of land, and relying upon his right to the use of the water discovered and brought under his control, expend a considerable amount of money in improvements, making his homestead attractive to his neighbor by reason of advanced development of his 'crops, fruit trees and shrubbery. The neighbor thereupon undertakes to discover the same source of water supply, and in order to make assurance doubly sure, begins the construction of his well as close as possible to the well of the first appropriator; and in digging this well a crevasse might be opened and the entire water supply lost, or an additional water supply found, ample for the needs of both. Thus, the importance of the question, as to what extent and under what conditions a junior appropriator of subterranean water may be permitted to prospect for said subterranean water, is impressed upon us.
Sec. 3242, Rev. Codes, provides that “The right to the use of waters of rivers, streams, lakes, springs and subterranean waters may be acquired by appropriation. ’ ’ In the case of Le Quime v. Chambers, 15 Ida. 405, 98 Pac. 415, 21 L. R. A.,
The evidence offered by the respondents in this case to establish the loss of water in their wells by reason of the construction of the appellants’ well is not as clear and conclusive as we think it should be in a ease of this character, in order to justify the issuance of a perpetual injunction. There is evidence in the record that establishes the theory of appellants, that the cause of the loss of the 36 miner’s inches of water in the Bower wells between September 5, 1912, and November 17, 1912, was caused by capping the large Bower well and forcing the water to escape through the joint where the eight-inch pipe connects with the six-inch pipe, thus filling the ground with water which found its way into the Moorman well. This conclusion is further established by the fact that the small wells upon the Bower lands would increase their flow to approximately the same extent as appellants’ well, when respondents’ large well within the cement basin was shut down. Had the wells been permitted to flow freely without any obstruction and in the usual and ordinary manner, it could then easily have been determined whether there was a loss of water in the Bower wells, and if this were found to be true, it would necessarily f ollow that it was caused by reason of the construe
If the sinking of the Moorman well to the depth that the larger Bower wells have been sunk, or to a greater depth, would not interfere with the flow of the water in the Bower wells, or if there was a loss of water in the Bower wells that could be returned without material damages to respondents’ well and at the same time the Moorman well be supplied with water, the court would not be justified in preventing the completion of the Moorman well.
If the construction of appellants’ well as found by the court has opened up a direct channel or communication with the same artesian belt or basin tapped by the Bower wells located in the tank, from which the same are supplied with water, the court would not be justified in issuing a perpetual injunction enjoining appellants from sinking their well, unless it was further conclusively established that by reason of the appellants’ well coming in contact with the channel or artesian belt or basin, which supplied water to the Bower wells, it resulted in the permanent loss of water in the Bower wells, which water could not be replaced from the well of the appellants without permanent injury to respondents. The fact that the further sinking of appellants well would endanger the supply of water to respondents’ well is not, in and of itself, sufficient to support the judgment. It must further appear that the sinking of appellants’ well did not only endanger the loss of water in
In our opinion the findings do not support the judgment. Therefore, in view of the conclusions reached by this court, it will be necessary to remand this ease to the trial court with directions to suspend the perpetual injunction heretofore entered, and allow appellants to continue the sinking of the well situated upon said lot five, until it is conclusively established 'that respondents’ well will sustain a permanent loss in the supply of water by reason of the construction or final completion of appellants’ well; and that said loss of water cannot be returned to the diversion works of the respondents from the well of the appellants without material and permanent damage to the diversion works, and a surplus flow of water obtained for the use and benefit of the appellants. Should it later appear to the trial court that the flow of water in respondents’ well is actually diminished by reason of the construction of appellants’ well, and that said flow cannot be supplied from the well of the appellants, whereby respondents will suffer the permanent loss of the water heretofore appropriated and put to a beneficial use by them, said injunction should be restored and the well of the appellants permanently closed.
Each party to this suit shall pay its own costs.