67 Iowa 396 | Iowa | 1885
I. The plaintiff claims that he is the owner of certain land in Cherokee county, and that lie leased part thereof to the defendant George Saterlee for mining purposes; that in 1879, while boring for coal on said land, Saterlee struck three distinct veins of water, one of which is magnetic, and possesses medical properties of great value; that pipes were put in said well in the year 1879, so that the veins of water flow high enough above the surface of the ground that the water can be distributed to bath rooms built near said wrell; that in 1880 the plaintiff conveyed a half interest in the well, and in eight acres of land surrounding the same, to said Saterlee, and in the latter part of that year the defendants conveyed all their interest in said well and land to the plaintiff for the consideration of $2,500, and the defendants surrendered to the plaintiff all right to the well and to the land
The evidence shows that by an observance of this decree both parties will have an ample supply of water for all purposes, and neither will have just cause of complaint against the other. The defendants ought to be satisfied with the decree. It is nothing more than an exemplification of the broad equitable principle that a person ought to use his own in such a way as not to injure another, when it can be done without injury to himself. But the defendants insist that, when one in good faith sinks a well on his own land, the owner of a well on the adjoining land has no cause of complaint if the water from his well is drawn off or decreased by percolation through the earth. That this is a correct proposition of law seems to be well settled. See Hougan v. Milwaukee & St. P. R. Co., 35 Iowa, 558, and authorities there cited. Defendants’ counsel have cited many authorities in support of this proposition. These authorities, however, as counsel concede, are quite decisive on another proposition, which is that, when subterranean water flows in a distinct channel, an
In Gould, Waters, § 281, the ruléis thus announced: “ If underground currents of water flow in clearly-defined channels, the rule of law which governs the use of similar streams flowing upon the surface is applicable to them. * * An action will equally lie for the obstruction or misuse of a subterranean stream or of surface water after it has become a part of an open stream or spring, and the owner of land has no right to construct his well or other structure in such manner as to create upon his own land an artificial underground current from a running stream.” And see, also,' Washburn on Easements, 347, and Angelí on Water-courses, § 112.
All of the cases define underground streams which one proprietor of land may not divert from those of the adjoining owner as those having clearly-defined channels, and it must be admitted that this fact is very difficult to establish by evidence. But here we have a case of two flowing wells. The evidence shows conclusively that the water does-not percolate or filter through the earth from one to the other. When the defendants, in boring their well, struck the vein, the water almost immediately ceased to flow from the plaintiff’s well, and the water that did come to plaintiff’s well was filled with sand, which, no doubt, was caused by the disturbance of the ■vein or stream by the operations in defendants’ well;- and; when the auger used in boring defendants’ well was removed,, the v'ell of plaintiff ceased to flow. And, pending the- trial,, the defendants admitted of record “ that the vein tapped by-. Mr. Saterlee's well is the same vein which supplies the well) first sunk on the property now owned by Burroughs;” (the-well in controversy;) and this was nothing but an admission of a fact that was not disputed and could not be controverted! on the trial. When the discharge-pipe on defendants’ well is, lower than that on plaintiff’s well, all of the water flows from-defendants’well; and when the change is made, the water-finds its way, not by mere filtration, but file effect is immediate.
Affirmed.