LEAH J. KATZ, Executrix, etc., et al., Appellants, v. MARGARET D. WALKINSHAW, Respondent
L. A. No. 967
In Bank. Supreme Court of California
November 28, 1903
141 Cal. 116
Cooper, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Lorigan, J., Henshaw, J.
WATER-RIGHTS — PERCOLATING WATER — ARTESIAN BELT — RIPARIAN RIGHTS. — An underground body of water lying in an artesian belt, which does not flow in any defined stream, but is produced by percolation through saturated soil, and is pressed forward by water accumulating from ravines, cañons, and streams above, pressing down into the soil by percolation, is not a watercourse, and is not governed by the law of riparian rights.
ID. — RIGHTS OF OWNERS OF PERCOLATING WATER — REASONABLE USE — INTERFERENCE WITH PERCOLATION. — Each owner of soil lying in a belt which becomes saturated with percolating water is entitled to a reasonable use thereof on his own land, notwithstanding such reasonable use may interfere with water percolation in his neighbors’ soil; but he has no right to injure his neighbors by an unreasonable diversion of the water percolating in the belt for the purpose of sale or carriage to distant lands.
ID. — MAXIM APPLICABLE. — The maxim, Sic utere tuo ut alienum non lædas, is applicable as between adjoining users of percolating water, whenever justice requires its application.
ID. — DIVERSION FROM ARTESIAN BELT FOR SALE — INJUNCTION. — The owners of artesian wells sunk in an artesian belt of percolating water, the waters from which are necessary for domestic use and irrigation of their lands, on which are growing trees, vines, shrubbery, and other plants of great value, are entitled to an injunction to restrain the diversion of the water percolating in the artesian belt, by an owner of land situated in the belt, for the purpose of conveying the same to distant lands for sale, to the irreparable injury of the plaintiffs.
ID. — PLEADING — SUBTERRANEAN STREAM — INJURY TO ARTESIAN WELLS — SURPLUSAGE. — Where the complaint for the injunction stated in substance that plaintiffs had wells in their respective tracts, from which water flowed to the surface of the ground, which was necessary for domestic use and irrigation of their lands, and that the defendant by means of wells and excavations on her own lands
ID. — EVIDENCE — IMPROPER NONSUIT. — Where the evidence supported the cause of action for wrongful diversion of percolating water from the lands of plaintiffs to their irreparable injury, a nonsuit should not have been granted, though the allegation of diversion from a subterranean stream was not proved.
ID. — APPLICABILITY OF COMMON LAW — VARYING CONDITIONS — CESSATION OF RULE. — Such parts of the common law of England as are not adapted to our condition, form no part of the law of this state. The common law, by its own principle, adapts itself to varying conditions, and modifies its rules so as to subserve the ends of justice under different circumstances, and recognizes the principle embodied in section 3510 of the Civil Code, that “when the reason of a rule ceases, so should the rule.”
ID. — RULE AS TO PERCOLATING WATER INAPPLICABLE. — The common-law rule that percolating water belongs unqualifiedly to the owner of the soil, and that he has the absolute right to extract and sell it, is not applicable to the conditions existing in a large part of this state, where artificial irrigation is essential to agriculture, and artesian wells in percolating belts are necessarily used for that purpose.
ID. — DIFFICULTIES IN PREVENTING DIVERSION. — The difficulties that the courts will meet in securing persons necessarily using percolating water for irrigation by means of artesian wells from the infliction of great wrong and injustice by its diversion, if property right therein is recognized, cannot justify the court in abandoning the task as impossible. The courts can protect this particular species of property in water as effectually as water-rights of any other description.
ID. — RULES APPLICABLE — PRIORITY — CORRELATIVE RIGHTS — INJUNCTIONS. — The rules respecting priority of appropriation and correlative rights in regard to the appropriation and use of percolating water include the right to appropriate any surplus not needed for use by well-owners on their lands, and an equitable adjustment of disputes between overlying landowners, where the supply is insufficient for all, and proper rules relative to injunctions and the remedy at law should be applied to the solution of questions arising in the courts as to such waters.
APPEAL from a judgment of the Superior Court of San Bernardino County. John L. Campbell, Judge.
The main facts are stated in the opinion of the court on the original hearing in Bank. Further facts are stated in the opinion of the court on rehearing.
One cannot divert surface, or underground, or percolating water to the injury of another, unless it is done to protect or benefit his own land. He cannot conduct it to a distance on other lands or divert it so as to injure his neighbor‘s land. (Case v. Hoffman, 84 Wis. 438; Gould on Waters, 263; Bassett v. Salisbury Mfg. Co., 43 N. H. 569;2 Sweet v. Cutter, 50 N. H. 439;3 Bartlett v. O‘Connor, (Cal.) 36 Pac. Rep. 513; Wheatley v. Baugh, 25 Pa. St. 528;4 Herriman Irr. Co. v. Butterfield Min. etc. Co., 19 Utah, 453; Smith v. City of Brooklyn, 18 App. Div. 340;
Notes
The true doctrine is, that the common law by its own principles adapts itself to varying conditions, and modifies its own rules so as to serve the ends of justice under the different circumstances, a principle adopted into our code by
It is necessary, therefore, to state the conditions existing in many parts of this state which are different from those existing where the rule had its origin.
The water thus obtained from all these sources is now used with the utmost economy, and is devoted to the production of
It is scarcely necessary to state the conditions existing in other countries referred to, to show that they are vastly different from those above stated. There the rainfall is abundant, and water, instead of being of almost priceless value, is a substance that in many instances is to be gotten rid of rather than preserved. Drainage is there an important process in the development of the productive capacity of the land, and irrigation is unknown. The lands that from their situation in this country are classed as damp lands would in those countries be either covered by lakes or would be swamps and bogs. If one is deprived of water in those regions, there is usually little difficulty in obtaining a sufficient supply near by, and at small expense. The country is interlaced with streams of all sizes from the smallest brooklet up to large navigable rivers, and the question of the water supply has but little to do with the progress or prosperity of the country.
“The good old rule
Sufficeth them, the simple plan,
That they should take who have the power,
And they should keep who can.”
The field is open for exploitation to every man who covets the possessions of another or the water which sustains and preserves them, and he is at liberty to take that water if he has the means to do so, and no law will prevent or interfere with him or preserve his victim from the attack. The difficulties to be encountered must be insurmountable to justify the adoption or continuance of a rule which brings about such consequences.
The claim that the doctrine stated by Mr. Justice Temple is contrary to all the decisions of this court is not sustained by an examination of the cases. The decisions have not been harmonious, and in many of them what is said on this subject is mere dictum. A brief review of the cases will demonstrate this to be true. In Hanson v. McCue, 42 Cal. 303,1 — the first case on the subject, — it was not necessary for the court to say anything at all with respect to the right of a landowner to complain of a diversion of percolating waters. McCue‘s predecessor had made a ditch leading from a spring on his land across a tract of land belonging to Hanson‘s predecessor, and terminating upon another tract, also owned by McCue‘s pre-
Excluding the cases in which the statement of the doctrine of absolute ownership is dictum, and looking to what has been actually decided, we have remaining only Cross v. Kitts, 69 Cal. 217,1 holding that the owner of a mining claim, whose predecessor had granted a stream made up of percolating water collected by means of a tunnel, could not, even in the ordinary mining of his own land, interfere with the flow of the percolating water to the tunnel; Southern Pacific R. R. Co. v. Dufour, 95 Cal. 616, holding that a landowner can divert, for use on his own land, percolating water which feeds a spring rising on the land and flowing to an adjoining owner, although the diversion destroys the spring; Bartlett v. O‘Connor, 36 Pac. (Cal.) 513, holding that such a diversion cannot be made in the process of draining the land for reclamation, where the draining and reclamation can be accomplished by another mode without diminishing the stream, and the mode used is adopted with the intention to injure the lower proprietor; and Gould v. Eaton, 111 Cal. 639,2 declaring, in effect, that percolating water may be prevented from reaching a natural stream to the injury of a riparian owner, although the percolations are neither taken for use on the land where the diversion is made, nor in the use or reclamation of the land, but for use on other land distant from both the stream and the percolations. In view of this conflicting and uncertain condition of the authorities, it cannot be successfully claimed that the doctrine of absolute
We do not see how the doctrine contended for by defendant could ever become a rule of property of any value. Its distinctive feature is the proposition that no property rights exist in such waters except while they remain in the soil of the landowner; that he has no right either to have them continue to pass into his land, as they would under natural conditions, or to prevent them from being drawn out of his land by an interference with natural conditions on neighboring land. Such right as he has is therefore one which he cannot protect or enforce by a resort to legal means, and one which he cannot depend on to continue permanently or for any definite period.
It is apparent that the parties who have asked for a reconsideration of this case, and other persons of the same class, if the rule for which they contend is the law, or no law, of the land, will be constantly threatened with danger of utter destruction of the valuable enterprises and systems of waterworks which they control, and that all new enterprises of the same sort will be subject to the same peril. They will have absolutely no protection in law against others having stronger pumps, deeper wells, or a more favorable situation, who can thereby take from them unlimited quantities of the water, reaching to the entire supply, and without regard to the place
The doctrine of reasonable use, on the other hand, affords some measure of protection to property now existing, and greater justification for the attempt to make new developments. It limits the right of others to such amount of water as may be necessary for some useful purpose in connection with the land from which it is taken. If, as is claimed in the argument, such water-bearing land is generally worthless except for the water which it contains, then the quantity that could be used on the land would be nominal, and injunctions could not be obtained, or substantial damages awarded, against those who carry it to distant lands. So far as the active interference of others is concerned, therefore, the danger to such undertakings is much less, and the incentive to development much greater, from the doctrine of reasonable use than from the contrary rule. No doubt there will be inconvenience from attacks on the title to waters appropriated for use on distant lands made by persons who claim the right to the reasonable use of such waters on their own lands. Similar difficulties have arisen and now exist with respect to rights in surface streams, and must always be expected to attend claims to rights in a substance so movable as water. But the courts can protect this particular species of property in water as effectually as water-rights of any other description.
It may, indeed, become necessary to make new applications of old principles to the new conditions, and possibly to modify some existing rules, in their application to this class of property rights; and in view of the novelty of the doctrine, and the scope of argument, it is not out of place to indicate to some extent how it should be done, although otherwise it would
There will be disputes between persons or corporations claiming rights to take such waters from the same strata or source for use on distant lands. There is no statute on this subject, as there now is concerning appropriations of surface streams, but the case is not without precedent. When the pioneers of 1849 reached this state they found no laws in force governing rights to take waters from surface streams for use on non-riparian lands. Yet it was found that the principles of the common law, although not previously applied to such cases, could be adapted thereto, and were sufficient to define and protect such rights under the new conditions. The same condition existed with respect to rights to mine on public land, and a similar solution was found. (Kelly v. Natoma W. Co., 6 Cal. 108; Conger v. Weaver, 6 Cal. 557;1 Eddy v. Simpson, 3 Cal. 253;2 Hill v. Newman, 5 Cal. 446;3 McDonald v. Bear River etc. Co., 13 Cal. 233.) The principles which, before the adoption of the Civil Code, were applied to protect appropriations and possessory rights in visible streams will, in general, be found applicable to such appropriations of percolating waters, either for public or private use, on distant lands, and will suffice for their protection as against other appropriators. Such rights are usufructuary only, and the first taker who with diligence puts the water in use will have the better right: And in ordinary cases of this character the law of prescriptive titles and rights and the statute of limitations will apply.
63 Am. Dec. 140.In controversies between an appropriator for use on distant land and those who own land overlying the water-bearing strata, there may be two classes of such landowners: those who have used the water on their land before the attempt to appropriate, and those who have not previously used it, but who claim the right afterwards to do so. Under the decision in this case the rights of the first class of landowners are paramount to that of one who takes the water to distant land; but the landowner‘s right extends only to the quantity of water that is necessary for use on his land, and the ap-
Disputes between overlying landowners, concerning water for use on the land, to which they have an equal right, in cases where the supply is insufficient for all, are to be settled by giving to each a fair and just proportion. And here again we leave for future settlement the question as to the priority of rights between such owners who begin the use of the waters at different times. The parties interested in the question are not before us.
In addition, there are some general rules to be applied. In cases involving any class of rights in such waters, preliminary injunctions must be granted, if at all, only upon the clearest showing that there is imminent danger of irreparable and substantial injury, and that the diversion complained of is the real cause. Where the complainant has stood by while the development was made for public use, and has suffered it to proceed at large expense to successful operation, having reasonable cause to believe it would affect his own water supply, the injunction should be refused and the party left to his action for such damages as he can prove. (Fresno etc. Co. v. Southern Pacific Co., 135 Cal. 202; Southern California Ry. Co. v. Slauson, 138 Cal. 342.1) If a party makes no use of the water on his own land, or elsewhere, he should not be allowed to enjoin its use by another who draws it out or intercepts it, or to whom it may go by percolation, although perhaps he may have the right to a decree settling his right to use it when necessary on his own land, if a proper case is made.
The objection that this rule of correlative rights will throw upon the court a duty impossible of performance, that of apportioning an insufficient supply of water among a large number of users, is largely conjectural. No doubt cases can be imagined where the task would be extremely difficult, but
It does not necessarily follow that a rule for the government of rights in percolating water must also be followed as to underground seepages or percolations of mineral oil. Oil is not extracted for use in agriculture, or upon the land from which it is taken, but solely for sale as an article of merchandise, and for use in commerce and manufactures. The conditions under which oil is found and taken from the earth in this state are in no important particulars different from those present in other countries where it is produced. There is no necessary parallel between the conditions respecting the use and development of water and those affecting the production of oil. Whether in a contest between two oil-producers concerning the drawing out by one of the oil from under the land of the other we should follow the rule adopted by the courts of other oil-producing states, or apply a rule better calculated to protect oil not actually developed, is a question not before us and which need not be considered.
With regard to the doctrine of reasonable use of percolating waters, we adhere to the views expressed in the former opinion.
The judgment of the court below is reversed and a new trial ordered.
McFarland, J., Van Dyke, J., Henshaw, J., Lorigan, J., and Beatty, C. J., concurred.
ANGELLOTTI, J., concurring.—I concur in the judgment and in the views expressed in the opinion of Mr. Justice Temple on the former decision of this case as to the application of the doctrine of reasonable use to percolating waters. When properly applied, it appears clear to me that such doctrine will serve to protect the rights of the owner of realty rather than impair them.
I also concur generally in the views expressed by Mr. Justice Shaw in the majority opinion as to the same subject-matter, but several important questions are discussed that
The following is the opinion of the court rendered in Bank on the former hearing, per Temple, J., November 7, 1902, referred to in the above opinion on rehearing:—
TEMPLE, J.—This appeal is taken from a judgment of nonsuit, entered against plaintiffs on motion of defendant.
The action was brought to enjoin defendant from drawing off and diverting water from an artesian belt, which is in part on or under the premises of plaintiffs, and to the water of which they have sunk wells, thereby causing the water to rise and flow upon the premises of plaintiffs, and which they aver had constantly so flowed for twenty years before the wrong complained of was committed by defendant. The water is necessary for domestic purposes and for irrigating the lands of plaintiffs, upon which there are growing trees, vines, shrubbery, and other plants, which are of great value to plaintiffs. All of said plants will perish, and plaintiffs will be greatly and irreparably injured if the defendant is allowed to divert the water.
These facts are admitted, and further, that defendant is diverting the water for sale, to be used on lands of others distant from the saturated belt from which the artesian water is derived.
The plaintiffs contend that this subsurface water constitutes an underground stream, and that plaintiffs are riparian thereto, and as such riparian owners they are seeking relief in this case.
The defendant denies that she is taking or diverting water from an underground stream or watercourse, and alleges that all the water which rises in the artesian wells on her premises, and which she is selling, is percolating water, and is parcel of her premises, and her property.
In effect, therefore, while denying that she is doing any act of which plaintiffs can complain, she really only denies that she is diverting water from an underground watercourse, and asserts her right to dispose of the water in the manner
The court sustained that proposition, and for that reason granted defendant’s motion for nonsuit.
The so-called artesian belt includes several square miles of territory. It is a large accumulation of earth upon the base of very high mountains, and is composed of detritus of varying quantity and material with no regular stratification. Wells have been sunk at least to the depth of seven hundred and fifty feet, but no bed-rock has been found. It has quite an incline from the mountain, and is from seven hundred to fifteen hundred feet above sea-level. Mr. F. C. Finkle, a civil engineer, was the chief witness for the plaintiffs, and testified both as to facts palpable to the senses and as an expert. He says the saturated land is fed, first, by the underflow from the numerous ravines, canons, and streams which enter the valley from the mountains; and secondly, by the rain and flood-water upon, and absorbed upon the slope and between the artesian belt and the mountains. This water percolating down into the soil, and constantly pressed forward by water accumulating, finally gets under partially impervious earth, where it is held under sufficient pressure to create the artesian belt. The banks of this supposed subsurface stream, the witness thought, were on the west, “a cemented dyke which runs through the valley, and the eastern boundary of it is the clay bank or dyke at the south side of the Santa Ana River.” Within these limits many ravines enter from the mountains, some of them carrying at times great quantities of water, much of which had been appropriated and carried off in pipes or cemented aqueducts.
It is evident that if there is any flow to this underground body of water thus held under pressure, it is by percolation. The witness stated that the process was the same the world over. The lower lands are saturated from above. “It is done by saturation from the rainfalls and the floods, and percolation through voids in the soil.”
It is quite manifest that this body (if it can be so styled) of percolating water cannot be called an underground watercourse to which riparian rights can attach, unless we are prepared to abolish all distinction between percolating water and
But appellants contend that though they are not riparian to an underground watercourse, and although the saturated belt carries only percolating water, still they are entitled to the injunction prayed for.
The defense, conceding that the water held in the earth is percolating water, relies upon certain decisions, which assert and apply literally the maxim, Cujus est solum ejus est usque ad inferos. And that water percolating in the ground, or held there in saturation, belongs to the landowners as completely as do the rocks, ground, and other material of which the land is composed, and therefore he may remove it and sell it, or do what he pleases with it. He cites as authority for the proposition, Hanson v. McCue, 42 Cal. 303;1 Southern Pacific R. R. Co., v. Dufour, 95 Cal. 616; Gould v. Eaton, 111 Cal. 641;2 and City of Los Angeles v. Pomeroy, 124 Cal. 597.
It is obvious at once that the analogy between the right to remove sand and gravel from the land for sale and to remove and sell percolating water is not perfect. If we suppose a saturated plain, one may remove and sell the sand and gravel from his land without affecting or diminishing the sand and gravel on the lands of his neighbors. If the water on his lands is his property, then the water in the soil of his neighbors is their property. But when he drains out and sells the water on his land, he draws to his land, and also sells, water which is the property of his neighbor. And the effect is similar in other respects. By pumping out the water from his lands he can perhaps deprive his neighbors of water for domestic uses, and, in fact, render their land valueless. In
We have derived our law, in respect to subterranean waters, as in other respects, mostly from England, but in regard to this matter the first cases are quite modern. Even yet the text-books on water-rights have but little to say upon the subject of percolating water. Such law as has been made upon the subject comes from countries and climates where water is abundant, and its conservation and economical use of little consequence as compared with a climate like southern California. The learned counsel for appellants state in their brief that water at San Bernardino is worth one thousand dollars per inch of flow. Percolating water, or water held in the earth, is the main source of supply for domestic uses, and for irrigation, without which most lands are unproductive. It is also stated that speculators are seeking to appropriate the percolating water, by getting title to some part of a watershed or slope, and by running canals and tunnels, and by sinking, to obtain water for sale. It is asserted that the lands naturally made moist by percolating water are very productive, and were first settled upon, and have been most highly improved; and he asks whether these lands are to be converted into deserts because speculators may pump and carry away to some distant locality the subsurface waters which rendered the land fertile. Certainly no such case as this has come before a court, or could well exist in England, or in the eastern states.
It is often asserted that Acton v. Blundell, 12 Mees. & W. 324, decided in Exchequer Chamber, in 1843, was the first case in England in regard to percolating water. This shows how unimportant, relatively, the subject is in England. It was an action for damages occasioned by working a coal-mine on adjoining land, which interfered with water which was flowing underground to plaintiff’s spring. The court instructed the jury, “that if the defendants had proceeded and acted in the usual and proper manner in the land for the purpose of working and mining a coal-mine therein, they might law-
This statement has been frequently quoted, both in England and in this country, and has been generally adopted as a correct statement of the law upon the subject. In Acton v. Blundell, 12 Mees. & W. 324, as has been said, the working of a mine upon an adjoining estate drained certain springs
And it seems to me a great mistake is made in supposing that if the plenary property of a landowner in percolating water is denied, the alternative is to apply to such water all the rules which apply to the use of water flowing in watercourses having defined channels. The entire argument for what may be called the cujus est solum doctrine consists in showing that some recognized regulation of riparian rights would be inapplicable. It is said, for instance, that the law of riparian rights requires each proprietor to permit the water to flow as it was accustomed to flow. Apply this rule to subsurface water, and no one could drain his land, for he thereby prevents the water from flowing as it was accustomed to flow by percolation to his neighbor. The common-law method in the supposed case would be to apply the principle to the new case, although some judge-made rule as to how it shall be applied might stand in the way. The principle is clearly applicable. A riparian owner may not divert the water because he would thereby injure his neighbors who have equal rights in the stream. Still he may take a reasonable amount from the stream for domestic purposes, and that may equal the entire flow, although he thereby injures his neighbors. It is a question of reasonable use, and that applies both to the land of the person disturbing the percolation and to adjoining land. He may cultivate his land, and for that purpose
The title to all land is held subject to this maxim. Such ownership is “but an aggregation of qualified principles the limits of which are prescribed by the equality of rights, and the correlation of rights and obligations necessary for the highest use of land by the entire community of proprietors.” (Thompson v. Androscoggin etc. Co., 54 N. H. 545.)
Proprietary rights are limited by the common interests of others,—that is, to a reasonable use,—and such use one may make of his land, though it injures others. This proposition is generally recognized, but for some reason has not always been recognized by the courts when considering the subject of percolating water, although all rights in respect to water are peculiarly within its province.
This rule of reasonable use answers most effectually the main argument against recognizing any modification of the cujus est solum doctrine as applied to percolating water, although in a majority of the cases which are claimed as authority against the rule of reasonable use the court takes pains to note that the act which disturbs the percolating water was in using the land in the usual manner and without the intent of injuring a neighbor.
Among the English cases, Chasemore v. Richards, was most carefully considered. The village of Croydon was situated upon an extensive plain near the head-waters of the river Waundale, and a goodly portion of the permanent flow of the river came by percolation from this plain.
The village had caused a large well to be dug about a quarter of a mile from the river, and was pumping from it five or six hundred thousand gallons of water daily for the use of the town. Plaintiff was a riparian proprietor upon the river below, and had a mill which was operated by the waters
The case was first decided in Exchequer Chambers in favor of the defendant, Mr. Justice Coleridge dissenting. (2 Hurl. & N. 168.) The dissenting opinion presents the doctrine of reasonable use.
The case was taken to the House of Lords. (7 H. L. Cas. 349.) There the case was most elaborately and ably argued, and the view in regard to reasonable use was fully presented. A case was made and the opinion of the judges was solicited. The judges held unanimously for the defendant, sustaining fully the cujus est solum doctrine without qualification, and this was affirmed by the house. The matter mainly discussed, however, was the plaintiff’s claim that he had a prescriptive right to the water. The court held that riparian rights are not derived by prescription, but the right to the water is ex jure naturae. This settled the main contention, and little more was said, except to refer to the cases in which the rights to percolating waters are discussed. Lord Wensleydale, however, who had doubts, pronounced an opinion which seems to me in accord with the views I am trying to express.
The doctrine of reasonable use has been recognized in many cases in the United States,—impliedly in most, as I have stated, but expressly in some.
Wheatley v. Baugh, 25 Pa. St. 528,1 is one of these, and is remarkable in that the court states as strongly as possible, and with approbation, the cujus est solum doctrine. It is even said that the opposite doctrine (applying to such water the rule as to riparian rights) would amount to total abrogation of the rights of property. It is said one could not clear or cultivate his land or build a house without interfering with percolating water; and even if rights were admitted to exist, the difficulty of enforcing them would be insurmountable. I think I have shown that the admitted right to a reasonable use of the land and of the water answers all these objections. To my mind this is so obvious that I can but wonder that such objections have ever troubled the judiciary. And yet, notwithstanding this insistence upon the rule
But by far the most satisfactory case upon the subject is Bassett v. Salisbury Mfg. Co., 43 N. H. 569.1 That was a most elaborately considered case, and this precise question is discussed with a fullness and ability which I am not so vain as to think I could improve upon. I would like to transcribe the entire argument, but as it is accessible to the profession, I need only say I adopt it in full. The decision was approved in Swett v. Cutts, 50 N. H. 439.2
Smith v. City of Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141, was in some ways a counterpart of Chasemore v. Richards. The city of Brooklyn constructed in Queens County culverts, aqueducts, reservoirs, and conduits, and dug deep trenches to intercept percolating waters, and further sunk in the process earth-wells, and put in pumps to obtain the water with which the soil, which it owned, was saturated. It thus procured for the use of the city a large amount of water. Plaintiff owned a farm distant from these waterworks about twenty-four hundred feet. Upon the land was a small brook, in which he had placed a dam, which he used for purposes of boat-building and for cutting ice. The brook had carried water all the year round. The operations of the defendant rendered this brook entirely dry, and deprived the plaintiff of his income.
Here is a case like that of the village of Croydon. Defendant intercepted percolating water upon its own land before it had reached a watercourse. It did not drain water from a defined stream, but the water was prevented from reaching the stream, which was thereby as effectually destroyed as it could have been by draining the water from it.
Judge Hatch, who wrote the opinion in the appellate division of the supreme court, begins by quoting the prevailing doctrine in regard to percolating water, from Pixley v. Clark, 35 N. Y. 520:1 “An owner of the soil may divert percolating water, consume or cut it off with impunity. It is the same as land, and cannot be distinguished in law from land.” He says this proposition must be admitted, but nevertheless a case cannot be found in this country “where the right has been upheld in the owner of land to destroy a stream, a spring, or a well upon his neighbor’s land, by cutting off the source of its supply, except it was done in the exercise of a legal right to improve the land, or make some use of it in connection with the enjoyment of the land itself.” I have italicized the last clause, as it contains the qualification found in the civil law, upon which the English rule is professedly based, and expresses the principle for which I contend. The learned judge admits that the English cases go further, but says that the American cases have not gone further.
The learned court gives a concise statement of the reasons given by the English courts for not applying to percolating water the same principle which governs the right of riparian proprietors, and agrees with Justice Coleridge and Lord Wensleydale that they are insufficient. The court recognized the right of the landowner to percolating water, but says the right must be exercised with reference to the equal right of others in their land. He says one may as well claim the right to tunnel into his neighbor’s land and take out valuable minerals, as to drain from it water which is also parcel of it, for sale. The peculiar nature of the property which enables one to take it by drainage does not justify the taking save in the usual and reasonable use of his own land,—in other words, for the proper use and betterment of his own property.
Allusion is made in the opinion to the rule, inconsistent with the cujus est solum doctrine, that you cannot do anything on your land which will drain water from a visible stream or natural pond upon the land of another. In Canal Co. v. Shugaer, L. R. 6 Ch. App. Cas. 483, Lord Hatherley said: “You have a right to all the water which you can draw from the different sources which may percolate underground; but that has no bearing at all on what you may do with regard to water which is in a defined channel, and which you are not to touch. If you cannot get at the underground water
If a landowner owns the water percolating in his soil, as he does the rock, minerals, and earth, why may he not take it in such a case? And what difference is there in destroying a stream or natural pond by drawing water from it through percolation or by preventing it from flowing into the stream? The effect is the same, and knowledge of the inevitable effect of the act is the same. And this rule would prevent a landowner from draining a marsh, or even from clearing or cultivating his land, when these operations would tend to increase the percolation from a stream or natural pond upon a neighbor’s land. This is one of the main arguments in support of the doctrine of Acton v. Blundell, 12 Mees. & W. 324. It seems here strangely to lose its force, as does also another reason for that rule, that when doing such acts the landowner could not reasonably anticipate the injury as probable.
The court expressly applies the doctrine sic utere tuo to the case and affirms the judgment against the city.
In the appellate court this judgment was affirmed. (Smith v. City of Brooklyn, 160 N. Y. 357.) It is there treated, however, as a draining of water from plaintiff’s brook and pond. Judge Hatch, in the supreme court, expressly states that defendant simply prevented the water from reaching the brook on plaintiff’s farm. Perhaps either view may be taken of the facts. There was an immense saturated plain composed of porous earth. Defendant’s wells extended lower down than the bottom of the pond. The stream and pond, and all the springs, wells, and streams in the neighborhood, have been dry ever since the operations of the defendant. Since the water was first drained out, surely there has been no percolation from the stream. This circumstance makes the case more like that in hand. Here was a vast quantity of water held in the soil, which constituted the common supply of many people. The defendant, pumping from wells on its own land, and taking only percolating water, exhausted this common supply. The court held that it could not be. The
But this question was completely put at rest, so far as the state of New York is concerned, by the case of Forbell v. City of New York, 164 N. Y. 522.1 It was a suit by another plaintiff to restrain the same operations considered in Smith v. City of Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141. Here there was no visible stream or pond on plaintiff’s land. His injury was merely that the level of the water held in the soil was lowered to his injury. In stating the case the court said: “The city makes merchandise of the large quantities of water which it draws from the wells that it has sunk on its two acres of land. The plaintiff does not complain that any surface stream or pond or body of water upon his land is thereby affected, but does complain and the courts below have found that the defendant exhausts his land of its accustomed and natural supply of underground or subsurface water, and thus prevents him from growing upon it the crops to which the land was and is peculiarly adapted, or destroys such crops after they are grown or partly grown.” This statement shows a striking similarity of the issues made in that case to those involved here.
The court proceeds to state the usual doctrine in regard to percolating water and approves the doctrine for the cases in which it is properly applicable. No doubt the land proprietor owns the water which is parcel of his land, and may use it as he pleases, regard being had to the rights of others. It is not unreasonable that he should dig wells in order to have the fullest enjoyment and usefulness of his estate, or for pleasure, trade, or whatever else the land as land may serve. “But to fit it up with wells and pumps of such persuasive and potential reach that from their base the defendant can tap the water stored in the plaintiff’s land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff, and others whose lands are thus clandestinely sapped and their value impaired.”
Counsel for the plaintiff in that case contended that since
If the principle announced in these cases prevails here, the order granting a nonsuit and the judgment entered thereon must be reversed. It does not require a reversal of the rule laid down in Acton v. Blundell, which has been so often cited and indorsed, but only a holding that in certain cases there should be added the element of reasonable use, having reference both to the land belonging to the party who has disturbed the movement of percolating water and to adjoining land, and to land sensibly affected by such acts. Whatever the English rule may be the American cases either recognize the application of the rule of sic utere tuo to the subject, or they are cases in which it was wholly unnecessary to consider that subject. Such are the California cases. In the case of City of Los Angeles v. Pomeroy, 124 Cal. 597, the question might have been raised, and in the trial court, it may be, was, and in some of the instructions the rule laid down in Acton v. Blundell is asserted without qualification. Still this court was not called upon, and did not consider any such question. I think it clear that the American cases do not require us to hold that the maxim sic utere tuo does not limit the right of the landowner to the use of the subsurface water, but on the contrary all the cases in which the question has been discussed held, or admit, that such maxim should limit such right where justice requires it. Such, I think, is the proper rule.
It follows that the court erred in granting the nonsuit, and the judgment is therefore reversed and a new trial ordered.
Beatty, C. J., McFarland, J., Van Dyke, J., Harrison, J., and Henshaw, J., concurred.
Rehearing denied.
G. H. Gould, Amicus Curiæ, also for Appellants.
Percolating waters cannot be taken away from a soil-owner who has a beneficial use of them to his injury without beneficial use on the land of the taker. (City of Los Angeles v. Pomeroy, 124 Cal. 621, 644; Hanson v. McCue, 42 Cal. 303.6) Many equities in percolating water must be recognized and protected, and the first step toward a clear view of the subject should be in the direction of abolishing an antiquated and misleading formula.
59 Am. St. Rep. 746. 67 Am. St. Rep. 659, and note.Byron Waters, for Respondent; R. E. Houghton, for Riverside Water Company; E. W. Freeman, for Temescal Water Company; John E. Daly, and Henry J. Stevens, for Glendora-Azusa Water Company; Lucius K. Chase, for Corona City Water Company; Henry J. Stevens, for Citrus Belt Water Company; C. H. Wilson, for Corona Irrigation Company; M. B. Kellogg, for Gage Canal Company; Page, McCutchen, Harding & Knight, for Contra Costa Water Company; Houghton & Houghton, for Miller & Lux and Frederick Cox; Frank H. Short, Otis & Gregg, Howard Surr, Platt & Bayne, and Henley C. Booth, City Attorney of Santa Barbara, Amici Curiæ, also for Respondent.
The plaintiff can only recover on the cause of action alleged, which is for diversion of a subterranean stream, and not for diversion of percolating water. A plaintiff cannot recover on
SHAW, J. — A rehearing was granted in this case for the purpose of considering more fully, and by the aid of such additional arguments as might be presented by persons not parties to the action, but vitally interested in the principle involved, a question that is novel and of the utmost importance to the application to useful purposes of the waters which may be found in the soil.
Petitions for rehearing were presented not only in behalf of the defendant, but also on behalf of a number of corporations engaged in the business of obtaining water from wells and distributing the same for public and private use within this state, and particularly in the southern part thereof. Able and exhaustive briefs have been filed on the rehearing. The principle decided by the late Justice Temple in the former opinion, and the course of reasoning by which he arrived at the conclusion, have been attacked in these several briefs and petitions with much learning and acumen. It is proper that we should here notice some of the objections thus presented.
It is urged, in the first place, that the decision goes beyond the case that was before the court; that the pleadings stated a cause of action solely for the diversion of water from an alleged underground stream, and that, therefore, there was no occasion for a discussion of the principles governing the rights to waters of the class usually denominated percolating waters. The proposition is not tenable. The complaint, in substance,
Many arguments, objections, and criticisms are presented in opposition to the rules and reasoning of the former opinion. It is contended that the rule that each landowner owns absolutely the percolating waters in his land, with the right to extract, sell, and dispose of them as he chooses, regardless of the results to his neighbor, is part of the common law, and as such has been adopted in this state as the law of the land by the statute of April 13, 1850, (Stats. 1850, 219,) and by
The idea that the doctrine contended for by the defendant is a part of the common law adopted by our statute, and beyond the power of the court to change or modify, is founded upon a misconception of the extent to which the common law is adopted by such statutory provisions, and a failure to observe some of the rules and principles of the common law itself. In Crandall v. Woods, 8 Cal. 143, the court approved the following rule, quoting from the dissenting opinion of Bronson, J., in Starr v. Child, 20 Wend. 159: “I think no doctrine better settled than that such portions of the law of England as are not adapted to our condition form no part of the law of this state. This exception includes not only such laws as are inconsistent with the spirit of our institutions, but such as are framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a case where that reason utterly fails.” This quotation was subsequently approved by the New York court of appeals. (People v. Appraisers, 33 N. Y. 461.) The same doctrine was followed in