7 Nev. 363 | Nev. | 1872
Appellants brought actions against Edwin Caldwell and Albert Caldwell, codefendants, and James Wilson. As the facts were similar in both cases, the judgment in one was agreed as the judgment in the other, and the cases are brought here substantially as one. The actions were at law for damages for stopping the flow of water to appellants’ spring; and in equity to restrain a continuance of the wrong.
The appellants proved the appropriation, possession and use of a spring of running water upon land occupied by them from May, 1868; the digging of wells by respondents upon land similarly occupied and possessed in May, 1869 ; the drying up of said spring after the digging of the wells; that no water appeared upon the surface-of respondents’ ground; that there was no visible connection between the wells and the spring — the flow of the water being by percolation. Upon this state of facts, respondents asked and obtained a nonsuit. From the judgment thereon, and from the order denying a new trial, this appeal is taken.
The question simply is: May one lawfully dig a well upon his own land, though thereby he destroy the subterranean, undefined sources of his neighbor’s spring ? That he may do so, is undoubtedly the settled law. The rule is thus given - by Mr. Washburn : “ It may be stated, as a general principle of nearly universal application, that while one proprietor of land may not stop or divert the waters of a stream flowing in a surface channel through it, so as to deprive a land owner, whose estate lies upon the stream below that of the proprietor first-mentioned, of the use of the same, or essentially impair or disturb the use'thereof; if, without an intention to injure an adjacent owner, and while making use of his own land to any suitable and lawful purpose, he cuts off, diverts, or destroys the use of an underground spring, or current of water which has no known and defined course, but has been accustomed to penetrate and flow into the land of his neighbor, he is not thereby liable to any action for the diversion or stoppage of such water.” Washburn’s Easements and Servitudes, 441.
To elaborate the reasons for this rule, would be but to re-state
They are affirmed.
A petition for rehearing having been granted, the following opinion was filed at the April Term, 1872.
By the Court,
A careful review of this case, upon rehearing, does not incline us to alter the original statement of facts; the conclusion therefrom is admitted to be correct. The evidence, as we read it, does not tend to show that there was any visible, open, running stream, in a well-defined channel, which had been interfered with. That the digging of respondents’ wells cut off the underground springs and waters, percolating through the channel of' a loose gravel stratum, is probably the fact; but such state of case is no stronger than the facts of Acton v. Blundell, 12 Exch. 324, or Chasemore v. Richards, H. L. Ca. 349, ruling cases in England, which are sustained by the weight of American authority. Trustees, &c., of the Village of Delhi v. Youmans, 50 Barb. 316.
The word percolate was used in the original opinion, as it seems to be used in the decided cases, perhaps not with strict correctness of definition, to designate any flowage of sub-surface water, other than that of a running stream, open, visible, clearly to be traced.
The judgment of the district court is affirmed.
