37 Fla. 586 | Fla. | 1896
The questions arising on the present record involve rights of adjoining land owners to water passing through the land not heretofore discussed by this court. The general subject to rights to water passing over or through lands requires some classification in dealing with the different phrases of rights that may arise. A very well considered case decided in Ohio, and hereafter referred to, classifies the subject as follows: 1. In respect to surface streams which flow in a permanent, distinct and well-defined channel from the lands of one owner to those of another. 2. In respect to surface water—however originating—which, without any distinct or well-defined channel, by attraction, gravitation or otherwise, are shed and pass
The rights asserted by appellant in the bill filed appertain to the water of a natural spring alleged to be supplied by a well-marked and defined subterranean stream flowing some twelve or fifteen feet below the surface across the lands of appellant and appellee, and-the case does not call for a discussion of, and what is said has no application to, mere surface water without any distinct and well-defined channel, and which is shed and passes from the land of one owner to that of another. In the Ohio case mentioned (Frazier vs. Brown, 12 Ohio St. 294), in speaking of flowing surface water in well-defined channels, it is said “that notwithstanding the maxim which affirms the absolute and unlimited dominion of the proprietor of the soil upward and downward, the proprietor below has, in the absence of any' modification of relative rights by contract or prescription, no right to throw the water back on him above, and has the right to receive it from the proprietor above substantially undiminished in quantity and uncorrupted in quality; and this right arises, not from any supposed grant or from prescription, but ex jure naturas, and for the reason, that surface streams of flowing water are the gift of Providence, for the benefit of all lands through which they flow, and as such their usufruct is appurtenant to the lands through which they flow.” This
As to the riparian rights to the ordinary use of water flowing past land, it extends to the supplying of natural wants, including the use of the water for domestic purposes of home or farm, such as drinking, washing, cooking or for stock of the proprietor, and, many authorities state that if necessary for the pur
In reference to rights in subsurface water, there is apparent a contrariety of judicial opinion, as might be expected from the inherent difficulty of ascertaining definitely the character and extent of the right asserted. In the case of Acton vs. Blundell, 12 Meeson & W. 324, the plaintiff was the owner of factory mills supplied by water from wells sunk into the ground, and it was alleged that plaintiff used the water of certain underground springs streams and watercourses which had run, flowed and percolated into the wells, and the breach was that the defendant had sunk divers pits, shafts, holes and tunnels near the premises of plaintiff, by means whereof the water to the wells had been diverted and they had become dry. It was held that the owner of land through which water flows in a subterranean course, has no right or interest in it which will enable him to maintain an action against a land owner, who, in carrying on mining
As we construe this case from its facts it had no reference to a- subterranean stream with a marked and well-defined channel, but was dealing with subsurface percolatiug water.
The case of Dickinson vs. Grand Junction Canal Co., already cited, goes a long ways in opposition to the ruling in Acton vs. Blundell. It holds that the diversion of water from a well-defined surface watercourse though never forming a part of the stream, but was prevented from doing so in its natural course, by means of an excavation, was actionable, and that this was the case whether the water was part of an underground water course or percolated through the earth. The ruling in Dickinson vs. Grand Junction Canal Co.,
“A water course consists of bed, banks and water; yet the water need not flow continually; and there aremaiiy water-courses which are sometimes dry.” Angell on Water-courses, sec. 4. It is stated in Ashley vs. Wolcott, 11 Cush. 192, that “to maintain the right of a water course or brook, it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. It need not be shown to flow continually; it may be dry at times, but it must have a well-defined and substantial existence.” In dealing with sub-surface streams their situation and character must, of course, be kept constantly in view.
In applying the principles announced to the facts of the present case we must state conclusions, as the evidence is too voluminous to be discussed in detail in the opinion. The mere fact that appellant has a contract with the city of Tampa to supply its inhabitants-with water, and has expended large sums of money in the erection of a plant does not confer any additional rights to the water that passes through apijellee’s land. City of Emporia vs. Soden, 25 Kansas, 588, S. C. 37 Am. Rep. 265; Acquackanonk Water Co. vs. Watson, 29 N. J. Eq. 366. There is also no question presented
We do not see that we can hold, on the showing made, that appellee has diverted the water in the
We do not think the testimony shows that appellee acted wantonly and maliciously in making the excavation complained of; at least we are not authorized to reverse a decision on the proofs adverse to appellant on this point. Whether the motive with which the excavation was made, provided it was in the exercise of a legal right, would be a cause for an injunction, we need not consider. We are further satisfied that it is not sufficiently shown that appellee intended to devote his excavation to bathing purposes. There is some testimony that his son stated a bathing pool would be put in the stream in the excavation, and that appellee asserted a right to devote the stream to such uses, but the son is not a party to the present suit, and it does not sufficiently appear that he had any authority to speak for the father. It further appears from the testimony of appellee not contradicted that he informed the agents of appellant before the bill was filed that the stream would not be used for bathing purposes under any circumstances. Relief must always be confined to the allegations of the bill, and an examination will show the allegations of wrong-doing against
On the allegations of the bill and the evidence submitted the decree will be affirmed, and it is so ordered.