But the exigency of the case does not require us to decide that the defendant has the same right in respect to a subterranean stream as though it was a surface stream flowing across his land; and our decision is only to the effect that, if it be assumed his rights are the same, he has, nevertheless, exceeded them by diverting the whole body of the stream, instead of allowing the surplus to flow to the spring in its natural channel.
There is no question in this case involving the right of a riparian owner to the use of water for purposes of irrigation; nor is the point before us whether or not a landowner may be restrained from diverting or obstructing the flow of an underground current, running in a defined channel across his land, and which supplies a spring or well of the adjoining lands, if it become necessary to divert or obstruct the stream in the prosecution of the business of mining, or any other legitimate enterprise on his own land; nor to what extent, if at all, it would affect the question if the underground current was not known to exist until the fact was discovered in the prosecution of the work. These are grave questions which the exigency of the present case does not require us to decide.
Rhodes, J., concurring: - I concur in the judgment on the ground that the defendant, in my opinion, has no right to divert the waters of the subterranean stream, if the spring of the plaintiff will thereby be materially injured.
III. lee as incident to land.
1. Ice Formed Over Lands of Private Owners.
101 Illinois, 46. - 1881.
Mr. Justice Sheldon delivered the opinion of the Court.
This was an action of trespass quare clausum fregit, brought in the Circuit Court of Cook county, by Shortall, against the Washington Ice Company, for cutting, removing, and appropriating, in January and February, 1879, a quantity of ice which had formed over the bed of the Calumet river, within the limits of plaintiff's land, in Cook county. Defendant pleaded the general issue, and liberum tenementum. A verdict and judgment were rendered in favor of plaintiff for $562.40, which judgment, on appeal to the Appellate Court for the First District, was affirmed, and defendant appealed to this Court.
On the trial, the patent from the United States to Lafrombois and Decant was introduced in evidence, showing that there was no restriction or reservation by the government, and that the locus in quo was embraced in the 125.31 acres the patent conveyed. Under this patent plaintiff derived title.
From the evidence it appears that the call of 125.31 acres contained in the patent, required that the bed of the river should be included to make that quantity; that the Calumet river extended from Lake Michigan westward past the plaintiff's premises, where it is between 165 and 200 feet wide, is in fact a navigable river; that the defendant company owned ice-houses on its own property on the next lot east of plaintiff's, and that in operating on the ice it did not go on the plaintiff's land, save as it entered upon the ice; that it first gathered the ice in front of its own land from the river, and then commenced to take the ice opposite the plaintiff's premises.
The court, at plaintiff's request, instructed the jury that the plaintiff was the owner of the whole bed of the river flowing through his premises; that when the water became congealed, the ice attaching to the soil constituted a part thereof, and belonged to the owner of the bed of the stream, and that he could maintain trespass for the wrongful entry and taking the ice; and that the measure of damages, in case of a finding for plaintiff, would be the value of the ice as soon at it existed as a chattel - that is, as soon as it had been scraped, plowed, sawed, cut and severed, and ready for removal. Defendant excepted to the giving of such instruction, and asked the court to instruct the jury that a riparian owner on the banks of a river, navigable in fact, has no property in the ice formed in the midst of the stream, where he has done nothing to pond or separate it; but that any person might, as against such riparian owner, where he could gain access without passing over the shore or banks of the owner, enter upon the ice and remove the same, without cause of action or damage to such riparian owner, and that if such access, as above stated, had been gained, then, at most, plaintiff could recover but nominal damages, even if the action of trespass be sustained, - which was refused, and defendant excepted. The giving and refusing of instructions is assigned as error.
It may be well to inquire, first, whether plaintiff, as riparian proprietor on both sides of the Calumet river, is the owner of the bed of the stream within the limits of his land. By the common law, only arms of the sea, and streams where the tide ebbs and flows are regarded navigable. The stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it to its center, and the only right the public has therein is an easement for the purpose of navigation. Chancellor Kent, in his commentaries, declares it as settled that grants of land bounded on rivers or upon their margins, above tide-water, carry the exclusive right and title of the grantee to the center of the stream, subject to the easement of navigation, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river. If the same person be the owner on both sides of the river, he owns the whole river to the extent of the length of his lands upon it. 3 Comm. 427, 428, Marg. And this title to the middle of the stream includes the water, the bed, and all islands. 2 Hilliard on Real Prop. 92; Angell on Water-Courses, sec. 5.
This rule of the common law has been adopted in thus State, and is here the settled doctrine. It was so held in Middleton v. Pritch-ard, 3 Scam. 510, and Houck v. Yates, 82 111. 179, with regard to the Mississippi river where it bounds this State; in Braxonv. Bressler, 64 111. 488, as to Rock river; City of Chicago v. Laflin, 49 111. 172, and, City of Chicago v. McGinn, 5 111. 266, in regard to the Chicago river.