But if it merely prevent the water from reaching the spring or open, running stream, by intercepting its percolation or underground currents, by digging a well upon the defendant's own land, for the use of his family and stock, this action will not lie. The law is settled in that way, both here and in England. (See same cases.)
The facts in this case, as found by the justice who tried it, do not show that the water has been taken away from the spring or running surface stream after it had reached there. On the contrary, the inference from his findings would rather seem the other way. Nor is there any request to find otherwise, nor any exception on that point.
Every inference and presumption that can be reasonably entertained must be indulged in favor of affirming a judgment. It is a well-settled rule that the party who alleges error must show it.
The doctrine of lateral support of adjoining land cannot aid the plaintiff's case. I do not think it has any application to the facts as found.
It may well be that the plaintiffs have been injured, legally injured, by the acts of the defendant. But the facts as found do not make it appear. In the absence of any request to find, or exception to refusal to find, other facts, we cannot consider the evidence with a view to decide whether other facts may not be regarded as sufficiently proved.
53 Cal., 578. - 1879.
Suit for an injunction.
The court below found: " That the plaintiff and defendant were the owners of coterminous tracts of land. In the vicinity of the division line, running north and south between the parties, is the subject of the controversy. Upon the side of a ridge, upon the land of plaintiff, at a point about twenty-eight feet east of the land of defendant, a natural spring flows from the surface of the ground. This spring is a small one, furnishing a very small supply of water. It has been utilized by the plaintiff for many years, and the water conveyed to troughs, furnishing water for the stock of the plaintiff. The spring furnishes the principal supply of the plaintiff's farm at this point, and is the only water he has for the cattle that pasture upon this part of his land. He also proposes to use and will require this water for a proposed residence he intends to soon build. From this natural spring upon the land of plaintiff, extending toward the west, and upon the land of defendant, a line of bushes, usually found nowhere except over watercourses, appeared, but there was no other indication of a subterranean stream upon defendant's land at this point than that indicated by these bushes. There was no stream upon the surface, and no depression or channel whatever appeared upon the surface of either tract at this point, and the surface of the ground was rocky and dry. The line of bushes above referred to was connected and frequent up to the line extending from this fence to and upon the land of defendant, and to the pit there sunk by defendant. In October, 1875, defendant dug a trench upon his land, about eleven feet from the division line. The trench was parallel with the division line, and at right angles with the line of bushes, and was dug for the sole purpose of intercepting a subterranean Stream which defendant supposed flowed to the spring of plaintiff.
Any person of ordinary judgment would have expected to intercept the stream at this point, from the apparent situation and surroundings. * * * At the bottom of the trench, and upon the western side, was found a fissure of loose, fragmentary rock, of which the hill was chiefly composed. Through these fragments at this particular point, flowed a small stream of water. The defendant opened this pit, and connected it with pipes laid through the trench, and so arranged it that all the water flowing in from the crevice was taken in a pipe through his trench. Immediately upon the opening of his trench and the laying of this pipe, the water ceased to flow in the spring of the plaintiff and has not since flowed there. The defendant in digging this trench had but one purpose, namely, to secure to himself the subterranean water that he believed existed at this point; he knew that this was the source of the supply to plaintiff's spring, and if intercepted, no water would flow to the spring of plaintiff. He was not actuated by malice."
Judgment for plaintiff. Defendant appealed.
By the Court, Crockett, J. - An examination of the English and American decisions on the questions of law involved in this appeal leads us to the conclusion that, on the facts admitted by the pleadings or found by the court, the right of the defendant as against the plaintiff to use the water of the subterranean stream, which is the subject of the action, is, at most, no greater than if it was a surface stream, on which the defendant was the upper and the plaintiff a lower riparian owner. Tested by this rule, the utmost that can be claimed for the defendant on the facts is, that he is entitled to take from the stream as much water as he needs for watering his cattle and for domestic uses, such as cooking, washing, and the like, leaving the surplus to flow to the spring of the plaintiff in its natural channel. But the findings show that the defendant has diverted the whole body of the stream through pipes, in such a manner that no portion of the water can reach the spring; and the surplus, at the commencement of the action, was running to waste, as appears from the admissions in the pleadings. If it were a surface stream, the plaintiff would be entitled to have it flow to and across his lands, in its natural channel, subject only to the right of the defendant to use so much of the water as is necessary to supply his natural or primary wants as above indicated; nor, on the facts found, can the defendant exercise any greater right in respect to a subterranean stream. Assuming, therefore, that the rights of the defendant are precisely the same as though it was a surface stream, he has exceeded them by diverting the whole body of water from its natural channel, instead of allowing the surplus to flow to the spring in its accustomed bed.