This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
65. Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 64 L. R. A. 236, 70 Pac. 663, 74 Pac. 766; Meeker v. City of East Orange, 77 N. J. L. 623, 134 Am. St. Rep. 798, 25 L. R. A. (N. S.) 569, 74 Atl. 623; Forbell v. New York, 164 N. Y. 522, 51 L. R. A. 695, 79 Am. St. Rep. 666, 58 N. E. 644; Pence v. Carney, 58 W. Va. 296, 6 L. R. A. (N. S.) 266, 112
Am. St. Rep. 963, 52 S. E. 702. See Clark County v. Mississippi Lumber Co., 80 Miss. 535, 31 So. 905.
66. That one may appropriate the water for purposes of sale as against one desiring to do the same, see Stillwater Water Co. v. Farmer, 92 Minn. 230, 232, 99 N. W. 882: Merrick Water Co. v. City of Brooklyn, 32 N. Y. App. Div. 454, 53 N. Y. Supp. 10.
67. See editorial note 9 Columbia Law Rev. at p. 544.
68. Ellis v. Duncan, 21 Barb. (N. Y.) 230; New Albany R. Co. v. Peterson, 14 Ind. 112; Frazier v. Brown, 12 Ohio St. 294; Wheat-ley v. Baugh, 25 Pa. 528; Halde-man v. Bruckhart, 45 Pa. 514, 84 Am. Dec. 511; Coleman v. Chad-wick, 80 Pa. 81, 21 Am. Rep. 93; Western Maryland R. Co. v. Martin, 110 Md. 554, 73 Atl. 267; Her-riman Irrigation Co. v. Keel, 25 Utah 96, 69 Pac. 719; Stonegap Colliery Co. v. Hamilton, 119 Va. 271, 89 S. E. 305; Miller v. Black Rock Springs Imp. Co., 99 Va. 747, 40 S. E. 27.
68a. See Wasioto & B. M. R. Co. v. Hensley, 148 Ky. 366, 146 S. W. 751; In Patrick v. Smith, 75 Wash. 407, 6 N. C. C. A. 108, 48 L. R. A. (N. S.) 740, 134 Pac. 1076, that the supply of water in a well was depleted by blasting operations on neighboring land was held to be a ground of lianot be restricted in the use of his land because such use may cut off his neighbor's supply of percolating water, and the diversion of the water in such case is in the reasonable use of the land.
It has been occasionally decided that one cannot intercept the supply of one's neighbor, and then allow the water so intercepted to run to waste.69 In such a case there is not a reasonable use of the water, cor is the diversion thereof in the reasonable use of the land.
In the case of an underground lake, or body of water, it has been decided, as in the case of a surface lake, that a proprietor thereon must use the water in a reasonable manner, with due regard to oilier persons who may be dependent on the same source of supply.70 The view that the right to take water under one's own land must be exercised with due regard to the interests of one's neighbors, has in one state been applied when the water sought to be taken was valuable merely by reason of the minerals or gases contained therein.70a bility, without reference to the question of negligence in blasting.
69. St. Amand v. Lehman, 120 Ga. 253, 47 S. E. 949; Gagnon v. French, 163 Ind. 687, 72 N. E. 849; Barclay v. Abraham, 121 Iowa, 619, 100 Am. St. Rep. 365, 64 L. R. A. 255, 96 N. W. 1080; Stillwater Water Co. v. Farmer, 89 Minn. 58, 99 Am. St. Rep. 541, 60 L. R. A. 875, 93 N. W. 907; Hathorn v. National Carbonic Gas Co., 194 N. Y. 421, 23 L. R. A. (N. S.) 436, 128 Am. St. Rep. 555, 87 N. E. 504. Contra, Huber v. Merkel, 117 Wis. 355, 62 L. R. A. 589, 98 Am. St. Rep. 933, 94 N. W. 354.
But this view was not applied in the case of temporary waste necessarily incident to the sinking of a well. Pence v. Carney, 58 W. Va. 296, 6 L. R. A. N. S. 266, 112 Am. St. Rep. 963, 52 S. E. 702.
70. Los Angeles, City of, v. Hunter. 156 Cal. 603, 105 Pac. 755; Erickson v. Crookston Water Works Co., 100 Minn. 481, S L. R. A. (N. S.) 1250, 10 Ann. Cas. 843, 111 N. W. 391, 105 Minn. 182, 17 L. R. A. (N. S.) 650, 117 N. W. 435; Bower v. Moorman, 27 Idaho, 162, 147 Pac. 496.
70a. Hathorn v. National Carbonic Gas Co., 194 N. Y. 326, 23 L. R. A. N. S. 436, 128 Am. St. Rep. 555, 87 N. E. 504. But see Salt Union Ltd. v. Brunner. Mond & Co. (1906), 2 K. B. 822, discussed 20 Harv. Law Rev. at p.
It may be questioned, perhaps, whether such a view entirely accords with the cases, before referred to,70b to the effect that the owner of land has an unqualified right as to the abstraction of mineral oils and gases. - (b) Malicious interference.. It sometimes occurs that the owner of land sinks a well thereon near the boundary for the purpose of depleting his neighbor's supply, merely from ill will towards the latter, and not to supply his own needs. In England the view is taken that one's power and control over the water percolating through his land is so absolute that his motive in intercepting the water is immaterial,71 and there are decisions in a few states to this effect.72 Ordinarily, however, the courts in this country have taken the contrary view, that the malevolent interference with one's water supply is a tort, this being sometimes referred to as the only exception to one's plenary power of control over water percolating through his land.73 In order, however, that the case come within this exception, the interference with the supply of one's neighbor must, it seems, be dictated exclusively by ill underground watercourse.81 The propriety of such a distinction, however, appears most questionable. A landowner should not have the right to send filth on or into his neighbor's land, whatever may be the method employed for doing so, and why he should have a right to do so by means of an underground stream is not readily comprehensible.82 will, and it is not material that such ill will exists, if he actually needs the water.74
487, in which case it was held that one could extract brine from his salt mine though it involved the taking of salt from another's mine, connected therewith by underground passages. 70b. Ante, Sec. 256.
71. Mayor v. Pickles (1895), App. Cas. 587; Capital Bank v. Henty, 7.App. Cas. 741, 766.
72. Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93; Chatfield v. Wilson, 28 Vt. 49; Huber v. Merk-el, 117 Wis. 355, 62 L. R. A. 589, 98 Am. St. Rep. 933, 94 N. W. 354.
73. Bartlett v. O'Connor, 102 Cal. xvii, 36 Pac. 513; St. Amand v. Lehman, 120 Go. 253, 47 S. E. 949; Hougan v. Railway Co., 35 Iowa, 558, 14 Am. Rep. 502; Barclay v. Abraham, 121 Iowa, 619, 64 L. R. A. (N. S.) 255, 100 Am. St. Rep. 365, 96 N. W. 1080; Gag-non v. French, 163 Ind. 687, 72 N. E. 849 (semble); Chesley v. King, 74 Me. 164, 43 Am. Rep. 569; Greenloaf v. Francis, 18 Pick. (Mass.) 117 (But see dictum in Plant v. Woods, 176 Mass. 492, 499); Springfield Co. v. Jenkins, 62 Mo. App. 74; Frazier v. Brown, 12 Ohio St. 294; Wheat-ley v. Baugh, 25 Pa. 528, 533; Haldeman v. Bruckhart, 45 Pa. St. 514.
The view that one cannot divert percolating water from motives of ill will alone, is not of particularly recent origin, but it harmonizes well with the later doctrine of reasonable use.75 That the diversion is made from motives of ill will alone excludes any possi-sility that it is made for the purpose of reasonable use of the water, or in the reasonable utilization of the land.
- (c) Underground watercourses. Water beneath the ground, which is known to be, not diffused and percolating through the soil, but flowing in a well defined watercourse, is governed by the rules applicable to water so flowing on the surface, and the owner of the surface above the stream has no greater rights as to its use than has a riparian proprietor on a surface stream.76 Water is known to be flowing in a well-defmed watercourse, it seems, only when the existence and course of the channel can be ascertained by the reasonable inference of an ordinary man without the necessity of making excavations.77
- (d) Pollution. Even though the proprietor of land have the right to appropriate or divert the water percolating through or from his land into the land of
74. Greenleaf v. Francis, 18 Pick. (Mass.) 117; Frazier v. Brown, 12 Ohio St. 294.
75. Ante, Sec. 342(a).
76. Dickinson v. Grand Junction Canal, 7 Exch. 301; Broad-ibent v. Ramsbotham, 11 Exch. 602; Chasemore v. Richards, 7 H. L. Gas. 349; Hale v. McLea, 53 Cal. 578; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 53 Am. St. Rep. 262, 33 L. R. A. 376; Saddler v. Lee, 66 Ga. 45, 42 Am. Rep.
62; Burroughs v. Saterlee, 67 Iowa, 396; Barclay v. Abraham, 121 Iowa, 619, 64 L. R. A. 255, 100 Am. St. Rep. 365, 96 N. W. 1080; Western Maryland R. Co. v. Martin, 110 Md. 554, 73 Atl. 267; Bloodgood v. Ayers, 108 N. Y. 400, 2 Am. St. Rep. 443, 15 N. E. 433; Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721.
77. See Bradford Corporation v. Ferrand (1902) 2 Ch. 655, and the comment thereon in 3 Columanother, he has no right to pollute it in any way, to the detriment of another landowner, his duty being, if he causes such pollution, by the discharge of sewage or otherwise, to keep the water in its polluted state upon his own land.78 In two or three states, however, the view has been asserted that one is liable in damages in such case only if he was guilty of negligence in that, having cause to anticipate that the use about to be made by him of his land would affect his neighbor's water supply, he failed to take reasonable precautions to prevent such a result.79 This latter view is, to some extent at least, the result of a judicial desire to favor the industrial development of land by excluding liability for incidental damage to others in the absence of fault.80 Occasionally it has been held that, though a landowner is bound not to pollute underground water percolating through the land, to the detriment of his neighbor, he is under no such duty as regards water in an bia Law Rev. at p. 108. See also Hanson v. McCue, 42 Cal. 303; Metcalf v. Nelson, 8 S. D. 87, 59 Am. St. Rep. 746, 65 N. W. 911.
78. Gould, Waters, Sec. 288; Tenant v. Goldwin, 1 Salk. 360; Ballard v. Tomlinson, 29 Ch. Div. 115; Humphries v. Cousins, 2 C. P. Div. 239; Brown v. Illius, 27 Conn. 84, 71 Am. Dec. 49; Pen-sacola Gas Co. v. Pebley, 25 Fla. 381, 5 So. 593; Wahle v. Reinbach, 76 111. 322; Kinnaird v. Standard Oil Co., 89 Ky. 468, 7 L. R. A. 451, 25 Am. St. Rep. 545, 12 S. W. 937; Gilmore v. Royal Salt Co., 84 Kan. 729, 2 N. C. C. A. 646, 115 Pac. 729, 34 L. R. A. (N. S.) 48; Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56; Mears v. Dole, 135 Mass. 508; Buckingham v. Elliott, 62 Miss. 296, 52 Am. Rep. 188; negligence, whether by percolation, the bursting of a dam, or otherwise, he is unquestionably liable for the damage to such land so occasioned.83a
Beatrice Gas Co. v. Thomas, 41 Neb. 662, 43 Am. St. Rep. 71, 59 N. W. 925; Haugh's Appeal, 102 Pa. St. 42, 48 Am. Rep. 193; Hauck v. Tidewater Pipe Line Co., 153 Pa. 366, 20 L. R. A. 642, 34 Am. St. Rep. 710, 26 Atl. 644.
79. Killian v. Killian, 175 Ala. 224, 57 So. 825; Long v. Louis-vilie & N. R. Co., 128 Ky. 26. 13 L. R. A. (N. S.) 1063, 16 Ann. Cas. 673, 107 S. W. 203; Collins v. Chartiers Valley Gas Co., 131 Pa. St. 143, 6 L. R. A. 280, 17 Am. St. Rep. 791, 18 Atl. 1012. And see Woodman v. Aborn, 35 Me. 271; Ballantine & Sons v. Public Service Corp., 76 N. J. L. 358, 70 Atl. 167.
80. See article by Professor Francis H. Bohlen in 59 University of Pennsylvania Law Rev. at pp. 298, 373, 423.