Clarke County v. Mississippi Lumber Co.

1. Waters. Underground. Percolation. Stream. Presumption. Subterranean waters are presumed to be percolating, and the law applicable to a percolating waters should control a controversy touching them, unless it clearly appear that they are from a distinct underground stream, the existence of which is known or easily ascertainable. 2. Same. Wells. Injunctions. Damages. One who, acting in good faith, sinks a well on his own land and, by the use of powerful agencies, forces large quantities of percolating water therefrom for legitimate purposes, is not subject to injunction nor liable in damages to his neighbor in whose well the water is thereby diminished.

From the chancery court of Clarke county. Hon. Stone Devours, Chancellor. Clarke county, the appellant, was the complainant in the court below; the Mississippi Lumber Company, appellee, was defendant there. From a final decree in defendant’s favor the complainant appealed to the supreme court. The opinion of the court states the facts. Special attention is called to the case of Burroughs v. Saierlee, 56 Am. B., 350. Like the present case, the water flowed from artesian wells through pipes extending above the surface of the ground. Like this, there was no evidence of a subterranean current, except the facts that the water flowed spontaneously above the surface from the wells extending into the ground, and the flowing of water from one well had the effect of speedily stopping the flow from other. There, as in the present case, nothing was known of the size, the direction, and course of the subterranean channel. On page 352 the court says: “But the defendant insists that when one in good faith sinks a well on his own land, the owner of the well on the adjoining land has no cause of complaint if the water from his well is drawn off or decreased by percolation through the earth. That this is a correct proposition of law seems to be well settled. Defendant’s counsel have cited many authorities in support of this proposition. These authorities, however, as counsel concede, are quite decisive on another proposition, which is that when subterranean water flows in a distinct channel, an adjoining owner of land has no more right to divert its course than if the stream were on the surface of the earth.” After citing Gould, Washburn, and Angelí on the laws governing surface waters, the court continues: “All of the cases defining underground streams which one proimietor of land may not divert from those of the adjoining owner as those having clearly defined channels, and it must be admitted that this fact is very difficult to establish by evidence. But here we have a case of flowing wells. The evidence shows conclusively that the water does not percolate or filter through the earth from one to each other. When the defendant, in boring its well struck the vein, the water almost immediately ceased, to flow from plaintiff’s well, and the water that did come to plaintiff’s well was filled with sand, which no doubt was caused by the disturbance of the vein or stream by the operations in defendant’s well; when the auger used in boring defendant’s ■well was removed, the well of plaintiff ceased to flow; and pending the trial the defendant admitted of record that the vein tapped by Saterlee’s well is the same vein which supplies the well first sunk on the property now owned by Burroughs (the well in controversy), and this was nothing but the admission of a fact that was not disputed and could not be controverted on the trial. When the discharge pipe on defendant’s well is lower than on plaintiff’s well, all of the water flows from the'defendant’s well; and when the discharge is made the water finds its way, not by mere Alteration, but the effect is immediate. These being the facts, we think the court very properly held that these parties should each use the water from its own well so as not to injure the others. IJpon the same principle that the owner of land over which a stream of water has its course may have a reasonable and proper use of the water as it flows, but may not wholly divert it from the adjoining proprietor.” It was decreed in the above case that the defendant be required to keep its discharge pipe not lower than the well of plaintiff to enable the plaintiff to get a sufficient supply of water. Considering the fact that the defendant’s well in the above case was sunk only two hundred feet from that of the plaintiff, instead of twelve hundred feet, as in the present suit, the cessation of the flow of water from the well of the plaintiff was not more sudden in Saterlee’s case than it was from the county’s well in the case before the court. During observations extending through months by the county officials the well belonging to the county would stop flowing entirely from one-half to one hour and a half and would not resume its flow in several hours afterwards. That this same result should follow every day during two or three months, and that the other wells of the town should be affected in a less degree in the same way, cannot be accounted for on any other supposition than that they were all fed by a subsurface channel. That water would filter through the earth four hundred yards in one half hour, so as to entirely stop a well of water flowing fifteen or twenty gallons per minute, is inconceivable. That a half dozen or more other wells, One of them six hundred yards distant, should be similarly affected by filtration is still more improbable. Not the least effort was made by the defendant, not a single witness was introduced by it to show that the wells were fed by filtered water. The testimony of the complainant, which is abundant and overwhelming, stands alone and uneontradicted by any fact or circumstance. If, then, the law governing surface streams was made to apply in Burroughs v. Baterlee, why should it not apply in the present suit? If the fact of a distinctly defined underground current is shown in the former, then why is it not shown in the latter? And if the mere natural flow of water from the defendant’s well in Burroughs v. Saierlee could be stopped to the extent that it prevented the plaintiff from getting a sufficient supply, then can it be possible that the Mississippi Lumber Company cannot be prevented from applying force to draw the water from the county’s well? The court goes farther in Saterlee’s case than this court is asked to go in favor of Clarke county. Even if the prayer of the bill is granted, defendant is to be left in the full enjoyment of all the water flowing from all of its seven artesian wells, certainly a very great indulgence. It is only to be prevented by the use of great'mechanical power from taking water that does not belong to it, from robbing the plaintiff of what- is justly his, from the use of physical force to divert water which naturally flows under the plaintiff’s land. The complainant only asks that it be left to the free enjoyment of its property without molestation by the defendant; that the defendant be commanded to use its own property so as not to injure its neighbor. It only requests that rights which it already possessed be not broken up and destroyed, rights which it enjoyed before the mining plant of the defendant ever had an existence. It begs that the inmates of the county jail, the inhabitants of the town of Quitman, as well as the public at large visiting the county seat, be permitted to enjoy this beneficent gift of Providence in common with the defendant; that the defendant be not permitted alone to enjoy it; it asks that the defendant be not permitted to use methods for furnishing its own pond with water more expensive than other methods to its own detriment, and to the great detriment of the complainant. Eor quite a full discussion of the law governing percolation and underground waters, the court is respectfully referred to the case of Wheatley v. Baugh, 64 Am. Dec., 721, and the elaborate note following’ the case. The first proposition we submit is that the bill is predicated of this definite allegation, that “there is a distinctly defined subsurface stream which supplies the well of the appellant,” and therefore the sinking of the well by the appellee diverted the water from the subsurface stream, and, hence, interfered unlawfully with the rights of the appellant. If this proposition cannot be maintained by the appellants, we submit that the law is written against appellants. This allegation of a subsurface stream was made on information and belief, and the answer distinctly denies that said wells were so supplied with water. No witness for the appellants testified that there was any subsurface stream. There was no testimony showing any surface indication or other physical indication of any subsurface stream. The water was under the ground, as above mentioned, being from one hundred to two hundred feet and not visible nor discoverable except by making excavations into the ground. We find that one of the maxims of the law is that the appellee owns from the heavens to the center of the earth, “Cujus est solum est usque ad coelum et ad inferos,” and that the legal presumption is, where proof to the contrary is not distinctly made, that the water with which the wells of the appellant and the appellee were supplied was water that filtrated or percolated through the earth, and that the appellant, who affirmed that it came otherwise or from a subsurface stream assumed the onus of showing it, the legal presumption being to the contrary. It is said in the case of Wheelock v. Jacobs, 67 Am. St. R., 670, which case has an elaborate note collecting all the authorities on the subject of the rights of appellant and appellee in this case, that in a majority of cases the exact condition of underground water is not accurately known or ascertainable, and that in such case a presumption regarding such condition is necessary, and that it is well settled that unless it appears that underground water in a given case flows in a defined and known channel, it will be presumed to be percolating’ water, citing the following authorities: Tampa Water Works Co. v. Cline (33 L. E. A., 376), 37 Fla., 586 (53 Am. St. E., 262); Hanson v. McCue, 42 Cal., 302 (10 Am. E., 299); Metcalf v. Nelson, 8 S. D. K., 87 (59 Am. E., 746) ; Ocean Qrove, etc., Assn. v. Asbury Park, 40 N. J. Eq., 447. The obvious effect of this presumption is to cast the burden of proof upon him who claims rights in subterranean waters upon the ground that they flow in a defined and known channel. Acton v. Blundell, 12 IVIess. & W., 335; Halderman v. Bruckhart, 84 Am. Dec., 514; 2 Washburn Eeal Prop. (5th ed.), 374; Roalli v. Dirscol, 20 Conn., 533 (52 Am.’Dec., 352); Brotvn v. Ilius, 27 Conn., 84. In the case at bar, the appellee, in total ignorance, or without even a suspicion that there was a subterranean stream or current, erected a large sawmill plant upon its land in the town of Quitman, and found it absolutely necessary to have water to properly conduct its business, and the only means of obtaining the water was by sinking wells and having the water which came from the wells impounded in an artificial pond or lake. This pond or lake was used as a dumping spot, as it were, for its logs, from which pond it could, by machinery, convey the logs to the saw and there saw them into lumber and sell said lumber, and in this way follow a legitimate calling. To show the good faith of appellee, it invested the sum of $150,000 in its lands, buildings, machinery, etc. It therefore had absolute dominion of all above its lands as far as the heavens in one direction, and to the center of the earth in another direction. It did not undertake to interfere with the appellant or any one else as to any subsurface stream, nor appellant or any one else’s rights in any visible or discernible subterranean stream. There is no pretence in the bill that the appellee maliciously or negligently undertook to divert water in an even unknown subterranean stream to the damage of appellant or any one else. It acted on the absolute dominion or proprietorship over its own lands, as above mentioned, to the center of the earth; and also on the legal .right that the iron ore, or the water, or rocks underneath the earth belonged exclusively to it,' and that, therefore, it was not responsible for destroying a spring or well of an adjoining owner, because said adjoining owner’s rights were limited alone to surface streams Or to known and well-defined subterranean streams, and where neither of these conditions existed, then there could be no injury to the appellant or any other inferior proprietor. Gould v. Eaton, 44 Pac. B., 319; Williams v. Ladew (Penn.), 9 Atl. B., 54; Whitt el v. Baugh, 25 Pa. St., 528; Chase v. Silverstone, 62 Me., 175; 16 Am. B., 419; Bloomc/ood v. Ayres, 108 N. Y., 406; Lybe’s A.ppeal, 51 Am. B., 542; Williams v. Ladeio, 41 Am. St. Bep., 891. We now invite the court’s attention to the very elaborate and well argued case found in 33 L. B. A., 376, which declares that the presumption is in the absence of proof, that waters that are under the earth are caused from filtration and percolation, rather than underground currents or streams. Taylor v. Welsh, 6 Or., 199; Collins v. Ghartiers Valley Gas Co., 131 Pa. St., 143 (17 Am. St. Bep., 791); Lybe’s Appeal, 106 Pa. St, 626; Wheeloclc v. Jacobs, 67 Am. St. B., 663. . .