ation, acquire a right to any more water than is necessary for the purpose of his appropriation; that if the water is used for the purpose of irrigating lands owned by the appropriator, the right is not confined to the amount of water used at the time the appropriation is made; that the appropriator is entitled, not only to his needs and necessities at that time, but to such other and further amount of water, within the capacity of his ditch, as would be required for the future improvement and extended cultivation of his lands, if the right is otherwise kept up; that the intention of the appropriator, his object and purpose in making the appropriation, his acts and conduct in regard thereto, the quantity and character of land owned by him, his necessities, ability, and surroundings, must be considered by the courts, in connection with the extent of his actual appropriation and use, in determining and defining his rights; that the mere act of commencing the construction of a ditch with the avowed intention of appropriating a given quantity of water from a stream gives no right to the water unless this purpose and intention are carried out by the reasonable, diligent, and effectual prosecution of the work to the final completion of the ditch, and diversion of the water to some beneficial use; that the rights acquired by the appropriator must be exercised with reference to the general condition of the country and the necessities of the community, and measured in its extent by the actual needs of the particular purpose for which the appropriation is made, and not for the purpose of obtaining a monopoly of the water, so as to prevent its use for a beneficial purpose by other persons; that the diversion of the water ripens into a valid appropriation only where it is utilized by the appropriator for a beneficial use; that the surplus or waste water of a stream may be appropriated, subject to the rights of prior appropriators, and such an appropriator is entitled to use all such waters; that, in controversies between prior and subsequent appropriators of water, the question generally is whether the use and enjoyment of the water for the purposes to which the water is applied by the prior appropriator have been in any manner impaired by the acts of the subsequent appropriator."

These rights of appropriation of water in streams by the first user for mining, irrigation, etc., are recognized in secs. 2339 and 2340 of the Revised Statutes, given in the Appendix. But rights by appropriation cannot be acquired in percolating water. 15 In most of the Western States and Territories statutes have been enacted defining water-rights and procedure for obtaining the same for mining, irrigation, etc. These will be found in the Appendix under the names of the various States and Territories.

SUBTERRANEAN WATERS

When subterranean water flows in a definite stream underground the rule in relation thereto is the same as the common-law

15 Cardelli vs. Comstock Tunnel Co., 26 Nev., 284; Crescent, etc., Co. vs. Silver King, etc., Co., 17 Utah, 444, 70 Am. St. Rep., 810.

rule relating to surface streams. It cannot be entirely used or diverted by the owner of the land through which it passes. Such owner must allow the water to pass onward for the use of the land-owners below, subject to such reasonable and ordinary use for his own purposes as may be necessary." But waters which come to the surface in the form of springs, etc., are presumed to be the results of ordinary percolations and not subject to the above rules, unless it is affirmatively shown to flow in welldefined channels under ground.17

Where the water is percolating underground without any definite channel or in unknown channels, or is simply resting stationary in the strata as an underground pool, then the water belongs with the land under the surface of which it is found, the same as any other mineral, and the owner of the land may appropriate it wholly to his own use, by means of wells or otherwise.18 In a leading case in relation to water, Ellis vs. Duncan et al., 21 Barbour (N. Y.), 230, the court says:

"The question involved in this controversy, whether the owner of a farm may dig a ditch to drain his land, or open and work a quarry upon it, when by doing so he intercepts one of the underground sources of a spring on his neighbors' lands. . . In the interruption of a surface current, the injury from a diminution of the water would seem to be palpable, and so far direct that it would originate a valid cause of action. . . But it is different when the principal stream is partially supplied by underground currents. The owners of the surface soil are not generally aware of their existence and cannot be supposed to have voluntarily acquiesced in any appropriation of them. When they purchase they are ignorant of any obstacle to the free use of their property ab center ad cælum and to arrest some valuable improvement, such as digging a well or cellar, draining the land, taking valuable stones from a quarry, or leveling the ground for building or agricultural purposes, because it would cause some consequential, unforseen, and possible irremediable damage to another, would seem to be unreasonable and unjust.”

In a later case, also, the Pennsylvania court says 19:

"Mining must interfere more or less with those subterranean streams 16 Gould on Waters, sec. 281, and citations there given.

17 Hanson vs. McCue, 42 Cal., 303; Swett vs. Cutt, 50 N. H., 439; Metcalf vs. Nelson, 8 S. D., 87, 65 N. W., 911.

18 Frazier vs. Brown, 12 O. St., 294; Chatfield vs. Williams, 28 Vt., 49: Gould vs. Eaton, 111 Calif., 639, 117 Calif., 541, 124 Calif., 635, 125 Calif., 450; Wadsworth vs. Tillottson, 15 Conn., 366; Warden vs. City of Springfield, 9 O. Decis., 855; Taylor vs. Welch, 6 Ore., 198; Cole Silver Min. Co. vs. Virginia Gold Hill Water Co., Fed. Cas., 2,989, 1 Sawyer, 470; Alexander vs. U. S., 25 Ct. Cl., 87; New Albany & S. R. Co. vs. Peterson, 14 Ind., 112; Chase vs. Silverstone, 62 Me., 175; Acton vs. Blumenthal, 12 M. and W., 324; Chasemore vs. Richards, 7 H. L. C., 349.

19 Coleman vs. Chadwick, 80 Pa. St., 81.

and percolations of water which appear on the surface as springs; to say that the owner of the substrata shall be accountable in damages for their disturbance, is to say that he shall have no use whatever of his minerals, for, without interefering to some extent with such waters mining is impossible."

In the latest cases, however, a marked tendency has developed to qualify, to some extent, the absolute right of a landowner to make any use of the percolating water beneath his surface that he sees fit. These cases seem to limit such uses to the ordinary operations of agriculture, mining, domestic use, or improvements, either public or private.

The case of Smith vs. City of Brooklyn, 18 N. Y. App. Div. 340, which is affirmed in 160 N. Y., 357, was a suit for damages resulting from the disappearance of a small stream and a pond formed by damming such stream. This disappearance was caused by the construction by the city of Brooklyn of a conduit 2400 ft. distant, from which pumps drew water for the supply of Brooklyn. The soil of this part of Long Island is a glacial deposit of sand and gravel very porous in its nature, so that the water supply of Brooklyn is derived from wells, and tunnels which take the water from this formation.

The decision in the case in the appellate division contains an elaborate review of the English and American decisions. on this subject. It was held that Brooklyn was liable for damages, but the higher court apparently placed its reasons for affirming the opinion of the appellate division on the ground that the effect of the acts of the city was the diversion of a stream, rather than on the ground of a direct modification or denial of the right of the landowner to make such use as he wished of the percolating

water.

"That the diversion and diminution of the stream were caused by arresting and collecting the underground waters, which, percolating through the earth, fed the stream, does not affect the question. When the fact was established upon the proofs that the defendant's works and wells had caused, by this subsidence of waters, a diversion of the stream's natural flow in its channel the injury was proved and the plaintiff's cause of action established. Whatever may be the rule with respect to the right of a landowner to use, for any of his purposes, the waters percolating through the earth, and, thereby, to affect the sources of wells or springs upon his neighbor's land, the question is not one which is suggested by the present case. It is one thing to divert and diminish the natural flow of a surface stream, by preventing its usual and natural supply, or by causing, through suction or

other methods a subsidence of its water; it may be another thing to collect and use the waters which percolate through the earth in underground ways and channels without having connection with the supply of a surface stream. The latter question does not demand an answer upon the case before us."

In a subsequent case, however, involving the same question, the appellate court squarely decided that the collection of water from very permeable strata by pumping or other appliances, and selling the water so obtained, was unlawful, although no stream or surface body of water was diverted or diminished thereby.20 The court says:

"The defendant makes merchandise of the large quantities of water which it draws from the wells that it has sunk upon its two acres of land. The plaintiff does not complain that any surface stream or pond or body of water upon his own land is affected thereby, but does complain and in courts below have found that the defendant exhausts his land of its accustomed and natural supply of underground or sub-surface water, and thus prevents him from growing upon it the crops to which the land was and is peculiarly adapted, or destroys such crops after they are grown or partly grown.

"The defendant does not take from his own land simply its natural or accustomed supply or holding, but by means of its appliances and operations it takes and appropriates a large part of the natural and accustomed supply or holding of the plaintiff's land. The case is not one in which, because the percolation and course of the sub-surface waters are unobservable from the surface, they are unknown, and thus so far speculative and conjectural as to be incapable of proof or judicial ascertainment.

"Before the defendant constructed its wells and pumping stations, it ascertained, at least to a business certainty, that such was the percolation and underground flow or situation of the water in its own and plaintiff's land that it could by these wells and appliances cause or compel the water in the plaintiff's land to flow into its own wells, and thus could deprive the plaintiff of his natural supply of underground water. .

"In the cases in which the lawfulness of interference with percolating waters has been upheld, either the reasonableness of the acts resulting in the interference, or the unreasonableness of imposing an unnecessary restriction upon the owner's dominion of his own land, has been recognized.

"In the absence of contract or enactment, whatever it is reasonable for the owner to do with his sub-surface water, regard being had to the definite rights of others, he may do. He may make the most of it that he reasonably can. It is not unreasonable, so far as it is now apparent to us, that he should dig wells and take therefrom all the water that he needs in order to gain the fullest enjoyment and usefulness of his land as land, either for purpose of pleasure, abode, productiveness of soil, trade, manufacture, or for what

20 Forbell vs. City of New York, 164 N. Y., 522.

ever else the land as land may serve. He may consume it, but must not discharge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and the others whose lands are thus clandestinely sapped, and their value impaired."

These cases mark the limit to which the courts have gone in qualifying the doctrine of the rights of owners of land to the percolating waters therein; but they are equitable and just in principle, and will probably be followed in other jurisdictions under similar circumstances. In regard to the use of natural gas a very similar rule has been applied by the courts.21

Any person polluting percolating underground water, as by refuse from gas works, privy vaults, or salt water, is liable therefor, and such pollution may be stopped by injunction."

The case of Collins vs. Chartiers, etc., Co., 139 Pa. St., 111, was a suit for damages to percolating water by drilling gas wells, by which salt water at greater depth was allowed to rise and spoil the water above for domestic purposes. The evidence showed that such contamination could be prevented by "casing" through the fresh water-bearing stratum at a reasonable cost. The court says:

"The evidence shows that the geological formation in that neighborhood is sufficiently uniform so that veins of fresh water are encountered at about the same relative depth from the surface, and veins of salt water at a tolerably uniform distance below the fresh water . . .

"The defendant began the work of drilling the well complained of, with full knowledge of the general geological formation, and with ample practical experience in the management of the water veins; but while the company shut the water out of its own well it did not separate the salt from the fresh but left it to mingle with the fresh and to flow through the fresh-water veins into the wells in the neighborhood, and destroy them."

It was held that the company was liable for damages occasioned by the salt water.

ICE

Water, when solidified into ice, is as much a part of the earth's crust as any other solid stratum, but, owing to its temporary

21 See also, Wills vs. City of Perry, 92 Iowa, 297, 60 N. W., 727, 26 L. R. H., 124; Cole, etc., Co. vs. Virginia, etc., Co., Fed. Cas., 2989, 1 Sawyer, 670.

22 Brown vs. Illis., 27 Conn., 84; Illiff vs. School Director, 45 Ill. App., 419; Kinnard vs. Standard Oil Co., 89 Kentucky, 468; Woodward vs. Aborn, 35 Me., 271.