Hale v. McLea

         Without naming or examining in detail the authorities relied on by defendant, it is sufficient to say that they all fall within the following clauses, viz: 1. Where the defendant incidentally cut off the water, as where he had been building, mining, improving, cultivating, or making some other use of the land itself, and the water was incidentally diverted thereby. Or 2. Where it was simply a question of two wells, and the fact of there being a natural spring did not exist in the case. Or 3. Where there was a natural spring, but it was supplied by percolation; that is, by oozing or straining through the soil.

         But the facts of this case place it entirely without all these classes. Wheatley v. Baugh , 25 Pa. St. 531, is to the effect that " a subterranean stream which supplies a spring with water cannot be diverted by the proprietor above for the mere purpose of appropriating it to his own use." (Smith v. Adams, 6 Paige, 435; Dexter v. Prov., etc. 1 Sto. 3; Wash. on Easements, 2nd ed. 456-7; Angel on Water Courses, secs. 111 and 112; Sweet v. Cutts, 9 Am. 282; Delhi v. Youmans, 50 Barb. 516; Hanson v. McCue , 42 Cal. 308; Haldeman v. Bruckhart , 45 Pa. St. 514; Smith v. Adams, 6 Paige, 433.)

         JUDGES: Crockett, J. Rhodes, J., concurring. Mr. Chief Justice Wallace did not express any opinion.

         OPINION

          CROCKETT, Judge

         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 the water from its natural channel, instead of allowing the surplus to flow to the spring in its accustomed bed.

         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 land-owner 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 on 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.

         Judgment affirmed.

         CONCUR

          RHODES

         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.