
    Jason Bloodgood, App’lt, v. Ann Ayers, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Water-courses—Law applicable to does hot govern sub-surface CURRENTS OR PERCOLATIONS.
    Sub-surface currents or percolations are not governed by the rules and regulations respecting the use and diversion of water-courses, and they may be intercepted or diverted by the owner of the land for any purpose of his own. The only exception is that of certain underground rivers which are known and notorious and flow in a natural channel between defined banks.
    2. Same—Owner of land has right to intercept or divert water op a SPRING THEREON.
    Upon defendant’s premises, and over 100 feet from plaintiff’s line, there was a living spring which came up out of the earth and was carried by a short leader to a watering trough. At that trough all the surplus water sank into the ground and disappeared. About 100 feet from the spring and within 20 feet of plaintiff’s line, water appeared upon the surface, which again disappeared, but came to the surface on plaintiff’s side of the line at a point where plaintiff had established a reservoir. It seemed probable that some of the water of defendant’s spring, by percolation or subterranean current, reached plaintiff’s reservoir. The defendant carried the waters of his spring to his house and so it was claimed intercepted the supply of plaintiff’s reservoir, and for that alleged wrong this action was brought. Held, that the defendant had a right to intercept or divert the water of said spring for his own use without responsibility to a lower proprietor.
    
      Appeal from a judgment of the supreme court general term, third department, reversing a judgment entered upon the trial of the action by the court without a jury, and also reversing an order refusing to set aside the verdict of a jury upon two questions submitted to them.
    Jas. B. Olney, for app’lt; Sidney Crowell, for resp’t.
    
      
       Affirming 37 Hun, 356.
    
   Finch, J.

The general term reversed the decision of the trial court mainly upon a single proposition which was founded upon undisputed evidence. A spring, or at least a reservoir, of water existed upon plaintiff’s land, disclosing itself at the surface about twenty feet from the dividing line between the parties. The water from that reservoir followed depressions in the land across plaintiff’s meadow to the road. It ran in no defined channel having natural banks, but flowed over the sod almost wholly without breaking it; following the lowest levels, and sometimes spreading out over an acre or more. Its route could be traced by the deeper green pf the grass which it watered, but it proved no obstruction when that came to be cut; for the evidence is that the plaintiff mowed across it habitually as if it were not there. He himself said in answer to the inquiry whether he could see the current, that in a wet time “you can see it a good ways,” but in a dry time “you can see it maybe two rods, but any one who did not know there was a spring there would not notice.” When asked on cross-examination whether there were any banks to what, he called the stream, he could not say that there were; and at the inquiry if there was a channel was evidently puzzled; and saying there was no ditch cut, and then that he cut out a furrow, answered the question, four times repeated, by saying that he did not know how to answer it; and the inquiry being pressed once more, replied, “of course there is a channel where the water flows.” When asked the width of the channel, he replied, “ there are so many different channels I don’t know how to get at it; the water covers a couple of acres of my meadow.” The next witness for plaintiff had seen the water run across thé meadow during a freshet, but could not soyas to any other time; while a third witness pressed to describe an obvious channel said, only “the course the water did take through you could see by the grass.”

The plaintiff’s sons described this flow somewhat stronger so far as the use of the words “bed” and “stream” were concerned, but without at all changing the facts. On the part of the defense it was shown that when. water was visible on the meadow, it was in times of freshet when the water-shed of twenty or thirty acres above poured rain or melting snows down the depression described. Very probably some portion of the water crossing the meadow came, by percolation through the earth from defendant’s spring above; but granting that, it seems to us difficult to say, from the evidence, that there was a water course across the plaintiff’s land within the definition of that term, which we have heretofore adopted. Barkley v. Wilcox, 86 N Y., 147.

But the general term put their conclusion upon another ground, growing out of some further facts. Upon defendant’s premises, and something over 100 feet from plaintiff’s line, there was a living spring which came up out of the earth and was earned by a short leader to a trough, which had long served as a watering place for the stock of defendant and previous owners. At that trough, or within a few feet of it, all the waste or surplus water sank into the ground and disappeared. What became of it was in no manner obvious to the senses until by digging and experiment a probability was established. About 100 feet from the spring, and within perhaps twenty feet of plaintiff’s line, water appeared upon the surface, sometimes seen to be in motion towards a sluice under the fence arranged for the passage of surface water mainly or in part at least. At that sluice the water, except in times of freshet, again disappeared, but came to the surface about twenty feet on plaintiff’s side of the line, and at the point where his spring or reservoir was established.

His experiments, which he details, make it strongly probable that by percolation or subterranean currents more or less of the water of defendant’s spring reached the plaintiff’s spring or reservoir; but the fact, if it be one, is established only as the result of inference or reasoning. In this state of affairs the defendant carried the waters of his spring to his house for domestic uses, and so it is claimed intercepted the supply of plaintiff’s reservoir, and for that alleged wrong this action was brought.

The general term held that it could not be maintained, and we are of the same opinion. Ho stream or water course ran from the spring. The source from which it came, and the flow of its waste or surplus were alike underground,- concealed, and matters of speculation and uncertainty. Such a spring belongs to the owner of the land. It is as much his as the earth or minerals beneath the surface; and none of the rules relating to water courses and their diversions apply. Broadbent v. Ramsbotham, 34 Eng. L and Eq., 553; Rawstron v. Taylor, 33 id., 435; Delhi v. Youmans, 35 N. Y., 363; Goodale v. Tuttle, 29 id., 466; Ellis v Duncan, 21 Barb., 234; Barkley v. Wilcox, 86 N. Y., 147. The only exception established by the authorities is that of certain, underground streams or rivers which are known and notorious, and flow in a natural channel between defined banks. A few such exceptions are admitted to exist and others may occur. But, outside of these, sub-surface currents or percolations are not governed by the rules and regulations respecting the use and diversion of water' courses and they may be intercepted or diverted by the Owner of the land for any purpose of his own.

The case first above cited resembled the present one in the feature that the action was to prevent the interception and diversion of certain sources of supply reaching a water course known as Longwóod Brook. One of these was a swamp or wet piece of ground which the opinion describes as “ merely like a spring, so to speak, fixed on the side of a hill; ” and of the subterranean courses communicating with the swamp, which certainly existed, it was deemed a sufficient answer that they were “not traceable so as to show the water passing along them ever reaching Longwood Brook.” Another source of supply was described as a stream welling out of the ground at a depth of about two feet, which flowed into a receiving basin three feet square, used as a watering place. In those respects it resembled the spring in the present case, but unlike that the surplus and waste, instead of disappearing in the ground, followed ditches arid depressions in the surface until it reached the brook.

Both supply sources were intercepted and diverted, and a right of action therefor denied; as to the first, on the ground that the subterranean currents were concealed and not traceable, and the second upon the distinct proposition that the owner might intercept or stop them before they reached a natural water course.

In Village of Delhi v. Youmans (supra) it was held that the owner of land might lawfully intercept percolations or underground currents. The reasons and justification of the doctrine are well stated in Acton v. Blundell (12 M. & W., 324). They are that as the water does not flow openly in the sight of the owner of the soil under which it passes, there is no ground for implying consent or agreement between the adjoining proprietors which is one of the foundations on which the law of surface streams is built; that a different rule would enable a lower proprietor to prevent the upper owner from using the water in his own soil and expose him to a loss and danger in making improvements on his own land; and a further reason is found.in the indefinite nature of the right claimed and the great extent of obligation which would be incurred.

The law in other states is in accordance with the views here expressed (Haldeman v. Bruckhart (45 Penn., 514; Greenleaf v. Francis, 18 Pick., 117; Frazier v. Brown, 12 Ohio, 294; Chatfield v. Wilson, 28 Vt., 49; Roath v. Driscoll, 20 Conn., 533), and the rule is' strongly stated in Angelí on Water Courses (chap. 4, sec, 114) as being that “the owner of land on which a spring issues from the earth has a perfect right to it against all the world except those through whose land it comes, and has a right to it even as against them until it comes in conflict with their enjoyment of their own property.”

The proposition, while very broadly stated and somewhat open to criticism, embodies the substance of the prevailing doctrine as to the right of the owner to intercept and divert underground currents and percolations for his own uses without responsibility to a lower proprietor.

The judgment of the general term should be affirmed and judgment absolute rendered for the defendant, with costs.

All concur.  