
    HELTMAN’S APPEAL.
    A Court of Equity has jurisdiction to prevent the diversion of a stream of water which supplied plaintiff’s spring by a subterranean channel.
    Appeal from Common Pleas of Clinton County. In. Equity. No. 135, January Term, 1882.
    The master’s report in this case was as follows :
    The question at issue in this case may, we think, be reduced to three affirmations on the part of the plaintiff, and three on the part of the defendants.
    The plaintiff alleges :
    First. That he has a good and valid title to a farm in Lgmar Township, Clinton County, upon which there is a large and valuable spring, the water of which has been used ever since ,the occupancy of the land, by himself and those who preceded him in title, for all household purposes, for watering stock, and for all necessary uses in the cultivation of the farm.
    Second. That said spring is fed from Fishing Creek, through a subterranean passage of about one and a-half or two miles in length, that the place said passage begins is at a point on the farm of Jacob Heltman, one of the defendants^, where the natural channel of the creek leads the water against a high bluff at the foot of which are “sink holes” into which the water flows, and from thence through said passage to the spring.
    Third. That the defendants have diverted the waters of Fishing Creek from their natural channel by means of ditches dug and dams constructed for that purpose, and by these means have, at some seasons, entirely dried up the spring of plaintiff, thus inflicting on him irreparable damages.
    The defendant affirms :
    First. That the spring of plaintiff is not his only source of supply of water for household purposes, and tliat said spring is supplied from other sources than from Fishing Creek, through said “sink holes” as alleged by plaintiff.
    Second. That one of the ditches or channels which it is alleged is used for diverting the water of Fishing Creek from its natural channel, was dug, and one of the dams used for that purpose was built in the year 1814, under a grant in a Deed, and has been used so uninterruptedly since, thus giving them a right by prescription as well as by grant.
    Third. That plaintiff lias a .full and complete remedy at law, and that he must pursue and establish his right to the flow of water, as he claims it, in a Court of Law, before he can ask the interposition of a Court of Equity.
    The facts are found to be as follows : James H. Porter, the Plaintiff, obtained by purchase April 1st, 1858, from A. H. Best, a farm in Lamar Township, Clinton County, containing one hundred and sixty-three acres, and allowance which has been used and occupied for farming purposes for many years. Upon this farm there was a large spring of water which has been used for household and farming purposes for more than fifty years, and which added greatly to the value and convenience of the farm. That at a place on the farm of Jacob Heltman, Fishing Creek, which is a stream of considerable .size flowing through Nittany Valley, strikes a bluff on its northern bank, at the base of which there are “sink holes,” and into these a considerable portion of the water that flows down the natural channel of said stream flows or sinks. That the water, or a portion of it, after flowing through a subterranean channel of about one and a half miles in length, •comes to the surface and feeds the spring of the Plaintiff' and others.
    That the supply of water in the spring of Plaintiff depends to some extent on the stage of water in Fishing Creek, whether it is high or low, but to a much greater extent on the fact as to whether the water of that stream has been allowed to flow uninterruptedly in its natural channel or has been diverted therefrom by artificial means. The spring has been known to fail in dry weather when the channel of Fishing Creek was unobstructed, but this was the exception and not the rule. The evidence shows that in almost every instance when the spring was dry and there was an ordinary stage of water in Fishing Creek, that the natural channel was obstructed, and upon the removal of the obstructions the water returned to the spring. Further, that the Defendants, by means of deepening the “old channel,” heightening the dam across the “natural channel” at point marked “A,” by repairing the old channel at point marked “Wall,” and thus preventing water from flowing from that channel to the sinks, and by opening “new channel” (all these points being marked in that way on exhibit “A”) did divert the water from the natural channel of Fishing Creek, and thus interferes with and prevents the flow of water to the Plaintiff’s spring. That there are other sources from which Plaintiff could obtain water for the use of his household and farm, but only with additional cost and labor.
    That on the 10th day of August, 1814, George Brown Lee and wife conveyed to Leonard Stump a tract of land containing sixty-one acres and eight perches of land, situated just below the “sink holes,” by a Deed containing the following grant: “'With the privilege of taking out water out of the channel of the Creek on the said George Brown Lee land,, and running it to the said Leonard Strurap land.” That during the same year, in pursuance of said grant, a channel or ditch was dug, and a dam built, which diverted some of the water from the main channel of Fishing Creek and from the “sink holes,” that said channel or ditch, and dam, have been used for that purpose since that time, but not uninterruptedly for twenty-one consecutive years, as claimed by Defendants. The testimony showing a number of interferences at different times, by persons whose springs were affected by such diversion of the water.
    The conclusion at which we arrive from this finding of facts is: That the plaintiff is entitled to the use of so much of the water of Fishing Creek as would naturally flow into the “sink holes,” and thence into the spring when the natural course of that stream is unobstructed, and that the Injunction prayed for must be granted, unless the Defendants by their grant, or by j)rescription, have obtained a right to obstruct its course, or unless the Plaintiff has a full and complete remedy at law.
    We are led to inquire then :
    First — AVas there such a grant in the conveyance from Brown Lee and wife to Stump as justified the Defendants in diverting the waters of Fishing Creek from the “sink holes,” and thus from Plaintiff’s spring?
    It is well settled that the person through whose property a stream of water passes, has no property in the water itself; that he may use it but must not divert or destroy it to the injury of the persons on the stream below him.
    “Water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient usufructuary, property therein.” — Blackstone’s Com., Shars. Ed., Yol. 1, Book 2r page 17.
    ‘ ‘A proprietor of land over which a stream of water runs has, as against a lower proprietor, the use of only so much of the stream as will not materially' diminish its quantity or corrupt its quality. His right is not to be measured by the reasonable demands of his business.” — Wheatly vs. Chrisman. 12th Harris, page 298.
    “The general principle undoubtedly is, that he who owns the soil has it even to the sky, and to the lowest depths. He may dig as deep, and build as high as he pleases. The maxim which embodies the principal is: ‘Cujus est solum ejus est usque ad coelum et ad infernos.’ If this general rule be applied to the case before us, the Plaintiff in error is justified in all that he did on the land of his principals by their direction. But there are some restrictions upon this general right of property, which it becomes necessary to notice. The natural streams of water existing by the bounty of Providence, for the benefit of the land through which they flow, are incidents annexed to the land itself. — 4 Mason 400 ; 12 Wend 332. They do not begin by consent of parties, nor by prescription, but ex jure naturae, and therefore they are not extinguished by unity nor can they be obstructed or diverted to the prejudice of adjacent proprietors.— Sury v. Piggot, Popham 170 ; 3 Bulst. 339. It was said by Sir John Leach, in Wright v. Howard 1 Sim. & Stuart 190. that ‘every proprietor who claims a right either to throw the water back, above, or to diminish the quantity which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years.’— 1 Sim & Stuart 190. It is true that there is a difference between water courses on the surface, and those which run under ground. —Acton v. Blundell, 12 Mees & Welsby 324. But this distinction does not authorize neighboring proprietors to disregard the necessities of each other’s condition in respect to the latter. It is manifest that valuable rights may exist in both, and it is indisputable that wherever they do exist they must be protected by law. In limestone regions streams of great volume and power pursue their Subterranean courses for great.distances, and then emerge from their caverns, furnishing power for machinery of every description, or supplying towns and settlements with water for all the purposes of life. To say that these streams might be obstructed or diverted merely because they run through subterranean channels, is to forget the rights and duties of man in relation to flowing water. But to entitle a stream to the consideration of the law, it is certainly necessary that it be a water course, in the proper sense of the term. A spring gutter on the surface, is none the less a water course, although it is not equal in volume to a river. Small as it may be, if it have a clear and well defined channel, and a regular flow in that channel, it cannot be diverted to the injury of the proprietors below. — Jack v. Martin, 12 AVend 330. So a subterranean stream, which supplies a spring with water, cannot be diverted by the proprietor above, for the mere purpose of appropriating the water to its own use. — Smith v. Adams, 6 Paige 43’5. As the owner of the land below is bound to permit the stream to flow in its accustomed channel, and cannot erect obstructions so as to throw the water back on his neighbor above, so the latter is bound, as a correlative obligation, to permit it to flow to his neighbor below. Each has a right to a reasonable use of the water on his own premises, but he must so exercise his privilege as not to injure the rights of the other. ‘Sic utere tuo ut alienum non loedas’ is the maxim especially applicable to the enjoyment of these rights.” ; AVheatlcy vs. Baugh, 1st Casey, 528.
    To the same effect is AVhetstone vs. Bowser, 5th Casey 59.
    Believing, therefore, that no right to divert the water was conveyed by said deed, and having found as a fact that they bad no uninterrupted uses for Twenty-one years, and therefore cannot claim a prescriptive right, we are left the only remaining questions:
    Was the Plaintiff compel1 ed to establish his right to the enjoyment of this water by an action at law before filing his bill and asking for an injunction ?
    We confess that this to us seemed the most serious question of the case. After thorough investigation and mature deliberation, we have concluded that .the -present, proceeding,is right and that, even if it -were questionable, the defendants cannot, having proceeding thus far without objection, avail themselves of it now.
    The case of Rhea vs. Forsyth, 1st Wright, p. 503 ; the North Pennsylvania Coal Company vs. Snowden, 6th Wright, p. 488. and cases therein referred to, were cited as authorities supporting this position that lie must so establish his right. All these cases seem to bo of such a character that a common law action would have fully decided a question of title, and not such an action as would necessarily have been instituted in a Common Law Court in this case to recover damages. The -question has however been so fully discussed by the Supreme Court in the very elaborate opinion if Judge Reade in Mc-Callum vs. The Germantown Y/ater Co., that it seems useless to refer to any other authorities.
    The right of a Court of Equity to inform itself as to facts if it so desire, by the trial of an issue by a jury is so clearly affirmed and demonstrated, that it would be a work of supererogation for me to do aught but quote from that opinion or refer to it: The master here quoted from 54 Pa, pages 54 to 59.
    It wTould certainly not be just to dissmiss this Bill for want of jurisdiction after the Defendants had submitted themselves to the Court by answering the Bill, agreeing to the appointment of a Master and appearing clay after day in taking testimony.
    They refused the benefits of a demurrer, if benefits it had, by neglecting to avail themselves of it.
    The language of Judge Woodward in Denny vs. Brunson, 5th Casey, p. 385, may. be pertinently quoted : “The appearanco of Defendant and taking a chance for a decree in 'his favor on the merits, waived the irregularities of the preliminary proceedings.”
    I also refer to the following, on the same subject:
    “Whether a case may be brought in the chancery forum, is only a question of form and not of jurisdiction; and the objection is waived, if not made in due season. It must be taken advantage of by demurrer, and not by an objection to-the jurisdiction of the court.” — Brightly’s Equity, page 49.
    “The second cause of demurrer to the jurisdiction is, that the subject of the suit is not within the jurisdiction of a court of equity. In general, when the plaintiff can have a remedy at law, as effectually as the one he seeks in equity, and that remedy is direct, certain and adequate, a court of equity has no jurisdiction; and theoefore a demurrer to the jurisdiction will be sustained. But to induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy at law to induce equity to decline the exercise of jurisdiction in favor of a suitor, must be an adequate and complete one. And where from the nature and complications of a given case, its justice can best be reached by means of the flexible machinery of a court of equity, in short, where a full, perfect, and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice.
    “An objection to the jurisdiction of the court, because the Plaintiff has an adequate remedy at law, cannot regularly be taken after the Defendant has answered on its merits. After a Defendant lias put in an answer in chancery, submitting himself to the jurisdiction of the court without objection, it is too late to insist that the complainant has a perfect remedy at law, unless the court be wholly incompetent to grant the relief sought by the bill. Such an objection in those courts which have jurisdiction, both at common law and in equity, is considered as going rather to the form of the proceeding than to the jurisdiction ,of the court over the subject matter ; audit can only be taken advantage, of;by, demurrer.”— Brightly’s Equity, pages 459 and 460.
    The master, upon exceptions to his report, made the following amendment to his report of facts found :
    1st. That since 1814 until 1878 there has beeu a continuous flow of water through the “old canal,” but at no time, f jr twenty-one consecutive years, has the flow of water been uninterrupted as to quantity. The evidence clearly shows-that when the spring of the Plaintiff, and those who held it before him, was affected by the diversion of the water from the sink holes, the dam across the main channel of the creek, wThich had been erected for the purpose of turning the water into the “old canal,” was opened, and part of the water that-would have flowed into the “old canal,” if the dam had not been opened, ran down to the sink holes instead of into the “old canal.”
    2d. That the water which flows through the “old canal” passes back into the main channel of the creek about one hundred feet below the lower sink holes, and that that water, with what flows down the channel past the sink holes, is the water supply for about ten families, their farms, stock, &c.
    3d. The Defendants allege, that, the evidence in the casé does not establish such a water course between the sink holes und the Plaintiff’s spring, as the law recognizes as a water course.
    The Court entered the following decree :
    And now, May 27th, 1881, the above case came on to be heard, and after argument and consideration it is ordered, adjudged and decreed that the report of the Master is confirmed and a decree be made with the following modifications :
    That the said defendants be commanded forthwith to remove from the channel of Fishing Creek all obstructions placed in said channel by them, or by any person in the employ of them, or any of them for the purpose of diverting the waters of said creek from their natural channel, or that have the effect of so diverting said waters.
    That the said defendants be commanded forthwith to restore the bed of the natural channel of Fishing Creek to its condition as it was in September, 1875, and that all obstructions be removed from the natural channel so that the bed of the natural channel and “old channel,” or canal, be placed on a level at the head of the old canal.
    That the said defendants be commanded to close the dug channel known as the “new channel” in such manner that the flow of the water and the deviation thereof from the sinks by means of said “new channel” may be completely and entirely stopped. And is further ordered and decreed that the said defendants, and every of them, their servants, employees, agents, workmen, and all persons under them, or any of them, are hereby perpetually restrained and enjoined from in any manner whatsoever, closing or obstructing said natural channel of Fishing Creek, and from changing, diverting, or in any way interfering with the natural flow of the waters of said Fishing Creek.
    Heltman, et al., then appealed, assigning different errors to the finding of facts, and one that the Master’s fee of $300 was excessive for his report and holding eleven meetings and taking seventy-one printed pages of testimony. Another exception was as follows:
    The Master erred in his conclusion that the present proceeding is right, and even if it were questionable, the defendants cannot, having proceeded this far without objection, avail themselves of it now, and in saying “it would certainly not be just to dismiss this bill for want of jurisdiction after the ■defendants had submitted themselves to the Court by answering the bill, agreeing to the appointment of a Master, and appearing day after day in taking testimony, they refused the benefits of a demurrer, if benefits it had, by neglecting to avail themselves of it.
    C. S. McCormick, Esq., for appellants,
    argued that a Court of Equity cannot enjoin until the right is established at law; Kelley vs. Long, 7 Phila. 456; Rhea vs. Forsyth, 37 Pa. 503; North Penna. Coal Co., vs. Snowden, 42 Pa. 491.
    H. T. Harvey, Esq., contra,
    argued that a Court of Equity has jurisdiction to prevent trespasses of a repeated or continuing character; Scheetz’s Appeal, 35 Pa. 88; Sunderland vs. Whiteside, 7 Phila. 335; Commonwealth vs. Pittsburgh and Connellsville R. R. Co., 24 Pa. 159; McCallum vs. Germantown Water Co., 54 Pa. 40; Adams vs. Beach, 1 Phila. 99; Stewart’s Appeal, 56 Pa. 422.
   The Supreme Court affirmed the decree of the Common Pleas on May 8, 1882, in the following opinion :

• Per Curiam.

The assignments of error are to the findings of the learned Master in the Court below on the facts ; and his findings have-been confirmed by the learned Court. An examination of the evidence has not satisfied us that any plain error has been committed, such as would justify us in reversing them. On the whole, we think the decree of the learned Court was in con-' formity to the justice of the case.

Decree affirmed and appeal dismissed at the cost of the appellant.  