Water-Supply and Irrigation Paper No. 122 Series 0, Underground Waters, 35

DEPARTMENT OF THE INTERIOR

UNITED STATES GEOLOGICAL SURVEY

CHARLES 1J. WALCOTT, DIRECTOR

 ta of the Law to Under

BY

DOUGLAS WILSON JOHNSON

WASHINGTON

GOVERNMENT 1'KINT1N<! OFFICE
CONTENTS.

Page.

LETTER OF TRANSMITTAL, ___________ ________-_--___--. 5

INTRODUCTK >N _______________ _____________________________________ 7

Abbreviations used _____ ___________ __--_-_---_---_------ 7

CHAPTER I. Common-law miles concerning underground waters. __________ 9

Definition of underground waters ___________ ____.__.,.______-. 9

Classification of underground waters _ ______________-----__--____-_- 9

Underground waters of the first class- _ _ _ _ _________ ________________ 10

What constitutes underground waters of the first class ________..-__ 10

Laws relating to underground waters of the first class. ___________ 11

Underground waters of the second class___________________________ 13

Laws relating to underground waters of the second class -_-_______ 12

General principles_-----__----------------------------_ __ _ 12

Interference with wells ______-__.__-____---------------__-__ 14

Interference with springs _____________ _________________ _ _ _ _ 17

Interference with streams __._____-___.____---______.____. 18

In.iury to land _ __________ ______-_-__-_---.______ 19

Damming of underground waters- ___. __ __________________ . 21

Disposal (if intercepted underground waters ._..________.____ 21

Artificial production of percolation. __________________________ 22

Artificially increased percolation ______.__-_--____-______._.__ 23

Pollution of underground waters _-._-.-___-_-_--_-____.-__._ 25

Effect of motive-. _______ ______________________________ 28

Effect of grant or agreement _________________________________ 30

Effect of prescription __ . ___ ___________________ _______.-_. 31

Summary and conclusions _ . __________ __.__._--_-____________ 33

DHAFTER II. Legislative acts affecting underground waters. _---_-________ 39

Introduction _________ :____..._.__-__._. ______ _ -__-_._.____.______ 39

California ___________---.___-.-.--.___________-__-__-______________. 39

Colorado ___________________ _______..__--___--______-___--___________ 40

Idaho ......................................... ----- -------.-_-_-. 41

Michigan. _ ___-_-.._-.__-____.__.___.___...____._.. ..-..---._....... 42

Nebraska.-........_............_..._.._..._...._..-. ................. 42

Nevada ________---__-.---____-- __--___ _---_-_--_-______-__.____-__ 43

New Jersey _._ -_______.--.___________________.___--___________._.... 43

New Mexico.________________________________________________________ 44

Oklahoma ______ _________ s _ __.____._.__ .___ _ ....._.__-___._.____ 44

Oregon ________.-_____.._-___________-.-__.-_.-___...______________..__ 44

South Dakota _____._-_.__.__---.___. ________________________________ 4o

Utah _________________________________________ ..____..___._____ 48

Washington ____.__.____.______.__..__.__.____-__.________ __________ 48

Wisconsin __________________________________________________________ 49

Wyoming _ _. ________________________________________________ _ _ _ _ 49

INDEX .......-.-............................_...-...........-..-......... 51

3
LETTER OF TRANSMITTAL.

DEPARTMENT OF THE INTERIOR,

UNITED STATES GEOLOGICAL SURVEY,

HYDROGRAPHIC BRANCH,

Washington, D. C., February '23,

SIR: I have the honor to transmit herewith a manuscript entitled

u Relation of the Law to Underground Waters,' 1 prepared by Douglas

Wilson Johnson at the request of Mr. M. L. Fuller, in charge of the

eastern section of the division of hydrology, and recommend that it

be published as a water-supply and irrigation paper.

This manuscript, which is the first comprehensive paper prepared 

in this country on the relation of the law to underground waters, 

was compiled to meet a considerable and ever-increasing demand for 

information as to the application of the law to this subject. It 

is especially pertinent at this time, when active efforts are being 

made in several States to enact laws governing the use of underground waters which shall take account of the recent advances in the 

science of hydrology and the present knowledge of the occurrence 

and movements of such waters. 

Very respectfully,

F. H. NEWELL, Chief Engineer. 

Hon. CHARLES D. WALCOTT,

Director United States Geological Survey.
RELATION OF THE LAW TO UNDERGROUND WATERS.

By DOUGLAS WILSON JOHNSON.

INTRODUCTION.

The following pages represent an attempt to outline the main 

features of the laws respecting underground waters, with the object 

of giving to the owner of such waters some idea of his rights and 

obligations concerning them. It is needless to say that the report 

is in no sense a legal treatise, but rather an endeavor to collect and 

arrange such legal decisions as will serve to show the relation of the 

law to problems which are essentially geological in character. In 

summing up the general features of this law, I have recorded some 

observations which present themselves to the student of geology.

Throughout the preparation of the paper I have received much 

help from such authoritative works as John M. GoukVs treatise on 

the " Law of Waters," Pomeroy's treatise on " Water Rights," the 

section of the American and English Encyclopaedia of Law dealing 

with " Underground Waters,"1 and the Lawyer's Reports Annotated. 

The original reports of all the cases here cited, as well as of many 

others, have been consulted in the endeavor to ascertain just what 

were the critical points upon which each was decided. I am indebted 

to Prof. John C. Gray, of the Harvard Law School, and Mr. George 

Albert Walker, of the Boston bar, for valuable criticism.

ABBREVIATIONS USED.

Alien (Mass. )= Alien's Massachusetts Reports.

Am, Poe.=Ameriean Decisions.

A111. Law Reg. American Law Register.

App. ('as. Appeal Cases. English Law Reports.

P.. & S. Rest and Smith's English Queen's Rench Reports,

Eark~Barhonr's Supreme Court Reports, New York.

F>oav.=P>eavan's English Rolls Court Reports.

Cnl. California Reports.

Cent. Rep.=Central Reporter.

Ch. Div.=Chancery Division, English Law Reports.

Corm.=Connecticut Reports.
8 RELATION OF TEE LAW TO UNDERGROUND WATERS. [NO. 123.

Ct. of Cl. Court of Claims, United States.

Cush. (Mass.) =Cushing's Massachusetts Reports.

El. & Bl.=Ellis and Blackburn's English Queen's Bench Reports.

El. & El.-Kills and Ellis's English Queen's Bench Reports.

Euc. American and English Encyclopaedia of Law, vol. '27, " Underground 

Waters," pp. 423-444.

Exch.=Exchequer Reports (Welsby, Hurlstone. and Gordon).

Gould="A Treatise on the Law of Waters," third edition, by John M. Gould, 

Ph. D., Chicago. 1000.

II. &. N.=Hurlstone and Norman's English Exchequer Reports.

II. L. Cas. House of Lords' Cases. 

Hun-=IIun's New York Supreme Court Reports.

III.=Illinois Reports.

Ind.^^Indiana Reports.

Iowa=Iowa Reports.

Jones' Eq.=^Jones's North Carolina Equity Reports.

Ky. Kentucky Reports.

L.=Laws (legislative acts of States and Territories).

L. R. A.=Lavyer's Rei)orts Annotated. Rochester. N. Y. (Lawyers' Cooperative Publishing Company).

L. R. C. P.=English Law Reports, Common Pleas.

L. R. Ch.=English Law Reports, Chancery, Appeal Cases.

L. R. H. L.=English Law Reports, English and Irish Appeal Cases.

L. R. P. C.=English Law Reports. Privy Council. Appeal Cases.

L. T. N. S.=Law Times Reports, New Series.

M. & W.=Meeson and Welsby's English Exchequer Reports.

Mass.^Massachusetts Reports.

Me.=Maine Reports.

Mich.=Michigan Reports.

N. Car.=North Carolina Reports.

N. H.=New Hampshire Reports.

N. Y.=New York Reports.

Nev.=Nevada Reports.

Ohio St.=Ohio State Reports.

Pac. Rep.=Paci8c Reporter.

Penn. St.=Penusylvania State Reports.

Pick.=Pickering's Massachusetts Reports.

Pomeroy="A Treatise on the Law of Water Rights." by John Norton Pomeroy, LL. D., and Ileur}- Campbell Black, M. A., St. Paul, 1893.

Vt.=Yermont Reports.
CHAPTEE I.

COMMON-LAW RULES CONCERNING UNDERGROUND

WATERS.

Of the water which falls upon the earth in the form of rain one 

portion suffers evaporation, a second portion escapes hy direct runoff into surface streams, while a third portion sinks into the ground. 

The second portion, or that which escapes into surface streams, may 

find its way directly to the sea, with some loss by evaporation; or it 

may happen that an appreciable portion of this water will later sink 

below the surface and pursue for some time a subterranean course. 

The third portion, or that which at first passes directly into the 

ground, may later emerge to join surface streams, or may find its 

way to the sea without ever reappearing at the surface. During the 

course of its journey underground, water may collect into more or 

less well-defined subterranean channels, or may pass through the 

general mass of porous earth by slowT percolation.

DEFINITION OF UNDERGROUND WATERS.

It wall be seen, then, that underground waters comprise all waters 

which are for the time being below the surface of the ground, whether 

they have reached their present position by penetrating the ground 

directly after the fall of rain, or hy escape from such surface bodies 

of water as springs, swamps, lakes rivers, etc.; whether they are 

confined to definite channels, or are dissipated throughout the mass 

of more or less porous ground; and whether they are ultimately to 

reach the sea without reappearing at the surface, or are soon to 

emerge as well-defined streams or numerous widely distributed 

springs.

CLASSIFICATION OF UNDERGROUND WATERS.

While recognizing the broad definition of underground waters 

given above, the law divides such waters into two distinct classes, and 

provides for each a different rule. This division is based on the 

method of transmission underground whether in definite channels 

or by general percolation. It is evident that in many cases it would 

be impossible to know whether or not such underground transmission 

were in definite channels; and hence the law provides that where 

doubt exists the presumption shall be in favor of the ordinary percolation of wr ater through the ground. Thus limited the lawT recog-
10 RELATION OF THE LAW TO UNDERGROUND WATERS. Lxo. 122.

nizes the two following classes of underground waters: (1) ITndergromid currents of water flowing in defined and known channels; 

(2) water passing through the ground beneath the surface, either 

without definite channels or in courses which are unknown.

UNDERGROUND WATERS OF THE FIRST CLASS.

(Underground Waters Flowing in Denned and Known Channels.)

WHAT CONSTITUTES UNDERGROUND WATERS OF TTTE FIRST CLASS.

The meaning of ^defined and known*' as here used is thus explained 

by Gould (5RS) : " In this connection, ' defined' means a contracted 

and bounded channel, though the course of the stream may be undefined by human knowledge, and " known/ which is not here synonymous with ' visible/ refers to knowledge by reasonable inference." 

When the water flows in an underground channel which could be 

ascertained only by excavations, such a channel is not considered as 

'" known.^

In order to be certain that a giyen subterranean flow comes within 

the scope of this class of underground waters, one must be able to 

show, without opening the ground by excavation, that the water flows 

in a definite channel. For example, it is sufficient for this purpose 

if one can show that a continuous stream channel exists, and that the 

water which disappears beneath sand and gravel in the bed of this 

channel at one point reappears farther downstream. This is often 

the case with streams in arid regions, whose waters a%?pear at the 

surface only at occasional points along a channel which can be readily 

and continuously traced. In the case of Case r. Hoffman (L. R. A. 

20, p. 40) it was held that " The flowing of water upon and beneath 

the surface of lands between a natural lake * * * ^^ ^ creek 

into which they discharge constitutes a watercourse where the flow 

is all in the same direction and a part of the way along a distinct 

and plainly marked channel, although for some of the distance it 

spreads over wide reaches of marsh and swamp lands, and percolates 

the soil in many and most places between the lake and the creek."

If a stream flows into a sinkhole in a definite direction, pursues for 

a short space a subterranean course, and then emerges on the surface 

againi it is considered to have a definite and known channel. Even 

where a large stream pursues a subterranean course for a great distance, it comes within this class if it is shown to be a watercourse in 

the proper sense of the term. It has also been held that a subterranean stream has a well-defined channel where its course is marked 

by certain vegetation which would grow nowhere except above such 

subterranean stream. It would seem that the presence of sinkholes 

or depressions, the structural relations of hard and easily soluble
JOHNSON.] COMMON LAW! TJNDEBCROUND STEEAMS. 11

rocks, and other geological factors might often be of great importance 

in helping to establish the existence and direction of subterranean 

channels. And while it is not essential that the exact course of a 

subterranean channel be known in order to establish its existence, a 

knowledge of that course forms an important addition to the evidence.

It is not sufficient to show that a certain portion of water passes 

underground from one place to another, since that water, even though 

it travel in a definite direction, may reach its destination either by 

percolation through the more or less porous ground or by passage 

through definite channels. Thus, in a case where the flow of water 

from a spring was stopped when the water was drained out of a 

natural basin on higher ground, it was held that the mere fact that 

the spring was supplied from the basin was insufficient to show that 

the water flowed from basin to spring in a well-defined channel. In 

like manner it is probable that the transmission of coloring matter 

from one point to another by underground water would hardly be 

regarded as evidence of the existence of a definite channel, although 

the transmission of particles of material size, such as fragments of 

wood, might be considered more significant.

Where there is nothing to show that the waters in their subterranean courses are confined to definite and known channels, they are 

presumed to be transmitted by ordinary percolations through the 

ground, and so to belong to the second of the two classes of underground waters, as defined above.

LAWS RELATING TO UNDERGROUND WATERS OF THE FIRST CLASS.

In the conception of the law all those underground waters which 

have a definite and known channel are to be dealt with as if they 

were surface streams, and no distinction is made between such subterranean and surface waters because of their location. Accordingly, 

the laws applicable to this first class of underground waters are the 

same as those which apply to streams on the surface of the ground.

It is beyond the limits of this paper to enter into a discussion of the 

relations of the law to surface waters, but a few of the general 

principles upon which that law rests may be here referred to in 

order that the rules governing the use of underground waters of thesecond class may be better appreciated. Perhaps the most fundamental distinction is that the law recognizes only certain rights in the 

waters of surface streams (including, as we have seen, underground 

streams with definite and known channels), whereas it admits absolute ownership in subterranean percolating waters. The right in 

the waters of surface streams is, in general, the right to have the water 

flow through one's land in its natural state, through its accustomed 

channel, and without material diminution in quantity or deterioration in quality. From this it follows that, in general, one may not
12 RELATION OF THE LAW TO UNDERGROUND WATERS. [NO. 122.

consume all the water of a stream, although he may appropriate a 

reasonable portion for his use, provided this right is exercised with 

due regard to the rights of other proprietors above and below him. 

He may, however, consume what water is required for necessary uses, 

even if he renders the stream dry. He may not divert a stream so as 

to cause it to flow onto the land of his neighbor below in a new channel, although he may divert the stream on his own land, provided 

' he return it to its accustomed channel without material loss before 

it leaves his property. He may not build a dam which will force 

the water back upon the land of his neighbor above.

While this is the general attitude of the law toward surface streams 

and underground waters of the first class, there are many exceptions. 

Thus, in a Massachusetts decision, it has been held that the proprietor who first builds a dam for reasonable purposes has a right to 

maintain it, even though it forces the water back upon the land of 

his neighbor upstream to such an extent as to prevent the latter from 

having sufficient fall to erect a mill on his land, while his downstream 

neighbor would not be allowed to build a dam which would raise 

the water so far as to stop the wheel of the first proprietor's mill. 

Such a right is generally given by special mill acts. This rule has 

been repudiated in certain other States, or else made conditional on 

certain other legal rights. (Pomeroy, pp. 18-15.)

The greatest exceptions, however, are to be found in the Pacific and 

Rocky Mountain States, where the needs of mining, customs arising 

in mining camps, etc., have led to the establishment of the law of 

" prior appropriation," by which the one who first appropriates a 

stream is entitled to divert, use, and consume such quantity of water 

from the stream as is necessary for his mining operations; and he 

becomes absolute owner of such water as is thus appropriated. This 

doctrine has been extended to all other beneficial purposes for which 

water is essential, such as milling, manufacturing, agriculture, irrigation, and municipal purposes. (Pomeroy, pp. 19-20; Gould, p. 451 

et seq.)

UNDERGROUND WATERS OF THE SECOND CLASS.

(Water passing through the ground below the surface, either without a. definite 

channel or in courses which are unknown.)

LAWS RELATING TO UNDERGROUND WATERS OF THE SECOND CLASS. 

GENERAL PRINCIPLES.

The relation of the law to underground waters of the second class, 

or underground waters proper, constitutes the subject of this paper. 

It is to be remarked at the outset that the mutual rights and obligations of neighboring proprietors regarding surface streams (includ-
.TOHKSOX.] COMMON LAW: GENERAL PRINCIPLES. 13

ing the first class of underground waters), which have been briefly 

referred to above, have no application to waters of this second class, 

which are, or must be presumed to be, ordinary percolations through 

the general mass of more or less porous ground. The fundamental 

principle upon which the laws regulating the use of these waters are 

based is this: That such percolating subterranean waters are a part of 

the land itself, and belong absolutely to the proprietor within whose 

territory they are. The land belongs to the owner, whether it be solid 

rock, porous ground, entirely earthy matter, or part soil and part 

water. The %)ercolating waters within his territory are as truly his 

absolute property as are the rocks, ores, or minerals. Consequently 

he may take and use such waters as he pleases, although such use 

may cause damage to his neighbor.

From this it follows that one may withdraw from his soil all the 

percolating water he desires; and since it is manifestly impossible to 

say how much of such water was originally within the limits of his 

own territory, how much comes into his territory from that of his 

neighbors, or how much passes from his own territory into that of 

his neighbors, it is held that he .may completely abstract all such 

waters from his own soil, even though in so doing he also abstracts 

the water from the soil of neighboring proprietors. In like manner, 

one may obstruct or interfere with the natural flow of underground 

waters of this class or change the course of such flow in any way he 

may choose.

There are several conditions which have resulted in the development of such a body of law. The courses of such waters as are 

embraced in this class being ^' indefinite and unknown," it has been 

believed that any other rule would hold a man responsible for the 

preservation of rights which he could not appreciate until after such 

rights had been violated. Not until his own well was completed 

could he know that it would abstract the water from his neighbor's 

well. Not until his own mine excavation was made could he tell 

that farming land miles away would be drained of its water. " One 

can hardly have rights upon another's land which are imperceptible."

Tt has also been pointed out (Tindal, C. J., in Acton r. Blundell, 

12 M. & W., p. 350^ that no one knows what changes these underground waters undergo; that perhaps only a day ago the course 

taken by such waters became what it is to-day. The sinking of any 

well may completely alter the direction of percolation over a given 

area; and the proprietor can not l*e held responsible for such changes 

as may benefit or damage his neighbor, but concerning which neither 

of them can have any knowledge until after the change is effected.

Any other rule, it is argued, would place an unbearable responsibility upon the proprietor, for in the proper use of one's own land 

it has happened that the waters have been drained from land several
14 RELATION OF THE LAW TO UNDERGROUND WATERS. I"NO. 122.

miles away. The ordinary work of mining may so drain the water 

from the soil that destruction of crops, failure of streams, and even 

cave-ins will result at great distances from the mine. To hold the 

proprietor responsible for such unforeseen results of his legitimate 

pursuits would necessarily greatly interfere with beneficial occupations of various kinds. Such is the idea expressed by Lewis, C. J., 

when he says: " No man could dig a cellar or a well, or build a house 

on his own land, because these operations necessarily interrupt the 

filtrations through the earth. Nor could he cut down the forest 

and clear his land for the purposes of husbandry, because the evaporation which would be caused by exposing the soil to the sun and air 

would inevitably diminish, to some extent, the supply of wrater which 

would otherwise filter through it. He could not even turn a furrow 

for agricultural purposes, because this would partially produce the 

same result." (Wheatley a. Baugh, 25 Penn. St., p. 532.)

This whole matter has been summed up by one authority in the 

following words: u The law recognizes no correlative rights in respect 

to underground waters percolating, oozing, or filtrating through the 

earth, and this mainly from considerations of public policy (1) 

Because the existence, origin, movement, and course of such waters, 

and the causes which govern and direct their movements are so secret, 

occult, and concealed that an attempt to administer any set of legal 

rules in respect to them would be involved in hopeless uncertainty, and 

would be, therefore, practically impossible. (2) Because any such 

recognition of correlative rights would interfere, to the material detriment of the Commonwealth, with drainage and agriculture, mining, 

the construction of highways and railroads, with sanitary regulations, 

building, and the general progress of improvement in works of embellishment and utility." (Brinkerhoff, J., in Frazier v. Brown, 12 Ohio 

St., p. 311.)

With the above brief reference to the general principles upon which 

the lawT relative to underground waters of the second cla^s is based, 

attention will now be given to the application of this law to more concrete cases, exceptions to the. general rides being noted, and the 

opinions in accordance with which typical cases have been decided 

quoted to such an extent as may serve to make the matter clear.

Throughout the following pages it should be borne in mind that 

 ' subterranean" or " underground" waters, as here used, refers 

always to the second class of underground waters those which are, 

or must be presumed to be, the result of ordinary percolation through 

the general mass of the ground.

INTERFERENCE WITH WELLS.

It is known that where one well has been successfully supplying 

water for a time, and then a second wrell is driven in greater or less
.TOHNSDX.l COMMON LA.\V REGARDING WELI^S. 15

proximity to the first, the result may be to diminish the supply of 

water available from the first well, or even to stop that supply entirely. 

This matter of "well interference" has received considerable atienlion from students of the problem, and it is known that the closeness 

with which wells may be placed without expecting serious interference depends upon several factors, among which is the manner of their 

disposition with regard to the direction of the movement of underground waters.

The right of a proprietor to interfere with the siipply of his neighbor's well by driving a well on his own land is upheld by an almost 

unbroken line of legal authority. The only redress which the other 

has is to sink his well deeper, and the geological conditions may be 

such that even this will afford him no relief. A proprietor has a perfect right to dig his well and by means of it to draw off all the water 

from his own land which would otherwise pass to his neighbor, and 

also to draw off all the water coming from his neighbor's land, even 

if the result be to make the neighbors well entirely dry. Or a proprietor may interfere with his neighbor's well by any other use of his 

own property, as by digging ditches, excavating mines or quarries, or 

obstructing in any way the natural flow of underground waters.

Thus, in a case where a mill was run by water raised from a well, 

and the sinking of a coal pit half a mile distant drew off the su%jply 

of water from the well, it was held that the damage to the mill owner 

was not a legal injury, and that there was no redress for him at law. 

(Acton r. Blundell, 1^ M. & W., p. 824.) In like manner in a case 

where the construction of a sewer or drain by one party prevented 

water from flowing to the well of another and abstracted from the 

well water which had already found its way there, it was held that 

the party whose well was thus damaged had no legal redress. (New 

itiver Co. r. Johnson, 3 El. & El., pp. 434-446.) " It makes no difference whether the damage arise by the water percolating away, so that 

it ceases to flow along channels through which it previously found its 

way to the spring or well, or whether, having found its way to the 

spring or well, it ceases to be retained there."' (Ballacorkish Mining 

Co. /% Dumball, 29 L. T. X. S., p. 0;)!).)

A notable exception to the above rule is presented by certain New 

Hampshire cases, where it has been held that a proprietor must make 

such use of his land as is reasonable if he wishes to escape liability 

for damage caused to his neighbor's well. The court has expressed 

its opinion in one such case, as follows: ^ We do not think it follows 

* * * that n landowner has the full and unlimited ownership and 

the absolute and unqualified right of control of all water in or upon 

his land not gathered into natural watercourses; for the nonexistence 

of an absolute right does not conclusively disprove the existence of a 

qualified right. * * * ^^y interference by one landowner, with
16 RELATION OF THE LAW TO UNDERGROUND WATERS. [NO. 122.

the natural drainage,.injurious to land of another and not reasonable 

is unjustifiable/ 1 (I)artlett, J., in Rassett i\ Salisbury Mfg. Co., 43 

N. H., pp. 578-574:, 577; 82 Am. Doc., pp. 180, 185.) - This principle, 

that the absolute ownership of percolating waters is to be qualified 

by requiring a reasonable use of such waters, has been adhered to in 

other cases. Thus in an Iowa case (Willis r. Perry, see L. R. A. 26, p. 

124), a city made several wells and pumped much water from them, 

thereby depriving a woman of water which she was accustomed to 

secure from her well. The city was held liable for damages on the 

ground that its use of the water was not reasonable. It was also held 

that the reasonableness of the use did not depend upon the city's 

needs or wants, but should be determined in view of the number of 

well owners and their respective wants.

A second exception to the rule is formed by an important California case (Katz /% Walkinshaw, 141 Cal., p. 116), referred to in more 

detail under the heading " Injury to land " (pp. 20-21), where it was 

held that the owner of one artesian well had no right to withdraw percolating water for the purpose of carrying it to distant lands for sale 

when such action decreased the supply of his neighbor's well to the 

irreparable injury of the latter. This decision will probably form a 

precedent in other irrigation States where artesian water is necessary 

for agricultural purposes.

Another apparent exception to the general rule is to 1% found in 

those cases where a corporation or similar body, having secured control of certain land, makes such use of that land as to damage the 

well of a neighboring landowner, the corporation being required to 

pay damages in such cases. This apparent exception is to be reconciled on the ground that the corporation does not secure absolute ownership of the land, but merely purchases certain rights in that land, 

or else is required by the empowering statute to pay all damages 

resulting to property not its own. Thus, in a case where excavations 

by a railroad company within its right of way resulted in damage to 

the well of a neighboring proprietor the company was held liable for 

the damage, on the ground that it did not own the land, but had only 

acquired a special right in the land on the condition of paying all 

damages which might be thereby occasioned to others. (Parker z\ 

Boston and Maine R. R., 3 Gush. (Mass.), pp. 109, 114.) In a case 

where a coloration was sinking a ditch and well and erecting a 

pump to get water for its customers, on land held by a private party 

in fee but taken by the corporation under a statute, and it was shown 

that the result would be to injure the water rights on adjoining land 

owned by the same private party, an injunction was granted against 

the corporation (Hart r. Jamaica Pond Aqueduct Co., 133 Mass., p. 

488); and where a town constructed a sewer upon land taken for that 

purpose, thereby draining wells fed by percolation through soil on
JOHNSON.] COMMON LAW REGARDING SPRINGS. 17

land not taken and not adjoining land taken, it was held liable for the 

damage on the ground that it was not owner of the land. (Trowbridge r. Rrookline, 144 Mass., pp. 180, 141-142.)

On the other hand, when it is considered that the corporation or 

similar body has become absolute owner of the land, the usual rule 

applies, and no damages can be recovered in case a well is injured by 

the use to which such corporation may choose to put its land. Thus 

it has been held that a city is not liable for damage resulting from the 

construction of a sewer. (Elster /'. Springfield. 49 Ohio St., p. 82 

et seq.) Where the water was wholly abstracted from a well as a 

result of the construction of the Washington water tunnel, authorized 

by an act of Congress, it was held that the damage was not a legal 

injury, since the United States had a clear title to the property. 

(Alexander r. TJ. S., 25 Ct. Cls., pp. 37-07.)

A railroad eompany was not held responsible for injury to a spring 

in a case where it had acquired the ^ right of way over and through 

the land for all purposes connected with the construction, use, and 

occupation of its railway/' (Tfougan r. Milwaukee and St. Paul 

R. R. Co., 3;> Iowa, p. u5S.) It has been held that a railroad company, for the purpose of constructing its road, has the same right to 

excavate within the limits of ilh right of way that a private individual 

has to dig upon his land for any purpose, and that one whose well is 

rendered dry as a result of such excavation can have no legal redress. 

(New Albany and Salem R. R. Co. r. Pcterson, 14 Ind., 112, 114; 77 

Am. Dec., pp. GO, 02.)

In general, then, the rule holds that one who actually owns land 

may make such use of that land as he may desire, whether such use is 

reasonable or not being generally held immaterial, and that any 

damage which such use may cause to a neighbor's well is not a legal 

injury.

.INTERFERENCE WITH SPRINGS.

The rules of law applicable to interference with wells apply in general with equal force to interference with springs. It is usually held 

that a proprietor may make such use of his land as he desires, although 

that use may cause the water in his neighbor's spring to diminish or 

wholly disappear. Thus, in a case where large springs on a landowner's property were destroyed by excavations made by a metropolitan board of works for a sewer, it was held that no damages 

could bt' collected. (Regina r. Metropolitan Board of Works, 3 

13. & S.. p. 70S.) Where a spring was fed solely from percolating 

waters from a swamp on wet land around it, and not by any running 

stream, it was held that no damages could be recovered against one 

who diverted the waters by means of a tunnel and ditch constructed

1KB 132 05 M 3
18 RELATION OF THE LAW TO UNDERGROUND WATERS. [NO. 122.

on his own land. (So. Pac. R. I!. Co. r. Dufour, 05 Cal., p. 015; 30 

Pac. Rep., p. T83.)

In a like manner it has been held in a Vermont case that " a grant 

of a spring does not by implication convey percolating water before 

it reaches the spring/' (IVheelock c. Jacobs, TO Vt., p. ] 62.) A spring 

destroyed by mining operations is not a subject of legal redress in case 

the ground itself is properly supported. (Gumbert r. Ivilgore, 0 Cent. 

Rep., p. 406.) If the ground itself is improperly supported, however, 

and a spring is injured in consequence, damages may be collected. 

In general, also, a city is not responsible because a sewer constructed 

by it drains away the percolating waters which formerly supplied a 

spring. (Elster !'. Springfield, 49 Ohio St., p. 82.)

But there are exceptions to the above general ruling of the courts. 

It has been held, for instance, that " where a stream, from time immemorial, has flowed through plaintiff's land in a perceptible current and 

in a well-defined channel, his right to have such flow continued is not 

affected by the fact that the source of the stream is a spring on defendant's land." (Pomeroy, p. 176; Chauvet ;\ Hill, 03 Cal., pp. 407-410; 

28 Pac. Rep., pp. 1066^-1067.)

The question of reasonableness of use has been emphasized in some 

cases, as, for instance, where a person dug a trench and placed a tile 

pipe in such manner a^ to abstract percolating water which supplied 

a spring and to conduct it into a sewer. It was held that the person 

had no right to collect or divert percolating water for the sole purpose 

of wasting it. (Stillwater Water Co. r. Farmer, see L. R. A. 60, p. 

875.) " Even a railroad corporation armed by law with the eminent 

domain, and having power to take private property for the construction of its road, is answerable to the owner of a spring for destroying 

it, although its destruction be caused by excavations on the land of an 

adjacent proprietor." (Lewis, C. J., in Wheatley r. Baugh, 25 Penn. 

St., p 533.) As in the case of well interference, discussed above, this 

last may be only an apparent exception to the rule, and in general is 

to be reconciled on the ground that the railroad company is not absolute owner of the land, but merely acquires certain rights therein, or 

is required by statute to pay compensating damages.

1NTEBFEEENCE WITH STREAMS.

According to the law of surface waters a landowner is entitled to 

have a surface stream How through his land in its natural condition 

without material diminution in quantity. But such streams are of Jen 

fed largely, either directly or indirectly, by percolating waters. This 

brings about an inevitable conflict between the laws of surface and 

subterranean waters, for according to the one a proprietor can not 

do anything which will diminish the volume of the stream flowing 

through his neighbor's land, while according to the other he has a
JOHNSON.] COMMON LAW REGARDING STREAMS. 19

perfect right to the percolating waters which supply that stream, 

oven though by using such waters he may diminish the volume of the 

stream. Conflicting decisions have been the result of such a condition.

The decisions of many authorities are on the side of the application 

of the laws relating to subterranean waters, according to which the 

one who suffers as a result of the diminished volume of the stream has 

no recourse against the one who caused the damage. Thus, in a c'tso 

where a mill which had been propelled for more than sixty years by 

a stream was retarded because the stream was diminished in volume 

ns a result of the sinking of a well which abstracted a great amount 

of the percolating waters which fed the stream, it was held that the 

damage was not a legal injury. (Chasemore /% Richards, T H. L. 

Cas., p. 3i(); y H. & N., p. KM; ;") H. & X., p. &8±) It has likewise 

been held in California that the fact that a party is entitled to the 

water of a stream which is fed by a spring can not prevent the owner 

of the land from digging ditches for a useful purpose and thereby 

diverting the percolating waters which supply the spring. (So. Fac. 

B. R. Co. /\ Dufour. !)5 Cal., pp. niU-(^0.)

On the contrary, in another case where parties sunk a well on their 

own property, thus preventing water from percolating in its natural 

course into a stream upon which another's mills were situated, resulting in damage to the running of the mills, it was held that the parties 

causing the damage were liable for it. (Dickinson ;\ Grand Junction Canal Co., 7 Kxch., p. ^81!.) So also it has been held that " the 

draining of the underground sources of a surface stream by pumping 

water from wells to supply a city reservoir renders the city liable to 

the owner of the land through which the stream naturally flows, 

although the city is the owner of the land on which the wells are 

located." (Smith /'. Brooklyn. 100 N. Y., p. 35T.) In another case 

similar to the above, where the defense was made that the defendant 

had only intercepted underground waters before they reached the 

stream, the defense \vas held to be insufficient. In Nevada it has been 

held that where a stream is fed by springs, but the water in passing 

from such springs to the stream takes a course underground which is 

not well understood or defined, one can not lawfully cause damage to 

a prior appropriator on the stream by gaining control of the water 

from the springs on the ground of a right to take subterranean and 

percolating waters. (Strait r. Brown, 1(1 Nev., pp. 31T-324.)

INjrBY TO LAND.

The damage caused by withdrawing subterranean waters is not 

wholly restricted to interference with the natural conditions of wells, 

springs, and streams. Tt may happen that the withdrawal of such 

waters will result in a sinking or caving in of a neighbor's land or in 

the destruction of his crops. On the general principle that a man is
20 RELATION OF THE LAW TO UNDERGROUND WATERS. fx«>. 12U.

absolute owner of the subterranean percolations within his territory 

and may do as he pleases with them, and because it is held that a man 

has no legal right to the support of underground water, it has been 

decided that where a landowner withdraws so much of such water as 

to cause a subsidence of the land in his neighbor's territory or an 

injury to his crops, he is not responsible for the damage. So, also, 

while a man entitled to take minerals from a land is required to leave 

proper support for the surface he may drain the subterranean water 

from the ground, even if that results in a subsidence of the surface. 

(See (irould, p. 36o and subjoined references.)

On the other hand, cases have been decided in the opposite way 

as, for example, a certain New York case where it has been held that 

" The draining of land of a private %)ro%)rietor by city pumping woiks 

which exhaust from all the region thereabouts the natural supply of 

underground or subsurface water and thus prevent the raising upon 

it of crops to which the land was and is peculiarly adapted, or destroy 

such crops after they are grown or partly grown, renders the city 

liable to him for the damages which he sustains and entitles him to 

an injunction against a continuance of the wrong." (Forbellr. N. Y., 

104 K. T., p. 522.) The statute of incorporation may hold a company responsible for damages in such cases.

A very important case in this connection is that of Katz r. Walkinshaw, decided by a California court in 1003. Parties owning land 

on which were growing trees, shrubs, etc., which were irrigated by 

percolating artesian water, brought suit to restrain another landowner from withdrawing such percolating artesian water for the 

purpose of conveying it to distant lands for sale, on the ground that 

such action diminished the water su%jply, to the irreparable injury of 

the trees, shrubs, etc. It was held that the usual rule of common law 

on the subject of such percolations was not to be regarded as any 

part of the law of California, where the arid climate brought about 

conditions totally different from those existing where the rule in 

question first sprang up. Consequently the decision of the lower 

court, based on that rule of common law, was reversed, and it was 

held that^

" Each owner of soil lying in a belt which becomes saturated with 

percolating water is entitled to a reasonable use thereof on his own 

land, notwithstanding such reasonable use may interfere with water 

percolation in his neighbor's soil: but he has no right to injure his 

neighbors by an unreasonable diversion of the water percolating in 

the belt for the purpose of sale or carriage to distant lands.

" The owners of artesian wells sunk in the artesian belt of percolating water, the waters of which are necessary for domestic use and 

irrigation of their lands, on which are growing trees. * * * 

etc., are entitled to an injunction to restrain the diversion of the water
JOHNSON.] COMMON LAW: OBSTRUCTING UNDERGROUND WATERS. 21

percolating in the artesian belt, by an owner of land situated in the 

belt, for (he %)urpose of conveying the same to distant lands for sale, 

to the irreparable injury of the plaintiffs." (Katz r. Walkinshaw, 

141 Cal., p. 11U.)

The rule thus established for California is of far-reaching importance, and will probably form a precedent in the other States of the 

West where subterranean waters are necessarily relied on for irrigation purposes.

DAMMINO OF rxnERGROlND WATERS.

Thus far we have been considering only such cases as involved 

the abstraction of underground waters. It is possible, however, to 

work damage to a neighbor by so obstructing the natural How of 

underground water as to cau^e it to set back upon a neighbor's land 

and so flood it. Following the principle that a man may use that 

which belongs absolutely to him in any manner he may choose, it 

has been held that a landowner who obstructs underground waters 

within his own territory is not liable for any damage which may 

result to his neighbor. So in Vermont, where the owner of a mill 

pond raised the height of the water on his own land, thereby causing 

subterranean waters to set back and Hood a neighbor's land, it was 

held that the owner of the pond was not liable for the damage 

caused. (Harwood r. Benton, 32 Vt., p. T24.)

On the other hand, in a similar case in New Hampshire, an opposite decision was rendered. (Bassett v. Salisbury Mfg. Co., 48 N. H., 

p. 569.) Where a miner stops up the exit from his mine into a lower 

mine, thereby causing the water to rise in the upper .mine until it 

flows over into a neighbor's mine, he is not liable for the resulting 

damage. In some cases, however, an injunction will be granted 

against the one about to cause such damage. (Gould, pp. 5T2-5T3 

and references.) And if one owner removes barriers by trespass, as 

by extending his works into his neighbor's mine, he is required to protect that mine against inundation, unless he has already been proceeded against for the trespass, and recovery had against him for it. 

(Gould, pp. 5TO-5T1 and references.)

DISPOSAL OF T:\TEBrRPTED rXDFRGHOTJND WATERS.

While a landowner is entitled to withdraw from his soil all the 

water he desires, even to the point of abstracting all the water from 

his own and his neighbor's land, having once intercepted such water 

for his use, he is responsible for the disposal of the same without 

damage to his neighbor. Having once intercepted and appropriated such water, he can not permit it to flow into his neighbor's 

land and effect damage there, even if it would have proceeded there 

and effected the damage had he not intercepted it. So a mine owner,
22 BEL AT TON OP THE LAW TO UNDERGROUND WATERS. [NO. 122.

while he has a right to permit the water naturally flowing in his own 

mine to pass off by gravitation into the mine of his neighbor, provided his operations are carried on properly, yet will have no right 

to let such water pass off into the neighbor's mine after he has once 

collected or detained it for his own nse.

The application of this rule to one particular case is of interest 

as showing the exact distinction made bv the law regardinc: this

*- * cT1 (T1

point. Certain mine owners sunk a shaft on their property which 

tapped underground waters that formerly found their way into 

older workings on the same property, and thence into a neighbor's 

mine. The owners of the first property then made a borehole in the 

bottom of the shaft for the express purpose of letting off the water 

into the older workings, whence it percolated into the neighbor's 

mine precisely as before. The court decided that the owners of the 

shaft had appropriated the water, and were therefore responsible 

for any further damage caused by its flowing into the neighbor's 

mine. This seemed to be in accordance with the principle outlined 

above. But the case was appealed, and the former decision was 

reversed on the ground that the water in the shaft had not been 

appropriated at all, but merely altered in its course without even 

adding to the amount flowing into the neighbor's mine, or changing 

the time of its getting there. (West Cumberland Iron Co. r. Kenyon, fi Ch. D., p" 773; 11 Oh. IX, p. T82.) In New Hampshire it has 

been held that a landowner's right to alter the course of such waters 

is restricted to what is necessary in the reasonable use of his own 

property. (Gould, p. 558 and references.) In case underground 

water reaches the surface through an artesian well, the owner of the 

well may be prevented from allowing the water to flow into the 

streets of a city. (Skaggs /'. Martinsville, 140 Ind., p. 470.) But 

in a case where water from an artesian well was allowed to flow into 

a natural watercourse which was u the only practicable outlet for the 

flow from such well," the owner of the well was held not liable to 

injunction. (Barnard /'. Shirley, 135 Ind., p. 547.)

ARTIFICIAL PRODUCTION OF PERCOLATION.

While it has been held legal for a man to abstract percolating waters 

which are on their way to a stream or spring, or to a neighbor's well, 

and while he may even cause the water already in his neighbor's 

well to percolate out of it toward and into his own well (see preceding paragraphs), it has been held unlawful for him to construct a 

well or other structure near a running stream, and thus cause currents of percolating waters to develop, which would abstract water 

from such stream. There is thus a distinct difference between the 

riffht to take underground water before it reaches surface streams,
.IOHNSON.] COMMON LAW: ARTIFICIAL PERCOLATION. 28

springs, etc., and the right to abstract water which is already a part 

of those surface accumulations. And since it is a principle of law 

that a man has no right to do indirectly that which he is not allowed 

to do directly, he can not take water from his neighbor's spring or 

stream by placing a drain or well only a few feet away, and thus letting such water run into his drain or well, when he is not allowed to 

take that water off directly by means of a pipe or ditch. Aw has been 

stated by one authority. " If you can not get at the underground 

water without touching the water in a defined surface channel I 

think you can not get at it at all." (Lord Hatherly, L. C., in Grand 

Junction Canal Co. /'. Shugar. L. 1%., (* Ch., p. 488.) Thus in a case 

where one proprietor constructed a drain dost* to a surface stream, 

with the result that the drain drew off the water flowing in the 

stream, to the damage of a neighbor, an injunction was granted preventing the unlawful act. (Grand Junction Canal Co. r. Shugar, 

L. R., 0 Ch., 1). 483.) So also in a Massachusetts case it was held 

that ^ a person can not draw water from a pond by percolation if ho 

has no right to draw it therefrom directly." (Proprietors of Mills /,\ 

Kraintree Water Supply Co., 149 Mass., p. 478.)

It will readily appear that some difficulty must frequently be 

found in determining whether or not the artificial structure actually 

results in the abstraction of water from a surface stream or other 

body of surface water. The mere proximity of a well to a stream, for 

instance, does not prove abstraction. Neither does the diminution 

of water in the stream, since the well may only secure percolating 

water which has not yet reached the stream. The farther the well 

is removed from the stream, the more difficult will it be to satisfactorily establish the fact of abstraction. The party that complains of abstraction has all the burden of this proof, and must fully 

establish the fact that the well or other structure does draw off water 

from the surface accumulation before the one causing the damage 

will be held responsible.

ARTIFICIALLY INCREASED PERCOLATION.

It often happens that the natural percolation of a portion of soil 

is locally increased by various artificial means, as by the pressure of 

large amounts of water collected in a reservoir, or the sinking and 

cracking of the surface above mine excavations, thereby admitting 

water which would otherwise flow off into surface streams. The. 

tendency of the law is to regard this as a ^ nonnatural" use of the 

land, and to hold the land owner responsible for any damage he may 

cause. In Pennsylvania a min*' owner is required to leave proper 

support for the surface of the ground above his mine, and if he fails 

to do this, and the surface of the ground sinks and cracks as a result,
24 RELATION OF THE LAW TO UNDERGROUND WATERS. ! NO. 122.

letting surface waters How into his mine and from there percolate 

into the mine of his neighbor, he is liable for any resulting damage. 

(Gould. p. HT2, footnote.) Hut in another case where a mine owner 

xo disturbed the soil above his workings as to produce fissures in it 

which let the natural rainfall on the surface pass into his mine and 

thence by gravitation into his neighbor's mine, the mine owner causing the damage was not held liable. (Wilson /'. Waddell, 2 App. 

Cas., p. 05.)

Tn a certain case a reservoir was constructed for accumulating 

\vatcr, and the contractor failed to provide sufficient support to resist 

the pressure of the water in certain old shafts which communicated 

with old coal workings, the existence of which was then unknown to 

the owners of the reservoir or any of those in their employ. The 

result was that the weight of the water caused it to break through 

the shafts, whence it passed through the old coal workings into a 

neighbor's mine. No negligence on the part of the owners of the 

reservoir appearing, it was held that they were not liable for the 

injury. This decision, however, was reversed in the higher courts, 

;md the owners were held liable for the damage caused, since " foreign water had been sent down upon the plaintiffs, and the defendant's lack of knowledge thus became immaterial." It was held that 

"the person A\ho, for his own purpose^, brings on his land and collects and keeps there anything likely to do mischief if it escapes, 

must keep it in at his peril, and if he does not do so, is prima facie 

answerable for all damage which is the natural consequence of its 

escape." (Itylands r. Fletcher, L. E., 3 H. L., pp. 330, 339. etc.) 

This principle has since been applied to "injuries resulting to adjoining land from the percolation of the waters of an artificial reservoir or canal through the soil: to water allowed to collect in a cellar 

and to percolate into the plaintiff's cellar or well adjoining; to 

dampness caused in the plaintiff's house by an artificial deposit near 

by of spongy soil and clay." (Gould, pp. H?4, HTH.) Tn a number of 

the States the above principle is modified to the extent that in order 

to hold the party liable for damage caused it must be shown that he 

was guilty of negligence. The principle does not' apply in cases 

where the artificial accumulation of water was for the mutual benefit 

of both parties to the suit; nor where the accumulation was made for 

public purposes under express authority of a statute, no negligence 

being proven; nor where the accumulation was not made by the 

landowner intentionally and for his own benefit, as in the case where 

n house was destroyed by fire, and water collected in the uncovered 

cellar, thence flowing against the walls of an adjoining house built 

after the first house was destroyed. (Gould, pp. RT5-5TG, and references.) Tn such cases no damages are recoverable.
[JOHNSON.] COMMON LAW: POLLUTING UNDERGROUND WATERS. 25

POLLUTION OF UNDKRCUOTM) WATKRS.

The fact that a man has absolute right to the underground waters 

within his territory, and may abstract those waters entirely, even to 

the point of draining his neighbor's land, does not give him the right 

to poison or foul those waters and allow them to pass into his neighbor's land in such condition. Such an act is illegal, and he who 

causes the damage is generally held liable even if he is not guilty of 

negligence, "" he whose filth it is being required to keep it on his 

premises at his peril." This is the principle laid down in the leading 

case of Bylands r. Fletcher, cited above. A marked distinction is 

drawn between the right to use all the underground water and so 

prevent its use by a neighbor, and the right to poison or contaminate 

that water so that when it does reach that neighbor it is unfit for use.

In a case where casks of oil stored in a warehouse leaked so that the 

oil entered the ground and indirectly polluted a neighboring spring, 

the owners of the warehouse were held liable for the damage 

although they were ignorant of the fact that the oil was affecting 

the spring. (Kinnaird v. Standard Oil Co., SO Ky., p. 4GS.) So in 

a case where a man %)ermitted sewage to flow into his neighbor's 

well, he was held liable for the damage, the opinion being given that 

"' The right to foul water is not the same as the right to get it; and in 

my opinion does not depend on the same principles. * * * the 

law of nuisance is not based exclusively on rights of property." 

(Ballard r. Tomlinson, 20 Ch. Div.. pp. lh, 120.)

In setting forth this same principle it has been said: " It does not 

follow that because I have a right to use a thing on my own land I 

may lawfully send it into my neighbor's premises in a condition to 

work an injury to him. * * * The American cases. therefore, 

while recognizing to its fullest extent the right of every landowner 

to use, detain, and even totally abstract all the underground percolating water, * * * yet quite agree with the decision * * * 

that he is liable for corrupting it and thus causing an injury to the 

well of an adjoining owner. * * * Th(» true cause of action 

* * * is not exactly that the defendant contaminated underground percolating water, but that he allowed his impure sewage to 

escape from his premises to the plaintiff's, and the circumstances 

that it reached there by underground percolation instead of by a 

surface stream is quite immaterial." (E. IT. Eennett, 24 Am. Law 

Reg.,pp. (i»8, «40.)

In cases where substances from the works of a gas company have 

percolated into the soil, resulting in injury to a neighbor's well, the 

company has been held liable for the damage. In a case where it 

was shown that other things besides the escape of <jas into the water 

of a well contributed to make it unfit for use, it was held that the
26 KELATTON" OF THE LAW TO UNDERGROUND WATERS, [wo. 122.

gas company was liable for damage to the water, although the fact 

that there were other sources of corruption might be shown in mitigation of the amount of damage recoverable. (Sherman r. Fall 

River Iron Works Co., 5 Alien (Mass.), p. 213.)

So when filthy water from a vault percolates through the ground 

and injures the cellar and well of a neighboring proprietor, the party 

who maintains the vault is liable for the damage, (l)all r. Xye, 00 

Mass., p. 582.) Likewise where poorly constructed sewers permit 

filth to percolate from them into the cellars of adjoining premises 

the one who maintains such sewer is liable for resulting damages, 

" even if he is the owner of the premises into which the filth percolated, and the parties complaining were his own tenants/' (Alston r. 

Grant, 3 El. and Bl., p. 128.)

In a case where a person polluted his own well with sewage, and 

the contaminated water percolated into a neighbor's well, it was 

claimed that the party causing the damage was not liable, since the 

neighbor whose well was injured secured the water from that well 

by artificial means i. c., by pumping. The court held the party 

liable for the damage he caused, however; Brett, M. K., stating that 

^ The plaintiff, if he has a right to use anything in nature, has a 

right to exercise that use by all the skill and invention of which a 

man is capable, and it seems to me that as long as the plaintiff uses 

only lawful means as against his neighbor, however ingenious or 

however artificial those means may be, his right to appropriate the 

common source is not diminished because he used the most artificial 

or most ingenious methods/' (Ballard /#. Tomlinson, 29 Ch. Div., 

1). 122.)

In cases where it can be shown that the acts of another will result 

in a pollution pf underground waters, the courts will grant injunctions to prevent such injury. Thus a perpetual injunction was 

granted to restrain a party from allowing unclean refuse matter to 

pass from his manufactories into an old pit on his own land, since it 

percolated thence into a neighbor's colliery. (Turner r. Mirfield, 34 

Beav., p. 300.) In another case a party was prevented by an injunction from using a cesspool through which water percolated into a 

neighboring well. (Womersley r. Church, IT L. T. N. S., p. 100.) 

So also an injunction will be issued to prevent the establishment of a 

burial ground, when it can be shown that the burial of the dead there 

will endanger life or health by corrupting the surrounding atmosphere or the water of springs or wells. (Clark r. Lawrence, (* Jones's 

Eq. (N. C.), p. S3; T8 Am. Dec., p. 241.) There must be clear proof 

of probable injury, however. It has elsewhere been held that cities 

have absolute authority to establish cemeteries, and discretion to 

judge of their necessity. (Greencastle r. Ila/elett, 23 Ind.. p. 1H(1.) 

In a case where a party was about to erect a privy on his own lot, about
JOHNSON.] COMMON LAW: POLLUTING UNDERGROUND WATERS. 27

h feet from his neighbor's house and cellar, and less than'JO feet from 

his well, the completion of the privy was pre\ented by injunction. 

The court, quoting another authority, said: " Privies are regarded as 

prima facie nuisances, and although necessary and indispensable 

in connection with the use of property for the ordinary purposes of 

habitation, yet if they are built or allowed to remain in such a condition as to annoy others in the proper enjoyment of their property by 

reason either of the noisome smells that arise therefrom or by the 

escape of filthy matter therefrom upon the premises of another, or so 

as to corrupt the water of a well or spring, they are nuisances in 

fact/' (Wahle r. Reinbach, TO 111., pp. 332, 32G.f

There are a few exceptions to the above rules, however, it being 

held in several cases that the party causing the pollution of underground water is not liable for damage caused to a neighboring proprietor unless guilty of negligence or malice. In one such case the court 

observes, " If withdrawing the water from one's well by an excavation on adjoining lands will give no right of action, it is difRcult to 

understand how corrupting its waters by a proper use of the adjoining premises can be actionable, when there is no actual intent to 

injure and no negligence. The one act destroys the well, and the 

other does no more; the injury is the same in kind and degree in the 

t\vo cases/' (Cooley, J., in ITpjuhn r. Richland Township. 4H Midi., 

pp. 549, 550.)

So in a case where the operator of gas works placed obnoxious substances near a neighboring property, and portions of these substances 

were washed along the surface into the neighbor's well, and other 

portions penetrated into the ground, thus polluting the subterranean 

currents which supplied the well, the court held that while the operator was liable for the surface pollutions, he was not liable for any 

damage to the well resulting from the pollution of underground currents of water unless he acted maliciously. (Brown r. Illius, 27 

Conn., p. 84.) In another case the party polluting underground 

streams whose channels and courses were unknown and undefined, was 

held not to be responsible for the damage caused. (Dillon /'. Acme 

Oil Co., 49 Hun. (N. Y.), p. 5G5.) In this case a distinction was made 

between contaminating a subterranean stream whose channel and 

course were undefined and unknown, and contamination by %)ercolation or soaking. This, also, seems contrary to the general rule of law, 

which makes no distinction between ordinary percolating waters, and 

such underground streams as have channels and courses which aiv 

indefinite and unknown.

In a case where a party sunk an artesian well upon his own land 

and used the water to bathe the patients in a sanitarium or hospital 

erected by him on his premises, and then allowed the polluted water 

to flow into a natural watercourse, which was the only practicable out-
28 RELATION OP THE LAW TO ITNDERGEOTT ND WATERS. \y<>. 122.

let for the flow from the well, the party was held not to be liable for 

the resulting damages, providing he was free from negligence and 

malice and used due care to avoid injury to his neighbors. (Barnard /-. Shirley. 135 Ind., p. 547.) This decision seems contrary to 

the. general ruling of the courts in a twofold way, since it is generally 

held that one who intercepts and uses underground waters is responsible for their future course (pp. i21-^), and the pollution of waters is 

usually illegal whether or not there be malice or negligence.

The principle upon which the decisions in these exceptional cases 

is based seems to be that a man's obligations to preserve the purity of 

underground waters is limited to the reasonable and proper use of 

such waters, without negligence or malice on his part. According to 

this principle, any damage to a neighbor which is necessary and 

unavoidable,, or not sufficiently obvious to have been foreseen, resulting from a landowner's proper and reasonable use of his land, is not 

held to be a legal injury.

Having' now outlined the general relations of the law to the abstraction, diversion, and interruption of underground waters, and to 

the pollution of the same, it remains to be pointed out in what ways 

the general rules are modified, if at all, (1) by the motive with which 

the acts complained of were done; ('2) by definite agreements between 

the parties respecting the use of the underground waters; (3) by 

prescription, or the long-continued use and enjoyment of such waters.

EFFECT OF MOTIVE.

Although an act may in itself be perfectly legal as, for instance, 

the abstraction of underground waters from the soil, even to the 

point of rendering dry a neighbor's well, is generally held to be it 

might be considered that a person who exercised such right with the 

malicious and evil intention of hurting his neighbor would be guilty 

of a legal injury. This question as to the effect of motive has given 

rise to a number of conflicting opinions.

So far as the pollution of underground waters is concerned there 

is little disagreement among authorities, it being generally held that, 

however innocently the contamination is effected, the party causing 

the damage ~ i* none the less liable for it. As we have seen, ' however,

there are cases in which the party was not held responsible, provided 

he was guilty of no negligence and entertained no malicious motives. 

In cases involving the abstraction or diversion of underground 

waters with malicious intent to injure a neighbor opinions have been 

more conflicting. The weight of authority, especially in more recent 

cases, is to the effect that the motive is immaterial, according to the 

principal that the law must deal with outward acts and not with inward motives. " When the use which a landowner makes of his property is lawful in itself, the law will not take cognizance of the motive
JOHNSON.] COMMON LAW: EFFECT OK MOTIVE. 29

which prompts the use, even where it results in damage to another." 

(Enc., 484.) So it has been held that while u malicious motives make 

a bad act worse, * * * they can not make that a wrong which in 

its own essence is lawful." (Black, J., in Jenkins r. Fowler, 24 Penn. 

St., p. MO.) According to another authority, " Bad motives in doing 

an act which violates no legal right of another can not make the act a 

ground of action." (T. E. Strong, J., in Pickard r. Collins, 23 Barb. 

(N. IT.), p. 4,jO.) In another case the court observes, "As an act 

unlawful in itself resulting in injury to another, whatever may have 

been the motive with which it was done, is none the less the subject of 

legal redress, so the act done, to wit, the using of one's own property, 

being lawful in itself, the motive with which it was done whatever 

it may be as a matter of conscience is in law a matter of indifference/' (Brinkerhoff, J., in Frazier r. Brown, 12 Ohio St., p. 811- 

312.) So, also, in another case, " We have not given any attention to 

the alleged motives of the defendant^. Their motives are immaterial. 

The question is only as to their rights." (Rodman, J., in Porter r. 

Durham, 74 N. C., p. 780.)

In accordance with the above opinions was the decision rendered in 

the following case: A landowner possessed a mineral spring surrounded by an artificial embankment. His neighbor dug a well on 

his own land, striking a vein of mineral water, evidently intimately 

connected with the adjacent mineral spring, and the water from this 

vein rose high enough to be conducted by pipes to the neighbor's bath 

hou^e. Then the owner of the spring, for no purpose beneficial to 

himself and simply to divert the water from his neighbor's well, lowered the embankments about the spring, thereby cutting of? the supply 

of water from the neighbor's well. It was held that the owner of Uie 

spring was not liable, the question of motive not affecting his legal 

right. (Phelps r. Xowlen, 72 N. Y., p. 3H.) As stated by another 

authority, ^ It is generally held that no action will lie against one for 

acts done upon his own land, in the exercise of his rights of ownership, whatever the motive, if they merely deprive another of advantages or cause a loss to him. \vithout violating any legal right; that is, 

the motive in such cases i» immaterial." (Wells, J.. in Walker r. 

Cronin. 107 Mass., p. 504.)

In striking contrast to the above are cases in which the authorities 

consider the motive as an important factor in the case. Thus it has 

been held that ^ neither the civil law nor the common law permits a 

man to be deprived of a well or spring or stream of water for the 

mere gratification of malice." (Lewis, C. J., in Wheatley r. Baugh, 

2o Penn. St., p. M8.) In another ctw * the opinion was given: " Ordinarily a landowner may dig a well upon his own land, even though, 

by percolation, it draws the water from his neighbor's land, or even 

his well; but it would present a very different question if the well was
30 RELATION OF THE LAW TO UNDERGROUND WATERS. I NO. 122.

dug by him with the express purpose of transferring the water in his 

neighbor's spring or well to his own. and knowing that this would be 

the result." (Bellows, C. J., in Swett r. Cutts, 50 N. H., pp. 446-447.) 

According to another authority, " While a man h:n no right to protection against competition, he has a right to be free from malicious 

and wanton interference, disturbance, and annoyance." (Harrows, 

J., in Chesley /'. King, T4 Me., p. 1T5.)

EFFECT OF GRANT OB AGREEMENT.

It seems to be well established in the courts that where one party 

grants certain water rights to another or makes an agreement with 

him regarding rights to underground waters, the parties shall be 

bound by the terms of the grant or agreement, and not by the rules 

of law applicable to underground waters in general. Thus, while in 

general a man may lawfully dig a well on his own land, even though 

he thereby drain olf the waLcr from his neighbor's well or spring, he 

can not do so if his act violates a grant or an agreement with that 

neighbor. Hut in cases where the act complained of does not violate 

any express provision of the grant or agreement, the usual rules of 

law are considered to apply. The following cases serve to illustrate 

the several phases of the question.

A party granted the surface of his land to another, but reserved 

the mines below. In the operation of his mines the water was all 

drained from the surface, thus damaging the one to whom he had 

made the grant, fie was not held to be responsible for the damage, 

since he had made no express agreement regarding such waters. (Ballacorkish Mining Co. /'. Harrison, L. K., o P. C., p. 40.) And where a 

man sells a well to another, and then by digging another well or in 

some other manner prevents percolating water from reaching the well 

he has sold, he is not liable for the damage if the sale of the well does 

not carry with it a guarantee of a regular supply of water. (Gould. 

p. 5G2, and references.) So. also, with a spring. "A grant of a ' certain spring or fountain of water' does not deprive the owner of the 

land of the right of properly draining his land to make it productive, 

even though in some unknown mode the drainage of the land may affect 

his supply of water." (Enc., p. 431, footnote and references.) In a 

case where one party purchased land from another with the agreement that the other should have a right to conduct water from a 

spring on the land thus sold to his adjoining property, and then the 

purchaser dug a well on the land which he had bought, destroying 

the spring from which he had agreed to let the other conduct water, it 

was held that the purchaser was not responsible for the damage, 

since the agreement did not entitle the other to an uninterrupted How 

of the water. (Enc., p. 481, footnote and references.) Where one 

party granted another the right to draw water from a certain
JOHNSON.] COMMON LAW: EFFECT OF AGREEMENT. 81

well by a pipe laid in the ground, he was not prevented from digging 

another well or reservoir on his own land, thereby diverting the water 

which formerly percolated into the well. (Davie r. Spaulding, 1^)T 

Mass.. p. 431.) tn cases where the effect of the grant is to make the 

parties to it practically adjacent owners, the usual rules of law apply.

But where the terms of the grant or agreement %)lainly secure a 

regular supply of water to the one to whom such grant is made, one 

who interferes with underground waters so as to diminish or interrupt the supply will be held liable. Thus, in a case where a proprietor granted to a manufactory situated on his land the use of 

water conducted to the factory from springs on his land, and 

" covenanted to warrant and defend the granted premises against 

himself and all other persons." and then withdrew the supply from 

such spring^, he was held liable for the damage. (Johnstown Cheese 

Mfg. Co. r. Veghte, GO N. Y., p. 1G.)

Tn anothe^' case a man owned two adjoining farms, on one of which 

was a spring from which water was conducted in pipes to the barnyard of the other. lie sold this latter farm with appurtenances, but 

without special mention of spring and pipes. Then he dug a well 

near the spring, thereby lowering the water in the latter till it failed 

to flow through the pipc.7. It was held that he could be restrained 

from using the well causing the injury on the ground that the uninterrupted flow of water was essential to the full enjoyment of the 

estate conveyed. (Paine r. Chandler, 134 N. Y., p. 385.) This appears to be a departure from the general rule, unless " appurtenances " 

is interpreted as including the waters percolating into the spring on 

adjacent land, for in cases where the opposite decision was rendered, 

as noted above, the uninterrupted flow of the water was even more 

certainly essential to the full enjoyment of the well or spring 

conveyed.

When the privilege of taking water from springs of a certain 

locality is granted the waters can only be taken where they naturally 

come to the surface, not from wells or other orifices where the water 

does not come to the surface. (Enc., p. 431, footnote and references.)

A grant of a well or spring carries with it the right to the land 

immediately occupied by such well or spring. So the well is held to 

include " the orifice reaching down to the water, the whole opening 

in the earth before it is stoned, the stone laid in the wall, and the 

water therein." Where a spring was set apart and separated from 

other lands so as to extend three rods each way from the central portion covered by water, the word " spring ^ in a deed was held to 

include this land. (Gould, p. nG3 and references.)

EFFECT OF PRESCRIPTION.

In law the use and enjoyment of things " from time immemorial " 

is held to give a legal right to certain of the things thus used and
32 RELATION OF THE LAW TO UNDERGROUND WATERS. [NO. T2~2.

enjoyed. This is known as the right arising from " prescription,' 1 

but this right can not exist with regard to underground waters, it 

being held that the owner of land can not acquire by prescription the 

right to receive percolations through the land of another. This is 

clearly set forth in the following opinion: " The doctrine of prescription, presumption of grant from lapse of time, can have no 

proper application to the question. (1) Because the party against 

whom the doctrine will have to be applied could not be reasonably 

required to enter his caveat against the appropriation of a thing so 

hidden and obscure as is percolating underground water; and (2) 

because the appropriation of such water by an adjoining proprietor 

is not an infringement of his rights, so as to become the subject of 

legal redress, until such time as he himself has occasion to appropriate them." (Brinkerhoff, J., in Frazier v. Brown, 12 Ohio St., 

p. 311.)

SUMMARY AND CONCLUSIONS.

In summing up the generalities of the relation of the law to underground waters it is to be noted that wherever a subterranean stream 

can be shown to have a defined and known channel it is considered 

subject to the same rules of law that apply to surface streams; but 

where subterranean streams have channels which are indefinite and 

unknown, or where subterranean waters percolate through the ground 

independent of channels, different rules of law are applicable. 

Regarding the laws controlling the use of this second class of underground waters a number of points have been noted.

It has been seen that, according to a large number of decisions, a 

man is entitled to practically absolute control of such underground 

waters in his own land, but that some authorities limit him to a reasonable and proper use of such waters. The destruction of a well or 

spring as a result of an adjacent landowner's excavating a well, 

spring, cellar, mine, or ditch upon his own land is generally held to 

be a damage for which there is no remedy at law. But some authorities hold that in order to escape liability for such damage the party 

causing it must have made such use of his land as is reasonable and 

proper. Where the damage is caused by a corporation, as by a railroad company excavating on its right of way, damages are in general 

recoverable, although it has been held in some cases that such a company is no more liable for damage caused by excavations on its right 

of way than is a private citizen for damage resulting from excavating 

on his own land. It is to be noted that in the irrigation States of the 

West the cases are likely to be decided on different principles from 

those governing decisions in the East. To this effect is the California decision that *" the common law rule that percolating water 

belongs unqualifiedly to the owner of the soil, and that he has the
JOHNSOX.J COMMON LAW: SUMMARY AND CONCLUSIONS. 38

absolute right to extract and sell it, is not applicable to the conditions 

existing in a large part of this State, where artificial irrigation is 

essential to agriculture, and artesian wells in percolating belts are 

necessarily used for that purpose." (Kat% r. Walkinshaw, 141 Cal., 

p. ll(t.)

Where surface streams are injured by a loss in volume due to the 

fact that a well or other excavation on a neighbor's land intercepts 

the percolating waters supplying the stream, it is generally held 

that there is no redress for the damage, but some authorities hold 

that the one causing the damage is responsible for it. If a man makes 

a well or other excavation near a stream or other body of sui'face 

water, and thereby extracts water which has already become part of 

a surface accumulation, he is responsible for the resulting damage.

\Vhere land is injured by the withdrawal of the underground water 

through a neighbor's well or other excavation, so that the land fails 

to support crops, or sinks and cracks, it is usually maintained that 

there is no remedy at law, although there are exceptions to this ruling. 

Where the obstruction of underground waters made such waters set 

back and overflow a neighbor's land, it was held in one case that the 

party causing the damage was not liable, while the opposite decision 

was rendered in another and similar case.

One who intercepts underground waters and appropriates them 

tor his own benefit is in general responsible for any damage they may 

cause thereafter, even if the damage is the same as the waters would 

naturally have caused if not intercepted. Hut an opposite decision 

has been rendered in at least one such case. One who merely alters 

the course of percolating waters and does not appropriate them for 

use is not generally responsible. In one State, however, it is held 

that the right to alter the course of underground waters is restricted 

to what is necessary in the reasonable use of property.

Any one who artificially increases the natural amount of percolation is, according to some authorities, responsible for the resulting 

damage, but others hold that unless the damage is the result of negligence or malice no legal redress can be obtained.

The pollution of underground waters is general^ held to be illegal, 

whatever the circumstances attending such pollution. Hut a few 

authorities maintain that such pollution is not illegal unless there 

is evidence of negligence or malice.

In case any of the foregoing acts, which are legal in and of themselves, is done with the express purpose of injuring a neighbor, some 

authorities hold that the one committing such an act with malicious 

motive is responsible for the damage he causes. Hut others, and perhaps the majority, take the position that such an one is not liable, 

since the motive is immaterial. 

IBB 133 05 M 8
84 EELATTON" OF TEE LAW TO UNDERGROUND WATERS. [NO. 122.

Where any of the foregoing acts, in themsel ves legal, violates the 

express terms of a grant or an agreement, the act becomes illegal.

No special right to underground waters can be acquired by long 

continued use and enjoyment of the same.

Such a review affords ground for careful reflection concerning the 

laws of underground waters. One is impressed with the great lack 

of agreement among authorities respecting many of the points at 

issue. The law of waters in general is an intricate problem, and it 

is not to be expected that the unsatisfactory feature referred to will 

uver.be wholly eradicated. It is probable, however, that a better 

appreciation of some of the facts established within recent years by 

various investigations into subterranean conditions will result in 

more harmonious opinions, and make possible a more just administration of the laws in question.

The great lack of agreement among authorities on questions pertaining to underground waters is due in part to the nature of the 

problems involved. There is so much that is uncertain and indefinite in the behavior of waters hidden beneath the surface that more 

or less uncertainty must unavoidably attach to the laws respecting 

them. Perhaps the only practicable remedy is to be found in the 

removal, so far as it is possible, of the uncertainty and indefiiiiteiicss 

by an extension of our knowledge of subterranean conditions. 

Marked advances have already been made in this direction, and 

many questions may be settled to-day far more equitably than was 

possible a few years ago.

It is believed that a second and very important reason for the 

unsatisfactory condition of the law relating to underground waters is 

to be found in the fact that the state of our knowledge regarding 

such waters is now in advance of the general ruling of the courts 

on some of the questions involved. The earlier legal decisions and 

authoritative opinions were made at a time when very little was 

known regarding that }vhich was beneath the surface. The fundamental conception upon which many of the opinions rest is that we 

are ignorant of the conditions controlling waters hidden from our 

view. Since that time the progress of geological science has wrested 

from the unknown many things regarding underground waters and 

firmly established them in the realms of known fact. These things 

should serve to make possible a more equitable settlement of controversies involving rights to underground waters; and where a decision 

is controlled by opinions rendered in former cases, and not made with 

due regard to the present knowledge respecting subterranean conditions, it does not seem that a just settlement of the controversy can be 

reached.

That the earlier decisions and opinions serve as a guide for later
JOHNSON.] COMMON LAW: SUMMARY AND CONCLUSIONS. 85

decisions is a fact known to those who are familiar with onr legal 

procedure, and is evident on reading the decisions handed down 

in the various cases. Even where a certain judge was convinced 

from the evidence that the older decisions were manifestly wrong 

when applied to the case under consideration, the additional facts 

available in that case having thrown new light on the problem 

involved, nevertheless he felt compelled to decide in accordance with 

established precedents and against what he believed to be the right. 

(Collius r. Chartiers V. Gas Co., 131 Penn. St., pp. 100-100.) The 

higher courts in this instance reversed his decision. The case serves 

to call attention to the importance of emphasizing the influence 

which the ever-increasing knowledge concerning underground waters 

may and should have in governing legal decisions. The need of 

acquainting the public with such facts as are ascertained by the drilling of wells, the excavating of mines, and the investigations of public 

or private surveys is evident.

This point has been well appreciated by Mr. Justice Mitchell, who 

observed, " Geology is a progressive, and now, in many respects, a 

practical science, and, as truly remarked by the learned judge below, 

in his opinion on the motion for a new trial. " Since the decision in 

Acton /'. Blundell and Wheatley r. Baugh. probably more deep wells 

have been drilled in western Pennsylvania than had previously been 

dug in the entire earth in all time. And that which was then held 

to be necessarily unknown and merely speculative, as to the flow of 

water underground, has been, by experience in such cases as this, 

reduced almost to a certainty/ If this is the state of knowledge at 

(lie present day; if the existence of a stratum of clear water, and its 

flow into wells and springs of the vicinity, and the existence of a, 

separate and deeper stratum of salt water, which is likely to rise and 

mingle with the fresh, when penetrated in boring for oil or gas, are 

known, and the means of preventing the mixing are available at 

reasonable expense, then, clearly, it would be a violation of the living 

spirit of the law not to recognize the change, and apply the settled 

and immutable principles of right to the altered conditions of fact." 

(Collius /'. Chartiers V. Gas Co., 181 Penn. St., pp. IM-IRO.)

In many cases the original lack of knowledge, which was the efBcient reason for the ruling of the law has already disappeared. It is 

sufBcient for the present purpose to call attention to a few concrete 

instances. Thus, as stated by one authority, it has been held "that 

injury to springs, wells, etc., supplied by mere percolation, was not 

actionable, and the reason has always been the same, that the damage 

could not lie foreseen or avoided." We are now in possession of 

definite knowledge concerning the amount, rate, and direction of flow 

of underground water in certain cases, as well as concerning the 

thickness of the water-bearing stratum, its depth below the surface,
86 RELATION OF THE LAW TO UNDERGROUND WATERS.

and other valuable facts. In such cases it may often be possible to 

foretell with certainty that a given well or excavation will affect the 

supply of a neighboring well or spring. The damage may, therefore, 

be certainly foreseen. It may also be possible to show how a different 

position of the well would decrease the interference, or prevent it 

entirely, and thus avoid the damage to a greater or less extent. The 

damage may, therefore, be avoided in cases. The statutes of South 

Dakota and one or two other States recognize this possibility to foresee and prevent well interference, and make due provision for it.

So also it is now possible, in many cases, to predict with certainty 

what course would be taken by polluting substances carried by underground percolations, and so foretell which wells or springs would 

probably suffer and which would not. By noting the inclination and 

character of the rocks it has been possible to show that the polluted 

waters from a cesspool on one side of a hill would without doubt be 

carried down the slope of the beds, through the hill, to a spring on 

the opposite side. The course of such waters may in cases be demonstrated experimentally.

In one of the leading cases on this subject it was argued tha. 

*' there is an absolute impossibility for anyone to know what are tlir 

underground currents, where they begin, what they produce, and in 

what direction they run, and consequently an absolute impossibility 

of knowing what are the rights in relation to them.'" To-day we do 

know, in numerous cases, what the underground currents are, where 

they begin, in what direction they run, and even at what rate they 

progress, of what volume they are, and what in general are their 

vertical and lateral extents. So we might now say that there is a 

possibility of knowing and defining what are the rights in relation 

to them.

According to some authorities percolating waters are to be compared with the rocks and minerals contained in the ground, and absolute ownership accorded the landowner on the same principle in 

both cases. Such is the idea expressed by Joseph K. Angell in his 

treatise on The Law of Water Courses (5th edition, pp. 110-111), 

in the following words: "* * * in contemplation of law, land 

always extends downward as well as upward; so that whatever 

is in a direct line between the surface of any land and the center 

of the earth belongs " to the owner of the surface. It would consequently seem to follow that whether what is subterranean be solid 

rocks, mines, or porous soil, or salt springs, or part land and part 

water, the person who owns the surface may dig therein and apply 

all that is there found to his own purposes ad libitum."

It seems to me that this principle is essentially erroneous. We 

now know that percolating waters may and usually do possess a
.TOHNSON.1 COMMON LAW: SUMMARY AND CONCLUSIONS. 87

definite course, that in certain cases they enter the ground at given 

localities which may often be determined with accuracy, that they 

often have a certain flow with a fairly definite velocity year in and 

year out, and that they exist at certain depths below the surface. It 

is evident, then, that such waters are not to be compared with rocks 

and minerals which are, as such, stationary in the soil where they 

occur until removed by some external power; but that they are better 

to be compared with those waters upon the surface which pass into 

the land from one direction and out of it in another, and which are 

not regarded as the absolute property of the landowner. Furthermore, the removal of the rocks and soil from the land of one owner 

does not take away the rocks and soil belonging to his neighbor: 

while the removal of percolating water from the land of one owner 

does result in taking away the percolating water belonging to that 

neighbor. In other words, there certainly is a common interest in the 

water which does not exist in the case of the rocks and soil. As has 

been well said by Justice Temple, ^ It is obvious at once that the 

analogy between the right to remove sand and gravel from land for 

wale and to remove and sell percolating water is not perfect. If we 

suppose a saturated plain, one may remove and sell the sand and 

gravel from his land without all'ecting or diminishing the, sand and 

gravel from the lands of his neighbors. * * * Out when he 

drains out and sells the water on his land he draws to his land, and 

also sells, water which is the property of his neighbor. * * * 

In short, the members of the community, in the case supposed, have 

a common interest in the water. It is necessary for all, and it is 

an anomaly in the law if one person can, for his individual profit, 

destroy the community and render the neighborhood uninhabitable.^ 

(Katz r. Walkinshawl 141 Cal.. p. 140.)

It is believed therefore that absolute ownership of percolating 

waters can not be properly granted to any landowner on the basis 

of the principles here considered; but must be granted, if at all, on 

the ground that our ignorance of subterranean conditions, or considerations of public policy, make such a ruling necessary. With the 

disappearcnce of the ignorance in question one of the reasons for 

such a law disappears, and it remains to be seen what provisions 

of the law, in the light of new facts, are justified by considerations 

of public policy.

As was pointed out at the beginning of the discussion of underground waters of the second class, some authorities justify the refusal 

of the common law to recognize correlative rights in respect to such 

waters on the ground that " the existence, origin, movement, and 

course of such waters, and the causes which govern and direct their 

movements, are so secret, occult, and concealed that an attempt to
38 RELATION OF THE LAW TO UNDERGROUISrD WATERS. [NO. 122.

administer any set of legal rules in respect to them would be involved 

in hopeless uncertainty, and would be therefore practically impossible." At the present time our knowledge of the workings of underground waters, of their origin, movement, and courses, and of the 

causes which govern their actions, leaves much less in the realm of 

the " secret, occult, and concealed." It is possible to define certain 

rights in these waters, and to protect those rights as well as those in 

surface waters. As has been recently held by a California court: 

" The difficulties which the courts will meet in securing persons 

necessarily using percolating water for irrigation by means of artesian wells, from the infliction of great wrong and injustice by its 

diversion, if property rights therein are recognized, can not justify 

the court in abandoning the task as impossible. The courts can protect this particular species of property in water as effectually as 

water rights of any other description." (Katz v. Walkinshaw, 141 

Cal., p. 116.)

There yet remains much that is uncertain regarding subterranean 

conditions; but as, in the past, geology has added much to our store of 

knowledge concerning those conditions, so in the future we may confidently expect a continued increase in the known facts. And with 

this increase in knowledge we should look toward an increasingly satisfactory adjustment of those controversies which arise concerning 

subterranean waters. There probably must always be cases in which 

the subterranean conditions are indefinite or unknown, but the number of such cases will decrease; while it will be possible to adjust a 

constantly increasing proportion of the cases more equitably than was 

possible in the days when practically nothing was known about that 

which lies hidden beneath the surface of the ground.

The lack of agreement among legal authorities on many of the 

questions at issue is rather more fortunate than unfortunate in one 

respect at least, since it bears witness to the uncertain position of the 

law on the points involved and opens the way more readily for new 

knowledge bearing on the problems. Where the court is not bound 

by a long and unbroken line of legal authority, its decision is more 

apt to be in accordance with the general principles of right as applied 

to the present state of knowledge regarding the problem under consideration. More importance will attach to a complete and searching 

investigation into all the facts of the case in hand, since less will 

depend upon decisions rendered in similar cases years ago.
CHAPTER II. 

LEGISLATIVE ACTS AFFECTING UNDERGROUND WATERS.

INTRODUCTION.

It has been thought advisable to present a brief review of the more 

important legislation enacted by the different States and Territories 

on the subject of underground waters. Xo attempt has been made 

to gather every reference in State laws to the subject, but it is 

believed the following summary will give a fairly accurate idea 

of the extent of such legislation and will furnish the reader with 

the most important provisions relating directly to the control of 

waters flowing beneath the surface of the ground.

It will readily appear that most of the legislation on this subject 

has arisen in connection with the sinking of artesian wells for the 

purpose of securing underground water for domestic and mechanical 

purposes, and more especially for irrigation. In some of the Western States, where irrigation is largely dependent on artesian wells, 

this class of underground waters occupies a prominent place in the 

State laws.

Much of the legislation on this subject refers only indirectly to 

the. underground water itself, being concerned with the, duties of 

officials in regard to the sinking and controlling of wells, the appropriation of money, and the levying of taxes to provide for the cost 

of such wells, the rights and duties of those benefited by the water 

thus secured, and other topics of this general class. Material of this 

character has been omitted, brief references sometimes being given 

to the reports where it may be found.

Most of the States having special laws relating to underground 

waters are given below in alphabetical order, with such reference 

to their laws as seemed desirable for the purpose of this report.

CALIFORNIA.

The laws of California provide for the regulation of the use of 

artesian wells and prohibit the waste of subterranean waters. In 

an act (L., 1877-78, p. 195), approved in 1878, it is provided (sec. 1) 

that:

"Any artesian well which is not capped or furnished with such 

mechanical appliances as will readily and effectively arrest and prevent the flow of water from such well is hereby declared to be a 

public nuisance. The owner, tenant, or occupant of the land upon

39
40 BEL AT TON OF THE LAW TO UNDERGROUND WATERS. [N<>. 1-'-'.

which such well is situated who causes, permits, or suffers such public nuisance, or suffers or permits it to remain or continue, is guilty 

of a misdemeanor."

Also (sec. 2) that:

"Any person owning, possessing, or occupying any land upon 

which is situated an artesian well, who causes, suffers, or permits the 

water to unnecessarily flow from such well or to go to waste, is guilty 

of a misdemeanor."

For the purposes of this act an artesian well is defined (sec. 3) as 

" any artificial well the waters of which will flow continuously oyer 

the surface of the ground adjacent to such well at any season of the 

year;" and waste is defined (sec. 4) as follows: "The causing, suffering, or permitting the waters flowing from such well to run into 

any river, creek, or other natural water course or channel, or into any 

bay, lake, or pond, or into any street, road, highway, or upon the land 

of any person other than that of the owner of such well, or upon the 

public lands of the Tinted jStates or of the State of California, unless 

it be used thereon for the purposes and in the manner that it may be 

lawfully used upon the land of the owner of such well: TVmvYAW, 

That this section shall not be so construed as to prevent the use of 

such waters for the proper irrigation of trees standing along or upon 

the street, road, or highway, or for ornamental ponds, or for the 

propagation of fish."'

A fine of not less than $10 or more than $50, together with the cost 

of prosecution, is assessed against those convicted of violating any 

of the provisions of this act, and the supervisors or roadmasters are 

empowered to enter upon the premises where wells complained of 

are situated, and to institute criminal action where violation of the 

provisions of this act is discovered.

COLORADO.

The laws of Colorado regulate the use of artesian wells and prohibit the waste of subterranean waters in much the same way as the 

laws of California above cited. Further provisions are made for 

the keeping of accurate records of the depth and thickness of the different strata penetrated, for determining the legal status of seepage 

or spring waters, and for the sinking of certain artesian wells.

An act (L., 1887, p. 53) approved in 188T provides (sees. 1 and 

2) that: "Any artesian well which is not tightly cased, capped, or 

furnished with such mechanical appliances as will readily and effectively prevent the flow of water from such well is hereby declared to 

be a public nuisance. The owner, tenant, or occupant of the land 

upon which such well is situated, who causes, permits, or suffers such 

public nuisance, or suffers or permits it to remain or continue, is 

guilty of a misdemeanor.
JOHNSON.! STATUTE LAW: IDAHO. 41

>l Any person owning, possessing, or occupying any land upon which 

is situated an artesian well, who causes, suffers, or permits the water 

to unnecessarily flow from such well, or to go to waste, is guilty of a 

misdemeanor."

For the purposes of this act an artesian well is defined much the 

same as under the California law above cited, except that it is provided that nothing in the act shall apply to water flowing from 

mining shafts, and the definition is made to read, " the waters of 

which, if properly cased, will flow continuously,"' etc.

Waste is defined as in the California law. with a few minor modifications in the wording, and with the provision that the nse of the 

water for agricultural purposes is allowed in addition to the other 

uses enumerated above.

A fine of not less than $50 nor more than $300, together with the 

cost of prosecution, is assessed against anyone violating any of the 

provisions of the act. The county commissioners, road overseers, city 

engineer, or city officers are empowered to investigate and prosecute 

alleged violations of the act.

Tt is further provided (sec. 7) that: "Any person boring or causing 

to be bored an artesian well, shall keep a complete and accurate record 

of the depth and thickness of the different strata penetrated, and 

when such well is completed, shall file such record in the office of the 

county clerk and recorder of the county within which such well is 

situated, and immediately transmit a copy of such record to the office 

of the State engineer. Any person violating the provisions of this 

section shall be deemed guilty of a misdemeanor and shall, upon conviction, be fined not less than ten nor more than fifty dollars."

I>y an act (L., 1880, p. 21.")). approved in 1881), the rights relating to 

the use of seepage and spring waters are defined as follows: "All 

ditches now constructed or hereafter to be constructed for the purpose of utilizing the waste, seepage, or spring waters of the State 

shall be governed by the same laws relating to priority of right as 

those ditches constructed for the purpose of utilizing the water of 

running streams: Provided* That the person upon whose land the 

seepage or spring waters first arise shall have the prior right to such 

waters if capable of being used upon his lands. 1"

A number of acts have been passed at different times providing for 

the sinking of artesian wells at certain localities and appropriating 

money therefor.

IDAHO.

The rights relating to subterranean waters in Idaho are thus defined (L., 1899, p. 380, sees. 2 and 23) :

k ' The right to the use of the waters of rivers, streams, lakes, ponds, 

and subterranean waters may be acquired by appropriation.
42 RELATION OF TEE LAW TO UNDERGROUND WATERS. [NO. 122.

"All ditches now constructed, or which may hereafter be constructed, for the purpose of utilizing seepage, waste, or spring water 

of the State shall be governed by the same laws relating to priority 

of right as those ditches, canals, and conduits constructed for the 

purpose of utilizing the waters of running streams."

MICHIGAN.

In the State of Michigan the question of well interference is dealt 

with as follows:

" No person or persons, or corporation other than municipal corporations, owning or operating any artesian well, shall allow the same 

to flow a larger stream than will How through a pipe 1 inch in diameter, to the detriment or injury of any other well or wells, without the 

consent of the owners of such well or wells so injured.

"Any person or persons who shall suffer any damage because of the 

violations of the provisions of this act shall be entitled to recover the 

same from the person or persons or corporations so causing the same, 

the action of trespass or the case to be brought in any court of competent jurisdiction.

^ This act shall not apply to salt, oil, mineral water, or gas wells, 

or wells leased for bath purposes." (L., 1889, p. 221.)

NEBRASKA.

In 189? the following act was passed " to prohibit the needless waste 

of mutual artesian water in the State of Nebraska " (L., 189T, p. 358, 

chap. 84, sees. 1-8):

" That it shall be unlawful for the owner or owners, lessee or 

lessees, occupier or occupiers, foreman or superintendent of any farm, 

town lot, or other real estate in the State of Nebraska where artesian 

water has been found, or may be found hereafter, to allow the water 

from wells or other borings or drillings on any farm, town lot, or 

other real estate in Nebraska to How out and run to waste in any manner to exceed what will How or run through a pipe one-half of one 

inch in diameter, except where the water is first used for irrigation, or 

to create power for milling or other mechanical purposes.

"Any person or persons who own, occupy, or have control of any 

farm, town lot, or other real estate in the State of Nebraska who fail 

or refuse to shut of? the wastage of artesian water to the amount that 

this act allows on any farm, town lot, or other real estate which they 

own, occupy, or have control of, after being notified in writing by 

any person having the benefit of said mutual water supply, within 

forty-eight hours after such notification, shall be subject to arrest and, 

upon conviction, be fined in any sum not loss than ten nor more than 

twenty-five dollars, and pay the costs of such arrest and prosecution
JOHNSON. 1 STATUTE LAW : NEVADA NEW JERSEY. 43

for each offense; and if such wastage be not abated within twentyfour hours after such arrest and conviction, it shall be deemed a second ofFense against the provisions of this act and be subject to the 

same fine as for the first ofFense, and each like offense or neglect of 

each twenty-four hours thereafter shall be deemed and constitute an 

additional offense against the provisions of this act.

"All prosecutions under the provisions of this act shall be brought 

by any person in the name of the State of Nebraska against any person or persons violating any of the provisions of this act, before any 

justice of the peace of the county in which such violation is alleged to 

have taken place, or before any court of competent jurisdiction."

NEVADA.

In order to encourage the search for artesian waters in the State 

of Nevada, several acts and amendments thereto have been passed 

providing bounties for those who sink artesian wells. Thus it is 

provided that the party sinking an artesian well, where flowing 

water in a specified quantity is obtained, shall receive the following 

bounties: For the first 200 feet, $1.25 per foot; for the third 100 feet, 

$1.50 per foot; for the fourth 100 feet, $2 per foot; and so on, up to 

$4.50 per foot for the tenth 100 feet; and for all depth exceeding 

1,000 feet $5 per foot for each and every foot below the said 1,000 

feet; together with an additional bounty of $1,000 for each well sunk 

to a depth of 1,000 feet or more. Certain conditions relating to the 

number of wells allowable within a given area, the amount of water 

required, and the persistence of flow, are prescribed.

Under certain prescribed conditions a bounty of $2,500 is offered 

to the person who first sinks a well in the State of Nevada, not less 

than (> inches in diameter at the bottom, to a depth of 1,000 feet, said 

well flowing at least 00 gallons of water per minute.

A person engaged in the sinking of an artesian well upon any unoccupied public lands subject to selection by the State of Nevada, 

according to certain specified requirements, shall have a preferred 

right to all the lands he or she may be entitled to purchase, under the 

provisions of certain acts providing for the selection and sale of the 

public lands of the State.

NEW JERSEY.

In 1904 an act (L., 1904, chap. 77, p. 188) was passed in New 

Jersey which empowered cities acquiring their water supply from 

artesian wells to improve and enlarge that supply, as follows:

" It shall and may be lawful for the governing board of any city 

now or hereafter acquiring its water supply from artesian wells, 

whenever in their judgment they shall deem it expedient to do so, to 

cause to be constructed an additional pipe line or main to connect
44 RELATION OF THE LAW TO UNDERGROUND WATERS. [NO. 122.

such water supply with any distributing reservoir within such city 

or with water-supply pipes or mains to any point within such city, 

and to dig and construct artesian wells, and to purchase and erect 

and to set up meters, machinery, and other fixtures in connection with 

and for the improvement of the water supply and waterworks plant 

of such city and to purchase and condemn land, waters, and rights, 

and otherwise to improve, enlarge, and extend said water supply and 

waterworks plant of such city, provided, however, that all such 

works shall be done and constructed by contract after public bidding 

therefor, in the manner prescribed in the laws now governing such 

city."

NEW MEXICO.

An act passed in 1897 authorizes any county in the Territory to 

issue and sell bonds for the purpose of sinking artesian wells. It 

states (L., 1897, chap. GC, sec. 2) that " the object of said wells shall 

be to ascertain whether flowing water can be procured on lands at 

present considered beyond and above the water belt that is, above 

and beyond the belt wherein it has been demonstrated that flowing 

water can be obtained, and to encourage the boring of such wells for 

the purpose of increasing the area and productiveness of our agricultural lands and to reclaim high mesa lands which are now valueless for agricultural purposes.v

By an act approved in 1903 the superintendent of the New Mexico 

penitentiary was authorized to provide for the drilling of an experimental well on land belonging to the penitentiary.

OKLAHOMA.

The laws of Oklahoma have definitely embodied the general principles upon which the common-law decisions relating to the different 

rights in underground and surface waters are based. Thus it is 

stated (Revised and Annotated Statutes, 1903, chap. 65, Property, 

art. 3) : " The owner of the. land owns water standing thereon or 

flowing over or under its surface, but not forming a definite stream. 

Water running in a definite stream formed by nature over or under 

the surface may be used by him so long as it remains there, but he 

may not prevent the natural flow of the stream or of the natural 

spring from which it commences. 1 '

OREGON.

The rights to seepage and spring waters in the State of Oregon are 

thus stated (L., 1893, p. 150) : "All ditches now constructed, or hereafter to be constructed, for the purpose of utilizing the waste, spring, 

or seepage waters of the State shall be governed by the same laws 

relating to priority of right as those ditches constructed for the pur-
JOHNSON.] STATUTE LAW: SOUTH DAKOTA. 45

pose of utilizing the waters of running streams: Provided, That the 

person upon whose lands the seepage or spring waters first arise shall 

have the right to the use of such waters/'

SOUTH DAKOTA.

A great deal of legislation has been enacted in South Dakota concerning artesian wells, especially acts providing for the sinking of 

such wells, defining the rights and liabilities of those who do sink 

them or who have control of them, and providing for the levying of 

taxes and the issuing of bonds to pay the necessary expenses. Those 

sections referring to official duties, the levying of taxes, etc., are not 

here considered, only the sections dealing more directly with subterranean waters being cited.

I)y a series of acts (L., 1889, chap. 14; 1890, chap. 103; 1801, chap. 

SO; 1893, chap. 109; 189\ chaps. 103, 10(\ 10T, 108; 189T, chap. 74; 

1903, chaps. U3. ()4) and amendments thereto, it is provided that artesian wells may l)e sunk and watercourses be constructed therefrom 

upon petition of a majority of the qualified electors of any township 

in which the wells and the lands benefited thereby may be located; and 

that county, township, and special taxes may be levied to pay the cost 

of such wells and watercourses. Or any person or persons, corporation or company may construct artesian wells upon lands leased by 

them, and construct watercourses therefrom, the proprietors of such 

wells bearing the expense in proportion to their several interests. 

Certain restrictions are made regarding the number and location of 

waterways constructed from the wells, and the rights of parties controlling such waterways, of parties whose lands are crossed by them, 

and of the public are defined.

^'All subterranean waters in the State of South Dakota may be used 

for irrigation, mechanical, and domestic purposes," according to the 

provisions stated in the several acts. One such provision requires the 

keeping of well records, as follows:

"' It is hereby made the duty of the township board to embody in 

the contract for the sinking of said public artesian wells a proviso 

that the person sinking said wells shall make a record of the depth of 

each well and the formations entered or passed through in the construction of the same, and such provision is hereby made an essence of 

the contract and a violation thereof shall lie construed to be a violation of the contract." (L., 1891, chap. 80, sec. 35.)

The danger of "" well interference " is recognized, and certain provisions made for avoiding the trouble, so far as is practicable. Thus 

it is %]rovided (L., 1891, chap. 80, sec. 42) that ^"Any person, association, or corporation owning land shall have the right to sink or bore 

an artesian well or wells on his, their, or its lands, for the purpose of 

procuring water for domestic use, for irrigation, or for manufactur-
46 RELATION OF THE LAW TO UNDERGROUND WATERS. I NO. 122.

ing purposes; but in wells hereafter constructed no more water shall 

be appropriated by such person, association, or corporation than is 

needed for said purposes, when such additional use of water interferes 

with the flow of wells on adjacent lands."

It has already been pointed out, in the first part of this report, that 

well interference may be foreseen and prevented to a greater or less 

extent by proper distribution of the wells. The decisions of the 

common law are in part based on the erroneous principle that it is 

impossible for any man to know until after his well is completed 

whether or not it will affect the flow of his neighbor's well. The 

State of South Dakota recognizes the possibility of foreseeing and 

preventing well interference, and deals with the question in the 

following manner:

kw In locating wells in townships which have established and put 

down wells under the provision* of this act for public use or by private parties, due regard shall be had to their proper distribution, in 

order that the flow of the wells may be properly equalized and least 

likely to interfere with each other. Should any well in such township, public or private, be located so near any well already completed or in process of completion as to be likely to interfere with the 

same, any person may complain in writing to the State engineer, who 

shall without delay proceed to examine the locality and determine 

from its topography and the proximity of the wells whether, in his 

judgment, the wells as located would unduly interfere with the one 

already completed or in course of completion. If in his judgment 

there will be no material interference, the location will not be changed, 

but if in his opinion the well as located will materially interfere with 

the, one completed or in course of completion he shall change the location of said well to some more suitable locality; provided, that when 

permanent buildings have been located on any farm prior to the sinking of any artesian well on any adjoining farm, this act shall not be 

construed as prohibiting the agent or .proprietor of said farm from 

sinking an artesian well at or near said building without reference to 

the proximity of any other artesian well. The State engineer shall, 

within five days after said examination, make a written statement 

of his decision and file the same or a copy thereof in the office of the 

circuit court of the county wherein the said wells are located. Any 

person aggrieved by the decision of the State engineer may, within 

ten days after the filing of the decision in the office of the clerk of 

the circuit court, appeal from the same to the circuit court and upon 

such appeal the question shall be tried de novo/' (L., 1801, chap. 80, 

sec. 43.)

In order to determine whether the amount of water flowing from 

an artesian well is increasing or decreasing, the State engineer is
JOHNSON.] STATUTE LAW I SOUTH DAKOTA. 47

required 1 " to measure or to cause to be measured the How and pressure 

of all artesian wells established and put down under the provisions 

of this act, public and private, at such times as he may deem proper, 

for the purpose of determining the increase or diminution of the How 

or pressure of said well, and is hereby authorized to enter upon any 

grounds for the purposes aforesaid, and the owner or owners of such 

well or wells are hereby directed to furnish the necessary material to 

construct a suitable weir to measure the How, and all reasonable conveniences shall be afTorded for this purpose/' (L., 1891, chap 80, 

sec. 44.)

Every person sinking an artesian well is required to provide for 

such well a proper casing, in order to prevent the well from caving in 

and to prevent the escape of the water when it is desirable that such 

water be confined; and he is further required to provide such valve 

and appliances as will enable him to control the flow of the water from 

the well. Concerning the wasting of artesian waters, it is provided 

(L.. 1891, chap. 80, sec. 4()) that: " No person controlling an artesian 

well shall suffer or permit the water therefrom to flow to waste unless 

and so far as reasonably necessary to prevent obstruction thereof, or 

to Mow or to be taken therefrom save for beneficial uses: jPmr/r&W, 

This shall not be so construed as to prevent the reasonable use of said 

water for the necessary irrigation of trees standing along or upon any 

street, road, or highway, or for ornamental ponds or fountains, or the 

propagation of fish."

If any person complains that the proprietor of an artesian well, or 

the party controlling such well, is in the habit of letting the waters go 

to waste, the township supervisor, county commissioner, road overseer, 

alderman, or other city officers may enter upon the premises where the 

well is located in order to determine whether the complaint is justified, 

and may institute criminal prosecution in case violation of the law is 

ascertained. If the well is without valves to regulate the flow and 

prevent waste, the person owning the well may be fined up to one hundred dollars or be imprisoned not more than three months in jail, or 

both.

The flow of water through a watercourse from any artesian well is 

not to be interfered with, it being the duty of every person through 

whose land such a watercourse runs to keep the same open and unob- 

<tructed. The road overseer must keep such watercourses along a 

public highway clear. It is further provided (L., 1893, chap. 109, 

sec. 3:2) that: "All natural watercourses in this State, whenever an 

artesian well is located thereon under the provisions of this act, are 

hereby created and declared public natural watercourses for the flow 

of water from such artesian wells for the l^enefit of the public and of
48 RELATION OJb1 THE LAW TO UNDERGROUND WATERS. LNO. 1L"J.

private individuals located on such watercourses, subject only to compensation for damages as in this act provided."1

UTAH.

"' The waters of all streams and other sources in this State, whether 

flowing above or underground in known or definite channels, are 

hereby declared to be the property of the public, subject to all existing 

rights to the use thereof." (L., 1903, chap. 100, sec. 47.)

WASHINGTON.

In the State of Washington the rights to seepage and spring waters 

are thus defined:

"All ditches now constructed or hereafter to be constructed for the 

purpose of utilizing the waste, seepage, or spring waters of the State 

shall be covered by the same laws as those ditches constructed for the 

purpose of utilizing the water of natural streams and lakes: Provided* 

That the person upon whose land the seepage or spring waters first 

rise shall have a prior right to such waters, if capable of being used 

upon his lands/ 1 (L., 1890, p. 710, sec. 15.)

In 1901 an act was passed 4 * in relation to artesian wells and regulating the flow of waters therefrom ; and providing a penalty for the 

violation thereof." (L.. 1901, p. 259, sec. 1-4.) The text of this act 

is given in full:

" It shall be unlawful for any person, firm, corporation, or company 

having possession or control of any artesian well within the State, 

whether as contractor, owner, lessee, agent, or manager, to allow or 

permit water to flo\v or escape from such well between the first day of 

October in any year and the first day of April next ensuing: Provided* 

That this act shall only apply to sections and communities wherein 

the use of water for the purposes of irrigation is necessary or customary: Ai(d prodded further, That nothing herein contained shall 

prevent or prohibit the use of water from such well between the first 

day of October and the first day of April next ensuing for household, stock, and domestic purposes only, water for the last-named purposes to be taken from such well through a one-half inch stop and 

waste cock to be inserted in the piping- of such well for that purpose.

 ' It shall be the duty of every person, firm, corporation, or company 

having possession or control of any artesian well as provided in section 1 of this act to securely cap the same over, on or before the first 

day of October in each and every year, in such manner as to prevent 

the flow or escape of water therefrom, and to keep the same securely 

capped and prevent the flow or escape, of water therefrom until the 

first day of April next ensuing: Prodded, hotrcrer. It shall and may 

be lawful for any such person, firm, corporation, or company to insert
.imixsox.l STATUTE LAW: WASHINGTON WISCONSIN. 49

a one-half inch stop and waste cock in the piping of such well and to 

take and use water therefrom through such stop and waste cock at 

any time, for household, stock, and domestic purposes, but not otherwise.

"Any person, whether the owner, lessee, agent or manager, having 

possession of any such well, violating the provisions of this act shall 

be deemed guilty of a misdemeanor, and upon conviction thereof shall 

be fined in any sum not exceeding two hundred dollars for each and 

every such offense, and the further sum of two hundred dollars for 

each ten days during which such violation shall continue.

" Whenever any person, firm, corporation, or company in possession or control of an artesian well shall fail to comply with the provisions of this act. any person, firm, corporation, or company lawfully 

in possession of the land adjacent to or in the vicinity or neighborhood of such well, and within five miles thereof, may enter upon the 

land upon which such well is situated and take possession of such, 

from which water is allowed to flow or escape in violation of the provisions of section 1 of this act, and cap such well and shut in and 

secure the flow or escape of water therefrom, and the necessary 

expense incurred in so doing shall constitute a lien upon said well, 

and a sufRcient quantity of land surrounding the same, for the use 

and operation thereof, which lien may be foreclosed in a civil action 

in any court of common jurisdiction, and the court in any such case 

shall allow the plaintiff a reasonable attorney^ fee, to be taxed as a 

part of the cost. This shall be in addition to the penalty provided 

for in section 3 of this act."

WISCONSIN.

Tn the State of Wisconsin the questions of well interference and 

the wasting of artesian waters are thus dealt with:

" Where there are two or more artesian wells in any vicinity or 

neighborhood, one or more of which are operated or used by any person or owner, the person or owner of such well shall use due care and 

diligence to prevent any loss or waste or unreasonable use of the water 

therein contained or flowing from the same, as would deprive or unnecessarily diminish the flow of water in any artesian well, to the 

injury of the owner of any other well in the same vicinity or neighborhood.

"Any person who shall needlessly allow or permit any artesian well 

owned or operated by him to discharge greater quantities of water 

than is reasonably necessary for the use of such person, so as to materially diminish the flow of artesian water in any other well in the

TRR 133 05 M 4
50 RELATION OF THE LAW TO UNDERGROUND WATERS. I NO. li"J.

same vicinity, shall be liable for all damages which the owner of any 

such other well shall sustain. 1 ' (L.. 11)01, chap. 354.)

WYOMING.

According to the provisions of an act (L., 1888, chap. 19) passed 

in 1888, the boards of county commissioners of the several counties in 

the State of Wyoming are authorized to provide for the sinking of 

artesian wells at various places within such counties; and where the 

nature of the country makes an artesian well impracticable, tanks, 

reservoirs, etc., may be constructed. Certain restrictions are imposed, 

the rights and duties of private citizens and officials are defined, and 

appropriation of money is authorized.
INDEX.

A. Page.

Abbreviations, use of __ ______ 7-8

Acme Oil Co., Dillon r. Sec Uillon 

r. Acme Oil Co.

Actou v. Blundell. decision in, on

percolating waters ___ 13-14 

decision in, on well interference ______________ 15

Agreements, effect of ________ 30-31,34 

strict construction of------__ 31

Alexander r. United States, decision 

in, on well interference ____________ 17

Alston i?. Grant, decision in, on pollution ____________ 26

American and English Encyclopedia^ 

of Law : Underground 

Waters, citations from_ 7

Angell, J. K., on nature of property

in percolating water-_ 36

Appropriation, prior, establishment

of ____________ 12 

laws concerning___ 41-42, 44-45, 48

Arid and humid States, different

rules in ____ 20-21,32-33

B.

Ball v. Nye, decision in, on pollution ___________ 26

Ballacorkish Mining Co. r. Harrison, 

decision in, on agreements _________ 30

r. Dumhall, decision in, on well

interference ______ 15

Ballard v. Tomlinson, decision in, on

pollution __________ 25, 26

Barrows, J., decision of, on motives. 30

Bartlett, J., decision of, on well interference _________ 16

Barnard r. Shirley, decision in, on 

disposal of intercepted 

water _________ 22

decision in, on pollution_____ 27-28

Bossett r. Salisbury Mfg. Co., decision in, on well interference ________ 16

decision in, on damming underground water____ 21

Baugh, Wheatley v. Nee Wheatley 

r. Baugh.

Bellows, C. J., decision of, on motive ____________ 30

Bennett, E. H., on pollution______ 25

Page.

Benton, Harwood r. 8cc Ilarwood 

r. Benton.

Black, J., decision of, on motives- ._ 20

Blundell, Acton r. »s'rt' Acton v. 

Blundell.

Boston and Maine It. R., I'arker r. 

Sec I'arker r. Boston 

and Maine H. It.

Braintree Water Supply Co., proprietors of Mills r. (S'ec 

Proprietors of Mills v. 

Braintree Water Supply Co.

Brett, M. R., decision of, on pollution ____1_____ 26

Brinkerhoff, J., on public policy and

rights in percolating

water __ __ _

on motive-________-___ __

on prescription^ ______________

Brookline, Trowbridge r., decision in,

on well interference _ 16-1

Brooklyn, Smith v. Sec Smith v. 

Brooklyn.

Brown, Strait i>.' Sec Strait r. 

Brown.

Brown r. Illius. decision in, on pollution______________ 2

Brown, Frazier v. See Frazier v. 

Brown.

California, common-law decisions in_ 16,

18, 19, 20-21, 32-33, 38, 39

statute laws of____________ 39-40

Case v. Hoffman, decision in, on existence of underground 

streams __________ 10

Cemeteries, damage from________ 26

Channels, underground, defined and

known, definition of __ 10 

>SV r also Streams, underground.

Chasemore v. Richards, decision in, 

on stream-supply interference _______ 19

Chartiers V. Gas Co., Collins v. Sec 

Collins v. Chartiers V. 

Gas Co.

Chauvet r. Hill, decision in, on

spring interference __ 18

Chesley v. King, decision in, on

motives __________ 30

Church, Womersley r. Rec Church 

v. Womersley.
52 INDEX.

Page.

Clark r. Lawrence, decision In, on

pollution ___________ 20

Collins, Pickard r. /SVc Pickard 

r. Collins.

i'ollins r. Chartiers V. Gas Co., decision in, on precedents ______________ 35

Colorado, statute laws of___ _____ 40-41

Coloring matter, underground transmission of, proofs by__ 11

Connecticut, common-law cases in __ 27

Cooley, .1., decision of, on pollution- 27

Corporations, status of, in regard to

percolating water_ 10-18. 31!

Croiiin, Walker r. »SVc Walker r. 

Cronin.

Crops, injury to, by abstraction of

percolating water____ 1!)-21

t'utts, Swett r. tfcr Swett r. Cutts_ 30

I).

Damming streams, right of________

i>amming underground water, damages from ___________ 2

Diekiiison v. Grand Junction Canal 

Co.. decision in, on 

stream-supply interference _______________

Dillon r. Acme Oil Co., decision in, 

on pollution _________

Ditches. »SVc Sewers.

Draining land, damages to \vater supply from __________ 1

Dufour, Scmthem Pacific H. K. Co. 

r. N< lf Southern Paciflc H. U. Co. i-. Uufour.

Dumball, Ballacorkisll Mining Co. r. 

»s'<r Ballacorkish Mining Co. r. Dumball.

Durham, Porter v., on motives_____

Elster r. Springfield, decision in, on 

spring interference ___ 

, damages to water supply from____ lt.-ls, 27, 32

F.

Fall Iliver Iron Works Co., Shermau

r. tSVr Slierman r.

Fall River Iron Works

Co. 

Farmer, Stillwater Water Co. r.

/Vcr Stillwater Water

Co. r. Farmer. 

Fletclier, Uylands r. *s'<v Kylanrts

r. Fletcher. 

Forbell r. New York, decision in, on

injury to land ______

Fowler, .Tonkins i\ tSVc .Tenkins r.

Fowler.

in

27 

7-1H

IS

Frazier r. Brown, decision in, on

public policy and rights

in percolating water__

decision in, on motives________

on prescription._______

G.

Page.

14

29

32

Gas refuse, pollution by________ 25-27

Gould, J. M., Law of Waters by, citations from___________ 7

definition by_____________ 10

on agreements ______________ 30-31

on artificial percolation _______ 24

on damming underground

waters _____________ 21

on disposal of intercepted

waters ____________ 22-24

Grand Junction Canal Co., Dickensou r. »S'rc Dickinson 

r. Grand Junction 

Canal Co.

Grand Junction Canal Co. r. Shngar, 

decision in, on artificial percolation _____ 23

Grant, Alston v. Kce Alston v. 

Grant.

Grants. Sec Agreements.

Gray, John C., acknowledgments to_ 7

Greencastle v. Ilazelett, decision in,

on pollution _________ 2(i

Ground, imperfect support of, damage to water supply 

from _____________ 18

Gumbert v. Kilgore, decision in, on

spring interference ___ 18

II.

Harrison, Ballacorkish Mining Co, r. 

Kef Ballacorkish Mining Co. r. Harrison.

IIart r. Jamaica Pond Aqueduct Co., 

decision in, on well interference _________ If.

Harwood r. Bentou, decision in, on 

damming underground 

water ______________ 21

llatliesly. Lord, Ij. C., decision of, on

artificial percolation__ 23

llanelett, (ireentield r. »S'cr' Greenfield r. Haxelett.

Hill, Chauvet r. «cc Chauvot r. 

Hill.

lloffman, Case r. Ncc Case r. Iloffman.

llougan v, Milwaukee and St. Paul 

R. R. *'o.. decision in, 

on well interference __ 17

I.

Idaho, statute laws of ________ 41-42

Illinois, "ommon-law cases in ______ 27

Illins, Brown r. Ncc Bro\vu r. Illius. 

Indiana, common-law cases in _____ 22, 28
INDEX.

Injunctions, granting of_____- 

lowa, common-law decision in_

Page.

1C.. 17

58

Page.

Jacobs, Wheelock r. See Wheelock

r. Jacobs. 

Jamaica Pond Aqueduct Co., Hart r.

.SVr Jamaica Pond

Aqueduct Co. r. Hart. 

Jenkins r. Fowler, decision in, on

motive _____________

Johnson, New River Co. r. tfce New

Hiver Co. r. Johnson. 

Johnstown Cheese Mfg. Co. v.

Veghte, decision in, on

agreements _________

K.

Katz r. Walkinshaw, decision in, on

well interference ____ 10, 

20-21, 32-33. .'58. 39

Kentucky, common-law cases in ____ 25

Kenyon, West Cumberland Iron Co. r. 

tS'ec West Cumberland 

Iron Co. r. Kenyon.

Kilgore, (iumbert r. jSVc (Humbert

r. Kilgore___-___-_-_ IS

Kin^, Cbesley r. tiff Chesley r. 

KinsKinnaird r. Standard Oil Co., decision in. on pollution. 25

L.

Land, damages to, from interference with percolating 

water _______ 19-21,33

Land, drainage of, damages to

water supply hy______ 30

Law, common, on underground

waters ____________ 9-38

Law, statute, on underground

waters __________ 30-40

Lawrence, Clark r. flee Clark r. 

Lawrence.

Lawyer's Reports Annotated, citations from ________ 7

Lewis, C. J., decision of, on indefinite character of percolating water _______ 14

decision of, on motives________ 20

on spring interference ____ 18

M.

Martinsville, Skaggs V. Sec Skaggs 

r. Martinsville.

Massachusetts, common-law decisions in_ 12, 10, 17. 23, 20, 29

Metropolitan Board of Works, Regina r. >S'rr Regina r. 

Metropolitan Hoard of 

Works.

Michigan, statute laws of ______-.__ 42

Milwaukee and St. Paul R. R. Co., 

Hougan r. See Hougaii r. Milwaukee and 

St. Paul R. R. Co.

Mines, damages to water supply 

from ______________

Hooding adjacent mines by 

water frotn_______ 21,

Mirtield, Turner r. fter Turner r. 

Mirfield.

Mitcbell. J., on progress of geological knowledge ____

Motive, immateriality of ___ 24, 28- 

materiality of ____________ 27,

Nebraska, statute laws of _______

Negligence, effect of ___________ 24,

Nevada, bounties for artesian wells 

in _______________

common-law decisions in _____ 

statute laws of_______________

New Albany and Salem R. R. Co. v. 

Peterson, decision in, 

on well interference __

Xew Hampshire, common-law decisions in_______ 15-10,

Now Jersey, statute laws of ______

New Mexico, statute laws in_______

New River Co. r. Johnson, decision 

in, on well interference _______________

New York, common-law cases in___

27,

New York, Forbell r. Xcr Forbell r. 

New York.

Nowlen, Phelps v. Sec Pheljjs v. 

Nowlen.

Nyc, Ball r. flee Ball v. Nye.

O.

Ohio, common-law decisions in__ 17, 18, 29 

Oil, pollution by______________ 2.',

44 

___ 44-45

42-4.°,

27. 28

43

10

43

21, 22

43-44

44

in

20.

29, 31

Oklahoma, statute laws of_ 

Oregon, statute laws of _j._

P.

Parker r. Boston and Maine R. R., 

decision in, on well interference __________ 10

Pennsylvania, common-law decision

in ___ ._ ____ 14, 2:5, 29, 35 

Percolating water, court precedents

concerning __________ 34-35

damming of, damage from____ 21, 33

distinction between other real

estate and-_________ 30-38

distinction between surface

streams and ______ 11-13,32

existence of, presumption in

favor of__________ 9, 10

interference with, damages

from ____________ 13-31

knowledge of ________..__ 9,34-38
54 INDEX.

Page. 

Percolating water, lack of agreement

concerning _______ 34. 38

legal rights in ___________ 112-31

ownership in __________ 13,32.36

pollution of ________ 25-28,33,30 

priority of use of___ 41-42, 44-45, 4,8 

public policy and rights in_____ 14

sale of, right of __ 16, 20-21, 32-33, 37 

waste of ________________ 18

Percolating waters, intercepted, disposal of______ 21-22, 33 

Percolation, artificial production

of ___ _______ 22-24,33 

Perry, Willis v. *SYr Willis r. Perry. 

Peterson, New Albany and Salem R. 

R. Co. r. »Sfrp New Albany and Salem R. R. 

Co. r. Peterson.

Phelps ? . Nowlen, decision in, on 

motive _____________

Pickard r. Collins, decision in, on 

motive ____________

Pollution of underground water, 

liability for ________

Pollution, motive of________ 27.

Pomeroy, .1. N., Water Rights by.

citations from _____

Porter r. Durham, decision in. on

motive _____________

Prescription, nonapplicability of_ 31- 

Priyies, damage from____________

Proprietors of Mills r. Bralntree 

Water Supply Co., decision in, on artificial 

percolation _ _ __ 23 

Public policy, rights in percolating

water and __ _ 14

R.

Reasonable use of percolating waters, decisions concerning __ 15-16, 20, 22. 28, 32, 33

Regina r. Metropolitan Board of 

Works, decision in. on 

interference with 

springs _ 17

Reinbach, Wable v. See Wahle r. 

Reinbach.

Reservoir, percolation from, damages by __________ 23-24

Richards, Chasemore r. See Chasemore r. Richards.

Richlaiid Township Co., TTpjohn r. 

ftee Upjohn ?;. Richland 

Township Co.

Rocks, structural relations of, proofs 

of underground channels from________ 10

Rodman, .T., decision in, on motive__ 29

Rylands r. Fletcher, decision in, on

artificial percolation __ 24 

decision in, on pollution of underground water 25

S. Page.

Salisbury Mfg. Co., Bassett v. See 

Bassett v. Salisbury 

Mfg. Co.

Sewage, pollution by__________ 25.

Sewers, construction of, damage to

water supply by__ 16-19,

Sherman v. Fall River Iron Works 

Co., decision in, on 

pollution ___.____

Shirley, Barnard i\ See Barnard r. 

Shirley.

Shngar, Grand Junction Canal Co. v. 

/s'cc Grand Junction 

Canal Co. r. Shngar_

Sink holes, proof of underground 

channel furnished by_

Skaggs r. Martinsville, decision in, 

on disposal of intercepted waters______ 22

Smith r. Brooklyn, decision in, on 

stream-supply interference _______________ 19

Solid matter, underground transmission of, proofs furnished by ______ 10

Southern Pacific R. R. Co. v. Dufour, decision in, on 

spring interference __ 17 IP

Springfield, Elster r. Kee Elster v. 

Springfield ______

Springs, grant of, implications of___ 18, 

interference with_____________ 17 18

streams from, riparian rights

on _____________ 18, 19

Standard Oil Co., Kinnaird v. See 

Kinnaird v. Standard 

Oil Co.

Stillwater Water Co. v. Farmer, decision in, on spring interference ______ 18

Strait v. Brown, decision in, on 

stream-supply interference ___________ 19

Streams, surface, distinction between 

percolating waters 

and _____________ Illegal identity of underground 

streams and____ 11 

legal rights in and limitations 

on __ . ____ __ 11- 

percolating water supply for, 

interference with ____

18

31

13,

27, 

12,

18-1

-23, I

Streams, underground, distinction 

between percolating 

waters and _____ 11-13,32 

legal identity of surface streams

and ___________ 11,27 

presumption against existence of 9 10 

proofs of existence of____ 10-11 

Strong, T. R., decision of, on motive ____________ 29 

Swett v. Cutts, decision in, on motive .._ 30
INDEX. 55

T. Pa ?e.

Temple, J., on nature of property in

percolating water ____ 37 

Tiudal, C. J., on indefinite character

of percolating water__ K5-14 

Tomlinson, Ballard v. Hce Ballard

i'. Tomlinson. 

Transmission, underground, proofs

of channel furnished

by _____________ 10 

Trowbridge, r. Brookline, decision in,

on well interference __ 10-17 

Turner v. Mirfleld, decision in, on

pollution ____ ...__ 20

F.

Underground water. See Water, 

underground.

United States, Alexander v., decision 

in, on well interference ____________ 17

Upjohn v. Ricbland Township Co., 

decision in, on pollution ______________ 27

Utah, statute laws of __________ 48

Vault, percolating water from, damage by__________ 20

Veghte, Johnstown Cheese Mfg. Co. 

i'. ticc Johnstown 

Cheese Mfg. Co. r. 

Veghte.

Vermont, common-law decisions in_ 18, 21

Waddell, Wilson v. Sec Wilson v.

Waddell. 

Wahle v. Reinbach, decision in, on

pollution __ _ _ 

Page. 

Walker r. Cronin, decision in, on

motive _____ ____ 29 

Walker, George A., acknowledgments

to ____ ________ 7 

Walkinshaw, Katz r. Sec Katz v>.

Walkinshaw -_____ 10 

Washington, statute laws of_____ 48-49

Water, underground, classes and

definition of _______ 9-10

See also Streams, underground ;

Percolating waters. 

Wells, construction of, damages to 

other water supply 

from. 14-17, 19, 22-23, 30-33 

interference with- 14-17, 32, 45-46, 49 

Wells, artesian, bounties for drilling

of______________ 43 

control of________.______ 40 

definition of ____________ 40,41

flow from _____________ 40-47

records of_____________ 40,41,45

streams from, riparian rights

on_______________ 47-48

statute laws on _____________ 39-50

water from, waste of___ 39-43, 47-49 

disposal of__________ 22,27-28

pollution of _________ 27-28

Wells, J., decision of, on inotive___ 29 

West Cumberland Iron Co. r. Kenyon, decision in, on 

intercepted water ___ 22 

Wheatley v. Baugh, decision in, on

spring interference ___ 18 

on motive ____________ 29

Wheelock v. Jacobs, decision in, on

spring interference ___ 18 

Willis r. Perry, decision in, on well

interference __ __ 10 

Wilson r. Waddell, decision in, on

artificial percolation_ 24 

Wisconsin, statute laws of__-_--__- 49 50 

Womersley r. Church, decision in,

on pollution-- _______ 20

Wyoming, statute laws of _ 50

o
PUBLICATIONS OF UNITED STATES GEOLOGICAL SURVEY.

[Water-Supply Paper No. 122.]

The serial publications of the United States Geological Survey consist of (1) Annual 

Reports, (2) Monographs, (.'">) Professional Papers, (4) Bulletins, (5) Mineral 

Resources, (6) Water-Supply and Irrigation Papers, (7) Topographic Atlas of 1 

United States folios and separate sheets thereof, (8) Geologic Atlas of the United 

States folios thereof. The classes numbered 2, 7, and 8 are sold at cost of publication; the others are distributed free. A circular giving complete lists may be had on 

application.

The Professional Papers, Bulletins, and Water-Supply Papers treat of a variety of 

subjects, and the total number issued is large. They have therefore been classified 

into the following series: A, Economic geology; B, Descriptive geology; C, Systematic geology and paleontology; D, Petrography and mineralogy; E, Chemistry and 

physics; F, Geography; G, Miscellaneous; H, Forestry; I, Irrigation; J, Water storage; K, Pumping water; L, Quality of water; M, General hydrographic investigations; N, Water power; (), Underground waters; P, Hydrographic progress reports. 

This paper is the thirty-fifth in Series O, the complete list of which follows. (PP= 

Professional Paper; B=Bulletin; WS=Water-Supply Paper.)

SERIES O UNDERGROUND WATERS.

WS 4. A reconnaissance in southeastern Washington, by I. C. Russell. 1897. 96 pp., 7 pis.

WS 6. Underground waters of southwestern Kansas, by E. Haworth. 1897. 65 pp., 12 pis.

WS 7. Seepage waters of northern Utah, by Samuel Fortier. "1*97. 50 pp.,3 pis.

WS 12. Underground waters of southeastern Nebraska, by N. H. Darton. 1898. 56 pp., 21 pis.

WS 21. Wells of northern Indiana, by Frank Leverett. 1899. 82 pp., 2 pis.

WS 26. Wells of southern Indiana (continuation of No. 21), by Frank Leverett. 1S99. 64pp.

WS 30. Water resources of the Lower Peninsula of Michigan, by A. C. Lane. 1899. 97 pp.,7 pis.

WS 31. Lower Michigan mineral waters, by A. C. Lane. 1899. 97 pp.,4 pis

WS 34. Geology and water resources of a portion of southeastern South Dakota, by .1. E. Todd. 1900.

34 pp., 19 pis. 

WS 53. Geology and water resources of Nez Perces County, Idaho, Pt. I, by I. C Russell. 1901. 86

pp., 10 pis. 

WS 54. Geology and water resources of Nez Perces County, Idaho, Pt. II, by I. C. Russell. 1901.

87-141 pp. 

WS 55. Geology and water resources of a portion of Yakima County, Wash., by G. O. Smith. 1901.

68 pp., 7 pis.

WS 57. Preliminary list of deep borings in the United States, Pt. I, by N. H. Darton. 1902. 60pp. 

WS 59. Development and application of water in southern California, Pt. I, by J. B. Lippincott. 19012.

95 pp., 11 pis. 

WS 60. Development and application of water in southern California, Pt. II, by J. B. Lippincott.

1902. 96-140 pp.

WS 61. Preliminary list of deep borings in the United States, Pt. II, by N. H. Darton. 1902. 67 pp. 

WS 67. The motions ol underground waters, by C. S. Slichter. 1902. 106 pp.,8 pis. 

B 199. Geology and water resources of the Snake River Plains of Idaho, by I. C. Russell. 1902. 192

pp., 25 pis.

WS 77. Water resources of Molokai, Hawaiian Islands, by W. Lindgren. 1903. 62 pp., 4 pis. 

WS 7S. Preliminary report on artesian basin in soutli western Idaho and southeastern Oregon, by I. C.

Russell. 1903. 53 pp., 2 pis. 

PP 17. Preliminary report on the geolgy and water resources of Nebraska west of the one hundred

and third meridian, by N. H. Darton. 1903. 69 pp., 43 pis. 

WS 90. Geology and water resources of part of the lower .lames River Valley, South Dakota, by J. E.

Todd and ('. M. Hall. 1904. 47 pp., 23 pis.

I
II ADVERTISEMENT.

WS 101. Underground waters of southern Louisiana, by G. D. Harris, with discussions of their uses for

water supplies and for rice irrigation, by M. L. Fuller. 1904. 98 pp., 11 pis.

WS 102. Contributions to the hydrology of eastern United States, 1903, by M. L. Fuller. 1904. 522 pp. 

WS 104. Underground waters of the Gila Valley, Arizona, by W. T. Lee. 1904. 68 pp., 5 pis. 

WS 106. Water resources of the Philadelphia district, by Florence Bascom. 1904. 75 pp., 4 pis. 

WS 110. Contributions to the hydrology of eastern United States, 1904; M. L. Fuller, geolcgist in

charge. 1905. '211 pp., 5 pis. 

PP 32. Geology and underground water resources of the central Great Plains, by N. H. Carton. 1905.

433 pp., 72 pis 

WS 111. Preliminary report on underground waters of Washington, by Henry Landes. 1905. 85 pp.

Ipl. 

WS 112. Underflow tests in the drainage basin of Los Angeles River, by Homer Hamlin. 1905.

55 pp., 7 pis. 

WS 114. Underground waters of eastern United States, by M. L. Fuller and others. 1905. 285 pp.,

18 pis. 

WS lls. Geology and water resources of east-central Washington, by F. 0. Calkins. 1905. 96 pp.,

4 pis. 

B 252. Preliminary report on the geology and water resources of central Oregon, by I. C. Russell.

1905. 138 pp., 24 pis. 

WS 120. Bibliographic, review and index of papers relating to underground waters published by the

United States Geological Survey, 1879-1904, by M. L. Fuller. 1905. 128 pp. 

WS 122. Relation of the law to underground waters, by D. W. Johnson. 1905. 55 pp.

The following papers also relate to this subject: Underground waters of Arkansas Valley in eastern 

Colorado, by G. K. Gilbert, in Seventeenth Annual, Pt. II; Preliminary report on artesian waters of a 

portion of the Dakotas, by N. H. Darton, in Seventeenth Annual, Pt. II; Water resources of Illinois, 

by Frank Leverett, in Seventeenth Annual, Pt. II; Water resources of Indiana and Ohio, by Frank 

Leverett, in Eighteenth Annual, Pt. IV; New developments in well boring and irrigation in eastern 

South Dakota, by K. H. Darton, in Eighteenth Annual, Pt. IV; Rock waters of Ohio, by Edward 

Orton, in Nineteenth Annual, Pt. IV; Artesian wll prospects in the Atlantic Coastal Plain region, by 

N. H. Darton, Bulletin No. 138.

Corresponde-nce should be addressed to

THE DIRECTOR,

UNITED STATES GEOLOGICAL SURVEY,

WASHINGTON, 1). C. 

APRIL, 1905.
LIBRARY CATALOGUE SLIPS.

[Mount each slip upon a separate card, placing the subject at the top of the 

second slip. The name of the series should not be repeated on the series 

card, but the additional numbers should be added, as received, to the first 

entry.]

Johnson, Douglas Wilson.

. . . Relation of the law to underground waters, by 

Douglas Wilson Johnson. Washington, Gov't print, 

off., 1905.

55, iii p. 23cm. (U. S. Geological survey. Water-supply and irrigation 

paper no. 122)

Subject series: O, Underground waters, 35. 

1. Water Laws and legislation. 2. Water, underground U. S.

Johnson, Douglas Wilson.

. . . Relation of the law to underground waters, by 

Douglas Wilson Johnson. Washington, Gov't print.

i off., 1905.

3?

* 55, iii p. 23cm. (U. S. Geological survey. Water-supply and irrigation 

paper no. 122)

Subject series: O, Underground waters, 35. 

1. Water Laws and legislation. 2. Water, underground U. S.

U. S. Geological survey.

Water-supply and irrigation papers.

no. 122. Johnson, D. W. Relation of the law to underground waters. 1905.

U. S. Dept. of the Interior.

see also 

U. S. Geological survey.