The Evening statesman. [volume] (Walla Walla, Wash.) 1903-1910, 1903-12-30


flowing in subterranean streams OF
channels The burden of proof rests
upon him who asserts that Sub-surIace
waters flow in subterranean streams
or channels.
In the case of city of Emporia' VS..
Sodens, % Kansas 5SS, the facts were
that the city of .Emporia, containing
about 5000 inhabitants, purchased a
tract of land riparian to a stream ana
pond and by means of wells and exca-
vations on said land, in the neighbor-
hood of said stream and pond, deVel-
oped a supply of water, and by means
of engines and pumps carried the wa
ter into the city, for the purpose OF
supplying it's inhabitants. 1t result
ed that much of the water or the
stream and pond found it's way into the
we'll by percolatiOn to the injury OF
lower proprietor; the supreme court OF
Kansas in an opinion delivered by
Judge Brewer, now and for many years
an associate justice of the supreme
court of the United States. held that
the city should be enjOined from tax
ing the percOlating water, and that pc
fore the city could destroy or diminish
the water power of the neighboring
proprietor it should be required to
compensate him for his damages.
In Smith VS.. the city of Brooklyn, 46
\. Us al; the facts were these, the
city of Brooklyn. for the purpose OF
furnishing its inhabitants with a water
supply, constructed upon its own lands
| a reservoir, aqueduCts and condults
for holding and carrying the water
percOlating through said lands. The
city also sunk number of wells and
connected them with powerful pumps;
pumping stations were constructed and
a large quantity of water was pumped
therefrom daily. Upon the lands of an
! adjacent proprietor and about 24O feet
distant from the works of the city was
| a running spring and pond which by
| reason of the eXcaVating and diversion
| aforementioned on the part of the city,
were destroyed. In a very carefully
prepared decision the court reviews
the authorities and lays down the rule
| chat such act on the part of the city
was unlawful: and the injured party
vas allowed to recover from the city
to the extent of Ills damages.
=
All. these are similar cases, in each
/ bn int cd
| waters which by percOlatOn fed
streams upon, which the various plain
| tiffs had riparian rights and in each
| case the plaintiffs We're allowed dam
| ages for such diversion.
In United States VS.. Alexander, Jas
| United States 1876. the facts were these:
| The city OF Washington dug a ditch
| over and across ground to which it had
/ right of way and intercepted perco-
| !ating waters which supplied the well
| # a proprietor distant $50 yards from
| he excavation, the injured party was
allowed to recover damages for his
injury.
In katz VS.. WalkinshaW. 20 Pacific
S63; the supreme court of california
| laid down the rule that, The right OF
a land owner to use subterranean per-
/ cOlating waters, and divert the same
from the land of an adjoining owner
is limited to a reasonable use in con-
nectOn with the use of his own land
and does not authorize him to appro
pirate such waters by artesian wells
nd sell the same fOr the irrigation OF
distant lands to the detriment of ad-
| Joining land owners" The court in
the course Of the opinion says, "A case
cannot be found in this country where
he right has been upheld in the owner
If land to destroy a stream, a spring
or we'll upon his neighbOr's land by
cutting off the source of its supply,
except it was done in the exercise o.
| legal right to improve the land O.,
make some use of it in connection
with the enjoyment Of the land itself,
We have ourselves very carefully
searched the authorities and have beer
'nahle to find any case in America
which would authorize the city of
Walla Walla to take percolating waters
found on the Thomas place and use
such waters for the purpose of sup
plying its inhabitants with water, if
by so: doing. it should destroy or les
sen the flow of water, either surface or
subterranean upon the lands of an ad-
jacent proprietor. 1t may be possible
for the city to obtain subteranean wa
tiers upon the Thomas place sufficient
TO supply all needs of it's inhabitants
without interfering with the water
supply of other prOprietors.
We believe that any proprietor
claiming to be damaged by such an
act on the part of the city would have
the burden cast upon him of showing
that his water supply had been dimin-
ished or destroyed by the act of the
city. :
1t is our opinion therefore that the
-ity of Walla Walla cannot take any
If the surface waters flowing on the
Thomas place in which other riparian
proprietors have an interest and that
it cannot take any of the subterranean
waters either flowing in streams or