Lybe's Appeal

Mr. Justice Gordon delivered the opinion of the court, In the deed of Peter Lightner’s executors to Rudolph S. Herr, the appellee and defendant below, there was nothing reserved but a right, in favor of the devisees of the tract of land adjoining, tract No. 1, on the west, “ to conduct water from the spring on No. 2 to the said premises, and to enter upon the said No. 2 for the purpose of laying and repairing pipes, and keeping the spring in proper condition for the conveyance of the water.” This is the limitation of the reserved easement, and beyond it there can be no presumption in favor of the grantors. We agree with the learned Master that in this spring of water the plaintiffs, by the reservation, acquired no greater rights than if it had embraced not only the water, but also the ground whence it flowed. In other words, the rights of the contestant parties are those of adjacent land owners, and none other. Such being the case, the proposition is rather startling that Herr cannot be permitted to dig a well in his own land because he may thereby, in some unknown manner, interfere with the flow of the water to the reserved spring. Than the doctrine of subterranean percolations and water courses no subject has been more fully discussed in our books. We would refer more especially to tire cases of Wheatley v. Baugh, 1 Ca., 528, and Haldeman v. Bruckhart, 9 Wr. 514, in which the matter has been fully considered and disposed of by Justices Lowrie and Strong. The latter case also successfully combats the idea advanced by the counsel for the appellants, that a distinction must be made between ordinary percolations and subterranean currents or streams. The rule is, that wherever the stream is so hidden in the earth that its course is not discoverable from the surface, there can be no such thing as a prescription in favor of an adjacent proprietor to have an uninterrupted flow of such stream through the land of his neighbor. One reason given for this conclusion is that, if the former can have such right, he can prevent the latter from the use of the water in his own soil, for a use and return of it, as in the .case of surface streams, is impossible. But we need not pursue this subject, for the very able report of the learned Master has relieved us from any such necessity, and we have nothing farther to say except that, with him and the court below, we agree in the propriety of the dismissal of the bill. The decree of the Court of Common Pleas is now affirmed, and the appeal dismissed at the costs of the appellant's.