Edwards v. Haeger

Mr. Justice Boggs delivered the opinion of the court: A motion to dissolve an injunction may be based upon an alleged want of equity apparent upon the face of the bill, the motion having the efficacy of a demurrer to the bill, or, after the coming in of the answer, upon the state of the case in matter of fact as shown by the allegations of the bill and of the answer and proofs in support of the bill and answer, respectively, or, as in this instance, on both such grounds. When the motion rests on both grounds, the first in proper order for decision is whether the allegations of the bill disclose a state of case warranting the granting by a court of chancery of the writ of injunction. The bill in this case alleged the new well was dug in hard, dry land and that the water which came into it was “underground percolating water,” and counsel for appellant contend that under the construction of those clauses in the deed made by Deweese to Green upon which are based such rights as appellee may have, appellee has no right in seeping or percolating underground water in the hard, dry land, but only to such “water as belongs to wet land.” Appellee, though denying the well only intercepted water percolating" in the earth, insists the legal effect of the grant is to preclude the appellant from intercepting, by means of the well, percolating water which would have otherwise reached the “wet and springy” ground,—and this contention is one of the reasons for the position the allegations of the bill are insufficient. Water which is the result of natural and ordinary percolation through the soil is part of- the land itself and belongs absolutely to the owner of the land, and, in the absence of any grant, he may intercept or impede such underground percolations, though the result be to interfere with the source of supply of springs or wells on adjoining premises. Upon this proposition there is, so far as we are advised, no dissension in the decisions of courts or in the writing's of the authors of text books. Nor does appellee contend any different rule prevails, in the absence of a grant creating a right to percolating water in another than the owner of the soil. The grant here under consideration does not in terms vest the person entitled to the benefit thereof with the right to any water except that in the “wet land,” and we are unable to perceive that an implication of any other or further rig'ht arises from the language employed in the instrument creating the grant. If any right exists in favor of the party to be benefited by the grant, in water percolating in other than the wet lands, it must arise otherwise than, by force of any express or implied meaning to be gathered from the grant. The appellant not being the author of the grant but a subsequent purchaser of the property, would take the estate subject only to the easements created expressly or by implication from the terms of the grant, or such other easements as were apparent from an inspection of the premises. (Ingals v. Plamondon, 75 Ill. 118.) To affect a subsequent purchaser by implication, the “apparent sign of servitude must have existed on the premises” or the “marks of the burden must have been open and visible thereon,”—to quote and apply expressions of this court in the case last cited. It was not essential to the sufficiency of the bill, or possible in such a case as this, that the complainant should endeavor to anticipate all claims of alleged easements not appearing expressly or by implication from the grant, or should negative, by express averments, all imputation that the burden of such easements was “obvious and apparent.” Moreover, it is unreasonable to believe the original parties to the grant intended that the easement should extend to water percolating or seeping through, the high and dry portions of the premises. Such an intention would result in the conversion of practically the entire tract to the use of the mill, and would tend largely to prevent the improvement thereof and in a great degree destroy its usefulness. The nature and tendency of such a burden upon land is so far opposed to the public good as that a grant should not be construed to create it unless language is employed which will not admit, reasonably, of any other construction. Deeds containing reservations of the privilege of taking water from springs or granting the privilege of drawing water from wells have uniformly been held to confer no right in water which naturally seeped or percolated through the land, though the springs or wells derived their supply of water therefrom, and the doctrine in such instances is well established that the owner of such land may lawfully sink wells or make other excavations and collect percolating water which otherwise would feed the springs or supply the wells. Davis v. Spaulding, 157 Mass. 431; Lyres' Appeal, 106 Pa. St. 106; Chesley v. King, 74 Me. 164; 27 Am. & Eng. Ency. of Law, pp. 430, 431, and notes. The question of the effect of the motive prompting the interference with the source of supply of water by collecting percolating water, which has been the subject of conflicting decisions in the courts of different States, does not arise in this investigation, as it clearly appears from the allegations of the bill the appellant had lawful right to dig' the new well and conduct the water by pipes to his barn and other buildings, it appearing from the allegations of the bill the work of laying the pipe from the well to the barn was being prosecuted in such manner as not to interfere with the operation of the mill ditch. It is urged an injunction will not be granted to restrain a trespass. This is the rule as to a single act of simple trespass to property, but where a trespass has been committed and repetitions thereof are threatened, and the injury which follows such trespass is irreparable in damages, equity will interfere by injunction. (Owens v. Crossett, 105 Ill. 354; Poyer v. Village of Desplaines, 123 id. 111; 10 Am. & Eng. Ency. of Law, p. 881.) The bill under consideration alleges the commission of a trespess and a deliberate written threat that it will be repeated as often as appellant attempts to exercise the right, and states facts showing that the mischief and injury which such trespasses will occasion are of such nature that the damage to the appellant cannot be ascertained or computed and adequate compensation therefor made by way of a judgment at law awarding money damages. This is sufficient to authorize a court of equity to restrain a threatened injury. (10 Am. & Eng. Ency. of Law, p. 835, and authorities cited in note 2; Wahle v. Reinbach, 76 Ill. 322; Clowes v. Staffordshire Co. 8 Ch. App. 125.) When the injury is irreparable it is not essential to equity jurisdiction a bill for an injunction shall also allege the party to be restrained is insolvent. The motion to dismiss for want of equity appearing on the face of the bill should have been overruled. The motion to dissolve the temporary injunction brought before the court for consideration the issues of fact raised by the bill‘and the answer thereto and the state of case developed by the ex parte affidavits produced by the respective parties. The position of counsel for appellee as to the issues of fact is, that the water which came into the new well was not percolating water, but water which flowed there from a subterranean watercourse; that in order to divert the water from such watercourse into the well, a trench was dug from the well, underneath the said water-course, and loose-jointed tile placed in the trench to conduct the water flowing in such water-course into the well; that the water-course was not visible on the surface where the well was excavated, but that it had a channel and came to the surface in a depression between two knolls or ridges below the well and there united with other waters, and from thence flowed into the low, wet land, and constituted water which appellee had the rig'ht to take, by means of ditches, into the mill-race. The affidavits of eight affiants were presented by appellant and of six affiants by appellee. We have carefully consulted these affidavits. In view of the fact the affiants were not subject to cross-examination but their statements were made ex parte, and as the decree is to be reversed and the cause remanded for a hearing upon the merits, in the course of which all witnesses may be subjected to cross-examination, we deem it better we should not discuss the facts as disclosed by the affidavits or refer thereto further than to say we cannot assent that the weight of the testimony thus adduced justified the dissolution of the temporary injunction. We are of opinion the chancellor erred in granting the motion to dissolve the injunction. The decree will therefore be reversed and the cause will be remanded, with directions to overrule the motion to dissolve the injunction and to proceed to a final hearing upon the issues made by the pleadings. Reversed and remanded.