Clarke County v. Mississippi Lumber Co.

Oalhoon, L, delivered the opinion of the court. The bill in chancery of the county charges that it had an artesian well in its courthouse inclosure, which furnished an abundant supply of water for its purposes, and that there were fourteen other such wells, of private ownership, in the' county town, of great value to the persons owning them; that appellee, [542] at a point about four hundred yards from the county well, bored four such wells on its own land, and put into one of them a pipe into which was forced compressed air of such power of suction as to far exceed the natural flow of water into that well, and so greatly diminished the supplies of the county and private wells in the town. It is alleged that the purpose of appellee in the use of this compressed air suction was to supply a pond for logs for its saw-mill and planer. Such ponds seem necessary for the preservation of logs and to conduct them to the mill to be manufactured into lumber. It is charged 'that appellee could have supplied itself with enough water by piping it three-quarters of a mile from the Chickasahay river, and that it could have located its mill elsewhere. with convenient water in any quantities without the use of an artesian well. The bill then proceeds: “Complainant further states, upon information and belief, that the artesian well belonging to the county of Clarke, and those belonging to the citizens of the town of Quitman, including those owned by the defendant near its mill, are supulied with water from a ‘distinctly defined underground current or stream.’ ” The result of the use of the compressor is charged to be that “the flow of water from said underground current is diverted” from the county and private wells, and the county well is thereby exhausted and dried up: and an injunction was obtained, which was afterwards dissolved, and, upon proof taken, the bill was finally dismissed by the court below. The answer points out the irrelevancy of the allegations about the wells of private persons; states that appellee expended $150,000 on its plant, that the wells it bored were upon its own land and necessary for its mill, that there was no visible or known underground channel or stream, and that the pond was a necessity in its business; repudiates the idea of any duty on appellee to have erected its plant elsewhere, or to bring water through pipes from the river, but denies the equal convenience of another location or of piping from the river, denies that the well sup [543] ply is from a defined underground current or stream, and avers that, if the county would lower its standpipe two feet, the trouble would be corrected. On testimony taken on both sides, the chancellor dismissed the bill. It is to be noted that in the bill there is a charge that the water supplying all the wells was from a “distinctly defined underground current or stream,” and that this is denied in the answer, and that the proof does not sustain the charge. It is plain from this record that no man or corporation boring a well on his own land had any reason to suppose that the use of it could affect the wells of others. Clearly, there was no surface indication of an underground stream. The well of the county was not “dried up,” but the supply was diminished. It must further be noted that there is no pretence in the bill, or squint in the proof, that appellee ascertained or designed, expected or contemplated, that any such result would follow. The good faith of appellee is quite apparent, as is the fact that it foresaw no damage to others. The boring of a multitude of private wells might easily have caused the same result, and it will not be contended that private landowners could not bore at will for water for any purpose for their own use. It is shown that the numerous artesian wells in the town were widely separated over a large scope of territory, striking water at various depths, from one hundred to two hundred feet, and this is inconsistent with the inference of a defined channel, and conclusive that the water was from percolation, or a multitude of independent wandering rivulets, which the authorities put under the same rule with percolation. It might suffice to dispose of this case to note that the only issue tendered is the charge in the bill, “on information and belief,” that the wells were all “supplied with water from a distinctly defined underground current or stream.” This charge was denied, and the proof utterly fails to sustain the allegation of the bill. But ■without so disposing of this record we will look a little into the principles applied to subsurface waters. There is a [544] marked distinction in the rights of landowners to the use of surface and underground waters. The waters below are presumed to be wandering, j>erc°lating waters until a defined, continuous channel is shown; and even then, in order to apply to them the rules settled in reference to surface streams, it must be further shown, not only that the stream has a distinct, defined, underground channel, but this must be known or notorious. Otherwise, as to them, it seems that the excavator in good faith and for his own purposes, will be judged by the law applicable to unknown wandering rivulets or percolating waters. In order to prevent the classification of underground streams with percolating waters they must be known or easily ascertainable, and discoverable from the surface of the ground without subsurface explorations. This occurs where the stream sinks under and rises to the surface. The important fact is that of knowledge had, or “easily acquirable, of their existence, location, and course.” “It is well understood that underground streams with well-defined channels will be treated as percolating waters if their existence and location are unknown and not reasonably ascertainable.” The authorities for all the foregoing may be found in the elaborate note to Wheelock v. Jacobs (Vt.), 43 L. R. A., 105 (67 Am. St. Rep., 659, s.c., 40 Atl., 41), and Waterworks Co. v. Cline (Fla.), 20 So., 780 (33 L. R. A., 376; 53 Am. St. Rep., 262). Now, based on the maxim, “Cujus est solum ejus est usque ad coelum ” it seems to be quite universally held that such waters belong to the realty, to be used at will by its owner for any purpose of his own, whether it be for machinery, mining, milling, or “a reservoir on his own land.” Wheatley v. Baugh, and notes, 64 Am. Dec., 721; Acton v. Blundell, 12 Mees. & W., 335; Haldeman v. Bruckhart, 84 Am. Dec., 511; Ocean Grove v. Asbury Park, 40 N. J., Eq., 447 (3 Atl., 168). . A vast number of cases might be cited, but with the foregoing as pointers, and Gould on Waters, tit. “Subterranean Waters,” it will be seen that the principle is nearly universal. There are two or three cases which seem to [545] be exceptions, but which themselves recognize the rule and differentiate the concrete cases from it. The best type of these is Forbell v. City of New York, 164 N. Y., 522 (58 N. E., 644; 51 L. R. A., 695; 79 Am. St. Rep., 666). But it is plain in this ease, and the others, that they are expressly differentiated from the whole current of authorities, and excepted from it, because there the very purpose of the well, and the suction pesorted to, was not to obtain water for use on the land, but to steal the percolating water from truck farms over an area of many miles square, in order to make merchandise of the water itself, by conducting it through conduits for sale to great city. The right to bore for water to be used on the land for the business uses of the owner of the land is fully recognized. This right is nowhere denied. In the case at bar there is no pretense of bad faith, and none that the operations of appellee in any way affect the agriculture of the neighborhood, or that it is disturbed in any degree. A like performance by a private citizen for his mine or well or cotton gin would hardly be questioned. It is damnum absque ■injuria. The mere boring of a single well might destroy the well of a neighbor on a lower level, but this would furnish no cause of action. Lybe’s Appeal, 51 Am. Bep., 542. As to the facts in evidence we do not, in this opinion, go into them in detail, but we approve the decision of the ch'aneellor on the whole case. Affirmed.