THOMAS H. HANSON v. JAMES S. McCUE, 42 Cal. 303

By the Court, Wallace, J.: This is an action brought by Hanson to restrain the defendant McCue from prosecuting the work of digging a tunnel on the lands of the latter, having for its object the obtaining of water for the purpose of selling the same in the neighboring Town of San Rafael as an

article of commerce. A perpetual injunction was decreed, and a motion for a new trial being denied, the case comes here upon appeal. The defendant McCue is the owner in fee and in possession of certain premises situated in or near the Town of San Rafael, in Marin County, upon which there is a spring of living water having no natural channel or outlet.

He deraigns his title through one Timothy Murphy, who owned the premises as early as the year 1844, when he constructed an artificial channel, by means of which he conducted the waters of the spring along the surface of the earth through a wooden trough, across a dry gulch, for a distance altogether of several hundred yards, in a southwesterly direction, to another lot where he had a growing vineyard, which he by this means irrigated.

This artificial channel, before it reached the vineyard, passed over a considerable tract of land then unclaimed and unoccupied, intervening the spring and the vineyard, a portion of which was afterwards, in 1854, taken possession of by one Smith, and subsequently, in 1856, sold by him to Hanson, the plaintiff, constituting the premises or a part of the premises now owned by the latter.

The artificial channel has ever since been maintained, and it brings to the premises of the plaintiff Hanson a stream of living fresh water, which is used by him for culinary and general domestic purposes, and for irrigating the garden, ornamental grounds, fruit trees, flowers, etc. growing thereon; and he has no water on his premises except that found in this channel, or in a well which is fed by the percolations from the channel.

The complaint alleges that the defendant McCue is digging a ditch or tunnel on his premises where the spring is found, in such a way that, if the digging be continued, it will inevitably cut off and intercept “ the hidden and subterranean veins, streams, and sources of said spring, and which supply the same with water, and will thereby divert and lead away the waters which would otherwise flow into said spring, and will so lessen, diminish, or entirely cut off and stop the usual and ordinary supply and amount of water in said spring that no water would flow therefrom to or upon said premises of the plaintiff, to his great and irreparable injury,” etc.

It is to be observed that the Court below found that, in making the excavation complained of, the defendant, McCue, was actuated not by any malice, but that his purpose was bona fide the obtaining of water for commercial purposes. Further, it nowhere appears, either in the allegations of the complaint, the findings of the Court, or otherwise by the record, that the spring in question is itself supplied, in whole or in part, by the flow of any defined stream of water, either subterranean or passing along the surface of the earth.

Underground currents of water, flowing in defined channels, are known to exist in considerable volume, particularly in limestone regions; and where their existence is shown, there is no doubt, either upon reason or authority, that the rules of law which govern the use of similar streams flowing upon the surface of the earth, are applicable to them. Such a stream, whether emerging or sinking, is in a greater or less degree a fertilizer of the land through which it flows.

The right that it should flow "ubi solebat ” comes ex jure natures, and no one, merely because he is the proprietor of the soil through which it passes, can claim the corpus of the water of the flowing stream, or intercept its natural descent to the lands of the proprietor below. It not appearing that the spring here is supplied by any defined flowing stream, it' must be presumed that it is formed by the ordinary percolations of water in the soil.

The Court, it is true, as we have already seen, mentions in its findings “the hidden and subterranean veins, streams, and sources of said spring” as being about to be cut off’ by the excavation; and the counsel for the plaintiff argues that this amounts to a finding that there is a subterranean stream of a defined character, and flowing in a defined channel, which is about to be diverted.

But it is evident that the finding means, in substance, that the spring is supplied in some way by hidden veins or subterranean streams; but the Court does not find that there is any stream known to exist at all, or if there is, whether it flows in a defined channel, which is the important point to be found. It amounts only to a finding that the “ sources ” of the spring—be they what they may—are. about to be cut off. I do not understand the finding as establishing the exceptional fact that the spring here is fed by a known running stream of water flowing in a defined channel.

The question, then, comes to this: One who is owner of the free- v hold—usque ad infernos—digging in the soil for the lawful ^ purpose of his own profit, and not actuated by the malicious intent to wantonly deprive the plaintiff' of the flow of water, - is, at the instance of the latter, enjoined from so digging, because he will thereby divert the waters which percolate the soil from the spring from which the artificial water- ' course leads to the lands of the plaintiff. Water filtrating t or percolating in the soil belongs to the owner of the freehold—like the rocks and minerals found there.

It exists there free from the usufructuary right of others, which is to be respected by the owner of an estate through which a defined stream of water is found to flow. The owner may appropriate the percolations and filtrations as he may choose,' and turn them to profit if he can. To hold otherwise would be to hold that the plaintiff here could lawfully claim a right to convert the lot of McCue into a mere filterer for his own convenience. “ Such a claim (said the Supreme Court of Pennsylvania, in 23 Penn. R. 528), if sustained, would amount to a total abrogation of the . right of property.

Ho man could dig a cellar or a wall, or build a house on his own laud, because these operations necessarily interrupt the filtrations through the earth. Hor could he cut down the forest, or clear his land for the purpose 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 water which would otherwise filter through it.

He could not even turn a furrow for agricultural purposes, because this would partially produce the same result.” I am of opinion that the plaintiff’ has no such interest in the percolating waters found in the defendant’s land as will support this action. It is next argued, however, that the fact that the plaintiff, and those whose estate he has, have enjoyed the stream flowing from the spring for upwards of fifteen years without interruption, and adversely to the defendant and his grantor, will support a presumption of a grant of an easement by the latter to the former.

The presumption of the grant of an easement, when in- dulged, is because the conduct of the other party, in submitting to the use for such a length of time without objection, cannot be accounted for on any other hypothesis. The acts done by the party claiming the benefit of the presumption, and his predecessors in estate, must, however, have been in themselves such as the other party having the right to object to, or complain of, did neither, but submitted to them without objection or challenge.

Such acts, if continued during a sufficient period of time under such circumstances, would raise the presumption relied upon. But it will be seen at once that McCue, or those from whom he purchased, could, in the nature of things, have no right to complain that the water in the artificial channel, after leaving the spring, was appropriated below by the owners of the Hanson lot. If they had no right to complain in the first instance we are not driven to the presumption of the grant of an easement to account for why they did not complain. Judgment and order reversed, and cause remanded for a new trial.