Tampa Waterworks Company, Appellant, vs. George W. Cline, Appellee, 37 Fla. 586

Mabry, C. J.: The questions arising on the present record involve rights of adjoining land owners to water passing through the land not heretofore discussed by this court. The general subject to rights to water passing over or through lands requires some classification in dealing with the different phrases of rights that may arise. A very well considered case decided in Ohio, and hereafter referred to, classifies the subject as follows: 1. In respect to surface streams which flow in a permanent, distinct and well-defined channel from the lands of one owner to those of another. 2.

In respect to surface water—however originating—which, without any distinct or well-defined channel, by attraction, gravitation or otherwise, are shed and pass from the lands of one proprietor to those of another. 3. Subterranean streams which flow in a permanent, distinct and well-defined channel from the lands of one to those of another proprietor. 4. Subsurface water which, without any permanent, distinct or definite channel, percolate in veins or filter from the lands of onft owner to the lands of another.

The rights asserted by appellant in the bill filed appertain to the water of a natural spring alleged to be supplied by a well-marked and defined subterranean stream flowing some twelve or fifteen feet below the surface across the lands of appellant and appellee, and-the case does not call for a discussion of, and what is said has no application to, mere surface water without any distinct and well-defined channel, and which is shed and passes from the land of one owner to that of another. In the Ohio case mentioned (Frazier vs.

Brown, 12 Ohio St. 294), in speaking of flowing surface water in well-defined channels, it is said “that notwithstanding the maxim which affirms the absolute and unlimited dominion of the proprietor of the soil upward and downward, the proprietor below has, in the absence of any' modification of relative rights by contract or prescription, no right to throw the water back on him above, and has the right to receive it from the proprietor above substantially undiminished in quantity and uncorrupted in quality; and this right arises, not from any supposed grant or from prescription, but ex jure naturas, and for the reason, that surface streams of flowing water are the gift of Providence, for the benefit of all lands through which they flow, and as such their usufruct is appurtenant to the lands through which they flow.” This statement contains tlie doctrine of the English common law as clearly announced in adjudications in that country.

In the English case of Embrey vs.

Owen, 15 Jurist 633, it is stated that “the right to have the stream to flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes, but flowing water is publici juris, not in the sgnse that it is a bonum vacans to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.

But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.”' Sustaining this view are the following .authorities: Wright vs. Howard, 1 Sim. & S. 190; Mason vs. Hill, 5 B. & Ad. 1; Wood vs. Waud, 3 Exch. 748; Dickinson vs. Grand Junction Canal Co., 9 Eng. Law & Eq. 513; Chasemore vs. Richards, 7 H. L. Cases, 349; Tyler vs. Wilkinson, 4 Mason 397; 3 Kents Com. 439; Gould on Waters, sec. 204. The American adjudications to the same effect are numerous.

The right to the benefit and advantage of the water flowing past one owner’s land is subject to the similar rights of all the proprietors on the banks of the stream to the reasonable enjoyment of a natural bounty, and it is therefore only for an unauthorized ■and unreasonable use of a common benefit that any one has just cause to complain. Judge Story says, in Tyler vs. Wilkinson, supra: “The natural streams, existing by the bounty of Province for the benefit of the land through which it flows, is an incident annexed, by operation of law, to the land itself.

When I speak of this common right, I do not mean to be understood as holding the doctrine that there can be no diminution whatever, and no obstruction or impediment whatever, by a riparian proprietor, in the use of the water as it flows; for that would be to deny any valuable use of it. There may be, and there must be allowed of' that, which is common to all, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.

There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for. the general and valuable use of the-water, perfectly consistent with the existence of the-common right. The diminution, retardation, or acceleration, not • positively and sensibly injurious by diminishing the value of the common right, is an implied element in the right of using the stream at all.

The law here, as in many other cases, acts with a reasonable reference to public convenience and general, good, and it is not betrayed with a narrow strictness, subversive of common sense, nor into an extravagant looseness, which would destroy private rights.

The-maxim is applied, sic utere tuo ut non alienumlaedas.” As to the riparian rights to the ordinary use of water flowing past land, it extends to the supplying of natural wants, including the use of the water for domestic purposes of home or farm, such as drinking, washing, cooking or for stock of the proprietor, and, many authorities state that if necessary for the purposes mentioned, all the water of the stream may be consumed. Evans vs. Merriweather, 3 Scam. 492, S. C. 38 Am. Dec. 106; Wadsworth vs. Tillotson, 15 Conn. 366, S. C. 39 Am. Dec. 391; Anderson vs. Cincinnati Southern Ry. Co., 86 Ky. 44, 5 S. W.

Rep. 49; S. C. 9 Am. St. Rep. 263; Acquackanonk Water Co. vs. Watson, 29 N. J. Eq. 366; Dumont vs. Kellogg, 29 Mich. 420, S. C. 18 Am. Rep. 102; Gould on Waters, sec. 205. There are other uses than those mentioned to which, according to many authorities, flowing water in well-defined and distinct channels may be applied, but the disposition of the present case does not require a further statement as to the rights of adjoining proprietors to running surface water in well-defined channels over their lands.

In reference to rights in subsurface water, there is apparent a contrariety of judicial opinion, as might be expected from the inherent difficulty of ascertaining definitely the character and extent of the right asserted. In the case of Acton vs.

Blundell, 12 Meeson & W. 324, the plaintiff was the owner of factory mills supplied by water from wells sunk into the ground, and it was alleged that plaintiff used the water of certain underground springs streams and watercourses which had run, flowed and percolated into the wells, and the breach was that the defendant had sunk divers pits, shafts, holes and tunnels near the premises of plaintiff, by means whereof the water to the wells had been diverted and they had become dry.

It was held that the owner of land through which water flows in a subterranean course, has no right or interest in it which will enable him to maintain an action against a land owner, who, in carrying on mining operations on his own land in the usual manner, drains away the water from the land of the first mentioned owner and lays his well dry.

In the opinion it was said, upon a consideration of the grounds and origin of the law controlling running surface streams and the consequences that would result if the same law was made applicable to streams beneath the surface, that there was a marked difference between the two cases, and they were not governed by the same rule of law.

The opinion points out the difference between surface streams where each' man can know what he-receives from the lands above, and what he transmits below, and of hidden and unknown supplies of water of which he has no knowledge and can not be informed except by actual test in digging. The consequences that would result from the doctrine that one landowner can not appropriate in any proper way the unknown sources of spring water on his land, are also-pointed out.

As we construe this case from its facts it had no reference to a- subterranean stream with a marked and well-defined channel, but was dealing with subsurface percolatiug water. The case of Dickinson vs. Grand Junction Canal Co., already cited, goes a long ways in opposition to the ruling in Acton vs. Blundell.

It holds that the diversion of water from a well-defined surface watercourse though never forming a part of the stream, but was prevented from doing so in its natural course, by means of an excavation, was actionable, and that this was the case whether the water was part of an underground water course or percolated through the earth. The ruling in Dickinson vs. Grand Junction Canal Co., in the particnlar mentioned, has, however, been repudiated in the case of Chasemore vs. Richards, 7 H. L. Cases, 349.

It was there held that the principles which regulate the rights of owners of land in respect to water flowing in known and defined channels, whether upon or below the surface of the ground, do not apply to underground water which merely percolates through the strata in unknown channels. The case of Wheatley vs. Baugh, 25 Penn. St. 528, S. C. 64 Am. Dec. 721, has generally been regarded as containing a thorough consideration of the subject. The owner of a tan yard had a spring of water upon land where the tannery was established and the water used in the-business.

A copper mine was discovered on the adjacent farm and a shaft sunk some five hundred and fifty feet from the tan-yard, by reason of which the water flowing to the spring was diverted. There was no showing, as appears from the case, that the spring was supplied with water other than that percolating from the land of the one party to the other. It was held that the owner of the tan-yard could not recover for the diversion of the water from the spring.

It .was, however, held in this case that where a subterranean flow of water has become so well-defined as to constitute a regular and constant stream, the owner of the land above, through which it flows, may not divert or destroy it, to the injury of the person below, on whose land it issues in the form of a spring.

It is said in the opinion that “in limestone regions streams of great volume and power pursue their subterranean courses for great distances, and they emerge from their caverns, furnishing power for machinery of every description, or supplying towns and settlements with water, for all the purposes of life. To say that these streams might be obstructed or diverted, merely because they run through subterranean channels, is to forget the rights and duties of man in relation to flowing water.

But to entitle a stream to the consideration of the law, it is, certainly necessary that it be a water course, in the proper sense of the term. * * '* When the filtrations are gathered into sufficient volume to have an appreciable value, and flow into a clearly defined channel, it is generally possible to see it, and to avoid diverting it without serious detriment to the owner of the land through which it flows. But percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land.

Accordingly the law has never gone so far as to recognize in one man a right to convert another’s farm to his own use, for the purpose of a filter.” The views expressed in this case as to subterranean streams have been characterized as obiter, dicta (Frazier vs.

Brown, supra), but a consideration of the authorities applicable leads us to the following conclusions as general statements of the rules governing subsurface water: That the owner of the land through which subsurface water, without any distinct, definite and known channel, percolates or filters through the soil to that of another, is not prohibited from digging into it and appropriating it to any useful purpose of his own, though by so doing the water may be entirely diverted from the land to which it would otherwise naturally pass.

On the contrary, if subterranean water has assumed the proportions of a well-defined and constant stream, the owner of the land through which it flows will not be authorized to divert it, or -improperly use it, any more than if the stream ran upon the surface. The only difference in the application of the law to surface and subterranean streams will be in ascertaining the character of the streams. What is on the surface can be seen, but that which is under the ground can not be so readily ascertained, and of course there will be more difficulty in establishing it. Mr.

Gould states (sec. 281) that “if underground currents of water flow into defined and known channels, the rules of law which govern the use of similar streams flowing upon the surface of the earth are applicable to them, but if it does not appear that the waters which come to the surface are supplied by a definite flowing stream, they are presumed to be formed by the ordinary percolations of water in the soil.

Some such presumption is necessary on account of the difficulty of determining whether the water flows in a channel, but in all other respects there appears to be no distinction between subterranean waters and those upon the surface.” The American decisions bearing upon the point are too numerous to discuss in an opinion, and while they, with few exceptions, recognize the principles we have stated, there are extreme applications of them to cases that have arisen. In addition to the authorities cited, we refer to the following as bearing on the subject: Kauffman vs. Griesemer, 23 Penn. St. 407, S. C. 67 Am.

Dec. 437; Whetstone vs. Bowser, 29 Penn. St. 59; Haldeman vs. Bruckhart, 45 Penn. St. 514, S. C. 84 Am. Dec. 511; Pennsylvania Coal Company vs. Sanderson, 113 Penn. St. 126, 6 Atl. Rep. 453; Collins vs. Chartiers Valley Gas. Co., 131 Penn. St, 143, 18 Atl. Rep. 1012; Burroughs vs. Saterlee, 67 Iowa, 396, 25 N. W. Rep. 808; Hinkle vs. Avery, 88 Iowa, 47, 55 N. W. Rep. 78; Hanson vs. McCue, 42 Cal. 303, S. C. 10 Am. Rep. 299; Hale vs. McLea, 52 Cal. 578; Strait vs. Brown, 16 Nev. 317, S. C. 40 Am. Rep. 497; Chatfield vs. Wilson, 28 Vt. 49; Hoxsie vs. Hoxsie, 38 Mich. 77; Upjohn vs.

Board of Health, 46 Mich. 542; Ulbricht vs. Eufaula Water Co., 86 Ala. 587, 6 South. Rep. 78; Case vs. Hoffman, 84 Wis. -, 54 N. W. Rep. 793. “A water course consists of bed, banks and water; yet the water need not flow continually; and there aremaiiy water-courses which are sometimes dry.” Angell on Water-courses, sec. 4. It is stated in Ashley vs. Wolcott, 11 Cush. 192, that “to maintain the right of a water course or brook, it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides.

It need not be shown to flow continually; it may be dry at times, but it must have a well-defined and substantial existence.” In dealing with sub-surface streams their situation and character must, of course, be kept constantly in view. In applying the principles announced to the facts of the present case we must state conclusions, as the evidence is too voluminous to be discussed in detail in the opinion.

The mere fact that appellant has a contract with the city of Tampa to supply its inhabitants-with water, and has expended large sums of money in the erection of a plant does not confer any additional rights to the water that passes through apijellee’s land. City of Emporia vs. Soden, 25 Kansas, 588, S. C. 37 Am. Rep. 265; Acquackanonk Water Co. vs. Watson, 29 N. J. Eq. 366. There is also no question presented as to priority of right growing oat of contract, prescription or legislative grant. The tract of land through which the water in question runs belonged for many years to James T.

Magbee, and after his death, some time during the year 1888, his heirs and distributees had it platted into lots, blocks and streets, which are now within the corporate limits of the city of Tampa. Appellant, through mesne conveyances, acquired title to lots six and seven of the plat in the early part of 1889, and a few months thereafter appellee purchased lots one, eight, nine and ten, which were immediately east or north-east of appellant’s lots. The formation of the land twelve or fifteen feet below the surface, and in which the water is found, is of a limestone character.

There is some diversity of opinion among the witnesses as to the character of the rock in contact with the water. One of the appellant’s witnesses, an expert, states that the rock in contact with the water was stratified, and away from it was in boulders lying in detached lumps. Considering all the evidence there is no doubt that the land is underlaid with rock of a limestone formation. Issuing from the Magbee tract of land not far from the Hillsborough river was a bold spring of constantly flowing water, known as “Magbee spring,” and the plat located"this spring in a street or avenue.

The lots purchased by appellant were east and north-east and nearest to the spring. Prom the spring east and north-east across the lots of both parties there were surface depressions or sinks, such as mark the course of subterranean streams in limestone regions. On one of appellant’s lots a sink went down so that the water below could be seen, and at or near this point the company’s water-works for supplying the city with water were established.

A deep shaft was dug and a reservoir made to receive the water running in an underground stream, and it is an alleged diversion and disturbance of this water supply that caused the company to complain. Appellant commenced to excavate first, but changed locations. Before the second excavation for the reservoir was commenced appellee began an excavation in a sink on one of his lots a short distance away, and had, reached a stream of running water when the injunction was served on him.

Prom the evidence in the record we are satisfied that the stream reached by appellee in his excavation extends to the reservoir of appellant. The source of this stream is left in speculation, without definite proof, but from all that is shown wre are of the •opinion that this is a well-defined subterranean stream flowing through the lands of both parties. There is some diversity of opinion among the expert witnesses examined by appellant as to the course and limits of the stream.

Prom “Magbee spring,” where the stream issues from the ground, to the Hillsborough river, the banks are twenty or more feet wide, and one expert states that the stream above covers an equal space in circuit; while another was of the opinion that it covered a much larger space, and was probably supplied by several lateral streams converging at the point where the reservoir of appellant was located. The depressions and surface indications in a direct line over the lands of the parties, and for some distance further •east, indicate a sub-surface stream as found in limestone formations.

The capacity of this stream at the reservoir, not more than one hundred and seventy-five feet from appellee’s excavation, is between two and a half and three millions gallons of water per day, and fresh water fish from six to ten inches long were discovered in both excavations. The water when muddied or colored with analine dyes in appellee’s shaft showed in a very short time in the one below, and from such evidence of a well-defined stream taken in connection with that of the experts we do not doubt that it does exist.

The rule as to well-defined surface streams must, therefore, be applied to the stream in question. Appellee has the right to the use of this water as much as if it ran upon the surface of the ground. He can not divert it or pollute it, but he may open up a water supply on his own land so as not to interfere with the legal rights of adjoining owners, and also make a reasonable application of the water, certainly for domestic purposes.

We discover no reasonable objection to the improvement of his owrn property by the removal of the soil in the depression between the rocks, over the stream and beautifying the place by opening an accessible way to the water. The mere opening of a space so that the rays of the sun can reach the water below will not of itself be a contamination or an unreasonable use of it.

It is true that impurities from surface drainage might get into the stream if unprotected and thereby pollute it, but this can be guarded against; and it is the duty of appellee to prevent the surface water from overflowing into the opening made by him. There is no sufficient showing that any serious injury has been done, or will be done with proper precaution, to the stream by reason of the opening. The maxim, sic títere tuo ut non alienum laeclas, will apply. We do not see that we can hold, on the showing made, that appellee has diverted the water in the stream.

According to the testimony of the witness Campbell, superintendent of the company, there was a diversion, but Wynn and Boardman, also connected with the company, testify that if the excavation of appellee, and described in the bill of complaint, is left open and untouched it would not affect the quantity of water in the stream. Appellee denies positively that there has been any substantial diversion of the water, and as the burden of proof rests upon appellant, we can not reverse the finding of the chancellor as to a diversion of the stream.

We do not think the testimony shows that appellee acted wantonly and maliciously in making the excavation complained of; at least we are not authorized to reverse a decision on the proofs adverse to appellant on this point. Whether the motive with which the excavation was made, provided it was in the exercise of a legal right, would be a cause for an injunction, we need not consider. We are further satisfied that it is not sufficiently shown that appellee intended to devote his excavation to bathing purposes.

There is some testimony that his son stated a bathing pool would be put in the stream in the excavation, and that appellee asserted a right to devote the stream to such uses, but the son is not a party to the present suit, and it does not sufficiently appear that he had any authority to speak for the father. It further appears from the testimony of appellee not contradicted that he informed the agents of appellant before the bill was filed that the stream would not be used for bathing purposes under any circumstances.

Relief must always be confined to the allegations of the bill, and an examination will show the allegations of wrong-doing against appellee are, in substance, that he with intent to liarrass and injure complainant had purchased his lots and had excavated a large and deep hole on one of them that penetrated to the water of the stream; that the excavation was made wantonly and maliciously for the purpose of injuring complainant by polluting the water and by diminishing its flow, and that he intended to put bathing pools -in the stream, if not restrained.

The excavation referred to in the bill is the one to which we have confined the opinion so far. After the injunction was modified, appellee made other ■excavations on his lots, and there is considerable testimony in the record in reference to such excavations. The object in making such excavations, as claimed by ■appellee, was to obtain rock for paving purposes. There is some allusion to the rock as fertilizer, but there seems to be nothing of value in this. It is shown that the rock can be used for paving streets and roads.

Appellee, of course, has the right to take rock out of his own land if he desires, provided that in doing so he does not divert or pollute the stream that flows through the land. It is claimed by appellant, and expert testimony was introduced tending to show, that blasting or excavating near the stream would have the -effect to cause the rock in contact with it to fall in and thereby divert the channel of the water. The additional excavations are not shown to be over or in immediate contact with the stream, and the character of the communications between them is left in uncertainty.

Water was found in such excavations, and it is shown that it has some temporary visible effect upon the water in appellant’s reservoir, but whether this is ■caused by percolations or streams, and if the latter, their character and extent, is left in uncertainty. If it is not affirmatively shown that subsurface water is supplied by a definite flowing stream, the presumption is that it comes from ordinary percolations. .The testimony is also indefinite as to the character of blasting done or contemplated by appellee, and our conclusion is that the decree should be affirmed on the evidence.

While appellee has the right to use the stream in the manner indicated, and may also make such legitimate use of his own property as he pleases, he must do so in a manner not to divert or pollute the stream of water flowing through the same. On the allegations of the bill and the evidence submitted the decree will be affirmed, and it is so ordered.