III. A SPECIAL hOTE ON GROUND WATER*
No definite statement of Massachusetts law of underground water is possible
at this time. Moreover, the development of this area of the law has been such
that even a tentative statement should be prefaced by scme caveats. First, the
coverage of the cases is fragmentary. Second, the cases are, for the most part,
Underground water has never been defined by Massachusetts case law.
Nor has the law attempted to enumerate the sub-classes subsumed under that head.
The two categories which have been the subject of litigation are percolating waters
and springs. The former has not been defined. The latter has been: "'spring'...
means the source of supply issuing from the earth, or found therein by digging or
otherwise opening it,...". The terms are clearly not inter-changeable, though
the legal consequences of a finding of one appear to be the same as a finding of
The leading case is Greenleaf v. Francis, decided in 1836. Defendant,
occupant of the house adjoining that of the plaintiff, had dug a well in his
cellar, which, plaintiff alleged, caused the water to flow less copiously than
before into her well. She based her right to recover on the ground that defend-
ant's choice of his well site had been motivated by malice in fact. Judgment
was for the defendant, who, it was held, was not liable unless his only motive
in digging the well was to injure the plaintiff.
The implications of this holding were not spelled out until thirty-five
years later, and then only by way of dictum. Plaintiff in Wilson v. New Bedford
complained of having too much water in his cellar, his barn, his sail, etc. He
attributed his injury to the dam and reservoir constructed by the respondent
City on the adjoining land from which water percolated into his premises, or
The form of analysis is here changed, since the Michigan bill does not by its
terms purport to deal with ground water.
which, alternatively, interfered with the percolation of water from his premises.
The court apparently replying to respondent's contention that interference with
the natural flow of percolating water was not actionable stated that percolating
water belongs to the owner of the land, as much as the lands itself, or the rocks
and stones in it. Therefore, he may dig a well, and make it very large, and draw
up the water by machinery or otherwise, in such quantity as to supply aqueducts
for a very large neighborhood. He may thus take the water which would otherwise
pass by natural percolation into his neighbor's land, and draw off the water which
may come by natural percolation from his neighbor's land; and his neighbor may,
by a wall or other obstruction, retain the water which is on his own land, and
prevent the water from coming into his soil.
The court, however, distinguished the case before it as involving artificial,
rather than natural percolation, and held the petition legally sufficient on the
ground that one who accumulates anything on his land does so at his peril.
It remained for Davis v. Spaulding, decided in 1892, to provide a rationale
for the rules governing underground water. In this case, as in the Wilson case,
the cause of injury was a reservoir. But this time it was alleged that the reser-
voir impeded the percolation of water into the plaintiff's well. The court ex-
plicitly approved the Greenleaf case and reiterated in substance the dictum of
the New Bedford case.
The court justified its position in the following language:
It is impossible to know in what direction percolating water finds
its way into a well; ... Its ways of approach, and its amount, vary
with the operation of obscure natural causes, not controllable, by the
owner of the land through which it passes. If the grant ... were held
to impose an obligation upon all the land from which the well might
derive supplies, the burden would be very indefinite, uncertain and
shifting and tend to present, without offsetting benefit, the improve-
ment of the land as with buildings or its use for mining, etc. It
would be contrary to the public good, and the nature and tendency of
burden have been held to be good reason to deny the existence of the
burden. 145/ a 6
Rights to underground water may be enlarged or curtailed by grant
__ __ _~
or prescription. Both means of acquisition will generally involve the use of
another's land since the law imposes no limitations whatever an the land-owner's
freedom of action with respect to the water under his soil.
The land-owner's bundle of rights to underground water when not so modified
have been characterized by one court as giving him an "absolute property' in
it and by another as giving him "no property right" at all. Such conceptualiza-
tion is significant, if at all, only insofar as it bears on the feasibility of
utilizing underground water. At first blush the cases might seem to reflect in-
difference on the part of proprietors as to which concept is correct. In-
difference would indeed be justified if underground water is unimportant as a
source of supply and if the reason for this is that the diversion and abstraction
of large quantities of water is physically impracticable.
There is, however, the possibility that the case law is the cause of, rather
than merely the reflection of, the nonutilization of percolating and spring
waters. The present law would, a priori, seem to be a deterrent to whatever in-
vestment might be necessary to make the water available. A landowner is hardly
likely, for example, to assume the cost of geological surveys, digging, pumps,
etc., if he is to be afforded no protection against diversion of water into sub-
sequently dug wells.
If further inquiry should disclose that it is desirable to encourage greater
utilization of underground waters, then it would seem that the present law should
be changed. Merely giving the first appropriator protection to the extent he
actually appropriates would provide some incentive. Allocation by this means,
however, could deviate considerably from the optimum.
An optimum system of allocation would seem to require an analysis of the
available supply, the demand, and the interest of the community. Whether such a
system is presently possible depends upon whether the science of hydrology is
sufficiently advanced to reliably estimate the quantity of water stored under-
ground and the effect of digging on existing wells in the vicinity. If scientific
knowledge is far enough advanced to permit of some system of rational allocation,
one complementary to the rules governing distribution of rights to use of water
courses should be adopted. Otherwise, the restrictions imposed by the latter body
of laws could be circumvented by drawing off the water from the water courses
by means of a well.