Title: Tampa Waterworks Co. v. Cline
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004427/00001
 Material Information
Title: Tampa Waterworks Co. v. Cline
Physical Description: Book
Language: English
Publisher: Southern Reporter
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Tampa Waterworks Co. v. Cline (JDV BOX 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004427
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

t- **!


(r7 Fla. 5S6)
(npreme Court of Florida. Miy 19, SG.)
1. The proprietor or owner of land bordering
on a surface stream of water flowing in a well-
Sdefined channel has, in the absence of any
modification of relative rights by contract, leg-
islative grant, or pref-rir.t;on. Ite right to re-
ceive the water of tIIhe : Ir..lid from the proprie-
tor abuve substantially undiminiished in quantu-
ty and uncorrupted in quality; and this right
exists, not from any supposed grant or pre-
scription, but ex jure nature, and as an inci-
dent to the soil, and for the reason that sur-
face 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 such lands.
2.The right to the benefit and advantage of
the water in surface streams flowing in well-
defined channels past one owner's land is sub-
ject to the similar rights of all the proprietors
on the banks of the stream to a reasonable use
and enjoyment of a natural bounty: and it is
only for an unauthorized and unreasonable use
that one proprietor can have a just cause of
complaint t.,a iist another.
3. TLe bincrit and ade antage of surface water
flowing in well-defined channels to an adjoin-
Ing land proprietor extends certainly to the sup-
plying natural wants. incliidin- the use of the
water for domestic purpor. s of home and farm,
such as dririkin-. u ashiug. cooking, or for stock;
and a rcaloiinble n Ie of the water for such pur-
poses may be made.
4. The owner of land through which subsur-
face water, without any distinct, definite and
known channel, percolates or filters through the
soil to that of an adjoining owner, is not pro-
Shibited from digging into his own soil, and ap-
propriating water found there to any legitimate
Purposes of his own, though, by so doing, the
Sweater may be entirely diverted from the land
to which it would otherwise naturally have
passed; but. if subterranean water has assumed
the proportions of a stream flowing in a well-
defined channel, the owner of the land through
which it flows will not be authorized to divert
it, pollute it, or improperly use it, any more than
if the stream ran upon the surface in a well-de-
fined course.
5. The only difference in the application of
the law to surface and subsurface streams is
in ascertaining the character of the stream. If
It does not appear that the waters which come
to the surface are supplied by a definite flowing
stream, they will be presumed to be formed by
the ordinary percolations of water in the soil;
such presumption being necessary on account
of the difficulty in determining whether the
water flows in a channel beneath the soil.
6. A stream or water course consists of bed.
banks, and water; and, to maintain the right
to a water course, it must be made to appear
that the water usually flows in a certain direc-
tion, and by regular channel, with banks or
sides, and having a substantial existence; but
it need not he shown that the water flows con-
tinually. -s it may be dry at times.
7. The fact that a corporation was chartered
for the purl~ise of supplying a certain city and
its inh:alitinlts with water, and is under a con-
tract with the city to supply it and the people
therein with water, does not give the corpora-
tion any additional right to use or appropriate
the water in a well-d( tined stream flowing over
or through lands of ditlerent landowners.
8. Applying the principles of law stated in the
foregoing headnotes to the facts of the present
case, the decree of the chancellor dismissing the
bill of complaint is affirmed.
(Syllabus by the Court.)

Appeal from circuit court, Hillsborough
county; H. L. Mitchell, Judge.
Bill by the Tampa Waterworks Company
against George W. Cline, Sr., and George W.
Cline, Jr., for injunction. On the junior's
death, an amended bill was filed against the
survivor. From a decree dismissing the bill,
plaintiff appeals. Affirmed.
The Original bill filed in this case was by
the Tampa Waterworks Company against
George W. Cline, Sr., and George W. Cline,
Jr., and luiu ... uedly an amended bill was
filed against George W. Cline, Sr., the junior
having died In the meantime.
From the amended bill, it appears that the
waterworks company is a Florida corporation,
organized for the purpose of furnishing the city
of, Tampa with water tor fire, sanitary, and
domestic purposes, and was under a contract
with the city to furnish it, for the term of 30
years, with abundant supply of good water for
the purposes mentioned, and for all purposes;
that, in order to carry out said contract, the
corporation had acquired the title in fee to
lots 0 and 7 in block 23 in the First addition to
Highland Park, In the -S. of lot 1, section 13,
township 29 S., range 18 E,, according to the
plan and map made by Brown and Swingley,
and made an exhibit to the bill; that said lots
were originally a part of a much larger tract
of land, owned by one James T. Magbee, de-
ceased, and that his heirs and distributes had
laid off said tract into lots and blocks, with
streets and alleys, all within the corporate lim-
Its oft the city of Tampa; that said lot 6 has
issuing from underneath the ground thereon a
natural spring of water, which is supplied by a
well marked and defined subterranean stream
coming from the east, and flowing under-
neath the ground, 12 or 15 feet below the sur-
face, on land of defendant and complainant,
until it issues out of and forms the spring up-
on said lot C, where it again disappears beneath
the surface, but comes out again a few feet
from the western boundary of complainant's
land, and flows thence in a stream in a west-
erly course to the Hillsborough river, some
200 feet away; that complainant and those
under whom it claims have held the land out
of which said spring rises for a period of more
than 17 years, during which time it has been
highly prized by the owners for the purity of
its water, which has been considered good and
useful for sanitary and domestic purps'S'-,
and, it maintained In its present state of purl-
ty, will continue to be useful, and particu:lalY:
so to complainant, under its obligation to the
said city to supply It with water; that defetnl-
ant George W. Cline, Sr., with the intention
to harass and injure complainant, lad receilcly,
and since complainant purchased its hind. a'-
quired title to lots 1, 8, 0, and 10, in block ':".
immediately above complainant's land, aI'd
was proceeding to excavate, and had excavat-
ed, a large and deep hole on his lot S, nVar';'
eastern bloundary of complainant's lot 7. -."i
hole being something like 1S or 20 feet iu '.1
cumfereuice, aad some 12 or 14 feet deep, ailI

rovy% A wowr


which penetrates to the water of said subter-
ranean stream. It is charged that, in making
said excavation, defendant acted wantonly and
maliciously, and for the purpose of Injuring
complainant, by polluting the water flowing
Into said spring, and by diminishing the flow
thereof, which object will be accomplished if
said excavation is continued or permitted to
remain. Upon information and belief, it Is
charged that defendant intended, it not re-
strained from doing so, to put up a bathing
pool or pools in said stream where said ex-
cavation is made, and to use the water in such
way as to pollute and diminish the same, with
the view to damage complainant, or compel
it to purchase the land at an exorbitant price;
that to carry out the contract with the city of
Tampa, comprising some eight or ten thousand
Inhabitants, and growing, it was necessary
that complainant be able at all times to obtain
a large supply of pure, fresh water, which it
could not do, without great expense and trou-
ble, from any other other source, and that said
spring would furnish the necessary water it
kept in its present state of purity and flow;
that complainant had expended large sums of
money, and spent much time, in drilling a
well in said city, but had failed to secure such
a flow, or sufficient flow, of water for the pur-
poses mentioned, and it had been compelled to
seek some other source of supply, and that at
no other place except at said spring could such
a supply of pure, fresh water be found without
going to some fresh-water lake, some Ave miles
distant frcm the city; that, if defendant was
permitted to go on with said excavation, the
waters of the spring, now pure and useful for
complainant's purposes in supplying the city
with water, would become polluted and totally
worthless to it, so that the same could not be
used by it nor the people of Tanpa for the
purposes for which complainant purchased
said land; that said water runs underneath
and between rock formation, the top of which
rock is some six feet below the surface, and
extends down until said subterranean stream
is reached, and, without said excavation being
made, it is not.liable to be injured or polluted
until it comes out upon complainant's land,
but which can and ill be thoroughly protected
by complainant when its waterworks are put
up and established.
S DThe injunction asked for was that defend-
ant be stopped from proceeding with the ex-
eavation, and that he be compelled to fill up
what had been excavated, in a way not to in-
jure the stream. A temporary injunction as.
prayed for was granted upon the filing of the
original bill.
Defendant answered after the amended bill
was filed. The answer alleges that the S.
of lot 1. section 13. township 29 S., range
18 E., belonged for many years to James T.
Magbee, who conveyed in 1S85. to the wife
of defendant, seven acres in the southeast
corner of the lot; that Magbee died seised of
the remainder of the lot, which had recently
been laid off into lots, blocks, and streets;

ORKS CO. v. CLINE. 781

that W. A. Jeter and G. A. Boardman pur-
chased, by mesne conveyances from a dis-
tributee of the Magbee estate, lots 6 and 7 of
block 23, and afterwards sold them to com-
plainant. Afterwards, in July, 1SS9, defend-
ant purchased, from distributes of said es-
tate, lots 1, 8, 9, and 10 in block 23. and that
he made the purchase in good faith, for the
purpose of improving and beautifying said
lots, and developing their water supply; that,
soon after acquiring said lots, defendant be-
gan to excavate out a sink on lot 8, at a point
about 20 feet from the alley, and a few feet
east of complainant's lot 7, and, after remov-
ing a large amount of said marl and decayed
vegetable matter, came upon a large spring
of pure, cold water, of great use and value to
defendant and the estate he had purchased;
that defendant also thereby developed a large
bed of marl, of great value as a fertilizer and
for paving roadways and sidewalks, and
which defendant hoped would yield him
great emolument In helping to defray the ex-
pense of cleaning out and beautifying said
spring; that the land to the west of the ex-
cavation which he was making to improve
the spring falls'rapidly to the street, over
two lots of complainant, while that lying
east, north, and south of the excavation is
level, so that when the sand and marl are re-
moved, and the excavation is enlarged in a
way to open up the sink to its natural edge,
no rain falling around the excavation can run
into it; that the level of the water in de-
fendant's spring is 13 feet below the surface
of the surrounding country, and about 4 feet
above the water level in the ground, so that
the surface water cannot come into the
spring until the surrounding country becomes
fully saturated with water, which can only
occur in case .of unusual flood, and then the
water would come by percolation through the
sand and marl into said spring, but to no
greater extent than if said excavation had
not been made; that the sand of the country
was coarse, the top soil spongy, and the un-
derground drainage so complete that no wa-
ter is ever seen on the surface.
The answer denies that the spring men-
tioned in the bill comes out of the ground on
complainant's land, and that defendant has
polluted, or intends to pollute, the water in
the spring mentioned. It is denied that de-
fendant intends to divert said spring from its
intttral channel, or that the-ra s -of, the sun
and the surface drainage by reason of the ex-
cavation will pollute said spring. It is alo.
denied that defendant purchased said lots
with intent to harass and injure complainant,
or that the excavation was made malicious-
ly, for the purpose of compelling complainant
to purchase the lots mentioned; and the al-
legations as to the intent of defendant to put
bathing houses in the water in the excava-
tion. and thereby pollute the same, are de-
It is alleged that the excavation was made
by defendant in good faith, for the purpose


of enhancing the value of his own lots, and
with the intention of lawfully using the wa-
ter; also, that complainnat's spring is not
supplied by a -subterranean stream with a
well-defined channel, but was supplied by
water coming from unknown and undefined
sources; and that the water from defend-
ant's spring or excavation comes up from a
great depth under the ground, and from un-
known percolations. Y
After answer filed, a motion was made to
dissolve the injunction, and upon this pre-
liminary hearing there was a modification of
the injunction granted, to the extent of al-
lowing the defendant to dig to the stream,
and take therefrom a reasonable quantity of
water, as might be necessary for his own use,
but not to take or divert the water wantonly,
or to transport it to another place. The mod-
ification also permitted defendant to quarry
any stone that he might desire, provided that
he did not pollute or injure the water flow-
ing into complainant's spring.
Testimony was subsequently taken, and,
upon final hearing, the bill was dismissed,
and complainant appealed.
Other facts appear in the opinion.
Sparkman & Sparkman, for appellant W.
A. Carter, for appellee.

MABRY, C. J. (after stating the facts).
The questions arising on the present record
involve rights of adjoining landowners to
water passing through the land not hereto-
fore discussed by this court. The general
subject of rights to water passing over or
through lands requires some classification in
dealing with the different phases of rights
that may arise. A very el onsiderd
decided n Ohio and hereafter referred to,
classifies the subject as follows: (1) In re-
spect to surface streams which flow in a per-
manent, distinct, and well-defined channel
from the lands of one owner to those of an-
other; (2) in respect to surface waters, how-
ever originating, which, without any distinct
or well-defined channel, by attraction: gravi-
tation, or otherwise, are shed and pass from
the lands of one proprietor to those of anoth-
er; (3) subterranean streams which flow in
a permanent. di.tnct and well-defined chan-
nel from tohe lands of one to those of nnanth-
er nrorietor; (4) susrfe wters whieh
without anv n"rnaTnet nainct..r defnit
-rd ii
c aInel, percolate In vein Lor filter from the
Inr dso on t tnf r.
The raihts asserted by annellant in the bill
fled annTrta.in to the water of a natural
sping called to be suplied by a well mark-
eand dened sunerranean stream, nowing
some 1* or t ow '11 e across
isthel s ofannelant Mandanuilee; and the
case does not call for a discussion of, and
what is said has no application to, mere sur-
face water, without any distinct and well-
defined channel, and which is shed and pass-
es from the land of one owner to that of

another. In the Ohio case mentio;n,l i,:.
zier v. lBrown, 12 Ohio St. 291), in s;,. ,
of flowing surface water in well ,.
cliainncis. it is said "that, notwiths ,ti.i
the maxim which affirms the :bstilut, i. ,
unlimited dominion of the proprietor ,
soil upward and downward, the prir..-
below has, in the absence of any 1;.,! i ,
tion of relative rights by contract or lr,.,; ;,
tion, no right to throw the water 1,h;; I,:
him above, and has the right to recei\i, I:
from the proprietor above substantially n
diminished in quantity and uncorruptd i:,
quality; and this right arises, not from :1.,
supposed grant or from prescription, but .\
Jure atuawe, and for the reason that sur
.face streams of flowing water are the g:r.
of Providence, for the benefit of all l:Ini.
through which they flow, and, as such. tli:.
usufruct is appurtenant to the lands thro,,.:i
which they flow." This statement contain,
thee Engli co n law...
learo eannound In adications in i,:1I
country. In *M.e nllsh ast. of Emhr v.
Uwm 15 Jur. 6,33 I ii stated that "the ri
to hae tlne stream to flow in its nat'urnl

state. Wiatnou almauuion or 4aneraiuon is ant
ncidentto e Propert in e land throPt
which it ass"; bt-flowing water is pnb.
licl jirs, not in the sense that it is a bonum
vaeans, to which the first occupant may ac-
quire an exclusive right, but that it Is
blie and common in this sense only: that

ano s os
ut ea proprietor of the adjacent
T has the right to the usufruct of tah
stream which flows through it" Sustaining
this view are the following authorities:
Wright v. Howard, 1 Sim. & S. 190; Mason
v. Hill, 5 Barn. & Adol. 1; Wood v. Waud, 3
Exch. 748; Dickinson v. Canal Co.. 9 Eng.
Law & Eq. 513; Chasemore v. Richards. 7
H. L. Cas. 319; Tyler v. Wilkinson, 4 Mason.
397, Fed. Cas. No. 14.312; 3 Kent, Comm.
439; Gould, Waters, 204. The American
adjudications to the same effect are numer-
ous. The right to the benefit and advant:ige
of the water flowing past one owner's land is
subject to the similar rights of all the pro-
prietors on the banks of the stream to tlhe
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 v. Wilkinson. su-
pra: "The natural stream, existing by the
bounty of Providence for the benefit of the
land through which it flows, is an incident
annexed, by operation of law, to the land It-
self. When I speak of this common right,
I do not mean to be understood as holding
the doctrine that there can be no diminu-
tion whatever, and no obstruction or limpedi-

~- -~~-~~~1- -~---- ~

~~,. .?,,; ra-* ~,^m..cr;:r---~.is~rcl-r---- ?~tCIII~I~~-"UC"~~':T-~ ~~rc-r


ment 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 ex-
tent of the use is whether it is to the injury
of the other proprietors or not There may
be a diminution in quality, or a retardation
or acceleration of the natural current, indis-
pensable for the general and valuable use
of the water, perfectly consistent with the
existence of the common right. The diminu-
tion, retardation, or acceleration, not pos-
itively and sensibly injurious by diminishing
the value of the common right, is an im-
plied 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 into a narrow strictness,
subversive of common sense, nor into an ex-
travagant looseness, which would destroy pri-
vate rights. The maxim is applied, 'Sic utere
tuo ut non alienum hedas.' "
As to 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 v. MIerri-
weather, 3 Seam. 492; Wadsworth v. Tillot-
sin, 15 Conn. 363; Anderson v. Railway Co.,
SG Ky. 44, 5 S. W. 49; Water Co. v. Watson,
21 N. J. Eq. 366; Dumont v. Kellogg, 29
Mich. 420; Gould. Waters, 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 run-
ning surface water in well-defined channels
over their lands.
In reference to rihts 1 subsurfCe water
there is apparent a congrri d
opInion, a m 'ht h. pneactd from the in-
ierent d i in deatythe
character and extent r tha right asserted.
in the case o2 Acton v.
W. 324, the plainti was owner of factory
mills suppied b w"te fnm wp ann into
e gor id; an ai that -la_
tiff used the water of certain nnnr an
spric, streaM alnd watercourses which had
run. 1owed. and Derc.lated into the wells. and

a sners rrpneits.n urse hais no rignntort the i

In it f hft iell ea1e Man to nmaintan an
action against a landowner wo S carryEg

on minin ortons on his own lnni in the
usual manner drains swa4y the water from
the land of the first-nUttiondd 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 be-
neath 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 noint, out the .iffPraene between

what e tr s idden and
unknown suniples of water of which e ha
no knowlefee and cajnt be canm
cept by actual tests in igg izn

tMat one tanowner cannot appropriate in any

As we construe this cae from its facts It
had no reference to a subterranean stream

was il ing withral suosurfaCe y ansof p -t

The case of Dickinson v. Canal Co., already
cited, goes a long way in opposition to the
ruling in Acton v. Blundell. It holds that
the diversion of water from a well-defined
surface water course, though never forming a
part of the stream, but prevented from doing
so in its natural course by means of an exca-
vation, was actionable; and that this was the
case whether the water was part of an under-
ground water course, or percolated through
the earth. The ruling in Dickinson v. Canal
Co., In the particular mentioned, has, how-
ever, been repudiated in the case of Chase-
more v. Richards, H. L. Cas. 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
v. Baugh, 25 Pa. St. 52", has generally been
regarded as containing a thorough considera-
tion of the subject. Teo
had a spring of water upon lan wh the
tanner was established, and the water used

some S50 feet from t t-rd. y rew an of
wyhic be i ter fowne to the- sprin: was
diverted. mere 1was, no AnwnS
fromi caP that.^ snnng was scplied
ith water other than ..h.alatt n litinL fnm
t anothe one party to the other. I
was hfeld that the owner of Ie tanu n co,~A
not recover for the diversiongf the wter
from n pg. It was, however, held in
t is case tlht, where a subterranean flow of
water has become so wcll deianed as to con-
stitute a regular and constant stream, the
owner of the land above, through which it

. Fla.)

. 783



flows, may not divert or destroy it, to the
Injury of the person below, on whose lann, it
issues in the form of a spring. It is said in
the opinion tht. 'in limestone regions,
streams of reat volume inn n wer urslne
their subterranean courses for great distances,
and t merge f their ca.irn fr-
ishing nower for maclinerv of every desrip-
fonn or sui)lrin- towns and settlements .ith
water for all e roses of life. To sa tat
these streams might lh obstmrted and flirt.-
ed, merely because they run through subter-
ranean CLannes Is o oret the r ts nd
1ue1s or man in ratio to flow water.
ut to untitl.1 stren..to.th. consideration
of the law. t Is c ainly necessary tatt e
a 'water course, n ie roer sense o
term. en o rg ions ire th-
SI. -8i n_ _, appre-

able vane one man a ingto convert ai~

oe arn to his own use, for the nuoas
a nnel. is gene rv s exprsse e n tnees case
s to subterranean streams have been char-

acterized as obiterr dicta" (Frazier v. Brown,
supra); ut consideration of the authorities
flows. Ent nerenintions ;nrend in erery direc.

applicable lends us to the frin t s ios l to-
avold disturbing them without relintuistbing

e necessary eoyment o he

n ano er Is not rohi

on te contrary,
t oMs not be a tmit dto on ertn
t o o rarm to his own asenmor the se

stemranupon thesurface. The only dif-
ference Tn e aview of the lawn to sur-
face and subterranean streams havewill be n cas-
cerinized as obiterr dithe characta" (r of the streams.own,
supra); but a consideration can of the authorities
appwhicableh is unds ers to the ground cannot be so red-
iy ascertained; and, of course, there will be
ore difficult n establishing it. r.Gouwl
osttes (section 21) that, uur water
rentsowtter flow i t ,efini an knovn
channel, thre riles of la h h the soil
to Sat another, l9 not Drohibited from di-g
ging nto itan aapropriatins it to any useful

pf ose of e erth arown. tanicble o then; but,
wa vie ^irely n _.r .. I
fowhich It would'otherwise natiuray pWs.
On tne contrary, Ifear terranean water h

scoumedto thf snrfacens of l wel -de ined nd
o n stream.the awner of thesu nd t ho be gh
wRRch 4t flows will not be authorized to di ert
it or Improperly.use it. anv more na51 f te
stream ran upon the surface. The only dif-
ference rn te application of the law to sur-
face and subterranean streams will be In as-
certaining the character of the streams.
What is on the surface can be seen, but that
which is under the ground cannot be so read-
-ily ascertained; and, of course, there will be
more difficulty in establishing it Mr. Gould
states (section 281) that, "if undergtand cur-
rents Af ttto e n..d known
channels, the rules of law whieh fgfvern the
use og similar streams flowing, upon the sur-
Zhee of the eartn aretaplicple to-, t lem; but,
t t d(oes not appear that the Aaters wv c
come to the surface are sunnpliga h n efinita
tI;Iq g stream tie are presumed to be form-
ed by the orafnary ercolatles _of ater in
= home suc pmrsumption is neces-

scary on account of the difficulty of determin-
ing whether the water flows in a channel, but
in all other respects there appters to be no
other distinction between sublerraneain wa-
ters and those upon the surface." The Ameri-
can decisions bearin:; on the point are too
numerous to discuss In an opinion, and while
they, with few exceptions, recognize the prin-
ciples we have stated, there are extreme ap-
plications of them to cases that have ariscn.
In addition to the authorities cited, we refer
to the f a.l.-. rc. as bearing upon the subject:
Kauffman v. Griesemer, 23 Pa. St. 407; Whet-
stone v. Bowser, 29 Pa. St. 50; Haldeman v.
Bruckhart, 45 Pa. St. 514; Coal Co. v. Sand-
eason, 113 Pa. St. 126, 6 At. 453; Collins v.
Gas Co., 131 Pa. St. 143, 18 Atl. 1012; Bur-
roughs v. Saterlee, 67 Iowa, 396, 25 N. W.
808; Hinkle v. Avery. 88 Iowa, 47, 55 N. W.
77; Hanson v. McCue, 42 Cal. 303; Hale v.
McLea, 53 Cal. 578; Strait v. Brown, 16 Nev.
317; Chatfield v. Wilson, 28 Vt. 40; Hoxsie
v. Hoxsie, 38 Mich. 77; Upjohn v. Board, 46
Mich. 542, 9 N. W. 845; Ulbricht v. Water
Co., 86 Ala. 587, 6 South. 78; Case v. Hoff-
man, 84 Wis. 438, 54 N. W. 793.
"A water course consists of bed, banks,
and water; yet the water need not flow con-
tinually; and there are many water courses
which are sometimes dry." Ang. Water
Courses, 4. It is stated in Ashley v. Wol-
cott, 11 Cush. 192, that, "to maintain the
right to a water course or brook, it must
be made to appear that the water usually
flows In a certain direction, and by a regu-
lar 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-de-
fined and substantial existence." In deal-
ing with subsurface streams, their situation
and character must, of course, be kept con-
stantly in view.
In applying the principles announced to
the facts of the present case, we must state
conclusions, as the evidence is too volumi-
nous to be discussed in detail in the opinion.
The mere fact that appellant has a contract
with the city of -Tampa to supply its inhab-
itants 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 appellee's land.
City of Emporia v. Soden, 25 Kan. 5SS; Wa-
ter Co. v. Watson, 29 N. J. Eq. 3WC. There
is also no question presented as to priority
of right growing out of contract, prescrip-
tion, or legislative grant. The tract of land
through which the water in question runs
belonged for many years to James T. Mag-
bee. and after his death, some time during
the year 18SS, his heirs and distributes 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 6
and 7 of the plat, in the early part of 1SO;
and, a few months thereafter, appellee pur-
chased lots 1, 8, 9, and 10, which were im

: -


f mediately east or northeast of appellant's
lots. The formation of the land 12 or 15
feet below the surface, and in which the
w:.ter is found, is of a limestone character.
There is some diversity of opinion among
,he witnesses as to the character of the rock
in contact with the water. One of appel-
lant's witnesses, an expert, states that the
rock in contact with the water was strati-
fled, and away from it was in bowlders ly-
ing in detached lumps. Considering all the
evidence, there is no doubt that the land is
underlaid with rock of a limestone forma-
tion. Issuing from the Magbee tract of
land, not far from the Hillsborough river,
was a cold spring of constantly flowing wa-
ter, known as "Magbee Spring," and the
plat located this spring in a street or ave-
nue. The lots purchased by appellant were
east and northeast, and nearest to the
spring. From the sprin. east and north-
east acre e

mark the course of terranen streams
HimMIU2 regions. On one a&ppD a

ground stream, and it s an alleged diver-

sion and disturbance of this water supply
owthat caused the company to complain.
pellnt commenced to ecwrkte forest, butg
changed locations. Before the second ex-
dc action for thedg reservoir as commenced.
to receive began an excavation in a sin under-
one of his lotsream, a short isance away,lleged diver-
siond reached a stream of nnthis water supplywater
when te injunction was served on him. A
From the evidcommence in to ee record, e t are
satisfied stations. Befoareache s second ex-
lee in his excavation fornds to the reservoir was commenced.
oir of appellee begant. The source of this sink team
os left in speculation, without deinte proof
had reached a stream of rupnnig water
when the inJunction was served on him.

butFrom the evidencethat in the record, we are of the
satisfied that the stream reached by appel-
lee in his excavation extends to the reser-
voir of appellant. The source of this stream
is left In speculation, without definite proof:
but, from all that is shown. we are of the
opinion that this is a well-defined subter-
ranean stream, flowing through the lands of
both parties. Thre s some diversity of
opinion among the expr wtes1 .n.

its of fhe_ rm. From tMgbee spring,
where the stream issues from the ground, to
the Hillsborough river, the banks are 20 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 di-
rect line over the lands of the parties, and
for some distance further east. indicate a
subsurface stream as found in limestone
formations. The capacity of this stream at
the reservoir, not more than one hundred
v.20so.no. 14--50

and seventy-five feet from appellee's ex-
cavation, is between two and a half and
three million 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 ani-
line dye in appellee's shaft, showed in a
very short time in the one below; and from
such evidence of a well-defined stream, tak-
en in connection with that of the experts,
we do not doubt that it does exist. The
rule a ts of om o
terer c alid te tream In u es.
ti Appeee has t i t to the use of

We discover nor
ir waver mo hs f t ran upon the r-
face of the soil in. the cannot divertweenr

polluthe rocks, overt tho mas nem, ai n water imi
the ple by olenin an accei tble warf re
wtha the a ts of the ca ning owners
oand o e a reason It i tue af
t mwatier certainly for domestic pur oses.
We discover no reasonable objecon To e
improvement of his own property by the re-
moval of the soil in the depression between
the rocks, over the stream, and beautifying
the place by opening n accessible way to
the water. The mere o openiof 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 suffi-
cient showing that any serious injury has
been done, or will be done with proper pre-
caution. to the stream by reason of the open-
ing. The maxim, "Sic utere tno ut non
allenum hedas," will apply.
Wed 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, superin-
tendent of the company, there was a diver-
sion; but Wynn and Boardman, also con-
nected with the company, testify that if the
excavation of appellee. and described in the
bill of complaint, s left open and untoeeee-
ed, it would not affect the quantity of water
in the stream. Appellee denies positively
that there has been any substantial diver-
sion of the water, and. as the burden of
proof rests upon app ellat, we cannot re-
verse the finding of the bcancellor 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 de-
cision 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 lczal right. would
be a cause for an injunction, we need not
consider. We arc further s:lFi ,til, that it
is not sufficelently shown that appellee In-



tended 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 ap-
pellee 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 ap-
pear for the father. It further appears
from the testimony of appellee, not contra-
dicted, that he informed the agents of ap-
pellant, before the bill was filed, that the
stream would not be used for bathing pur-
poses under any circumstances.
Relief must always be confined to the al-
legations of the bill, and an examination
will show that the allegations of wrongdo-
Ing against appellee are, in substance, that
he, with intent to harass and injure com-
plainant, 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 wan-
tonly and maliciously, for the purpose of in-
juring complainant by polluting the water,
and by diminishing its flow; and that he in-
tended 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 in-
junction was modified, appellee made other
excavations on his lots, and there is consid-
erable 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 a fer-
tilizer, but there seems to be nothing of
value in this. It is shown that the rock can
be used for paving streets and roads. Ap-
pellee, 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 pol-
Iute the stream that flows through the land.
It is claimed by appellant, and expert testi-
mony 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 up-
on the water in appellant's reservoir, but
whether this Is caused by percolations or
streams, and, if the latter, their character
and extent, are left in uncertainty. If it is
not affirmatively shown that subsurface wa-
ter Is supplied by a definite flowing stream,
the presumption is that it comes from ordi-
nary percolations. The testimony is also in-
definite as to the character of blasting done
or contemplated by appellee, and our con-
clusion is that the decree should be affirmed
on the evidence. While appellee has the

right to use the stream in the manner indi-
cated, 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 pol-
lute the stream of water flowing through the
On the allegations of the bill and the evi-
dence submitted, the decree will be allirmed;
and it is so ordered.

(112 Ala. 3M.,
BROMBERG (Supreme Court of Alabama. May 28, 1806.)
L Where a bill for removal of the admin-
istration of an estate from the probate to the
chancery court presents several contested
points, affecting the administration, for deter-
mination, complainants are entitled to a de-
cree on such of the contested points presented
as are sustained by the proofs.
2. On an issue as to whether a testatrix died
intestate as to certain bank stock and a cer-
tain mortgage, not included in her will, the
executor testified that the bank stock, at her
death, stood in his name, as agent, and that
the testatrix gave it to him; a devisee testi-
fied that the tentatrix, shortly before her death,
gave it to her; the mortgagor testified that
the testatrix surrendered the mortgage to her
before her death (and this statement was cor-
roborated by the executor); while the same
devisee that claimed the bank stock testified
that the testatrix also gave her the mortgage.
Held, that gifts causa mortis were not shown,
and that testatrix, therefore, as to this prop-
erty, died intestate.
3. Where a testatrix, during life, directed
her agent to invest the proceeds of certain real
estate in Alabama state bonds, and such pro-
ceeds came to his hands before, but he failed
to invest them until after, her death, while
executor, such bonds will not pass to a bene-
ficiary of the will under a bequest of "whatev-
er Alabama state bonds I may have remnainina
at the time of my death, now amounting to
seven in number, of one thousand dollars each."
on the ground that the direction of the testa-
trix to the agent created an equitable conver-
sion of such funds into said bonds.
Appeal from chancery court, Mobile county;
W. H. Tayloe, Chancellor.
Bill by Theodore C. Bates and others against
Frederick G. Bromberg, executor, and others,
for the removal of the administration of tie
estate of defendants'testator from the probate
to the chancery court, and for other relief.
From a decree for complainants, the exetcutor
and certain others of the defendants appeal.
On the present appeal the appellants assl-'n
as error, and seek to have the court pass up11n.
the ruling of the chancellor upon tilm d1, illur
rers of the defendants which were tilefd it tl
bill as amended, and which were ruled Iupn'
by this court on a former appeal, as is shownlV
by the report of the case in S8 Ala. ;'21. 1:
South. 557. It is not, therefore, deemnld in'-
essary to set out the facts pertaining to tli,' l,'-
cree of the chancellor upon the denulrr'rr. ,or
to do more than to refer to the former rml'.it
of the case. The issues of law and fact, :a*

" "



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