Title: Schenk v. City of Ann Arbor - Supreme Court of Michigan, May 31, 1917
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 Material Information
Title: Schenk v. City of Ann Arbor - Supreme Court of Michigan, May 31, 1917
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Language: English
Publisher: 163 Northwestern Reporter
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Schenk v. City of Ann Arbor - Supreme Court of Michigan, May 31, 1917 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004452
Volume ID: VID00001
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SCHENK v CITY OF ANN ARBOR


<,re & 3M. S. Ry., 104 Mich. 600, 62 N. W.
;.;*; Tinhoff v. Mich. Cent Co., 100
: ,'. iWt. 67S N. W. 592; Thomas v. A. A. R.
i : C'o.. 114 Mich. 59. 72 N; W. 40; Shadford
t. Co., 121 Mich. 224, SO N. W. 30;
S:.ols v. P. M. R. Co., 145 Mich. 643, 108
\ W. 1016; McClure v. Det. Sou. R. Co.,
,,; Mi.-h. 457, 109 N. W. 847; Huber v.
ii in City E. Co., 168 Mich. 531, 134 N. W.
.,: ;ila Valley. G. & N. R. Co. v. Hall, 232
t. S. 91, 34 Sup. Ct. 229, 58 L. Ed. 521;
'r-x~s & Pac. R. Co. v. Harvey, 228 U. S. 319,
::: Sup. Ct. 518, 57 L. Ed. 852.
131 Defendant's counsel aso urge that the
trhl: court erred in overruling defendant's
iion for a new trial on the ground that the
Ia:monnt of the verdict was excessive. Con-
S .iering the pain and suffering which the
reoird shows the plaintiff endured, his loss
fC line, his disfigurement and humiliation be-
,%nuse thereof, we are not prepared to say
that the verdict was so excessive as to war-
ra:nt our interfering with the judgment of
the jury.
[41 Other assignments of error relate to
errors in the introduction of evidence and to
the claim that the verdict was against the
weitlht of the evidence. There was a sharp
conflict of evidence as to there being a cus-
tom to warn, but we are not satisfied that the
verdict is against the weight of the evi-
dence under the rule announced in Gardiner
v. Courtright, 165 Mich. 54, 130 N. W. 322,
and since repeatedly cited with approval.
It not having been made to affirmatively
laplrear, after an examination of the entire
cviuse, that the verdict and judgment resulted
in a miscarriage of justice, it is unnecessary
to discuss the assignments of error with ref-
erence to the introduction of evidence.
The judgment is affirmed.

STONE, BIRD, STEERE, FELLOWS, and
I1' ,)KE, JJ., concur with KUHN, C. J.

OSTRANDER, J. (concurring). [5] The
trial judge, in the instruction concerning as-
i t1:Ilntion of risk by,the plaintiff, in the last
-On;use quoted in the opinion of the Chief
Juitiic. used an illustration-made an ex-
:l a;ition-which made the whole instruc-
ti, erroneous. There was a risk thqt a
ti::nir might, without negligent conduct of
fh.l men in the car, escape their control. It
t, .'*s to me this cannot be doubted. But
u': t happened there was not a usual or
orn:iary incident. Fortunately, most of the
r1! assumed by workmen do not culminate
i' injury. And. when the court said, "If
V..:t happened there that day about the
ti "vrs coming out was usual and an ordi-
:y incident, plaintiff assumed them, or if
t, i; 'is:h an incident as plaintiff knew would
S:i-in, *" everything before that
I'.d' upon the subject was improperly quali-
i. to, defrtndant's prejudice. A correct


charge would have been that plaintiff assum-
ed the risk that, without negligence on their
part, the timbers might escape from the con-
trol of the men in the car. The complaint
made by appellant, however, is, not that the
charge is faulty in the respect pointed out,
but that the court should have charged the
jury, generally, that plaintiff assumed the
risk, a position emphasized by the form of
appellant's request to charge upon this sub-
ject.
I concur in holding that whether plaintiff
assumed the risk was a question for the jury,
and that the judgment should be affirmed.

STONE, BIRD, an'd STEER, JJ., concur
with OSTRANDER, 3.


SOHENK v. CITY OF ANN ARBOR.
(No. 135.)
(Supreme Court of Michigan. May 31, 1917.)
1. WATERS AND WATER COURSES 0=l01--PEB-
COLATINO WATES--RIGHT OF LANDOWNEB.
The right of a landowner to take therefrom
percolating water is qualified by the rule of rea-
sonable user, that he may not divert it to use
elsewhere to the injury of other landowners in
their right of reasonable use of percolating wa-
ters in their lands.
[Ed. Note.-For other cases, see Waters and
Water Courses, Cent. Dig. 110, 111.]
2. MUNICIPAL CORPORATIONS 0=s&S34-DIVEB-
SION OF PERCOLATING WATERS RIGHT or
LANDOWNER.
The right of a landowner to use percolating
waters is none the less qualified by the rule of
reasonable user, because it is a city and is seek-
ing water for its inhabitants.
[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. J 1784.]
3. MUNICIPAL ConPORATIONS 4=>834-DIVEB-
SION OF PERCOLATING WATERS-IEM3EDY.
Where a city may divert percolation waters
from its land for its inhabitants without violat-
ing the rule of reasonable user, and in so doing
is not harming plaintiff, it will not be enjoined;
but plaintiff will be allowed damages for prior
injury, with right to apply to the court in case
of future injury.
[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. 1784.]
Kuhn, C. J., and Brooke and Steero, JJ.,-dis-
senting.
Appeal from Circuit Court, Washtenaw
County; E. D. Kinne, Judge.
Action by Gustave A. Schenk against the
City of Ann Arbor. From the decree, both
parties appeal. Modified and affirmed.
Argued before STONE, C. J., and KUHN,
OSTRANDER, BIRD, MOORE, STEERTE,
and BROOKE, JJ.
Frank B. DeVine, of Ann Arbor (A. F.
Freeman, of Ann Arbor. and John P. Kirk,
of Ypsilanti, of counsel), for appellant. Ar-
thur Brown, of Aim Arbor, for appellee.

OSTIANDER, J. The demand.. in
halittsuts of the cit of Am. Arorr onter
or domlestlc an other purposes exces -


C=For other cases see same topic aun KEY-NUMBER in all Key-Numbered Digests and Indeses







103 NORTHIWESTERIN REPORTERS(


0001000 allonsdalay. The municipality owns
andoperates the water plant supplying water
to the inhabitants. Its present used sources
of supply are wells, some springs, and the
iuron river, which flows through the city.
It is dissatisfied with the uantit and the
- -iv nr wara thns avaiahe i or ho_ Use
f tP ity nnv t tm The charter of
the city in terms grants the power to pur-
chase, erect, and maintain grounds and build-
ings, within or not exceeding three miles out-
side of the limits of the city, for waterworks.
Act No. 331, Local Acts of 1SS9, as amended
by Act No. 65S, Local Acts of 1007. South,
and some three miles distant from the city,
is a considerable tract of marsh land, under-
lying which is a large bed of water-bearing
gravel, within easy reach of the surface of
the ground, and there are also two other
beds of gravel lower down, one SO and the
other 140 feet below the surface, each of
them containing water. Underlying this
region, the formations are so distributed, to
use the language of a witness:
"That there is a slope for the underground wa-
ter from the western part of Washtenaw towards
Lake Erie, and what is true of this region is
true all the way from Hillsdale county norther-
ly to the headwaters of the liuron river up in
Oakland county, so that the area that lies be-
tween the western part of Washtenaw county
and the Steere farm has a slope to the southeast,
a general slope to the southeast, and a general
drainage to the southeast, and a general un-
derground flowage to the southeast. This is
the natural result of the conditions prior to the
deposition of the glacial deposits. The
gravel deposits are very homogeneous. There is
a great deal of fine marl, with clay in it. Trav-
orsing this are beds of gravel and sand that
we find exposed, and these are found at various
levels. These gravel deposits are in the neigh-
borhood of 200 feet thick; in Lodi township
they exceed 250 feet; and in the vicinity of the
Steero farm they exceed 1,350 feet. Because of
the great thickness of the gravel deposits there
are running through these deposits at various
levels various channels, so that in sinking wells
it is not a difficult matter in this region to obtain
a considerable supply of water, so that there are
hardly any farmers in this neighborhood, I gath-
er, who were unsuccessful in obtaining water;
if not within a few feet of the surface, they
could by going deeper. The contribut-
ing area would come in through these western
townships of the county-from Dexter, Lima,
and Freedom townships, and part of Sylvan and
the townships to the west. They would con-
tribute to this underground water, the natural
flow of this area is this way, and this is demon-
strable from the records of the wells I have ob-
tained through the intervening area."


200 gallons, a quantity which was materially
increased by the use of a pump, In tear
1915 the city onrutd uis n ;thar
welLJa int uin diameter, from which it
um wte rm Ma 12th until 5th,
the Dnuling nting faIrly cont inuous d
and nicht. althounh.- for -i-us isIasQons.
pumping wnas for short neriods if time ig-
"rM.ntl- Tlhe r t wa frm 3.700.000 to
800,000 gallons of wrter da.ly. The umi-
ing lern d .the water min the well from a
i int above the level o the around to with-
in three fpat h ttom of the e11. At
some time, before or after the tests were be-
gun, the city bought and owns 130 acres of
the land, including that upon which the test
wells were constructed. Upon this land it
desires to erect a costly pumping station,
pump the water therefrom, force it to the
city, and distribute it to the inhabitants.
It is the theory of the city, which its tes-
timony, and especially its opinion evidence,
tends to support, that it can for an ndefinite
period take from3to w e ana land
a quantity of water, anoroxlmatinz 4A.000"00
gallos i without lower in the an f
t rtorsport, ert d
mre than 1t was lowered during the tests it
has conduct. It is ts theory, also suort-
eby itsopinion evidence that the_ atrin
&. &VA its w lls

ea nnr ero ationt n lnft in hernikra unr
On or over or ear t9 th ..RertHclar tract of
; that it is from rains, and not from
percolation or seepage from the subterranean
body of water, that agriculture is supplied
with required moisture.
The laintiff. and. it annnre other TIhn-
owners unon the marsh and on higher land,
contend andoffer testimony to support the
cont -ton a oae p ngmp
i wells tae My one

cease r f d entity
o water and that the agricultural produc-
tveness arm,,in1 mila in
ev reaction from w e
c w annavora 1v a frrt hv enntined
mping ofe water from the itys romrty.
The testimony for the plaintiff tends to
prove that, when the city began to pump
water from the large well, the water in plain-
Hff'f w'll 0f0 rods north and west from the


As early as the year 1910 attention was city well, was 4 feet deep, and lowered at
directed to this possible source of a water the rate of about a foot a week during the
supply for the city, and in the year 1912 and first two weeks, and thereafter an inch a
thereafter tests were made to determine the day for a week, and then one-half inch a
quantity of water procurable. There were a day, until there was no water left in rtih
number of small wells upon the marsh from well. When the pumping ceased, the water
which water was flowing. Other wells were returned at the rate of one-half inch a da,.
driven, live 8-inch wells, and later another and at the time of the hearing there wer'
8-inch and a 12-inch well, being put down by 40 inches Of water in the well. While thl'
the city, to an average depth of about 30 pumping was continued, plaintiff was obliged
feet. As many as 715.000 gallons of water to get water from a neighbor and to draw
flowed freely from the first five 8-inch wells, water in a tank from the county ditch for hib
and from seven wells the daily flow was b8(,- stock. Upon another farm of 234 acres, east


(Mich.








-SCHENK v. CITY OF ANN ARBOR


and across the road from the plaintiff's tentions of either party respecting the results
farm, were two wells, one dug at the house of continued pumping of the water. Under
and one at the barn, and two flowing wells the circumstances, the important question
in the fields for the use of stock. The well at which is involved, namely, whether the court
the house had been dug more than 15 Tveas will enjoin the city frol- further contemplat-
had h always frnised sufficient water for ed use of the water. ca.n be answered only
estc use. The water in this well was by considering what are the rights of the
lowered during the pumping, so that no water parties. There are sor:e ascertninable con-
could be pumped from it, and after the pump- trolling facts, and upon them and applicable
ing ceased the water in the well did not re- rules of law a conclusion: must be based.
turn. The well at the barn was affected in [1] The controlling as ertainable facts may
a similar way. The flowing wells uon this be briefly stated. The parties do not occupy
farm were about threlpnnirtpr of a mile the position of riparian -wners. If there was
north and west of th larg well ut down (I think there is not) oc-asion to aid the tes-
t om one of e the water timony by presumpti-n, the resumemlpion
a om te other o y necessarily employed would be that the
em waters in the particular gravel deposit are
of the hearing the fl water had returned percolating waters, a':d not subterranean
in one well a other only waters flowing in a dened channel, or con-
li reduced i y. Upon another farm trained in an underground lake or pond. De-
south of plaintiffs land, and west of the land fendant city does not propose to use only
owned by the city, was a flowing well. a mile the volume of water flowing naturally from
from the large well owned by the city. It its wells; it has aug:rented, and proposes
was a 3-inch well, and before the pumping to augment, that flow by artificial means,
began had flowed a stream of water two- by pumps, by which nmeans it will draw to
thirds the size of the pipe. The flow was al- its lands waters out of the surrounding
most entirely cut off while the pumping was lands, lowering over a cor-iderable area the
carried on, and after it ceased about one- head of water naturally carried in the gravel.
half of the original flow returned. Existing flowing wells, the waters from which
In various directions, and at various dis- are used for the irrigation of crops suitable to
tances from the test wells, wells and property, be grown in the marsh. will cease to flow,
it is claimed, were affected by the pumping and agriculture be th-.s. to some extent, di-
operations, and a number of the owners of rectly affected. r(g-, J r
property began actions against the city, seek- at most onl an
ing to restrain the further taking of water water uon or for te nf of. nd
from the wells, charging various resulting rm w it te r. e-
injury, temporary and permanent, to the a; fh as d wnsr; ur-
land. occasioned by the taking of this large "o tn th. r away from ,
quantity of water from the earth. One of to se so t fr m -
these cases was heard in the court below on nIclpai urn'
demurrer to the bill of complaint. and from t canno be now ascertained
the decree whi--h wa\ entered an appeal was hethr in time aricl:re-surfe ondl-
taken. Osborn v. City of Ann Arbor, 189 tons of land In the i i::y of the well or
Mich. 90. 155 N. W. 1102. We declined to wells-will be affect I injuriousl by the
determine, upon demurrer, the questions continued drawing o"f of the underground
which were presented. In the case at bar water.
the plaintiff dug his well deeper, and secured Under such circums-anes the ribht of the
a supply of water. The learned trial judge landowner, to the -"'rr or dtiment of I
concluded that an injunction ought not to be other landowners, to ake fro hi ownlnd
continued, and that plaintiff should be sat- suh reo at waters as he a th he
isfied with a decree for such damages as had bl, to collect ulfe t a
resulted from his apparent ascertainable in- qualied rl-ht. The l'tr of the law. as it
jury. From a decree granting such relief, has een expounded it r:.-.ay cases in England
both parties have appealed. and America, affirms :Lh right of the owner
If the court might accept as final what the of land to sink wells i -'r)n, and use the wa-
parties decline to so accept and act upon, ter therefrom, supp!'-d by percolation,. In
the opinions of gentlemen having special any way he chooses r.. r.e it, to allow it to
extra knowledge of the subject that the tak- flow away, even thou'.h I:. thereby diminishes
ing of 3.000.(00 gallons and more of water the water in his n--:.' ?r's wells or dries
fri'm the city wells for an indefinite period them entirely, and ev'-,: though in so doing
will produce no other or greater injury to he is actuated by mr:.:. Such a right has
,'l<'er owners of land than was produced by been held a property r::'t, which cannot be
the tests which were made, the question taken away or impainr.'Vr 'legislation, unless
' h!Itlierr such use" was a reasonable use would liv tl'e exercise of t.e right of emin4et do-
It. perhaps, presented for decision. It is obvi- main or the police n 1 Ilubr v. Merkel,
"us. hIowcver, that no judicial guarantee can 117 Wis. 355, 94 N. W. :54. >2 L. R. A. 5S9,
he given that experience will sustain the con- 9S Am. St. Rep. 933. Se Acton v. Blundcll,


Miich.)







163 NORTIIWESTEIN REPORTER


12 M. & W. 324; Chasemore v. Richards, 7 lthe facts respecting water that is concealed from
II. L. Cas. 3-i; Houston & Texas (Cent. It. view. But experience has demonstrated in a
Co. v. East, 98 Tex. 146, S1 S. W. 279, 66 L. readily solved. When it is solvedlicn a ivfen
K. A. 738, 107 An. St. Rep. 620, 4 Ann. Cas. c:se, by the production of satisfactory proof,
S27; Frazier v. Brown, 12 Ohio St. 291. In this r:eson for the rule at once vanishes. *
Pixley v. Clark, 35 X. Y. 520, 01 Am. De-e. 72, 1 lpn the whole we are convinced, not only that
the authority of the I.nglish cases is greatly
the conionon-law doctrine was accepted In weakened by the trend of modern decisions in
this language: this country, but that the reasoning upon which
"An owner of the soil may divert percolating the doctrine of 'reas unable user' rests is better
water, consume or cut it off. with impuniity. It supported upon general principles of law and
is the same as land, and cannot be distinguished i more i consonance with natural justice and
in law from land, So the owner of the land is equity. We therefore adopt the latter doctrine.
the absolute owner of the soil and of percolating This does not prevent the proper user by any
water, which is a part of, and not different from, landowner of the percolating waters subjacent
the soil. No action lies against the owner for to his soil in agriculture, manufacturing, irri-
interfering with or destroying percolating or cir- gation, or otherwise, nor does it prevent any
culating water under the earth's surface." reasonable development of his land by mining
or the like, although the underground water of
rhile this is the rule applied, and to be neilihboring proprietors may thus be interfered
applied, in respect to most of the ordinary with or diverted; but it does prevent te with-
drawal of underground waters disition
uses of land, and the ordinary operations draal or underrot conncter or istri anbon
carried upon and in land. there is other doc- fiial ownership or enjoyment of the land whence
trine, apparently, but not strictly, a modif- they are taken, ift resultsherefrom thatthe
cation of the early common-aw doctrine re- owner cent or neighboring land is inter-
cation o the early common-law doctrine re- fcred with in his right to the reasonable user
ferred to, which is sometimes called the do- of subsurface water upon his land, or if his
trine of reasonable user. and which was in- wells, springs, or streams are thereby materially
produced by equity to the law. The distine- diminished in flow, or his land is rendered so
tion between the rules and the reasoning as to be less valuable for agriculture, pas-
between the rules and the reason up- turage, or other legitimate uses."


on wmhcn each is oased is state, very much
to my own satisfaction, by Chancellor Pitney
in Meeker v. East Orange, 77 N. J. Law, 623,
74 Atl. 379, 25 L. R. A. (N. S.) 4G5, 134 Am.
St. Rep. 798, in an opinion approved by each
of the members of the Court of Errors, from
which opinion I take the following:
"The English rule seems to be rested at bot-
tom upon the maxim, 'Cujus est solum, ejus est
usque ad colum et ad inferos.' Thus, in Acton
v. Blundell, 12 Mees. & W. 354, Chief Justice
Tindal said that the case- fell within 'that prin-
ciple which gives to the owner of the soil all that
lies beneath his surface; that the land immedi-
ately below is his property, whether it is solid
rock, or porous ground, or venous earth, or
part soil, part water; that the person who owns
the surface may dig therein, and apply all that
is there found to his own purposes at his free
will and pleasure.' Hero the impracticability
of applying the rule of absolute ownership to
the fluid, water, which by reason of its nature
is incapable of being subjected to such owner-
ship, is apparently overlooked. If the owner of
Whiteacre is the absolute proprietor of all the
percolating water found beneath the soil, the
owner of the neighboring Blackacre must, by
the same rule. have the like proprietorship in
his own percolating water. How, then, can it
be consistent with the declared principle to al-
low the owner of Whiteacre to withdraw, by
pumping or otherwise, not only all the percolat-
ing water that is normally subjacent to his own
soil, but also, and at the same time, the whole or
a part of that which is normally subjacent to
Blackacre? Where percolating water exists in a
state of nature generally throughout a tract of
land, whose parcels are held in several owner-
ship by different proprietors, it s. in the nature
of things, impossible to a o each ot these
pflprietors the abso ute right to withdraw ad
munm. all percolatiar water which may 1e
ract b" a well or mp upon an one o, e
severaot or suc witurawal one owner
necessarily interferes to some extent with the
en-ovment th e rv e l oortu ity
S e oter owners. gain, the denial of the
applichity to underground waters of the gen-
eral principles of law that obtain with respect
to waters upon the surface of the earth is in
part placed upon the mere difficulty of proving


The earlier cases in New York repeatedly
approved the rule laid down in Acton v.
Blundell and Chasemore v. Richards, but in
Smith v. City of Brooklyn, 32 App. Div. 257,
52 N. Y. Supp. 9S3, affirmed in 160 N. Y. 357,
54 N. E. 787, 45 L. R. A. 664, it was held that,
whatever may be the rule with respect to the
right of a landowner to use the water perco-
lating through the earth, and thereby to af-
fect the sources of wells or springs upon his
neighbor's land, he may not divert and di-
minish the natural flow of a surface stream
by preventing.its usual and natural supply,
thereby causing, through suction or other
methods, a subsidence of its waters. In that
case, the action was brought to recover dam-
ages for the draining of a stream and pond
upon plaintiff's premises. For many years
the plaintiff had,.by means of a dam, made a
pond, and made use of it in connection with
his farming operations, for the collection and
sale of ice, and for boat-building purposes.
The defendant, at a distance of some 2,400
feet from the pond, had constructed an aque-
duct for the purpose of conducting water for
its municipal purposes, which it did by wells
and pumps upon its own land. The com-
plaint was that the defendant drained the
plaintiff's water course and pond, and evi-
dence was offered tending to prove that the
direct cause of the stream running dry was
the draining of the territory by defendant's
construction of its system of conduits, wells,
and pumps, and the use of suction. The ver-
dict of the jury sustained the contention of
the plaintiff, and a judgment upon the ver-
dict was sustained, upon the ground that the
water of a natural surface stream is for the
benefit of all the riparian owners, and that
to divert or to diminish its flow in any way
is an interference with a natural right.


(Mich.







SCIIENK v. CITY OF ANN ARBOR


,i hli' gives rise to an action for the injury. will be whether a landowner has the right by
lI F'orlsell v. Ciiy of New York, 14 N. Y. I the use of pumps and other apparatus greatly
to aa (elerate and increase tlih natural flow '-',. 6. E. (-14. 51 L. It. A. 695, 79 Am. St. subterranean plrcolateing mineral waters ant
r:':;. >;(i, determined in Novemnber, 1000, a gas through deep wells bored into a widely ex-
,rpetuatil injunction was granted restraining tended common supply of such substances, not
!,". uity of New York from operating is for any purpl)oe connected with the enjoyment
of h is lands, but for the purpose of procuring
i.l.s, driven wells, and pumping stations, from the waters a supply of gas to be marketti
;,,wvn as the "Spring Creek pumping sta- throughout the country, and with the result of
ti.n.". In the borough of Queens. and award- wasting great quantities of mineral waters, and
I ,:.t damages to the plaintiff in the sum of destroying or impairing the natural flow of
,1 It mes o te piisuch waters and gas in and through the springs
of .i,000. The plaintiff was the lessee of of other landowners throughout a large area,
ri'tain farm lands situated near Spring and of destroying or impairing the valuhale
r,,,lek, and he used a portion of the lands for character of such waters for the purposes for
S.wichn th4y have been habitually used. Tile
1he purpose of. growing celery and water earlier decisions in this and other states laid
.rcsses. The city of Brooklyn constructed a down the general rule that a landowner midht
pumping station in the place in question in not be enjoined from doing an act on his own
and in 1894 sunk additional wells and premises which resulted in diverting or even
and 1894 sunk additional wholly destroying the flow of percolating waters
i;ide an additional pumping station. The from or upon his neighbor's land. Ellis v. Dun-
niTeect of pumping at this station was to lower can. 21 Barb. [X. Y.1 20: Pixley v. Clark, 35
the underground water table on this land, N. Y.520 [91 Am. Dec. 721; Trustees of Vil-
lage of Delhi v. Youmans, 45 N. Y. 362 [6 Am.
and thus made it unfit for the cultivation of ep. 100]; Bloodgood v. Ayres, 108 N. Y.400
celery and water cresses, and the crops fall- [15 N. E. 433, 2 Am. St. Rep. 443]; Haldeman
ed for several years prior to the commence- v. Bruckhart, 45 Pa. 514 [84 Am. Dec. 511];
uent of the action. In affirming the judg- Greenleaf v. rancis, 1 .oick. [Mass.] 117;
Frazier v. Brown. 12 Ohio St. 294. in thus
ment, the Court of Appeals said: holding they but followed the rule laid down in
"It may be conceded that the letter of the law, the leading case of Acton v. Blundell, 12 M. &
as expounded in many cases in this state, denies W. 324, 54. wherein was approved the prin-
li:liility [citing numerous cases]. The earlier ciple 'which gives to the owner of the soil all
(c.es followed the law as stated in Acton v. that lies beneath his surface; that
1tlundell, 12 Mees. & W. 324, and Greenleaf v. the person who owns the surface may dig there-
-raucis, 18 Pick. 117. So far as the extraction in, and apply all that is there found to his own
,.r diversion of underground water upon the land purposes at his free will and pleasure; and that
of one proprietor affects no surface stream or if, in the exercise of such right, he intercepts
pond upon the neighboring land, but simply the or drains off the water collected from under-
ndlerground water therein, the rule is still ad- ground springs in his neighbor's well, this in-
hered to." convenience to his neighbor falls within the de-
arg n, afte stating th rea scription of damnnum absque injuria, which can-
Iut, in argument, after stating the reason not become the ground of an action.' It will
for the English rule, the court used the fol- hardly be profitable to consider all of the differ-
lowing language: ent reasons which led the courts to adopt these
"In the cases in which the lawfulness of inter- principles, but it is important to bear in mind
ference with percolating waters has been upheld, that they were invariably applying them to cases
either the reasonableness of the acts resulting in each of which the party complained of had
in thle interference, or the unreasonableness of interfered with the enjoyment by another of
i;npsing an unnecessary restriction upon the percolating waters by some act which was di-
on iirr's dominion of his own land, has been ree- rectly and naturally connected with the improve-
ornizcd." ment or enjoyment of his own land. Thus, in
Sthe Acton Case, the act which resulted in the
In IIathorn v. Natural Carbonic Gas Co., interference complained of consisted in mining
1!T4 N. Y. 326, 87 N. E. 504, 23 L. R. A. (N. operations on a man's own land. In the case
S.) 436, 128 Am. St. Rep. 555, 16 Ann. Cas. of Ellis v. Duncia, the person intercepting the
flow of percolating waters on his neighbor's
>-), the object of the suit was to restrain the land had done so by digging a trench or ditch
ilpelllant, the gas company, from using and opening a quarry on his premises. No ques-
pumps and other apparatus for the purpose tion was presented in these cases of a landowner
of accelerating and increasing the flow of depleting or exhausting a common supply of
untlerground waters by artificial methods for
srubtirranean percolating water and gas purposes not in any way connected with the
through deep wells which it had sunk upon enjoyment or use of his own lands. But with
ii. premises in the town of Saratoga Springs; the increased demands upon natural resources,
laintif cotdig that i their cm- such as water, this question did begin to arise.
plaintiffs contending that In their co- o have ecn first suggste in Egland
:lilnt they set forth a cause of action both in the case of Cliascmore v. Richards. 7 II. L.
at clinion law and under the provisions of Cas. 349. There the question arose whether the
I he statute of New York for the protection of flow of percolating waters on another's land
1t natural mineral springs of the state and numight be diverted or destroyed by pumping for
It, natural mineral springs of the state an purposes of supplying a municipality with wa-
, prevent waste and impairment of its nat- ter, and while it was finally held that this might
ural minerals waters. It was heard and de- be done, it was only after the right had been
l iniuced upon demurrer to the complaint, seriously questioned. In this state it was
Irom the prevailing opinion delivered by first discussed, though not actually involved, in
Smith v. City of l:rooklyn, 1S App. l)iv. 340
li-icock, J., I take the following: [46 N. Y. Supp. 141], and it was there stated
"I shall endeavor first to apply to the pleading by Judge Iatch tlat the right in this state
tI't attacked the test of common-law principles, hud never 'been upheld in the owner of land to
' :i the question whether measured by them it destroy a stream, a spring, or well upon his
, .s set forth a cause of action may be stated neighbor's land. by cutting off the source of its
I a; more concrete form applicable to the specific supply. excess t it was done in the exercise of a
flcts involved in this action. Thus stated, it legal right to improve the land, or make some
163 N.W.-8











163 NORTHWESTERN REPORTER


use of the same in connection with the enjoy- lant in the premises, and make out in favor of
meant of the land itself, for purposes of domestic respondents a suiltrient cause for appeal to
use, agriculture, or inining, or by structures for and relief by a court of equity,"
business carried on upon the pr '.i.-es.' Finally
in the case of Forbell v. City of New York. 1(;4 See People v. New York Carbonic Acid Gas
N. Y. 522. 32, [5,S N. E. (;- 1. 51 L. R. A. (il5. Co., 196 N. Y. 421, 90 N. E. 441.
79 Am. St. RIlp. (;f;l. the question reached this In Katz v. Walkinshaw, 141 Cal. 116, 70
court, and the necessity was recognized, nor
for an alteration of tile rules which had I- In Pac. 663, 74 Pac. 766, 04 L. R. A. 236, 99 Am.
applied by earlier cases to the facts then pre- St. Rep. 35, the maxim, "Sic utere tuo ut
seated. but, rather for an enlargement and ex- alienum non l:edas," is held applicable as be-
tension of such rules, so that they would be ap- tween adjoining users of percolating water.
plicable to new conditions. That case for the
first time in this state at least laid down the whenever justice requires its application;
rule of the reasonable use of percolating waters a headnote which fairly states the conclu-
which I think is applicable to and controlling sion arrived at by the court being:
of the facts in this case. There the city of New o o
York tapped waters percolating under some "Each owner of soil lying in a belt which be-
lands purchased by it, and which were part of a comes saturated with percolating water is en-
connected system or supply extcening over a titled to a reasonable use thereof on his own
large area, and then by powerful apparatus so land, notwithstanding such reasonable use mmayi
forced the flow of this water as to exhaust the interfere with water percolation in his neigh-
supply which had formerly supplied plaintiffs bors' soil; but he has no right to injure his
land, and this was (lone for the purpose of fur- neighbors by an unreasonable diversion of the
nishing a supply of water for the defendant. water percolating in the belt for the purpose of
The court, reviewing many earlier cases passing sale or carriage to distant lands.
upon the right of a landowner to enjoy the sub- One reason given by the court, it is true.
surface waters under his premises. said: 'In the One reason gven b the court, It is true.
cases in which the lawfulness of interference for the ruling, is that the common-law rule
with percolating waters has been upheld, either that percolating .water belongs unqualifiedly
the reasonableness of the acts resulting in the to the owner of the soil, and that he has tlhe
interference, or the unreasonableness of impos-
ing an unnecessary restriction upon the owner's absolute right to extract and sell it, is not
dominion of his own land, has been recognized, applicable to the conditions existing in a
In the absence of contract or enactment, what- state.where artificial irrigation is essential to
ever it is reasonable for the owner to do with ricultur n sian ll in
his subsurface water, regard being had to the agriculture, and artesian wells in percolating
definite rights of others, he may do. He may belts are necessarily used for that purpose.
make the most of it that he reasonably can. It Upon the general subject, see 30 Am. & Eng.
is not unreasonable, so far as it is now appar- Ency. of Law, 308 et seq. See, also, Hart v.
ent to us, that he should dig wells and take
therefrom all the water that he needs in order Jamaica P. A. Corp., 133 Mass. 488; Bas-
to the fullest enjoyment and usefulness of his sett v. Salisbury Mfg. Co., 43 N. H. 569, 82
land as land, either for purposes of pleasure, Am. Dec. 179; Swett v. Cutts, 50 N. H. 439, 9
abode, productiveness of soil, trade, manufac- Am. Rep. 276.
ture, or for whatever else the land as land may
serve. He may consume it, but must not dis- 2 I have said tt i f th m-
charge it to the injury of others. But to fit it stqncet rit of ndnt to mako .se
up with wells and pumps of such pervasive and of the wat r i a d ht. It Jlali-
potential reach that from their base the defend- a rule
ant can tap the water stored in the plaintiff's
land, and in all the region thereabout, and lead quie n harmony te provisions of Act
it to his own land, and by merchandising it pre- No. 190, Public Acts of 1889, and Act No.
vent its return, is, however reasonable it may 107, Public Acts of 1905. There is r
appear to the defendant and its customers, un- ent reason for savin tha F ss d d-
reasonable as to the plaintiff and the others *
whose lands are thus clandestinely sapped, and nalinr nn an er
their value impaired.' The principles thus th t t m
adopted in the F'orbell Case have been fairly up- fre do.what a nrvat w th
held in the courts of other states. Gagnon v. I d; I a lW l af
French Lick Springs Hotel Co., 163 I d. 687 m not 'l ntf
[72 N. E. 849, 68 L. R. A. 175]; Richmond Inh f hi n f Wti t it
Nat. Gas Co. v. Enterprise Nat. Gas Co., 31 Ind. 1 i ariat s ss I
App. 22 [66 N. B. 7S2]; Willis v. City of Per- V tha th fy have
ry, 92 Iowa, 297 [60 N. W. 727, 26 L. R. era
124]; Katz v. Walkinshaw, 141 Cal. 116 [70 nt t imperative that they secre
Pac. 663, 74 Pac 766, 64 L R. A. 2:6, 99 Am. It at the exps o those owi lands d-
St. Rep. 35.] The situation described by the n o nlangd own-d by th itv
complaint in this action is relatively of the same
general character as that with which the court [3] It does not follow that the city may not
dealt in the case cited. One proprietor by arti- reasonably make use, for the purpose in-
ficial and unusual methods has so increased the tended, of a large volume of water from this
flow of percolating waters and gas upon its land. I have stated the rule by which the
lands that it is obtaining a greatly increased
proportion of a common supply at the expense rights of the city and other landowners must
of its neighbors, and it is doing this in order be determined. Manifestly the city mu-t
to supply a public market for a portion of these take the chances of experience. The decrc'
products while the others are wasted. The only will not e reversed, and a injunction grant-
important feature distinguishing the cases is
the element of waste present in this one and ab- ed to plaintiff, although it should be so modi-
scut in the earlier one. If these facts, resting lied as to permit plaintiff hereafter to apply
now merely on the allegations of a pleading, to the court, upon the footing of the decrt.'
shall be established by evidence, the trial court and upon new matter, for equitable relief.
will in my opinion be fully authorized to draw e court cannot ,know what action the
the conclusion that they disclose a cse a of un- Te cut cannot know what action the
reasonable and improper conduct by the appel- fendant city will take in the premises. It is


(Mich.










CASE v. CITY OF SAGINAW


not now harming the plaintiff, and the decree
secures to him compensation for such actual
injury as he is shown to havo n1f fpred.
The decree, modified as indicated, will be
aCiruied, and no costs of this appeal will be
awarded to either party.
STONE, BIRD, and MOORE, JJ., concur-
red with OSTRANDER, J.
BROOKE, J. (dissenting). I am unable to
agree with the conclusion reached by my
Brother OSTRANDER in this case. Thi fi al
paragraph of his opinion leaves the door open.
to the defendant, the city of Ann Arbor, to
proceed with the erection upon its property
of an expensive pumping plant, use of which
may thereafter at any time be enjoined by
the court upon a showing that continuing
damage results to plaintiff through such use.
I think that the defendant should either be
permanently enjoined from proceeding with
the contemplated enterprise, at this time and
upon the testimony in this record, or that
injunctive relief should be denied, and the
decree of the court below affirmed, by the
terms of which plaintiff was awarded dam-
ages for such injury as has already occurred
and his right to recover for future damages
preserved.
Inasmuch as the right of the public to an
adequate supply of pure drinking water is
paramount to private property rights, I am
of opinion that the law in this state should
be clearly enunciated as follows: That any
municipality, requiring water for domestic
or municipal purposes, may, under the au-
thority granted by the Legislature, procure
such water from lands acquired by it for that
purpose and that the resulting damage, if
any, to adjacent landowners, must be borne
by such municipality; such damages to be
ascertained in gross and in a single action
at law by the injured landowner. These
views are not out of harmony with those ex-
pressed by the writer in the case of Loranger
v. City of Flint. 185 Mich. 454, 152 N. W. 251,
where the municipality was taking its water
from a navigable stream upon which it was
a riparian owner.
The decree of the court below should be
amended, to provide for the bringing of a
single action at law against defendant by
plaintiff for the recovery of his damages in
gross.
KUHN, C. J., and STEERE, J., concurred
with BROOKE, 3.


CASE v. CITY OF SAGINAW et al.
(No. 6S.)
tSupreme Court of Michigan. June 1, 1917.)
M~lUNcrIAL CORPORATIONS CeZl53lS)-SPECIAL
IMiOu\EME.N'1S-Srir TO ENJOIN LNSIA.LL-
MENT OF SiECIAL TAX ON TAX ROLiS.
In suit to enjoin the city asrsor of tlhe
city of Saginaw from spreading on the 1916 tax


rolls, against premises situated in the city, bid
ofl to the state for delinquent taxes for thl years
190). to 1910, (ieeded to the state by the Audlitor
generall in 1D14, and convoyed to plaintilt as
trustee by the commissioner of the state land
otlice in 1914, the 1916 installment of a special
sewer tax, the first instalhiint of which was
levied in 1912. and the 1010 installment of a
special sidewalk tax, the first installment of
which was levied in 1914, held that order dis-
missing the bill of complaint was proper (af-
firmed by divided court).
[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. 1193. 1205.]

Error to Circuit Court, Saginaw County,
in Chancery; Win. G. Gage, Judge.
Suit by Winfred L. Case against the City
of Saginaw, its Council and Assessor. From
an order dismissing the bill of complaint,
plaintiff appeals. Affirmed.
Argued before KUHN, C. J., and STONE,
OSTRANDER, BIRD, MOORE, STEERE,
BROOKE, and FELLOWS, JJ.

A. Elwood Snow, of Saginaw, for appel-
lant. Robert T. Holland, of Saginaw, for
appellees.

KUHN, C. J. This is an appeal from an
order dismissing a bill of complaint filed to
enjoin the city assessor of the city of Sagi-
naw from spreading on the 1916 city tax
rolls, against certain premises situated in
said city of Saginaw, the 1916 installment
of a special sewer tax, the first installment
of which was levied in 1012, and the 1916
installment of a special sidewalk tax, the
first installment of which was levied in 1914.
The premises in question were bid off to
the state of Michigan for delinquent taxes
for the years 1905 to 1010, inclusive, and on
January 28, 1914, were deeded to the state
by the auditor general. On August 18, 1914,
the commissioner of the state land office con-
veyed the premises to the plaintiff as trus-
tee, and plaintiff still retains the title. Dur-
ing the year 1911 the city of Saginaw caused
a sewer to be constructed in a street run-
ning along one side of the property, and an
assessment was made by the city against the
property and became a lien against it on
March 26, 1912. The assessment was not
paid, and the city divided it into ten equal
parts and spread same over a period of ten
years. At the time of the transfer of the
land to the state two assessments only had
been spread. During the year 1913 the city
caused a sidewalk to be constructed on a
street bounding this property, and an assess-
ment was made against the property for
this sidewalk which became a lien on No-
vember 15, 1913. The assessment was not
paid, and the city divided it into five equal
parts and spread the same over a period
of five years.
At the time of the transfer of the property
to the state there had been returned delin-
(quent state, county, and city -taxes :;iounit-


C -For other cases see same topic and KEY-NUMBEIi in all Key-Numbered Digests and Indexes


M'Ih.)




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