Title: Meeker v. City of East Orange - Court of Errors and Appeals of New Jersey, Nov. 15, 1909
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Title: Meeker v. City of East Orange - Court of Errors and Appeals of New Jersey, Nov. 15, 1909
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Publisher: 74 Atlantic Reporter
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Meeker v. City of East Orange - Court of Errors and Appeals of New Jersey, Nov. 15, 1909 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 21
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004458
Volume ID: VID00001
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G(ouyVd woi+u-


IIEEKER v. CITY OF EAST ol:ANG1E.


Shi law would be an act committed by a per-
,, without a license; that is, by one who
T r i'll a license which authorized such
S.. It would fall clearly within section 19
s tt~a act, heing a sale otherwise than as
I .i ,.'id blI the act, and an offense, and the
,.,-y 'one covered by the act, where no other
. .; penalty is therein provided.
T;;eret is a further reason for believing
,it.s the offense charged in this indictment
i z, a sale without license, and it is found
tl t.he fact that It was possible for the de-
t anut. being a retailer of goods, wares, and
I.-:eh:mdnlise, licensed to sell liquor in quanti-
S;(-s not less than a half gallon, to have tak-
t ,,"it an additional or special license, which
p,: have authorized him to sell in quan-
tuiiks less than a half gallon. If, therefore,
1- s.'ld in a quantity less than a half gallon,
tilhout obtaining a license to sell in such
hies quantity, he clearly sold without a li-
t.-:ase; that is, without such a license as he
rai--t have obtained, and which would have
auturorized the sale in less quantity than one
half gallon. Under our view of the question
-rcetnted, we have not found any of the au-
thorities cited helpful or in point The posi-
tion we have taken is certainly not in con-
lict or inconsistent with any of the cases or
dte isions referred to by counsel representing
the state.
We do not understand that the state relied
ipon section 11 of the second act above
mentioned as decisive of the question raised
tb the demurrer, but only as indicating the
Intention of the Legislature; the argument
being that the municipal court could not be
given jurisdiction of an offense where It had
not the power to impose the penalty provid-
ed for such an offense. It is sufficient to say
that, under our construction of the other
statute, section 11 becomes immaterial.
We hold that the offense charged in the
Indictment was a sale without license, and
therefore within the exclusive jurisdiction
M' the municipal court. The penalty to be
imposed would be such as the Legislature
provided should be imposed for such an of-
fense.
We are clearly and unanimously of the
Opinion that the demurrer should be sus-
tauned.

47 N. J. L. 623)
MEEKER v. CITY OF EAST ORANGE.
(Court of Errors and Appeals of New Jersey.
Nov. 15, 190.)
1. WATERS AND WATER COURSES ( 101*)-
I'P:COLATING WATERS-REASONABLE USER.
The "English rule" as to property rights in
pw-nalatinr underground water rejected. The
dt1rine of "reasonable user" adhered to.
:d1. Xote.-For other cases, see Waters and
n-Xatr Courses, Cent. Dig. 110; Dec. Dig. I
I*1..]


2. WATERS AND WATER COURSEs ( 101*) -
IPERCOLATINOG WATERSS -OWNRa'S RIGHTS-
REASONABLE USE.
A landowner hias not an absolute and un-
qualified property in all water that may be found
I'.-r.',.'l:vtn in his soil. to do what he pleases
with it, as wilth the sand and rock that form
part of the s..il. His right is to use such waters
only in a rw.ai.'n.bk- runner and to a reason-
able extent foir 'ii rown benefit, as in agriculture,
irrigation, n ii'.icturii, -. lInnIestic consump-
tion, and thie lik.. unl \. lthIi undue interifr-
ence with the rights of ot'flr landowner's to the
like use and enjoyment of waters percolating be-
neath their land, or of water courses fed there-
from.
[Ed. Note.-For other cases, see Waters and
Water Courses, Cent. Dig. 110; Dec. Dig. I
101.*]
3. WATERS AND WATER COURSES ( 105*)-
Pn1corajTIX WATERS-WlONGFUL USE-AC-
TION.
The defendant, a municipal corporation, for
the purpose of supplying its inhabitants with
water, acquired a tract of land and sunk there-
on a number of artesian wells, through which
it drew out percolating underground water.
which but for its interception would have reached
a spring, stream. and well upon plaintiff's land,
and also witliln-n rp-rtoiatiu; underground wa-
ter from beneath the surface of his land to such
extent as to damage his crops.
Held, actionable.
[Ed. Note.-For other cases, see Waters and
Water Courses, Cent. Dig. 1 113; Dec. Dig.
105.*]
4. WATERS AND WATER COURSES ( 105*)-
PERCOLATING WATERS-SALE.
Percolating underground waters may not be
withdrawn for distribution or sale, if it there-
by result that the owner of,adjacent or neigh-
boring land is interfered wit in his right to the
reasonable user of subsurface water, or if his
wells, springs, or streams are thereby materially
diminished in flow, or his land rendered so arid
as to be less valuable for agriculture, pasturage,
or other legitimate uses.
IEd. Note.-For other cases, see Waters and
Water Courses, Cent. Dig. 1 113; Dec. Dig. i
105.*]
(Syllabus by the Court.).
Error to Supreme Court.
Actions by Frank W. MIeeker against the
City of East Orange. Judgment for defend-
ant (70 Atl. 360), and plaintiff brings error.
Reversed.
Ralph E. Lum (Guild, Lum & Tamblyn, on
the brief), for plaintiff In error. Jerome D.
Gedney, for defendant in error.

PITNEY, Ch. Plaintiff brought two ac-
tions in one of the district courts of the city
of Newark to recover damages for the g r-
sion U the defendant f nvrlatinl, nrn r-
rdj r. In each case the district
court rendered judgment in favor of the de-
fendant, and upon appeal to the Supreme
Court the judgments were affirmed. By writs
of error the records are brought here for re-
view.
The cases were submitted to the trial
court upon agreed statements of fact. In
one case it is stipulated that i
and oeaute a farm of aboet Iiroo, in it-
uate In the valley of Canoe brook, in the


*' r other cases see same topic and section NUMBER In Dec. & Am. Digs. 1907 to date, & Reporter Indexes


- J,)







74 ATLANTIC REPORTER.


townships of Millburn and Livingston, in the
county of Essex. He is a milkman, and has
for a number of years used his farm for the
pasture and support of his cows and horses.
Canoe brook and two small streams tribu-
tary thereto flow through his farm. Upon
the farm there is also a s rin inclosed by
a springhouse, the wateroT which has for
years been used by the plaintiff for drinking
purposes and for the storing and keeping of
his milk. His cattle in pasture have for
years resorted to the brook and its tribu-
taries for drinking water. The defendant,
the city of East Orange, under the authority
of "An act to enable cities to supply the in-
habitants thereof with pure and wholesome
water," approved April 21, 1S76, and the acts
supplemental thereto and amendatory there-
of (P. L. 1870, p. 366; Gen. St. 1895, pp. 646-
650, 902-917), auir a tract of land con
taining about 080 acres sitnate in tha vnUlv
of and in the township of Mill-
urn, and intnllfd therann n WatOr ninnt
consitino of about 20 artesian wells, situate
former down the stream than nint., fs farm
and distant upwards of a mile therefrom.
In the construction of these wells, and of
the works, mains, and reservoirs connected
therewith, the city has expended more than
* $1.000,000. A few years prior to the com-
mencement of the action, the city bgato
take wa from t lls. -
en percolating underground water, which.


fie n irlrys nrlr
otlie-rthau Dercolati a.
en.dno w
ai-I mr r


eon ta cm out of any
aI the sorP of thl


plaintiff after t (the water) inas apniolearedu 1-
on te su ce or in any s na or tr am-

the diversion of the unerrou after tat
otherwise wou HaTe'aciud hi sprngi and

nthe other action the agreed statement
of facts differs only in that it shows the ex-
istence upon plaintiff's farm of a well which
for years had provided water for the va-
rious purposes of the plaintiff, and that =a
result of the defendant's operations it had
take-n nreolnifting undera-romi o n tr Whliih
otherwise would have reached this well, and
had also taken percolating underground wa-
ter from beneath the surface or soil of the
plaintiff's land to such an extent that his
crons will not now grow as they did former-
ly, and the taking of such percolating water
has daunineod thi nlinltiff's ha nnmd efrons
and aTsa has reduced the level L the water


in his well. or this diversion damages are

TriudJ ents under review are based up-
on the theory that the ltv las an absolute
13l to eannr iate all _ercoatin water
Found beneath the lnd owned hy it- and to
use tile w-ater for' np.,P., onth.iely unn-
nected with the beneficial use and ell y-
ment of that ladl, to the extent, indeed. of
maMng merchandise of the water anm con-


veying It to a -i.i for the 1,p o t
inabt itaof lastt Orange, and tat a..
lnil tY niil eon th nl= "'
spring. well, an strean are dried u., d
islag rendered 0oar 11as to u ai ei.
t is damnum absque injuria. Tle e eJi.
ments are attacked upon the ground th it
the law recognizes correlative rights in pr-
colatinsubterranean waters, that eac .
owner Iaentitle to use such waters onl i


Trij flPflAMirl T. I
undue iiterfereilc(
lrllowners toiMe


with the rish Of 01X
1IL-A nd -i- 0l~.,


or of
or of


water courses fed therefrom.
"Te Taw respecting the rights of property
owners in percolating subterranean waters
is of comparatively recent development; the
first English decision bearing directly upon
the question having been rendered in 1S3.
Acton v. Blundell, 12 M. & W. 324. 13 L. J.
Exch. 289. This was followed by Chasemore
v. Richards (1859) 7 I. L. Cas. 349, 29 L. J.
Exch. 81, 5 Jur. N. S. 873, 1 Eng. Rul. Cas.
729. These cases may be taken as establish-
ing for that jurisdiction the rule upon which
the judgments under review are based. They
were followed by a considerable line of deci-
sions in this country, in which the English
rule was adhered to, and which will be
found discussed in Washburn on Easements,
363-390; Angell on Water Courses, 1u9-
114p; 30 Am. & Eng. Encyc. Law (2d Ed.)
310-313. The soundness of the English doc-
trine was, however, challenged by the Su-
preme Court of New Hampshire in a well-
considered case decided in 1862 (Bassett v.
Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec.
179), where it was elnboratal- reasonsd that
the doctrine of absolute ownership is nt
well fonng in p-nl ninen., aa, is not
so commended by its practical application as
to require its adoption, that the true ruleJa
that. the rfihts of each oner hhan, Rmilr,
nnd their Aninrtmnt anonan',nt ..n.n .n tht-.
tinn .nf other lndwnairr .. t
be correlative and suiMet to thp aration

ldnw.~nzi iQ -.am t.iitel tpo. .n1)inable dx-

o f his o wn f r o l' r tv in m'onpi'^ h """*1.r
rizghU nftyers. This decision was followed
by Swett v. Cutts (1870) 50 N. I. 439, 9 Am.
Rep. 276, where the court again laid down
that the landowner has not an absolute ;an
unqualified property in all such water as
may be found in his soil, to do what he
pleases with it, as with the sand and rck
that form part of the soil, but that Il ijt
is to make reasonable use of it for domslinclr
agricultural and nianufacturin" nur. <'-i',
not trenchinig npon the similar rights of oth-
ers. The doctrine, thus enunciated, has cOie
obe known in the discussion of the topic as
the rule of "reasonable use."
The (question as to wiich of these contrary
rules obtains in this state has not been set
at rest by any previous adjudication in this


...llTI O YC^UIO4LIU^


(N. J.


.







MEEKER v. CITY OF EAST ORANGE.


c<.rt. In Ocean Grove v. Asbury Par:
) 40 N. 3.Eq. 4-7, 3 Atl. 10S, both par-
: .s ere scft1:iin a general supply of water
t r the respective summer resorts. Ocean
4:troe obtained by boring upon its own land
a supply of water for its inhabitants. As-
bury Park sought water by boring upon
, ands of third parties with the consent of
S t t latter. Vice Chancellor Bird refused an
jnnctlon upon the ground that subterra-
nean percolating waters are the absolute
property of the owner of the fee, citing the
~ctling English cases and some American
decisions that follow them. de
e u.,l. perhaps. have been based oP ii the
.,ctrine of reasonable use. because neither
MirtY was Droposln to confine its use of
waters to the eflelnIl |inymnt of
Aug In (I=rom which they were taken.
In 198 the case of Harper and Others
r. Mountain Water Co., 65 N. J. Eq. 479, 56
Atl. 27, came on to be tried at circuit be-
fire Chief Justice Magie, afterwards Chan-
cellor. Plaintiffs were millowners, and sued
the company for damages for abstracting wa-
ter from the sources of a natural stream
to the use of which they were entitled. The
evidence tended to show that defendant's
waterworks were so constructed and man-
eged as to withdraw water directly from
the head sources of the stream after this
:water had issued from the ground. It also
tended to show that percolating underground
water was abstracted, some of which would
and other would not, in the ordinary course
t4 nature, have come to the surface and
formed a part of the sources of the stream.
'The learned Chief Justice denied a motion
for nonsuit because of the evidence of the
abstraction by the defendant of water that
lad already come to the surface. With re-
blect to subterranean waters, he expressed
himself as being unable to see why the ab-
traction thereof was not an actionable
wrong, and expressed grave doubt, amount-
,>g to dissent, respecting the English cases
that deny the liability; but, deeming the
English rule established by the weight of au-
Uth:riiy, he declined to apply his own view
at nisi prius. Accordingly, in his instruc-
ti,'s to the jury, he ruled that the inter--
r'p'tion of percolating underground water
by the defendant's wells did not furnish a
cd;;rs of action, and confined the plaintiff's
I .1. :es to such as resulted from the dl-
'I -i-.u ro waters that had come to the sur-
0r,.. There was a verdict for tme platiti.,
M-fh was sustained by the Supreme Court
4'a rule to show cause; the court saying that
t!." ,l'ldfendant could not complain of the
iV hlid down by the trial judge respecting
.,ir liability. Plaintiff's successors in title
'aftrwards obtained an injunction to restrain
f.ilier diversion. Harper, Ilollingsworth. &
l ,r Co. v. Mountain Water Co., 65 N. J.
I:';. 479, Z Atl. 297. Vice Chancellor Emery
It !,is -oinion gives a resumi of the Chief
Jusice's instructions to the jury. His per-


sonal dissent from the English rule we have
taken from the report of the trial. It is
likewise referred to in the opinion of the Su-
preme Court in the case at bar.
The decision of this court in McCarter,
Atty. Gen, v. Hudson County Water Co., 70
N. J. Eq. 693, 65 Atl. 4S9, 14 L. R. A. (N. S.)
197, 118 Am. St. Rep. 754, had to do with the
diversion of the waters of the Passaic river,
and the v.ilidhiy of a statute that is designed
to preserve and maintain the lakes, ponds,
brooks, creeks, rivers, and streams of this
state, and prevent the waters thereof from
being carried by conduits into other states.
The dictum found on page 710 of 70 N. J.
lE., page 495 of 65 Atl. (14 L.. A. [N. S.]
117. 118 Am. St. Rep. .754), and quoted by the
Supreme Court in the case at bar, viz.:
"We may concede, for present purposes, that
subterranean waters, such as may be reach-
ed only by driving wells, when thus acquir-
ed, become absolutely the property of the
proprietor .of the soil, and may be dealt with
by him as nmerchandise"-.was, of course, not
intended as a decision that such is the law;
but, as the opinion shows, was conceded only
for the purpose of narrowing the discussion
by distinguishing the exact point that was
then before the court.
In the absence of any anciently estab-
lished rule of the English common law upon
the subject, and of any contrary decision in
this court, and in view of what will shortly
appear, that the decisions in other juris-
dictions are conflicting, with thereof
modern decisions in this colnrT ,v in
ra vor of nd4ntinI the during of rpnannnhlt


Vtj. *l Ha. *uH HrRP.,, ..mJ


to decide the cases at br in accordance with
sounv reaon anQ gne n0l0ncml or w

A irefreview of the leading English deci-
sions will not be out of place. Acton v.
Blundell (1843) 12 M. & W. 324, 13 L. J.
Exch. 289, held that a landowner has no such
right or interest in a subterranean water
course as to enable him to maintain an ac-
tion against a landowner who, in carrying
on mining operations upon his own land in
the usual manner, draius away the water
from the land of the first-mentioned owner
and lays his well dry. This decision might
well have been based upon the doctrine of
reasonable use; but it was rested upon the
absolute ownership, on the part of the mine-
owner, of all that lay beneath the surface
of his land.


In Dickinson v. Grand Junction Canal Co.
(1S32) 7 Exch. 282, 21 L. J. Exch. 211, the
defendant was a corporation operating a
navigable canal. It sunk a well upon its owin
land and placed over it a pump and steam
engine, whereby it pumped into its summit
level a quantity of underground water, a part
of which would otherwise have reached a
certain natural stream by underground flow,
a part would have reached the same stream
by underground percolation, and further


_- -n -1 ... -V.


. .J.)


- -IL. -_ 1h .


use,


---.. .








74 ATLANTIC REPORTER.


withdrew from the stream a portion of the
water flowing therein -which by means of
the operation of defendant's well and pump
was drawn off through underground perco-
lation. The plaintiffs, who were millowners
further down the stream, were In conse-
quence of defendant's operations prevented
from working their mills as beneficially as
otherwise they might have done. The Court
of Exchequer held that at common law the
company was liable to an action for ab-
stracting the water, which actually had
formed a part of the stream, by sinking the
well, and for abstracting water which never
had formed a part of the stream, but was
prevented from doing so in its natural course
by the excavation of defendant's wall, wheth-
er the water was part of an underground
water course, or percolated through the stra-
ta. The court distinguished Acton v. Blun-
dell on the ground that to maintain an ac-
tion in that case would be to limit the de-
fendant landowner in the full enjoyment of
his rights of property, while In the case pre-
sented the use of the ground water by the
defendant was disconnected from the bene-
ficial enjoyment of defendant's land.
In Chasemore v. Richards (1859) 7 H. L.
Cas. 349, 29 L. J. Exch. 81, 5 Jur. N S. 873,
1 Eng. Rul. Cas. 729, the facts were that
the plaintiff was the occupier of an ancient
mill on the River Wandle, that he and his
predecessors for more than 66 years had
used and enjoyed as of right the flow of the
river, and that the river was supplied above
the plaintiff's mill in part by the rainfall on
a district many thousand acres in extent,
comprising the town of Croydon and its vi-
cinity; the water sinking into the ground to
various depths and then flowing and perco-
lating through the strata to the river, part
rising to the surface, and part finding its
way underground in courses which continu-
ally varied. The defendant represented the
members of the local board of health of
Croydon, who, for the purpose of supplying
that town with water, sunk a well upon their
own land in the town and about a quarter
of a mile from the river, and pumped out
large quantities of water for the supply of
the town, thereby intercenting underground
water that otherwise would hay fmnits
way Into the river, and so to the plaintiff's
i. The question was whether the plain-
ff could maintain an action for this iter-
so abstration, and interception of the
underground water. Tihe Court of Excheq-
uer. upon the authority of Broadbent v.
Ramsbothnm, 11 Exch. 602. 25 L. J. Exch.
115. gave judgment for the defendant, which
was allirm~l by the Court of Exchequer
Chamber, 'Justice Coleridge dissenting (2
H Iur. & Norm. 168): the House of Lords af-
firmed the judgment under review upon
grounds that practically overrule the deci-
sion in Dickinson v. Grand Junction Canal
Co. The decision in Clhaemore v. Richards
has been treated as finally settling the law


for England, and has been followed or a-.
proved in numerous subsequent English c .n..
A few of the earlier American deec!i,.:;
may also be noted. In Greenleaf v. Fra1.
cis (1836) 18 Pick. (Mass.) 117, the Supreii..
Court of Massachusetts held that, in the
absence of rights acquired by grant or ad-
verse user, a landowner may dig a well on
any part of his land, notwithstandingHt l
thereby diminishes the water in his n14i-!h-
bor's well, unless in so doing he is aetnatte,
by a mere malicious intent to deprive b!N
neighbor of water. Although this case tI
sometimes cited as authority for the rut.
afterwards established in England, the rea-
soning of the opinion is consistent with thi.
doctrine of "reasonable. user." The samr
is true of Roath v. Driscoll (1850) 20 Conn.
533, 52 Am. Dec. 352. Wilson v. City ot
New Bedford (1871) 108 Mass. 261, 11 Am.
Rep. 332. Here the city had constructed a
reservoir from which water percolated un-
derground to the plaintiff's cellars about a
thousand feet distant, and prevented the
natural passage of water underground into
the natural stream on which the dam of the
reservoir was constructed. The court sus-
tained the plaintiff's right of action, cititn.
Chasemore v. Richards without disapproval.
but holding that the principle upon which
it is decided did not prevent the plaintiff
from having a recovery.
Chase v. Silverstone (1873) 62 Me. 17I.
16 Am. Rep. 419. held that a defendant wh-
dua a well on hiL nn Iannl in fomd faift
for the obtaining of water for his own d,-
mestlc uses was not liable to damam-es that
incidentally resulted to plaintiff by mean
of the diversion of water that ha been a:b
e:stomed to percolate or flow .n a nn-
known subterranean current into the plnn-
tiff's s rn. The decision is fully nJstifialV'
under the doetrtn. of 71 srpnmbi m r"
and, indeed, is so justified in the option.
But the court goes further and cites with
approval Acton v. Blundell, Chasemore .
Richards, and later English cases. But it
is-not too much to say that the rule adepteil
in Chasemore v. Richards, and the reasnnl"t
upon which it was rested, have not with
stood the test of time, experience, and n:1M-
pier discussion, and it is entirely clear that
the strong trend of more recent decisi',V In
this country is in the direction of a repnI,-
tion of the English rule and the adopti t o-f
the doctrine that there are correlative rirf
in percolating underground waters: thatnI"
landowner has the absolute ri-vlt to --'
draw these from the soil to the de(ri:'":'
or other owners, and sl limited to ra'
able uses.
The modern tendency of the courts tC w,;
shown in 30 Am. & Eng. Encyc. L.aw t2', "t'
title "Water and Water Courses," b'-''
after a full citation of the earlier c3''
the writer proceeds to say, a* P:r-k- ::i:
"'In the later cases the right of a I:.'l. .' C'"
to intercept and divert percolating w "i*"


N J.






MEEKER v. CITY OF EAST ORANGE.


has been subjected to some qualiflcatlons
on the ground that such rlght relates to the
bWnefltcal use of the waters or of the land
for some purpose connected with ordinary
op ,rations of agriculture, mining, domestic
use, or improvements either public or pri-
vate. Under this doctrine it has been held
that a landowner has no right, except for
the benefit and improvement of his own
premises or for his beneficial use, to drain.
collect, or divert percolating waters therein,
where such act will destroy or materially
iajure the spring of another, the waters of
which spring are used by the general public
(fr domestic purposes; that he cannot drain,
collect, or divert such waters for the sole
purpose of wasting them; that the owner
,if land cannot gather percolating water by
Ipmps or by natural means that it may be
carried to a distant place for use by or sale
to strangers having l o right to it, in a case-
where the inevitable result would be to
d!estroy a spring upon the land of an ad-
joining owner; and that a municipality has
no right by reason of its ownership of land
to collect percolating waters for distribu-
tlon to its inhabitants by means of wells
and pumps therein having such suction
power as to draw the percolating waters
from the surrounding land to a great dis-
tance, thereby rendering such lands unfit for
cultivation. So it has been held that d-
owner cannot pllpt Tl.rlflr.tir n7 at Ry
m-inas f atrtnn-- wyllj un 11 ane y
from his land for sale to a distant landown-
er. T the e urv oW = a neIls r Inand-
owners."
"Ttref review of some of the recent de-
cisions will suffice. The earlier cases in
New York repeatedly approved the rule as
laid down in Acton v. Blundell and Chase-
more v. Richards. Ellis v. Duncan (1S55)
21 Barb. 230, affirmed by Court of Appeals,
see 29 N. Y. 466, 45 N. Y. 303, 6 Am. Rep.
100; Goodale v. Tuttle (1864) 29 N. Y, 459.
4'6; Pisley v. Clark (1866) 35 N. Y. 520, 527,
t[ Am. Dec. 72; Village of Delhi v. You-
n:ias (1S71) 45 N. Y. 362, 6 Am. Rep. 100;
Phelps v. Nowlen (1878) 72 N. Y. 39, 2S Am.
Rep. 93; Bloodgood v. Ayers (1888) 108 N.
Y. 400, 405, 15 N. E. 433, 2 Am. St. Rep. 443;
VnY Wycklen v. City of Brooklyn (1800) 118
N. Y. 424, 24 N. E. 179. But most, if not
nll. of these decisions would be equally jus-
t.tids under the doctrine of "reasonable
I;w.r"; and in Smith v. City of Brooklyn
):,:1 160 N. Y. 337, 54 N. E. 787, 45 L. R.
-\. C.1, the Court of Appeals sustained an
Betln against the city for the diversion and
t:li'hiution of a natural stream upon the
rl'itiTfrs land, although it appeared that
th: was caused by the arrest and collection
1'1 r1'l~irground waters which fed thestream
1'- Percolation through the earth, and in
Ior "'ll v. City of New York (1900) 164 N.
Y. ;' 5~ N. 644, 51 L; R. A. 696, 79 Am.
'- l;rp. 066, the same court held that a
'uicipial corporation which, by the opera-


tion of a water system consisting of wells
irul pumps on its own land, lops the sub-
surface water stored in the lantl of an ad-
joining owner and in the contiguous terri-
tory, leads it to its own laud, anl by mer-
chandising it prevents its return, whereby
the value of the land of such owner is im-
paired for agricultural purposes, is liable to
him for the damages occasioned thereby.
The court In this case clearly rested its
judgment upon the doctrine of "reasonable
user." See, also, Reisert v. City of New
York (1903) 174 N. Y. 190, 66 N. E. 731.
City of Emporia v. Soden (1SS1) 25 Kan.
5SS, 37 Am. Rep. 205. The plaintiff had
erected and for many years maintained and
operated mills upon the bank of a river:
the power being furnished by a dam built
by him. The defendant city then erected
waterworks for municipal purposes and sup-
-plied them from this pond, drawing part
of the water directly through pipes which
led into the pond, and part indirectly by per-
colation into a well adjacent to the pond.
The plaintiff obtained an Injunction in the
district court restraining the city from tak-
ing water either from the pond or from the
well without compensation to the plaintiff.
Upon appeal the Supreme Court sustained
the injunction in both branches. The opin-
ion by Brewer, J., while apparently bow-
ing to the authority of Chasemore v. Rich-
ards so far as respects the interception of
water that otherwise would percolate to-
wards and into a stream, held that this casa
had etft Diickinson v. Canal Co. unquestion-
ed with respect to the abstraction of water
from a stream by percolation, basing this
distinction upon what was said by Lord
Hatherly in Grand Junction Canal Co. v.
Shugar, 6 Chan. App. 487.
Katz v. Walkinshaw (1902) 141 Cal. 116.
70 Pae. 663, 74 Pac. 766, 64 L. R. A. 236, 99
Am. St. Rep. 36, 64, held that the owner
of a portion of a tract of land which is
saturated below the surface with an abund-
ant supply of percolating water cannot re-
move water from wells thereon for sale, if
the remainder of the tract is thereby de-
prived of water necessary for its profitable
enjoyment Cohen v. La Canada Land Co.
(1907) 151 Cal. 680, 91 Pac. 584, 11 L. R. A.
(N. S.) 752, held (distinguishing Katz v. Wal-
kinshaw and other California cases) that
percolating waters may be taken for use of
land other than that where found, if this
can be done without injury to adjoining
owners.
Barclay v. Abraham (1903) 121 Iowa, 619,
96 N. W. 1080, 64 L. R. A. 255, 100 Am. St.
Rep. 365, held that, while a landowner has
a right to make such beneficial use of water
from underground reservoirs in the improve-
ment of his estate as he may choose, there
is no right to draw water from such under-
ground reservoir merely for the purpose of
wasting it, to the injury of other landown-
ers having equal rights to use and means of








74 ATLANTIC REPORTER.


access to it, or of maliciously depriving them
of its beneficial use.
Pence v. Carney (1005) 58 W. Va. 290, 52
S. E. 702, 6 L. It. A. (N. S.) 260, 112 Am. St.
Rep. 963, held that the owner of land who
explores for and produces subterranean per-
colating water within the boundary of his
land is limited to a reasonable and beneli-
cial use of such water, when to otherwise use
it would deplete the water supply of a val-
uable natural spring of another on adjoining
or neighboring land, and thereby materially
injure or destroy such spring.
Erickson v. Crookston Waterworks Co.
(1907) 100 Minn. 481, 111 N. W. 391, 8 L. R.
A. (N. S.) 1250, 10 Am. & Eng. Ann. Cas. 843,
held that the law of correlative rights ap-
plies to the use by adjoining landowners of
waters drawn from an artesian basin, and
that such proprietors must so use their wells
as not to unreasonably injure their neighbors.
Erickson v. Crookston Waterworks Co. (1908)
105 Ainn. 182, 117 N. W. 435, 17 L. R. A.
(N. S.) 050, was a second appeal after a sec-
ond trial of the case above, reported under
the same title. On the present occasion the
court reiterated the doctrine of "reasonable
user."
A review of the reasoning upon which the
English doctrine respecting percolating un-
derground waters rests will demonstrate, as
we think, that this reasoning is unsatisfac-
tory in itself and Inconsistent with legal prin-
ciples otherwise well established. Thus, in
Acton v. Blundell, 12 M. & W. Exch. 349,
Tindal, C. J., in undertaking to show the in-
applicability to percolating waters of the law
that governs running streams, declared that
the ground and origin of the law respecting
the latter would seem to be that the right en-
joyed by the several proprietors of the lands
over which they flow is, and always has been,
public and notorious, that the enjoyment has
been long-continued, and uninterrupted, and
therefore based upon the implied assent and
agreement of the proprietors of the different
lands from all ages, while underground wa-
ters, being concealed from view, there can
be no implied mutual consent or agreement
between the owners of the several lands re-
specting them; but," as has been since re-
peatedly pointed out, the right of the ripari-
an owner to the flow of a natural stream
arises ex jure naturms, and not at all from
prescription or presumed grant or acquies-
cence arising from long-continued user. See
remarks of Parke, B., in Broadbent v. Rams-
botham, as reported in 25 L. J. Exch., at page-
121; and remarks of Lord Wensleydale in
Chasemore v. Richards, 7 IL L. Cas., at pages
3S2, 383, 29 L. 3. Exch. S7, 1 Eng. Iul. Cas.
752, 753,. and cases cited.
Again, in Acton v. Blunell, 12 A & W.
351 h h-7TS hte l ""If a man who
sinks a well in his own land can acquire
by that act an absolute and indefensible right
to the water that collects in it, he has the
power of preventing his neighbor from mak-.


ing any use of the spring In his own soit
which shall interfere with the enjoyment ,,f
the soil." Obviously he failed to note tit
there is a mnilie ground n ynetwen the iv--


ana Me a Sence of any rih t the fhTr.
will recognize and protet The.
Mor ht f n tT.A ..--s..^
ights) i.n nr. IThe English rii:
ems to be rested at bottom upon the ni., .1,
"Cujus est solum. ejus est usque ad euN
et ad inferos." Thus, in Acton v. Blim:;t;1-
12 M. & W. 354, Tindal, C. J., said that t:~e
case fell within "that principle which ;rivr,
to the owner of the soil all that lies bee:fih
his surface; that the laud immediately i? .
low is his property, whether it is solid ro-!k.
or porous ground, or venous earth, or paIrt
soil, part water; that the person who ow.,,
the surface may dig therein, and apply all
that is there found to his own purposes at
his free will and pleasure." Here the Im-
practicability of applying the rule of ab-o-
lute ownership to the fluid, water, which ly
reason of its nature is incapable of being sut-
jected to such ownership, is apparently over.
looked. If the owner of Whiteacre is the ab.
solute proprietor of all the percolating wafer
found beneath the soil, the owner of the
neighboring Blackacre must, by the sa&mt
rule, have the like proprietorship in his own
percolating water. How, then, can it be ctu-
sistent with the declared principle to allow
the owner of Whiteacre to withdraw, by pmup-
ing or otherwise, not only all the pereola ti g-
water that is normally subjacent to his own
soil, but also, and at the same time, tthe
whole or a part of that which is normally
subjacent to Blackacre? Where percolatini
water exists in a state of nature generally
throughout a tract of land, whose parcels are.
held in several ownership by different pro-
prietors, it is, in the nature of things, 1a-
possible to accord to each of these proprlety-:
the absolute right to withdraw ad libitum a.l
percolating water which may be reachtel bY
a well or pump upon any one of the sev,'ra
lots, for such withdrawal by one owner ncu0
essarily interferes to some extent with t0i3
enjoyment of the like privilege and o,;q-or
tunity by the other owners,
Again, the denial of the applicability to un-


I derdyun wat~mo LM Urt


of law that obtain with reect to W ';.
on the surface of the earth is In Prt'. -1
upn thi mree diflnulty of nrovrin tdhec 1-1'
re~iccu= water that is onealed V.-r
bu f erince r en e in a Ir '
Fudo of caeqp that is difficult W 11 *,
redily solved. When it is solved in a 'Z"
ease, by the production of satisfactory I':''
this reason for the rule at once vanishf'.- it
is sometimes said that, unless the UWMZI*
rule be adopted, landowners will be ha;';
ed in the development of their Iproi'y ~t
cause of the uncertainty that wouli t'l!e- Lo'
thrown about their rights. It seems f'
that this reasoning is wholly faulty. If ,**


[








JOSLYN v. MOOSE RIVER LUMBER CO.


I:ngiish rule is to obtain, a minn may dis-1
Srver, upon his own land s!,riirs of great
v ,ne for medicinal purposes or for use in
.: -vial forms of ui;tiiufactnre, and may invest
; sums of money upon their dlevt't';). o t :
'et he is subject at any time to have tile nor-
S:)l1 supply of sucLh sprigs wholly cut of:
!'v a neighboring laudowivir, who ma;y wilh
Inipimiity sink de per wells and em;ploy nioro
lp.werful machinery, and-thus wholly drhaiin
the subsurface water from the land of the
first discoverer.
In the ease before us. the city of East Or-

plN cut off or 'telinfiv" imir .i hv thi es -
tailishment of deeper _ells and more pow-
erful pumps Upon som netghlr^- tr -
e Kljpon ltle tract owired by the plaintiif.
In short, under that rule mgiiht literally
ma ies rint. an. we nre rnmittitci to:
"The simple plan,
That they should take who have the power,
.And they should keep who can."
For a further elaboration of the grounds
upon which the English rule is open to criti-
cism, and upon which the doctrine of "rea-
sonable user" of subterranean percolating wa-
ters is supported, reference may be made to
the dissenting opinion of Mr. Justice Cole-
ridge, in Chasemore v. Richards, 2 H. & N.
188-195; to the judgment of Lord Wensley-
dale in the House of Lords in the same
case (7 H. L. Cas. 384-3S9, 29 L. J. Exch. 87,
SS. 1 Eng. Rul. Cas. 754-777); and to the
opinions in the recent American cases above
cited.
Upon the whole, we are convinced, not only
that the authority of the English cases is
greatly weakened by the trend of modern de-
cisions in this country, but that the reason-
ing upon which the doctrine of "reasonable
user" rests is better supopea upon general
prlnciles of law and mnri in consonnnce
with natural j t W nd ajnty. We there-
ore adopt the latter doctrine. This does
not preventthe nronr m v -


sil 'Mi?' t -
2a.0trak; nor 0 aLna.

or t

.00"t r iertea l~Y~ppieB~
the withdrawao

Pit ",n _belen Pmihnm~noyingutt
o tn

uo e het a or
a reasoea sus
a V Nvurinfs-'or


avluableforagrculture,pastage or
Oluer legitimate uses.


It results that the judgments of tel dis-
trict court and of the Suplreime Court. in'.:st.
ie roversecd, and since we have lc'efre us,
in t:Ci record of each judlnllent, an II'eed
si;o.ii 'l.lit of facts lhat includes all e.1e1tials
ipo,, which the rig'it of recovery dleitnls,
suchl statement of facts ought to be treated
;~s a special verdict. upon which lii votirt
will ;';der the same judgment that the trial
c;,.ur* ought to have reilered; that is. au
.rnirTative judgment that the plaintit' do
recover his damages. Sullivan v. Vi.nnti,
C, N. J. Law, 543, 531, 5. Atl. 5OS, allir.iecl
69 N. J. Law, 452, 55 Atl. 1133; Ileischiamun
v. 3i:,kcr, G(; N.. ,ITw, 353, 357, 5r. Atl.
:01; N:ition:ll Bank of N. J. v. Terall. 70
NX. J. Law, 75"7, 762. 5S Atl. 18O, Gt; L. R. A.
;;!)'). 103 Am. St. IRep. S21. But, since there
is :an absence of any finding or stipulation as
to the amount of the damages, a suit of in-
quiry should be awarded, and the record
remirted to the Supreme Court. to which
court npplicatioln should be made as to the
mode of executing the writ of inquiry.
(83 Vt. 49)

JOSLYN v. MOOSE RIVER LU1I'ERIL CO.
(Supreme Court of Vermont. Essex. Nov. 12,
190).)
1. CIrATTEL 3MonTGAGES ( 106*)--DEscrIP-
TION OF rPEOPEItY-AIDF BY PESUMPTION
OF OWNnEtSI1P.
In aid of the description in a chattel mort-
gage, it should be taikeu that mortgagor is the
wn er of the property he assumes to mortgage.
[Ed. Note.-For other cases, see Chattel Mort-
gages, Cent. Dig. 102, 10D; Dec. Dig. UU.*]
2. CIHATTEL MORTGAGES ( 47*)-DESCRIPTION
OF PnorpRTY-NECESSITY or LOCATION.
A most important element in the descrip-
tion of mortneged property is a statement of its
location, which should never be omitted.
[Ed. Note.-For bther cases, see Chattel Mort-
gages, Cent. Dig. 960; Dec. Dig. 47.*]
3. CIATTEL JMOITGAGES ( 47*)-DESCRIPTION
OF PiorERTY-EIRRONEOUS LOCATION.
IW'bere a mortgage did not locate the prop-
erty otherwise than by giving the residence of
moraotg r at a place in another state where
he formerly resided, it suggested an erroneous
location of the property, rendering the descrip-
tion ineffectual.
(Ed. Note.-For other cases, see Chattel Mort-
gages, Cent. Dig. 96; Dee. Dig. 47.*]
Exceptions from Essex County Court; Wil-
lard W. Miles, Judge.
Action by Frank R. Joslyn against the
Moose River Lumber Company. There was
a verdict and judgment for defendant, and
plaintiff excepts. Judgment reversed.
Argued before MUNSON, WATSON, HAS-
ELTON, and POWERS, JJ.
Howe & Hovey, for plaintiff. Guy W.
Hill, for defendant.

HASELTON, J. This was an action of
trover for a horse. The general issue was
pleaded. Trial by jury was had, and verdict
and judgment were for the defendant.


*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes,
74 A.-25


, j. m ja-) ln~l llnrn ml




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