Title: Huber v. Merkel - Supreme Court of Wisconsin, April 17, 1903
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Title: Huber v. Merkel - Supreme Court of Wisconsin, April 17, 1903
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Publisher: 94 Northwestern Reporter
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Huber v. Merkel - Supreme Court of Wisconsin, April 17, 1903 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 35
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Full Text


94 NORTHWESTERN REPORTER.


such- property is in the custody of the court
is no justification." Page 512, 110 Wis., and
page 245, 86 N. W. And, again: "In no
case, save as costs are taxable by statute,
should a fund belonging to one litigant be
depleted to pay the expenses of his antag-
onist, either directly or indirectly, in the
form of allowance to a receiver or other
trustee." Page 520, 110 Wis., and page 248,
86 N. W.
The judgment of the circuit court is re-
versed, and the cause is remanded, with di-
rection to affirm the judgment of the county
court, and for further proceedings according
to law.

(117 Wis. 355)
HUBER v. ERK =
(Supreme Court of Wisconsin. April 17,1903.
WATERS ARTESIAN WELLS PERCOLATING
WATERS-RIGHTS OF WELL OWNERS-WASTE
-POLICE POWER-CONSTITUTIONAL LAW-
DEPRIVATION OF PROPERTY.
1. Where, in an action to restrain the wast-
ing of water from an artesian well, which
lessened the flow in wells of adjoining property
owners, it was proved that artesian wells were
obtained from an area over 21 miles in width
by 5 miles in length, and that water was ob-
tained either in a stratum of limestone or sand-
stone, and that when water was struck the drill
bit rested on the bottom of the well, and there
was no sudden drop of the drill, a finding that
the water was supplied by a subterranean
stream having a well-defined channel was er-
roneous.
2. Where defendant's artesian well was sup-
plied by percolating water from a pervious
stratum of rock between two impervious stra-
ta, the water-bearing stratum being inclined,
and coming to the surface at some distance
from, and at a point higher than, the well, and
the water flowed down such inclined stratum
until it reached an obstruction, the owner of
such well was not liable for wasting the water,
though his acts in so doing stopped the flow
of other like wells of adjoining property own-
ers.
3. Laws 1901, p. 502, c. 354, provides that
where there are two or more artesian wells in
any vicinity, one or more of which are operat-
ed, the owner of such well shall use due care
to prevent such waste of the water flowing
From the same as will unnecessarily diminish
the flow of water in any other artesian well in
the same vicinity, and that any person who
shall needlessly permit such well to discharge
more water than is reasonably necessary for
his uses, which shall materially diminish the
flow of other artesian wells, shall be liable for
damages therefore. Held, that such act was not
a valid exercise of the state's police power.
4. Such act was unconstitutional as to own-
ers of wells deriving their supply from perco-
lating waters, as, in effect, taking private prop-
erty for private use without compensation.
Appeal from Circuit Court, Waukesha
County; James J. Dick, Judge.
Suit by Ulrich Huber against Andrew Mer-
keL From a decree in favor of plaintiff, de-
fendant appeals. Reversed.
This is an action In equity, brought by the
owner of certain real estate, to restrain the
defendant, who owns real estate in the vicin-
ity, from wasting or unreasonably using the
water from certain artesian wells upon the
defendant's land, on the ground that such

A6roturE o0NWtt HI?-


use interfered with the flow of water from
the plaintiff's artesian well, situated on his
land. The action was tried by the court, and
findings were made in substance as follow;
That plaintiff and defendant are farmers, adl
reside upon and own farms within half
mile of each other in the town of German.
town; the plaintiff's farm being about 20
feet higher in elevation than the defendantur
That the plaintiff has an artesian well on hle
farm, bored in the year 1899, and the defend
ant has two such wells upon his farm, bore
in 1899 and 1900, respectively, which he l.
lows to flow continuously. That within the
immediate vicinity of plaintiff's and defend-
ant's farms, and within an area of 2, mila
wide by 5 miles in length, which is the only
area within which such wells can be obtain.
ed, there are 30 such wells, which are owned
by farmers, and which receive their supply
from the same subterranean stream of wa
ter, and that each of such wells gave an am.
ple supply of flowing water for ordinary
household, domestic, and farm purposes t:n.
til the defendant maliciously allowed !:L
wells to flow to their full capacity. That t!*e
defendant uses some of the water from h:s
wells to supply a fishpond on his laud. Tbit
he sells some, and intentionally and mali-
clously wastes the remainder by allowing It
to flow and soak into the ground. That the
water in the plaintiff's well is affected by th
use which the defendant makes of his wel;
rising when defendant's wells are stopped.
and falling when they flow. That the water
in all of said wells stands at the same lerei
when they are in a state of rest, and that
said subterranean stream is only capable at
furnishing sufficient water for ordinary
household, domestic, and farm purposes to
those who own the said wells. That the de
fendant has rendered it impossible for the
plaintiff to have any reasonable use of his
well, and has compelled him to pump water
for his ordinary needs, and that all of the
artesian well owners In the vicinity, except
the defendant, have so arranged their well
as to regulate their flow. Upon these faca-
the court adjudged that the defendant be m
strained from wasting the water from bli
wells and using the same for other than ordi,
nary household, domestic, and farm purpuow5
and that he so arrange his wells as to pre-
vent the escape of water above the surfasc
of the ground, except when in actual use, anX
so manage them as not to permit the escape
of any more water than is necessary for ondl-
nary household and farm purposes. From
this judgment the defendant appeals.
Nath. Pereles & Sons and Chas. E. Robt
son (G. D. Goff, of counsel), for appellant
Barney & Kuechenmeister, for respondent.

WINSLOW, J. (after stating the fac*sJ
The principles of the common law reguiatLaS
the rights of landowners in subterranean w1
ters are well understood. If the waters ik'


Cr Yifl d*~ivi* uVWLtJWA107ieJn.


I








HUBER v.


I percolate through the ground. without
Site channel they belong tn the_ reItv Jn
Tch they are found, and the owner of the
il may divert, consume, or cut them off
w!-h impunity. If, on the other hand, the
subterraneann waters flow in a defined chan-
;el, the rules which govern the use of sur-
face streams apply; but the presumption is
:hat the waters are percolating waters until
it is shown that they are supplied by a defi-
nite, flowing stream. Gould on Waters,
s'.o 281, and cases cited. In the present
case the trial court found that the water
which supplies the plaintiff's and defendant's
wells comes from a "subsurface supply and
stream of water," or, as it is called in an-
other place in the findings,. "a subterranean
stream of water." If, as we assume, this
finding means a subterranean stream with
defined channel, as distinguished from mere
percolations through a porous stratum of earth
or rock, then the judgment may be sustain-
ed upon this ground alone, if such finding is
sufficiently supported by the evidence. This,
therefore, is the first question to be consid-
ered.
It appears by the evidence that in the town
of Germantown, Washington county, there is
an area about 2 miles in width by 5 miles
In length, within which artesian wells may
successfully be drilled, and flowing water
reached at a depth of about 200 feet, and in
which there are now about 25 such wells, in-
cluding the Wells of the parties; that most,
if not all, of these wells, when first drilled,
were flowing wells. but that as mnre wplls
have been bored the flow f wl nn
hli-hor grind (of which the plaintiff's is
one) has become Irreular, but that water
can always be obtained by pumning; that
defendant's wells are in the lower part of the
basin, and hence will flow when those on
higher ground will not; that nearly or quite
all the well owners have caps or plugs on
their wells, so arranged as to check the flow
when the well is not in use, but that the de-
fendant allows the water to flow freely -or
the greater part of the time; that, when one
of the wells in the region is allowed to flow
continuously no perceptible effect is imme-
diately observed upon the laintiff's welL bunt
t after about 24 hours of flowing the wa-
ter begins to recede materially; that when
water was struck in defendant's second well
the plaintiffs supply began to fall off, and in
about three weeks it ceased to flow over the
top. From the testimony of a number of ex-
perienced artesian well drillers in the region,
one of whom drilled the wells of the parties
to this action, it appeared that in most, if not
in all, of the wells, water was obtained ei-
ther in a stratum of limestone or a stratum
of sandstone, and that when water was
struck the drill bit rested upon the bottom
of the well. There was no evidence that
there was any sudden drop of the drill when
|water was reached.
The foregoing statement covers all the ma-
I
L,


MERKEL. 855

terlal facts in evidence which tend to throw
light upon the sources or nature of the wa-
ter supply in the Germantown wells. It I
impossible for us to see how these facts ius-
tify the conclusion that there is any defined
subterranean stream which sunplies the
wells of the parties. The conclusion is irre-
sistible from the facts stated that all the
wells draw their supply from a stratum of
porous rock, either of limestone or sandstone,
which lies in an inclined position, and comes
to the surface at some distant point, where
it receives its water supply; that this porous
rock is located between impervious rocks
above and below, and probably ends or is
cut off at one edge of the Germantown dis-
trict, thus forming a basin or pocket, which,
when pierced by the drill, sends water to the
surface in obeyance to natural laws too well
known to require statement. Were there any
doubt of this conclusion from the evidence,
scientific knowledge on the subject of the
sources of artesian wells in general, and the
artesian wells of Wisconsin in particular, is
now so complete and certain as to leave no
room for doubt, and of such facts courts
may take judicial notice. It has long since
become a matter of common scientific knowl-
edge that the ordinary artesian well derives
its supply from a pervious stratum of rock
imprisoned between two impervious strata of
earth or rock, the water-bearing stratum be-
ing inclined, and coming to the surface at
some distant and higher point, called the "In-
take," where it receives the water, and that
the water percolates with greater or less
rapidity along and through the inclined stra-
tum, obedient to the law of gravity, until it
reaches some obstruction so as to be im-
prisoned, in which event, if the stratum be
pierced, water will rise in a tube by hy-
drostatic pressure, -due to the greater height
of the intake. The idea that there are vast
subterranean channels or caverns, in which
artesian waters flow like a river, has been
long since abandoned. These are matters of
common scientific knowledge. Vol. 1, Geolo-
gy of Wisconsin; Chamberlain, p. 689; U.
S. Geological Survey 1885, pp. 1.25 to 173;
vol. 6, Iowa Geological Survey, p. 127.
Thus in the present case both the evidence
and well-established scientific knowledge
agree as to the source of the water supply
of the wells in question. That source is not PiBL I0U1
a stream or river, with defined channel, but
an inclined stratum of porous rock, which may
be many miles in extent, saturated with water
which percolates gradually from the intake
along and through the stratum until stopped
by the termination of the porous formation,
where it forms an accumulation. In no prop-
er sense can such water be called a stream
with a defined channel. The word "defined"
here means a contracted and bounded chan-
nel. Kinney on Irrigation, 48. It is not
meant by this that there must be an open
channel or fissure in the rock, through which
water flows freely and rapidly, in order that






94 NORTHWESTERN REPORTER.


there may be a defined subterranean stream
(such channels are rare, if in fact they ever
exist), but simply that the water, whether
moving slowly or rapidly, and whether pass-
ing through sand or gravel or porous rock,
must have the characteristics of a stream, in
that it has a course, and a channel with defi-
nite bounds. Such subterranean streams
doubtless exist, especially in sandy regions,
where surface streams at times disappear and
pursue their courses underground for long dis-
tances, and finally return to the surface again;
but the waters in question in the present case
have none of these characteristics, and hence
must be held to be strictly percolating waters.
An exhaustive discussion of the general sub-
ject of the distinction between subterranean
streams with defined channels and mere per-
colating waters will be found In 67 Am. St.
Rep. 659, as a note to the case of Wheelock v.
Jacobs, 70 Vt 162, and may be consulted with
profit
Counsel for the plaintiff frankly admit that
the weight of authority that the owner of
soil may deal with percolating water as he
may see fit, but they claim that there are
some modifications of the rule applicable to
the present case, and the cases cited, in sup-
port of this contention will be briefly noticed.
First among these cases are Basett v. Mfg.
Co., 43 N. H. 569, 82 Am. Dec. 179, and Swett
v. Cutts, 50 N. H. 439, 9 Am. Rep. 276.
These cases, indeed, reject the principle that
a landowner may dispose of percolating wa-
ter as he chooses, and adopt the principle
that the landowner's right in percolating wa-
ters is no greater than his right in running
streams; but they stand nearly or quite
alone n that position, and it is admitted in
the opinion in the first case cited that the
great weight of authority is the other way.
We cannot follow them, in the face of the
well-nigh universal consensus of judicial
opinion to the contrary. The cases of Hart
v. Jamaica Pond Aqueduct Co., 133 Mass.
4S8, and Forbell v, City of New York, 164 N.
Y. 522, 58 N. E. 644, 51 L. R. A. 695, 79 Am.
St Rep. 660, are also relied on as modifying
the general rule. In the first of these cases a
bill in equity was filed, in which it was char-
ged that the defendant, which was a corpora-
tion authorized by law to condemn land to
enlarge a pond upon its own land, and con-
struct a dam thereon for the purpose of ac-
cumulating water in the pond for aqueduct
purposes, had condemned for that purpose a
parcel of the plaintiff's land, the plaintiff still
remaining, however, the owner in fee of the
parcel, and also of adjoining lands, and of
valuable water rights and privileges imme-
diately below the land so taken; that the cor-
poration had commenced to sink a well and
erect powerful pumping machinery upon the
land condemned, for the purpose of supply-
ing water to its customers; and that by these
acts the plaintiff's lands and water rights
would be seriously impaired in value, by the
tapping and drawing off of the underground


sources of supply of said water right and
privileges. Upon demurrer the bill was held
to state a good cause of action. The court
said, in substance, that the question ws
not what might be the rights of the plaintiff
as against an owner of adjoining lands, vb,
by digging wells or by lawful use of hi.
land, intercepts underground currents of w&.
ter to plaintiff's injury. This may be dam.
num absque injuria. The defendant is not
the owner of adjoining land, but has only aa
easement therein for certain purposes, the titl
being in the plaintiff; and its threatened acts
are illegal, because they exceed its power
and hence it stands in no better position
than a stranger creating a permanent nna
sance on the plaintiff's land. In the second
case named it appeared that the city own.
ed two acres of land adjoining certain arit.
cultural lands of the plaintiff, and that it
sunk wells and pumped and sold water there
from, thereby draining the plaintiff's land of
its natural water supply, and thereby made it
unfit for cultivation, and destroyed plainatit
business. It was held that the rule that the
extraction of percolating water was not ac-
tionable would be adhered to, but that where
adjoining land is impaired for agricultural
purposes an injunction should be granted.
It will be noticed that in each of the above
cases the court is careful to recognize the
principle that the owner of lands may use
percolating waters without liability to an ad-
joining owner. The Massachusetts case. in
effect, holds that the defendant there was not
an owner of land, and had no right to use the
land in that manner, and hence was liable.
while the New York case seems to hold that
the extraction of underground percolating
waters, which simply affects the flow of such
waters on adjoining lands, is lawful, but. It
it impairs the land itself for use in agricul-
ture, it is wrongful. Whether the reasoning
in the latter case is entirely satisfactory or
logical may be doubted, but, in any event, it
is plain that neither case in any way touches
the case at bar. In the present case the
defendant has sunk a well on land which he
owns in fee, and there is no claim thatit Ita--
any way affects the quality of the plainttsf
land for use in agriculture. Again, the re-
spondent cites the case of Greenleaf v. Fra-
cis, 18 Pick. 117, where the principle stated
was that a man may lawfully dig a well on
his own land where convenient, notwith-
standing he thereby diminishes the water in
his neighbor's well, unless in so doing he is
actuated by mere malice; and, as recogni2-
ing the same principle, the respondent al.o
cites Wheatley v. Baugh, 25 Pa. 528, 64 Am.
Dec. 721; Roath v. Driscoll, 20 Conn. 5-j.
52 Am. Dec. 352; and Chesley v. King. 74
Me. 164, 43 Am. Rep. 569. This court has
recently and distinctly held that the exercise
of a property right cannot be affected or cur-
tailed by a malicious motive. Metzger V.
Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L
R. A. 305, 81 Am. St. Rep. 841. Lastly, 1







HUBER v.


this connection, the respondent cites two
cases from Iowa, viz., Burroughs v. Satter-
lee. 25 N W. 808, 56 Am. Rep. 350, and Willis
v. IPerry, 60 N. W. 727, 26 L. R. A. 124, as
justifying In some degree the contention
made here; but, on examination of those
cases, it will be seen that in both of them it
was found as a fact that the conflicting wells
tapped an underground defined stream of wa-
ter and hence they were properly governed
by the law applicable to surface streams.
From this brief review of the law and the
cases relied upon as modifying the ancient
common-law rule as to percolating waters,
it seems clear that it must be held that
the appellant had a clear right at common
law, resulting from his ownership of land, to
s!nk a well thereon, and use the water there-
from as he chose, or allow it to flow away,
regardless of the effect of such use union
his neighbors' wells, and that such right is
not affected by malicious intent. Whether
this rijht results from an absolute owners
of the water itself, as stated in soae of ths
authorities. or from a mere right to use and
dvert the water while percolating through
the soil, is a question of no materiality in
the present aisensonn. in either event, it
isa property right, arising out of hi3 owner-
sl o the land. and is protected by the
common law as such.
Tlhe respondent, however, relies upon the
provisions of chapter 354, p. 502, of the Laws
of 1901; and it must be admitted that, under
the findings of the court, the judgment in this
case is justified by the terms of that law.
The first section of the law in question pro-
rides that "Where there are two or more
wu: artesian wells in any vicinity or neighbor-
hood. one or more of which are operated or
used by any person or owner, the person p
owner of such well shall use due care and dili-
gence to prevent any loss or waste or unrea-
Sonable use of any water therein contained
or flowing from the same, as would deprive
or unnecessarily diminish the flow of water
In any artesian wall. to the injury of the
owner of any other well in the same vicinity
or neihhborhood." The second section pro-
rides that "any person who shall needlessly
allow or permit any artesian well owned or
operated by him, to discharge greater quanti-
ties of water than is reasonably necessary for
the use of such person so as to materially di-
minish the flow of water in any other arte-
sian well in the same vicinity, shall be liable
for all damages which the owner of any such
other well shall sustain." The validity of this
act s denied b the appellant on the following
grounds: (1) That it eprves the owner of
property without due process of w; (2)
that it is the taking of property for private
use and without compensation; and (3) that
it is special legislation. On the part of the
respondent it is claimed that the Legislature
has a right to relate the manner of using
S water, and that such regulation does not in-
terfere with vested property rights; also that


MERKEL. 857

the act is valid as an exercise of police power.
We have seen from the previous discussion
in this opinion that the right of a landowner
to divert, appropriate, and use percolating
ater.s a hea see fit h l sen rl- h..n


nized by the common law as a right of prop-
ety attached to the ownership of the soil,
aid enforced as such. In this state, both by
the Constitution and judicial decision, it is
settled that those parts of the common law
which were in force at the time of the adop-
tion of the Constitution, and were not incon-
sistent therewith, remained in force until
changed by the Legislature. Const. art. 14,
13. Coburn v. Harvey, 18 Wis. 147. The
parts of the common law which were in
force at the time of the adoption of the Con-
stitution, and which have thus been recogniz-
ed as remaining in force, were such parts as
were reasonably applicable to our situation
and government. Coburn v. Harvey, supra.
Where nrliate nroenrty rights were fnnrlpd
upon, and preserved by any part of. the
common law so in force, they could not he
taken away or impaired by moree ig aintive
enactment, but only for public purposes, by
the exercise of eminent domain, or by the
exercise of the police power for the protec-
tion of the public. It is true that in many
of the extreme Western states and territories,
where mining interests are of the first impor-
tance, or where the land is arid or semiarid,
on account of deficient rainfall, it has been
settled that the common-law rules as to the
use of surface streams and subterranean wa-
ters do not prevail, and that it is competent
for the Legislature to provide for the appro-
priation of surface or subterranean waters
for purposes of mining or irrigation; and
hence in those states there have grown up by
statute or decision or both, systems of law
contravening the rules of common law as
stated in this opinion. Atchinson v. Peterson,
20 Wall. 507, 22 L. Ed. 414; Yunker v.
Nichols, 1 Colo. 551; Smelting Co. v. Steven-
son (Nev.) 21 Pac. 317, 4 L. R. A. 60, 19 Am.
St. Rep. 364; Jones v. Adams (Nev.) 6 Pac.
442, 3 Am. St. Rep. 788; Laws Kan. 1891,
p. 223 et seq., c. 133. These systems, how-
ever, are all based fundamentally on the
proposition that the common-law rules are
not applicable to the conditions prevailing
in those territories which are widely differ-
ent from the conditions which prevail in
England, or in those parts of this country
where the rainfall is normal, and irrigation is
not recognized as a prime necessity. In this
state it has never been recognized that any
such exceptional conditions. prevail as has
been held to be the case in the regions men-
tioned. Moreover, it has been recognized in
a long line of cases, too numerous and fa-
miliar to need mentioning, that the common-
law rules as to the use and disposition of
water have always prevailed. Most of these
cases relate to surface streams or surface
waters, but in Case v. Hoffman, 100 Wis. 314,
75 N. W. 945, 44 L. R. A. 728, the rule as to


r~-- c







94 NORTHWESTERN REPORTER.


percolating waters was stated as the un-
doubted law. So it seems inevitable that in
this state, at least, the right of a landowner
to sink wells and gather and use percolating
waters as he will even thnnrh the flow in
his neighbor's well be diminished. is a prop-
erty right, which cannot be taken away from
him or Impared by legislation, unless by way
of the exercise of the right of eminent domain
or by the police Dower.
As the law in question is in no sense a con-
demnation law, the only question remaining
is whether it may be sustained as a proper
exercise of the police ower. The police pow-
er is a broad and comprehensive power, by
which the rights of an individual, both as to
his liberty and his enjoyment of property,
may be curtailed in the interest of the public
welfare, but it is not easy of accurate defini-
tion. Where laws which are supposed to be
enacted in the exercise of the police power
interfere with the citizens' liberty or rights
of property, they can only be justified upon
the ground that they in some manner secure
the comfort, safety, or welfare of society.
It is on this principle that drainage laws are
sustained. Donnelly v. Decker, 58 Wis. 461,
17 N. W. 389. And conversely, if it appear
from the law itself that its purpose is pri-
marily to benefit private owners, they are
condemned. In re Theresa Drainage Dis-
trict, 90 Wis. 301, 63 N. W. 288. It must ap-
pear that the interests of the public general-
ly require the restriction, and not the inter-
ests of private individuals. State ex rel. v.
Kreutzberg, 114 WIs. 530, 90 N. W. 1098, 58
L. R. A. 748. We find ourselves unable to
comprehend how, under these principles, the
law in question can be sustained as an exer-
cise of police power. It does not even pre-
tend to conserve any public interest. Upon
its face. Its purpose is to promote the welfare
of one citizen, by preventing his neighbor
from using his own property. We are aware
that questions of a somewhat similar nature
have arisen with regard to laws preventing-
the waste of natural gas in Indiana, and have
received different treatment Townsend v.
State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A.
294, 62 Am. St. Rep. 477; State v. Ohio Oil
Co., 150 Ind. 21, 49 N. E. 809, 47 L. R. A.
627. The statutes under consideration in
these cases were both criminal statutes; the
first declaring the use of natural gas in flam-
beau lights to be wasteful and extravagant
and dangerous to the public good, and making
such use a misdemeanor; the second declar-
ing it to be unlawful for any person having
possession of any natural gas or oil well to
allow the gas or oil to escape into the open
air for a longer period than two days after
the gas or oil shall have been struck in the
well. The first of the cases above cited was
a criminal, prosecution under the first of the
above-named laws. A conviction was affirm-
ed, and it Is said in the opinion that it was
agreed on both sides that the act was an ex-
ercise of the police power of the state. It


was further said that the question whether
a statute encroaches upon the natural right
of the citizen is a legislative, and not a judii
cial, question, and that the courts cannot ove~
throw it on that ground; also that when t'e
Legislature had inquired into the fact, and
determined that the burning of natural ga
In flambeau lights is waste, that determine.
tion is binding on the courts. Upon these
premises the result seems easy to reach,. but
the difficulty is that the courts of this sttan
do not proceed upon the principle that ate
native determination that an act does not
encroach upon the rights of a citizen e
the question, and prevents the courts from-
passing upon it. In the second of the cns
last cited the action was brought by the At.
torney General, in behalf of the state, to en.
join the defendant from allowing gas to es.
cape into the open air in violation of the see
ond act named. The complaint was volume
inous, and showed that a large portion of the
people of the state, and many large man-
facturing institutions, were dependent upon
natural as or a fuel suply and at t
state itself and many cities and counties bad
equipped their public institutions and buai
wings for the use of such gas; that the suppir
Was such that, if husbanded and protected.
it would last for many years, and increase
the comfort and happiness of the people at
large; that the defendant had drilled several
wells, and permitted large quantities of ,as
to escape, in violation of the law, and thrat-
ened to continue such course, and to dri3
other wells and to allow the gas to esclap
therefrom; that, if allowed to continue it
such course, the supply of gas upon whic
the citizens of the state depended would be
diminished and finally destroyed; that the
statutory penalties were inadequate: ad
that the'damage would be Irreparable. Upo0
demurrer this complaint was held to state a
good cause of action; the ground being taak
that the law was not an unwarranted Inuttv
ference with private property, because-tlt
gas did not become private property unat
reduced to possession, and that the pUMl- -
interest in the supply of natural gas wa_ '
great and direct that its waste was a Aunh:e
calaml and amounted to a public nuisa
waich the state had a right to have auai
by injunction. It seems clear that, even it
the reasoning of these cases could be full
approved, they do not bear very directly 0P
on the question before us. It does not foll@o
that the court would apply the same rules
subterranean percolating waters, whica sr
constantly being renewed. that it doeS~

renewed. It is to be noticed, also. that r"
helaws are framed to protect public tr
and interests, and not private rights, n t
both judgments are based on the gro1 _C
great Injuryto public coM or roe
and welfare. Thie last case cited wIs 0FM7
to the Supreme Court of the United Sc2"w
(Ohio Oil Co. v. Indiana, 177 U. 8&. 19. :







STATE v. WHARTON.


Sup. Ct. 576, 44 L. Ed. 729), and the judgment
below was affirmed; the reasoning being that
the supply of gas in the rounds the co-
mon per a owners of the sur-
face, and that one of the common owners
ma rhtfully be prevented from wasting
the common property to the annihilation of
the rights of the rpmanint nwng~rE However
sound this principle may be as applied to
natural gas or oil, we have failed to findan
authority in the book that hnldf that nperC-
lating waters 1I the round are the common
property of surface owners. On the other
hand, the holdings are 'unanimous to the ef-
fect either that such water is the absolute
property of the landowner in whose land it
happens to be, or that the right of the land-
owner to use or avert it while in his land is
an absolute right. Another Indiana case
M(rs. uas, etc., Co. v. Indiana Co., 155 Ind.
461, 57 N. E. 912, 50 L. R. A. 768) is in-
structive on this subject, because it draws a
distinction between natural gas and subter-
ranean waters, which, if well founded, de-
prives all the foregoing cases on the subject
of the control of the use of natural gas of
any significance as applied to the use of sub-
terranean waters. This is an action in eq-
uity by one property owner against another,
in which the complaint alleged that the de-
fendant, by pumping and using other artifi-
cial devices in its wells, was increasing the
natural flow of gas in its wells, and thus
greatly diminishing the pressure in the un-
derlying gas reservoir, and that as a result a
great body of salt water would enter the gas
reservoir and ultimately destroy the plain-
tiff's wells. This complaint was held to state
a good cause of action. In the opinion the
court said that, if gas could be dealt with as
subterranean waters, there would be little
difficulty in determining the rules by which
the rights of landowners should be governed.
"But the difference between natural gas and
underground waters, whether flowing in chan-
nels or percolating the earth, is so marked
that the principles which courts apply to
questions relating to the latter are not adapt-
ed to the adjustment of the difficulties aris-
ing from conflicting interests in this new and
peculiar field." The court then holds, in sub-
stance, that the natural right of landowners
in natural gas is simply to use such portion
as will by natural laws of flowage rise in
their wells, and not to Increase that flow by
artificial means, to the detriment of the flow
of others.
Perhaps more time has been spent in re-
viewing these decisions than is profitable, but
the subject is interesting, and we have felt
that, owing to the importance of the case be-
fore us, they should be given serious con-
sideration. That consideration shows conclu-
sively, as we think, that they have no appli-
cation to the case of the use of percolating
waters. The necessary result of the whole
discussion is that the law In question can-
not be held to be within the police power, and


that It. an effect, takes private pronertY for
private use. and without compensation.
Judgment reversed and action remanded,
with directions to dismiss the complaint.


(117 Wis. 55s)
STATE ex rel. VILAS v. WHARTON, City
Clerk.
(Supreme Court of Wisconsin. April 17, 1903.)
TAXATION-BOARD OF REVIEW-EVIDENCE-
AFFIDAVITS-NOTICE-PRESUMPTION CON-
TRACT OF SALE-CONSTRUCTION-IDENTIFI-
CATION OF PROPERTY SOLD-WHO LIABLE
FOR TAXES.
1. Testimony before the board of review by
the agent of a party assessed for taxation that
all of certain property assessed to the party
had been sold by him before the 1st of May,
the contracts of sale being produced in evi-
dence, was, if the contracts were effective to
pass the title, sufficient to overcome the pre-
sumption in favor of the original assessment.
2. Where the evidence before the board of
review is conflicting, its decision, honestly
made, cannot be judicially reviewed.
3. On the issue whether a party had sold
property assessed to him prior to the 1st of
May, the board of review could not receive as
evidence letters and affidavits of the purchasers
of the property.
4. Rev. St. 1898, 1061, which requires the
board of review to hear and examine under
oath any person who shall appear before it in
relation to any assessment and to increase or
lessen the same to the true valuation, does not
require the board, before hearing such tes-
timony, to give notice to the persons likely to
be affected thereby.
5. Provisions in a contract of sale of lumber
that delivery is accepted, that vendee is to ship
without aid or co-operation from vendor, that
vendee is to take the "root and crosser strips
used in piling and covering said lumber," and
especially a provision that the lumber sold shall
be retallied by the lumber inspector, and any
deficiency shall result in refund of proportion
of the price paid, while any excess is to be
paid for by purchaser, show prima face a sale
of specific lumber, defined and distinguished
from any other lumber of the same kind not
sold, and not a sale of a defined quantity of
lumber out of a larger mass.
6. A contract of sale of specified property
fully identified between the parties is effective
to pass the title, though the method of identifi-
cation is not embodied in the writing.
7. A writing which shows in its face an in-
tent to convey identified property in present
is sufficient prima facie to preclude the assess-
ment of the property for taxation against the
vendor, without further proof of actual segre-
gation of the- property being made.
Appeal from Circuit Court, Ashland Coun-
ty; James O'Neil, Judge.
Certiorari by the state, on the relation of
William F. Vilas, against Finley Wharton,
city clerk, etc. Judgment rendered reducing
relator's assessment for taxation, but refus-
ing to set it aside, and relator appeals. Re-
versed.
In the year 1901 the city of Ashland as-
sessed to "Knight & Vilas, of East End Mill,
9,350,000 feet of lumber, $112,200." On
August 27th Mr. Knight, as agent of Mr.
Vilas, appeared before the board of review,
and made an unsworn statement to the effect
that all lumber which they or either of them
had on those docks was sold prior to the 1st


Wa.)




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