Barclay v. Abraham

• Citation: 96 N.W. 1080,121 Iowa 619
• Parties: JAMES BARCLAY v. WILSON ABRAHAM AND J. L. SWARTZFAGER, Appellants
• Decision Date: 30 October 1903
• Court: Iowa Supreme Court

96 N.W. 1080

121 Iowa 619

JAMES BARCLAY v. WILSON ABRAHAM AND J. L. SWARTZFAGER, Appellants

Supreme Court of Iowa, Des Moines

October 30, 1903

Appeal from Boone District Court.--HON. J. R. WHITAKER, Judge.

PLAINTIFF is owner of S. 1/ 2 S.W. 1/4 of section 10, and N. 1/ 2 N.W 1/4 of section 15, township 82 N., of range 25 W. of the fifth P. M. The defendant owns the N. 1/ 2 S.W. 1/4 of section 10. A run, known as "Big Creek," nearly north and south, passes through both farms to the south. Following the trend of this creek for three or four miles in a northwesterly and southeasterly direction, and about one-half mile wide, flowing wells are obtained at a uniform depth, considering the elevation of the surface. The plaintiff has lived some time on his south eighty at about the center of this district, and several years ago sunk one of the first wells near his house, somewhat above the level of the creek. Later two other wells were sunk, one in the valley of the creek in the north eighty, and the other about thirty rods from his barn, to which an underground pipe was extended to a tank at the barn. In July, 1901, the defendant Abraham put down a three-inch well on his farm near the south line, close to the creek, to which he dug a ditch, and allowed the water to flow unrestrained through the creek to the land below. This resulted in stopping the flow of water from plaintiff's wells at his house and near the barn. In pursuance of a temporary writ of injunction, the flow of defendant's well was reduced to one-fourth of an inch whereupon water again flowed from plaintiff's well. Upon final hearing the injunction was made permanent, and defendant appeals.

Affirmed.

W. W Goodykoontz and Crooks & Snell for appellant.

Charles Whitaker for appellee.

LADD, J. DEEMER, J., concurs in result.

OPINION

LADD, J.

The particular district within which flowing wells may be obtained at a depth varying from one hundred to two hundred feet is three or four miles in length by about one-half mile in width, following the direction of the creek. Within this area there are at least eleven wells which are now or have been flowing above the earth's surface. That of plaintiff, near his barn, is one hundred and fifty-two feet deep. The well sunk by defendant is only one hundred and seven feet deep, but on ground about as much lower as the difference. Its casings are three inches in diameter, and the flow, when uninterrupted, has the effect of stopping plaintiff's well and of several others. It is located near the south line of defendant's land, from which the water runs in the creek, and, save that necessary for about thirty head of cattle, is without benefit to him or any one else. The water in excess of a stream one-fourth inch in diameter, to which extent the district court directed him to restrain the flow, is absolutely wasted, and so done without excuse. True, he pretended that the entire flow was essential to prevent clogging with sand or gravel, but the evidence shows conclusively that this was less likely with the smallest available exit. Again, he pretended to have in contemplation the elevation to his tenant's house, across the eighty acres, up some forty feet, of water for domestic use by the operation of a hydraulic ram. But the extent of his preparation therefor was the reading of a circular from some manufacturing company. There was no proper showing that the flow permitted would be inadequate for this purpose, and it conclusively appears that it had nothing to do with his insistency upon utterly wasting the water his neighbors so much needed. Indeed, the record indicates strongly his object was to maliciously cut off the water supply of a well owner other than plaintiff. In the light of these facts, it is not very important that we determine whether the water was supplied by percolation through the soil or a well-defined subterranean stream. If the latter, of course the water might not thus be diverted. Hougan v. Ry. Co., 35 Iowa 558; Burroughs v. Saterlee, 67 Iowa 396, 25 N.W. 808; Willis v. Perry, 92 Iowa 297, 60 N.W. 727.

But the presumption obtains that such waters are percolating waters, unless shown to be supplied by a stream of known and defined channel. Gould on Waters, sections 280, 281; Hanson v. McCue, 42 Cal. 303 (10 Am. Rep. 299); Tampa Waterworks Co. v. Cline, 37 Fla. 586 (20 So. 780, 33 L.R.A. 376, 53 Am. St. Rep. 262); Metcalf v. Nelson, 8 S.D. 87 (65 N.W. 911, 59 Am. St. Rep. 746); Wheatley v. Baugh, 25 Pa. 528 (64 Am. Dec. 721); Huber v. Merkel, (Wis.) 117 Wis. 355, 94 N.W. 354. And it follows that the burden of proof is upon those asserting right to waters below the surface, on the ground that they flow in a defined and known channel, to establish the existence of such channel. Black v. Ballymena Com'rs, 17 L.R.A. 459; Huber v. Merkel, supra. It is to be observed that the mere existence of the channel is not enough; its location must be known or reasonably ascertainable. Lybe's Appeal, 106 Pa. 626 (51 Am. Rep. 542); Collins v. Chartiers Valley Gas Co., 131 Pa. 143 (18 A. 1012, 6 L.R.A. 280, 17 Am. St. Rep. 791), where the court concludes that it is clear, "from the principles and the reasoning of all the cases, that the distinction between rights in surface and in subterranean waters is not founded on the fact of their location above or below the ground, but on the fact of knowledge, actual or reasonably acquirable, of their existence, location, and course." And in Black v. Ballymena Com'rs, supra: "So far the law on the subject is clear; but a difficulty appears still to exist as to the application of this rule by reason of the use of the word 'known' in connection with the word 'defined,' and it does not seem to have been laid down as yet what the nature or extent of the knowledge is which must be proved to exist in order to constitute the riparian relation. It cannot mean that a channel should be visible throughout its course, which would be an impossibility, from the very fact of its being subterranean. In considering the question, the knowledge required cannot be reasonably held to be that derived from a discovery in part by excavation exposing the channel, but must be knowledge by reasonable inference from existing and observed facts in the natural, or, rather, the pre-existing, condition of the surface of the ground. The onus of proof, of course, lies on the plaintiff claiming the right, and it lies upon him to show that without opening the ground by excavation, or having recourse to abstruse speculations of scientific persons, men of ordinary powers and attainments would know, or could with reasonable diligence ascertain, that the stream when it emerges into light comes from and has flowed through a defined subterranean channel." Surface indications of a stream are discussed in Tampa Waterworks Co. v. Cline, supra, where surface depressions extended on either side of a spring; in Hale v. McLea, 53 Cal. 578, where a line of bushes usually found nowhere except over water courses extended from a spring on adjoining land. See, also, Saddler v. Lee, 66 Ga. 45 (42 Am. Rep. 62); Wheatley v. Baugh, supra; valuable note to Wheelock v. Jacobs, 67 Am. St. Rep. 665. In the instant case surface indications do not aid in locating a stream below. The mere fact that the excessive flow from one well interrupted that of several others did not tend to point out the location, course, or even existence of a subterranean river or smaller water course. Taylor v. Welch, 6 Ore. 198. A similar result would be as likely to occur when the supply is derived from water filtrating through the soil until caught in a stratum of sand and gravel lying between impervious layers of other material. See Huber v. Merkel, supra. Indeed, the fact that large quantities of sand and gravel are drawn up when the level at which water is reached strongly sustains the latter view. But we need go no farther than to say there is nothing in the record to overcome the presumption that the supply of the entire district is percolating water. If a stream one-half mile wide, it could scarcely be affected by the small outlets afforded by these wells. If a number of narrower streams flow beneath the surface, the location of none has been pointed out nor appears to be ascertainable. Chase v. Silverstone, 62 Me. 175 (16 Am. Rep. 419); Taylor v. Welch, supra; Greencastle v. Hazelett, 23 Ind. 186; Haldeman v. Bruckhart, 45 Pa. 514 (84 Am. Dec. 511); Gould v. Eaton, 111 Cal. 639 (44 P. 319, 52 Am. St. Rep. 201).

This being true, there is no doubt but defendant had the right to make such beneficial use of the water in the improvement of his land as he might choose. But it does not follow that he had the right to draw from this reservoir within the earth wherein nature had stored water in large quantities for beneficial purposes merely to waste or carry out a design to injure those having equal access to the same supply. Decisions to the effect that percolating waters are to be treated the same in law as the land in which found, and may be diverted, consumed, or cut off with impunity, without liability for interfering or destroying the supply, are numerous in this country and England--too numerous for citation; but see Wheatley v. Baugh, supra Mayer & Aldeman, etc., v. Pickles, A. C. (1895) 587, and Frazier v. Brown, 12 Ohio St. 294. In the last of these cases the principle underlying the right to such waters, and the reasons upon which it rests, were thus stated: "In the absence of express contract and of positive authorized legislation, as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing, or filtrating through the earth; and this mainly from considerations of public policy: (...