Davis v. Spaulding

• Decision Date: 03 December 1892
• Citation: 157 Mass. 431,32 N.E. 650
• Parties: DAVIS v. SPAULDING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 431

32 N.E. 650

DAVIS v. SPAULDING.

Supreme Judicial Court of Massachusetts, Essex.

December 3, 1892

COUNSEL

H.N. Merrill, for plaintiff.

R.M Jones, for defendant.

OPINION

BARKER J.

The conveyance to the plaintiff was of land on which was a dwelling house, then occupied by her, and this clause immediately followed the description of the land "Together with the privilege of drawing water from a pipe laid in the ground from a well on my adjoining land to said Davis house as now used." The conveyance was a quitclaim deed, with habendum of "the granted premises with all the privileges and appurtenances thereto belonging," and with a covenant to warrant and defend against the lawful claims and demands of all persons claiming by, through, or under the maker of the deed. It was executed on January 1, 1878, its maker being then the owner of some 30 acres of land in one parcel, of which the premises conveyed were a part. The plaintiff's lot was on the northerly side of a public street, and was about 901/2 feet deep and 85 feet wide. The dwelling house was on lower ground than the well, about 150 feet distant from it, and was supplied with water from the well by gravitation by means of a pipe laid from the well to the house. A private way was afterwards laid out adjoining the plaintiff's land in the rear, and on November 26, 1890, the plaintiff took from the same grantor a warranty deed with a covenant against incumbrances, conveying about 6,000 square feet of land, situated on the private way opposite the plaintiff's lot, but east of the well. The westerly line of the defendant's land is about 15 feet from the east side of the well, and no portion of the pipe or well is upon his land. The natural surface of the ground at the mouth of the well is about 6 feet higher than the natural surface of the defendant's land. In June, 1891, the defendant excavated and constructed on his land a reservoir about 50 feet long, from 41/2 to 51/2 feet wide, and about 6 feet deep, the bottom of which is about 1 foot lower than the bottom of the well. The southerly side of the reservoir is laid up in brick, and the northerly side in stone. At the nearest point it is about 20 feet from the well, and it is in the lowest part of a small valley, with hills on the north, east, and west, the rise of the ground on the north being more gradual than on the east and west. The defendant built the reservoir to supply his shoe factory, on other premises, with water, and in June, 1891, connected the factory with the reservoir by means of a 4-inch pipe, and supplied the factory with water from the reservoir until November, 1891, when he discontinued its use. The plaintiff's house was supplied with water from the well until September, 1891, when she disconnected the pipe, and connected the house with the public aqueduct. Her evidence tended to show that by reason of the defendant's construction and use of the reservoir the supply of water had been diverted from the well, and the well rendered useless, so that she was thereby compelled to obtain water for the house from another source. The evidence did not tend to show, and it is not claimed, that the defendant interfered with or injured the well as a structure, or the pipe leading from it to the house, nor that he diverted any underground stream of water flowing in a defined channel, but merely that water which would have percolated into the well save for the construction of his reservoir was, in consequence of its construction and use, caused to percolate into it, and so cut off from the well. Nor did the evidence tend to show any malicious or wanton injury, although it might properly be inferred from the defendant's acts that he intended to obtain a supply of water by means which might naturally bring to the reservoir water which might otherwise percolate into the well. The plaintiff does not contend that she has an action, unless the defendant took his land charged, by the operation of her prior deed from the same grantor, with an easement in favor of her land.

It was held in Greenleaf v. Francis, 18 Pick. 117, that a landowner, whose full rights as such have not been diminished, may, in order to obtain a supply of water for himself, dig a well on any part of his land, although he thereby cut off the water from his neighbor's well. To this extent the case of Greenleaf v. Francis is undoubtedly law, and is in accord with the great weight of authority elsewhere. Acton v. Blundell, 12 Mees. & W. 324; Broadbent v. Ramsbotham, 11 Exch. 602; Chasemore v. Richards, 2 Hurl. & N. 168, 7 H.L.Cas. 349; Reg v. Metropolitan Board of Works, 3 Best & S. 710; Hodgkinson v. Ennor, 4 Best & S. 229; Roath v. Driscoll, 20 Conn. 532; Brown v. Ilius, 25 Conn. 583; Chatfield v. Wilson, 28 Vt. 49; Clark v. Conroe, 38 Vt. 469; Wheatley v. Baugh, 25 Pa.St. 528; Haldeman v. Bruckhart, 45 Pa.St. 514; Frazier v. Brown, 12 Ohio St. 294; Pixley v. Clark, 35 N.Y. 520; Trustees v. Youmans, 45 N.Y. 362; Bliss v. Greeley, Id. 671; Phelps v. Nowlen, 72 N.Y. 39; Chase v. Silverstone, 62 Me. 175; Chesley v. King, 74 Me. 164. Nor is it in conflict with the doctrine held in the cases of Bassett v. Manufacturing Co., 43 N.H. 569; Swett v. Cutts, 50 N.H. 439,--for such a use of land would be reasonable and justifiable, even under the view of the law of percolating waters taken in the cases last cited. The cases cited show that it is very generally held that water percolating underground, and not running in a definite stream or water course, is in law a part of the land itself, in the same sense that earth, gravel, stones, or minerals of any kind are constituent parts of the land, and is the absolute property of the owner of the land, in the same way, and to the same extent, that the other constituent parts of his land are his absolute property; so that he has the same right to keep it from passing from his land by reason of the operation of natural causes, and to separate it from the other constituents of the soil, and to use it, on the land or elsewhere, that he has to keep or to mine or quarry, and use or sell, sand, soil, clay, ores, or any other constituent part of the land. Nor, if itself land, can it pass by a deed of other land as appurtenant to the other land conveyed. The word "well," as a general term of description in a deed, designates the portion of land under and occupied by the excavation, and its surrounding retaining walls, and by any structures or appliances built upon the land to facilitate its use, and also the water actually at any time in the excavation. Johnson v. Rayner, 6 Gray, 107; Mixer v. Reed, 25 Vt. 254. In the view of the doctrine above referred to, a well fed only by percolating, underground water operates to separate and win from the surrounding soil, or that which is directly underneath the excavation, one of its constituent parts, and to store it when thus separated and collected. If the well and the surrounding soil are both owned by the same proprietor, the water in such a well is still his absolute property, and remains his land, until he sees fit to separate it, and make it a commodity. If the well and the surrounding land are owned by different persons, the ownership of the water is changed, as it passes from the surrounding soil into the well, in a way similar to that by which soil carried by a river from the territory of...