Pence v. Carney
| Decision Date | 14 November 1905 |
| Parties | PENCE et al. v. CARNEY et al. [a1] |
| Court | West Virginia Supreme Court |
Submitted June 13, 1905.
Syllabus by the Court.
All subterranean waters which do not exist in a known and well-defined channel are deemed percolating waters.
All subterranean waters are presumed to be percolating waters until it is shown that they exist in a known and well-defined channel.
Under the facts and circumstances appearing in this case the waters in controversy are held to be percolating waters.
The owner of land who explores for and produces subterranean percolating water within the boundary of his land is limited to a reasonable and beneficial use of such water, when to otherwise use it would deplete the water supply of a valuable natural spring of another on adjoining or neighboring land and thereby materially injure or destroy such spring.
The mere temporary pumping to a reasonable extent of percolating water from a well being sunk by the owner of land within his boundary in good faith for the purpose of completing the well for legitimate use, and the casting of such water upon the land of such owner, is not such unreasonable use or waste of the water as will sustain an injunction against such temporary pumping, notwithstanding such pumping may temporarily decrease the supply of water to a valuable natural spring of another on adjacent or neighboring land.
In order to sustain an injunction against an act of trespass, on the ground that the injury occasioned thereby is irreparable the facts constituting such irreparable injury must be alleged and proved.
A final decree in a suit in equity will not be reversed by this court at the instance of the plaintiffs because at the time of its entry a rule was pending and undetermined against the defendants for violating a temporary injunction awarded in the suit, when it appears that the hearing of the rule had previous to the final hearing, been continued by an order entered by consent of both parties, and that the final hearing was on motion of the plaintiffs to perpetuate the injunction, and that no objection to such final hearing was made by them in the court below.
Appeal from Circuit Court, Summers County.
Bill by A. P. Pence and George N. Davis against B. E. Carney and others. Decree for defendants, and plaintiffs appeal. Modified.
T. N. Read and Vinson & Thompson, for appellants.
J. W. Kennedy, Brown, Jackson & Knight, and John Wehrle, for appellees.
A. P Pence and George N. Davis filed their bill in equity in the circuit court of Summers county against A. C. Blair and B. E. Carney to enjoin them and their agents from unreasonably and unusually abstracting and using the water from a well sunk by them on a tract of land owned by Blair and Carney, and from casting the same on their land, whence it flowed upon plaintiffs' land. Upon presentation of the bill a temporary injunction was awarded. Defendants demurred to the bill and filed their answer. Depositions were taken and the case submitted for final hearing on March 29, 1905, on the pleadings and depositions and upon the motion of defendants to dissolve the injunction and the motion of the plaintiffs to perpetuate the injunction, and the court entered a decree sustaining the demurrer to the bill dissolving the injunction and dismissing the bill. From this decree an appeal was allowed the plaintiffs by this court.
The errors assigned involve a consideration of the whole case. It appears from the record substantially as follows: Plaintiffs, Pence and Davis, are the owners of a tract of land of 283 acres, upon which there is a valuable spring called "Pence's Spring," and known as a flowing spring as far back as 1849. So long as known by witnesses, unless interfered with by some mechanical obstruction, and until the acts of defendants complained of, this spring has flowed continuously, unaffected by rainfall. The water of this spring is supposed to contain valuable curative and medicinal qualities, and has been widely advertised by sample. Some years ago certain improvements were made to this spring. At that time an excavation was made to a depth of about 14 feet, where the water supplying the spring was found to issue forth or flow in a constant and well-defined stream, or, as some of the witnesses say, to boil up through a well-defined crevice about 10 inches long and 1 1/2 inches wide, in a rock, with well-defined walls. Plaintiff Pence is the owner of one acre of land adjoining the 283 acres. Upon it he has erected and maintains a valuable hotel and hotel plant and has secured from his coplaintiff his interest in the 283 acres at a rental of $1,000 a year for 25 years from November 28, 1901. The water from Pence's spring is used to supply the guests and patrons of the hotel, who frequent it for the purpose of using this water; and by reason of the use of this water the hotel plant and property are greatly increased in value. Plaintiff Pence also uses this water commercially, shipping it to various points in this and adjoining states. Defendants Blair and Carney, having purchased a tract of 19 acres adjoining the 283 acres, recently began to explore for the same kind of water as that flowing from Pence's spring, and after some unsuccessful efforts, sunk a well on their land and at a depth of 58 feet below the surface found water, which the evidence tends to show was in taste and effect like that flowing from Pence's spring. According to some of the evidence the water supplying the well came into it through a crevice in the rock, practically in the same manner that the water came into Pence's spring. Some of the evidence tends to show that the well was supplied by two such streams coming into it from different directions. After water was found in the well, defendants placed therein a steam pump of large capacity, producing, as some of the witnesses say, from 60 to 70 gallons of water per minute, which was cast upon defendants' land, whence it flowed upon plaintiffs' land. About 24 hours after the pump was started, the flow at Pence's spring began to subside, and the pumping being continued, the flow at the spring ceased. Before the pumping there was no visible effect upon the spring by the sinking of the well and the finding of water therein. After the injunction was awarded the pumping was discontinued for a time, with the effect that the water at the spring began to rise in the receptacle placed over it, and continued to rise until the water flowed out from the receptacle, but not in as great quantities as before any pumping was done. Some time afterwards the pumping was resumed and was again discontinued with like effect upon Pence's spring, as in the first instance. The well, according to the evidence of plaintiffs, is from 1,000 to 1,100 feet, and according to the evidence of defendants, 1,350 feet from Pence's spring. The well is 25 feet higher than the spring according to surface elevation. The tracts of land mentioned are located along Sulphur Spring Branch of Greenbrier river in Summers county, in a narrow, irregular valley. Sulphur Spring Branch is a running surface stream of water with well-defined banks. Until the improvements were made to Pence's spring, its overflow ran in a stream with well-defined banks a distance of about 20 feet and there emptied into Sulphur Spring Branch. The 19-acre tract belonging to defendants is located farther up the valley than the lands of plaintiffs. On either side of this valley the mountains rise abruptly. By defendants' answer, it is substantially denied that the waters supplying their well were from a known subterranean stream with well-defined channel, or that their pumping was unreasonable, or that they acted otherwise than lawfully, or that they had any intent to injure plaintiffs' spring thereby; but they claimed that the pumping was necessary in order to complete the well, and make it useful to them in their contemplated business of running a hotel and furnishing water to the patrons thereof, and to the general public.
The subject of this controversy is subterranean water. Some of the questions involved are comparatively new in the courts of this state, and are of great importance. It has been truly said that the two fundamental principles underlying the consideration of the rights of adjacent or neighboring owners of land in subterranean waters are: First, that the owner of land owns from the surface upward to the sky and downward to the center of the earth; and, second, that the owner must so use his own as not to injure another. Some courts have emphasized one of these principles almost to the exclusion of the other, but the greater number have made an effort to apply both in harmony. Many authorities for the purpose of applying these principles have divided subterranean waters into two classes: First, underground bodies or streams of water existing in a known and well-defined channel; and, second, underground waters, which ooze or percolate through the earth, or percolating waters, and have endeavored, as far as practicable, to apply the rules of law applicable to surface streams or bodies existing in well-defined channels, to the like streams or bodies existing underground. 30 Am. & Eng. Enc. of Law, 311; Miller v. Black Rock Springs Co., 99 Va. 747, 40 S.E. 27; Wheelock v. Jacobs (Vt.) 40 A. 41, 43 L.R.A. 105, 67 Am.St.Rep. 659, and note; Frazier v. Brown, 12 Ohio St. 294. Underground waters are presumed to be percolating waters, until it is shown that they exist in known and well-defined channels. 30 Am. & Eng. Enc. of Law, 311; Boyce D. Cupper, 37 Or. 256, 61 P. 642; Barclay v. Abraham, 10 Am. & Eng. Dec. Eq. 716, note, and cases there cited.
The burden of proof, then, is upon the plaintiffs i...
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