Stillwater Water Company v. Farmer

• Decision Date: 27 February 1903
• Docket Number: 13,213 - (206)
• Citation: 93 N.W. 907,89 Minn. 58
• Parties: STILLWATER WATER COMPANY v. HENRY C. FARMER
• Court: Minnesota Supreme Court

93 N.W. 907

89 Minn. 58

STILLWATER WATER COMPANY v. HENRY C. FARMER

Nos. 13,213 - (206)

Supreme Court of Minnesota

February 27, 1903

Appeal by plaintiff from an order of the district court for Washington county, Williston, J., denying a motion for a new trial. Reversed.

SYLLABUS

Diversion of Water -- Injury to Spring.

Except for the benefit and improvement of his own premises, or for his own beneficial use, the owner of land has no right to drain, collect, or divert percolating waters thereon, when such acts will destroy or materially injure the spring of another person, the waters of which spring are used by the general public for domestic purposes. He must not drain collect, or divert such waters for the sole purpose of wasting them.

Injunction to Restrain Waste.

An action may be maintained by an injured party to restrain and prohibit such waste.

J. N Searles, for appellant.

J. N. Castle and J. C. Nethaway, for respondent.

OPINION

COLLINS, J.

This was an action brought to restrain the defendant from interfering with subsurface waters, which, percolating through the ground, served in part to supply a spring situated upon plaintiff's property, which spring the latter uses to furnish its patrons, the people of Stillwater, with water for domestic use; the plaintiff's business under its charter being to provide the city and its inhabitants with water for both fire and domestic purposes. For other than domestic purposes water is taken from McKusick Lake by plaintiff company, but it must rely upon this spring, which is quite large, and others, much smaller, for a supply for domestic use.

The action was dismissed when plaintiff rested at the trial below, upon the ground that it had failed to establish a cause of action. The case comes here upon a bill of exceptions on appeal from an order refusing to grant plaintiff's motion for a new trial.

Whatever may have been the issue tried in the court below, it is very evident, and both parties now concede, that there is but a single question here. It is a new and important one, not without difficulty of determination, and upon which there seem to be very few cases to which we may look for assistance. The plaintiff corporation owns and uses for its mains a narrow strip of land running from McKusick Lake through a ravine which finally terminates in the vicinity of Lake St. Croix. At one time this ravine was the bed of a small brook, the outlet of McKusick Lake, but a running stream no longer exists. Part way down this ravine is the spring around which the plaintiff has built a circular wall about six feet in diameter. On the south it is less than one foot from this wall to the line of land owned by defendant, and upon the east the line is only three feet distant.

Some time ago, on his own land, near the boundary line, and about ten feet from the center of the spring, the defendant excavated a trench, into which percolating waters were drained and gathered in quantities sufficient to affect materially the supply at the spring itself. In this trench he placed a three-inch pipe, which is used to supply water for his livery barn, some distance away. This supply comes from a small spring on one side of the excavation, which defendant has walled up so that its waters do not mingle with those gathered in the bottom of the trench. Of the pipe and its use plaintiff makes no complaint. In the bottom of the trench the defendant then placed a ten-inch tile pipe, and connected it with the city sewer. By means of the trench percolating waters were and are drawn away from plaintiff's spring, where they would naturally and otherwise go, are gathered in the bottom of the trench, and are then conducted to the city sewer through the ten-inch pipe. Therefore waters naturally supplying the big spring, and used by plaintiff for the public good, are drained and diverted, and, instead of serving the wants of the people, are dissipated and lost. By this draining and diversion the waters in the spring were lowered and reduced one or two inches.

Upon discovering the effect of the ten-inch pipe upon the spring, plaintiff made some changes in the outlet through which the water ran and in its mains for its own protection and benefit, whereupon defendant commenced to relay his ten-inch pipe on a lower level, beginning at its intersection with the city sewer, and working toward the trench.

When a portion of this pipe had been relaid, and while defendant was engaged in the work, plaintiff secured a temporary injunction restraining him from further relaying upon this lower level. The defendant, according to the testimony, threatened to continue such work, and to bring the pipe into the trench, so that when it connects with the water it will be at least eighteen inches below the outlet of the main used by plaintiff to secure its supply from this spring. The effect is evident, and the court below found that, if the connection is made, as intended, there will be imminent danger that so large a portion of the waters, which now naturally flow into, and, in the absence of the trench, would continue to percolate and collect in, the plaintiff's spring, will be diverted therefrom, and drained into the trench, from thence through the pipe and into the city sewer, that plaintiff's water supply will be thereby diminished to such an extent as wholly to incapacitate and prevent it from furnishing the city and its inhabitants with sufficient water for domestic use, as it is obliged to do under its contract with the city, the result being to deprive the people of wholesome water, to destroy the plaintiff's business, and to render its plant valueless. Stated in a few words, the plaintiff, engaged in supplying the people of Stillwater with spring water for domestic purposes, is seeking to prevent the defendant from digging a trench so close to its own means of supply as to divert and drain percolating waters, to ruin that supply, and to deprive the people of pure water for domestic uses, for the sole purpose, so far as appears in this case, of wasting these waters into a city sewer.

The question in this case, reduced to its last analysis, involves the defendant's right to collect by drainage these fugitive subsurface waters, and then to waste them, to the annihilation of plaintiff's business, and to the great discomfort and injury of the people who depend upon the plaintiff for water for domestic use. The books are full of cases in which the rights of an owner of the soil to collect and control percolating waters are considered and determined. A brief and comprehensive general statement of the law pertaining to the subject is found in Pixley v. Clark, 35 N.Y. 520, 527, where it is said: "An owner of the soil may divert percolating water, consume or cut it off, with impunity. It is the same as land, and cannot be distinguished in law from land. So the owner of the land is the absolute owner of the soil and of percolating water, which is a part of, and not different from, the soil. No action lies against the owner for interfering with or destroying percolating or circulating. water under the earth's surface." This doctrine, and the reasons for it, are well stated in Frazier v. Brown, 12 Oh. St. 294, 311, in the following language: "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: (1) Because the existence, origin, movement, and course of such waters, and the causes which govern and direct their movements, are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible. (2) Because any such recognition of correlative rights would interfere, to the material detriment of the commonwealth, with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building, and the general progress of improvement in works of embellishment and utility."

From this statement, which is really a synopsis of the reasons which have been given again and again for the established doctrine governing percolating waters, it is manifest that considerations of public policy have been of great and controlling weight in shaping the conclusions of the courts. Legal rules, it is said, would be involved in hopeless uncertainty, if an attempt was made to administer them in respect to such waters, and any recognition of correlative rights would interfere, to the material detriment of the state, with the general improvement of the soil. In so far as the rules laid down in the opinions from which we have quoted are applicable to a given set of facts, there is no reason why they should not be followed in this court, for...