Sullivan v. Northern Spy Mining Co.

• Decision Date: 17 June 1895
• Docket Number: 581
• Citation: 40 P. 709,11 Utah 438
• Court: Utah Supreme Court
• Parties: M. C. SULLIVAN AND OTHERS, APPELLANTS, v. THE NORTHERN SPY MINING CO., RESPONDENT

40 P. 709

11 Utah 438

M. C. SULLIVAN AND OTHERS, APPELLANTS, v. THE NORTHERN SPY MINING CO., RESPONDENT

No. 581

Supreme Court of Utah

June 17, 1895

APPEAL from the District Court of the Third Judicial District. Hon George W. Bartch, Judge.

Action by M. C. Sullivan and others against the Northern Spy Mining Company. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Messrs Powers & Straup, for appellants.

It was clearly error to admit in evidence the deed from Henry Barney to the Northern Spy Mining Company, dated July 12, 1890, for there was no testimony tending to show that Barney had any claim to any land embraced in the deed. Barney only had a license to use the water in consideration of his making some repairs on the well. A licensee has the right to do any act which is necessary to the full enjoyment of the license, but the terms of the license must be strictly followed and cannot be extended or varied. Luford v. Putnam, 35 N.H 563; Dempsey v. Kipp, 62 Barb. (N.Y.) 311. The license or privilege to use the water was given to Mr. Barney personally, and it has been repeatedly held that a license is strictly confined to the original parties. It is purely a personal, privilege, and, unless coupled with an interest is not assignable, and can operate neither for nor against a third person. Jackson v. Babcock, 4 Johns. (N.Y.) 418; DeHaro v. U.S. 5 Wall. (U.S.) 599; Paine v. Northern Pac. R. Co., 14 F. 407; 13 Am. & Eng. Enc. of Law, 545. A well is "an artificial excavation and erection in and upon land, which necessarily includes and comprehends the substantial occupation and beneficial enjoyment of the whole premises on which it is situated." Anderson's Law Dictionary, "Well;" Bouv. Law Dictionary, "Well;" Johnson v. Rayner, 6 Gray, 110; Mixer v. Reed, 25 Vt. 257.

The common law in regard to the use of water from wells is still in force in this territory, and water therefrom is not subject to appropriation like the water from "natural streams, water courses, lakes, or springs." The distinction between a well and a natural source of supply of water is clearly pointed out by Tindal, C. J., in Action v. Blundell, 12 M. & W. 350. See, also, Roath v. Driscoll, 20 Conn. 541; Wheatley v. Baugh, 25 Pa. St. 528; Haleman v. Bruckhardt, 45 Penn. 518. See, also, "Rights in Subterranean Waters," 2 Amer. Law Reg. N. S. 65. Water filtrating or percolating in the soil belongs to the owner of the freehold, like the rocks and minerals found there. It exists there free from the usufructuary rights of others. Hanson v. McCue, 42 Cal. 303; Harwood v. Benton, 32 Vt. 737; Cross v. Kitts, 69 Cal. 222. Where there is nothing to show that the waters of a spring or well are supplied by any defined flowing stream, the presumption will be that they have their source in the ordinary percolations of water through the soil. Percolating waters, and those whose sources are unknown, belong to the realty in which it is found. Kinney on Irrigation, § 49; Wheatley v. Baugh, 64 Am. Dec. 727, note; Mosier v. Caldwell, 7 Nev. 363; Trustees of Delhi v. Youmans, 50 Barb. (N.Y.) 316; Taylor v. Welch, 6 Or. 199. The law controlling the rights to subterranean waters not running through a channel or defined course is very different from that affecting the rights of surface streams. In the former case the water belongs to the soil, is part of it, is owned and possessed as the earth is, and may be used, removed, and controlled to the same extent by the owner; and no action will lie for injuries caused by cutting it off. Kinney on Irrigation, § 298; Southern Pac. R. R. Co. v. Dufour, 95 Cal. 615. In general, appropriators of water have followed the forms used to locate and hold mineral claims. It is also customary to record the notices in some official records. Osgood v. Eldorado W. Co., 56 Cal. 571; Kimball v. Gearhart, 12 Cal. 27; Kinney on Irrigation, § 157.

Messrs. Marshall & Royle, for respondent.

SMITH, J. MERRITT, C. J., and KING, J., concur.

OPINION

SMITH, J.:

The main question in this case, and the only one, in fact, which we deem it necessary to consider, is, can the discoverer of a flow of percolating waters on the public lands, by digging wells and improving the same and constantly using the water for a beneficial purpose, acquire a right to take water from such wells as against an owner of the land on which the well is located, where the owner of the land acquired title by a location made subsequent to the digging of the wells? Many other questions are raised on this appeal, but their materiality all depends on the answer to the question just stated. If this question is answered in the affirmative, the judgment must be affirmed; if answered in the negative, it must be reversed; so we do not deem it necessary to examine the other questions presented.

We are not aware of any case having been decided in these arid regions, in which this precise question has been passed upon. The doctrine may be said to be settled that the owner of lands has a right to dig thereon, and to appropriate and use percolating waters therein, although by so doing he may dry up the wells or spring of an adjacent proprietor. See Hanson v. McCue, 42 Cal. 303; Kinney, Irr. §§ 49, 298; Railroad Co. v. Dufour, 95 Cal. 615, 30 P. 783. But this rule does not determine the case at bar. The facts here, so far as necessary to be stated, are: The plaintiffs are the owners of a mining claim in Tintic mining district, located in 1889. When this claim was located there was a well dug in the ground, and one Barney had a house at or near this well, and was engaged in hauling water from the well to the defendant. The defendant continued to procure water from the well, and plaintiffs bring this suit to recover damages, alleging trespass.

The undisputed facts are that the predecessors in interest of Barney and the defendant, in about 1870 discovered evidences of percolating waters at the point where the well was dug, and by digging a hole about three feet deep procured a supply of water. These discoverers were miners, and were working a mine, part of...