The opinion of the court was delivered, at the circuit session in September, 1856, by
Bennett, J.
This is the first time, within my knowledge, that the question has ever come before our courts, in relation to the rights of adjoining proprietors of lands to water percolating under the surface, through wet and porous ground, and the case may be considered somewhat important in principle, as well as novel, in this state. The court below, on this point, told the jury, in sub- ■ stance, that the defendant had the right to prevent the escape of water from his own land to the plaintiff’s tub, which he had sunk on his own land, and that he might lawfully do all that was necessary to restore the water to its original flow, and that it was not material what his motive was; and that he had the right, on his own land, to prevent the natural flow or escape of water, in or under ground, from his to the plaintiff’s land, provided it was done to secure, in a reasonable manner, a supply of water for himself, his farm, and cattle; but if done solely to injure the plaintiff, and deprive him of water, and not to benefit himself, then he would bé liable. This charge is evidently based upon the ground that there-were certain correlative rights existing between these parties, in the use of the water percolating in and under the surface of the earth. The rules of law which govern the use of a stream of" water, flowing in its natural course over the surface of lands belonging to different proprietors, are well settled, and the correlative rights of the adjoining proprietors are clearly defined. Each pro[54]*54prietor of the land has the right to have the stream how in its natural course over his laud, and to use the same as he pleases for his own purposes, not inconsistent with a similar right in the pro* prietors of the land above or below him, but no proprietor above can diminish the quantity or injure the quality of the water, which would otherwise naturally descend, nor can any projwietor below throw back the water ■ upon the proprietor above, without some license or grant. But we think the law governing running streams is not applicable to underground water,and that no light can be obtained from the law"of 'surface streams and if it is to be established that there are correlative rights existing, between adjoining proprietors of land, to the use of water percolating the earth, an entire new chapter in the law will be necessary to define what these rights are, and to put them on some tangible and practical ground, that the rules concerning them may be applied to common use. But from the very nature of the case, this seems impracticable. ¡
The laws of the existence of water under ground, and of its progress while there, are not uniform, and cannot be known with any degree of certainty, 'nor can its progress be regulated. It sometimes rises to a great height, and sometimes moves in collateral directions, by some secret influences, beyond our comprehension.
The secret, changeable, and uncontrollable character of under-1 ground water, in its operations, is so diverse and uncertain that we cannot well subject it to the regulations of law, nor build upon it a system of “rules," as is done in the case of surface streams. Their nature is defined, and their progress over the surface may be seen and known, and is uniform. They are not in the earth and a part of it, and no secret influences move them, but they assume a distinct character from that of the earth, and become subject to a certain law, — the great law of gravitation.
There is, then, no difficulty in recognizing a right to the use of water flowing in a stream as private property, and regulating that - use by settled principles of law. We think the practical uneertanties which must ever attend subterranean waters is reason enough why it should not be attempted to subject them to certain and fixed rules of law, and that it is better to leave them to be [55]*55enjoyed absolutely by the owner of tbe land, as one of its natural advantages, and in the eye of the law a part Of it, and we think we are warranted in this view by well-considered cases.
In the case of Acton v. Blundell et al., 12 M. & W. 324, it was held that the owner of land, who had made a well in it, and thereby enjoyed the benefit of underground watery had no right of action against an adjoining proprietor, who, in sinking for and getting, coal from his own soil, in the usual and in a proper manner, caused the well to become dry. A query is added whether it would have made any difference if the well had been enjoyed by the plaintiff for more than twenty years. In the case of J^oath v. Driscoll, 20 Conn., the doctrine is fully advanced', that no right is gained by a mere continued preoccupancy of water under the surface by any artificial means for a period of fifteen years or more. The court say, “ each owner has an equal and complete right to , the use of his land an^, to the water which is in itand they say “the water combined'with the earth, or passing through it by percolation, or by filtration, or chemical attraction, has no distinctive character of ownership from the earth itself, any more than the ■ metallic oxyds, of which the earth^is composed,” and they further add, “ water, whether moving or motionless, in the earth, is not, in. in the eye of the law, distinct ‘fk>m- the earth.” If it is true that , subterranean water is to be treated as a part of the earthj 'it must follow that there are no correlative rights in the enjoyment of such water, between adjoining proprietors of land, and both the case in * tbe 12th of M. & W. and 20 Conn, proceed upon that ground. The case of Greenleaf v. Francis, 18 Pick. 117, goes upon the same principle, and it was there held that no action would lie against a man who dug a well on his own land, although he thereby took the water from his neighbor’s well, in the absence of all right acquired by grant, or an adverse user. The case is really put upon the ground that “ every one has the liberty of doing, on his own ground, whatever he pleases, even though he occasion some damage to his neighborand the court say, “ there is nothing in the case, then at bar, which limited 'or restrained the owners of the estates severally, from having the absolute dominion of the soil extending upwards, and below the surface, as far as each pleased.” This, in effect, negates the position that there can be, upon common principle'', correlative rights in underground water.
[56]*56The case of Dickinson v. The Grand Junction Canal Company, 9 Eng. Law and Eq. 520, is not opposed to the views taken in the foregoing cases. In that case the water was proved to have been taken from the river, after it formed a part of the stream, not by reasonable use by another riparian proprietor, but by digging a well i and this was treated as a diversion of surface water, and actionable at common law; and, in regard to the abstraction of the water which never did form part of the river, but had been prevented from doing so by the sinking of the wells, it was held, that the mill-owners, being entitled to the beneiit of the stream in its natural course, were deprived of part of that beneiit, if the natural supply of the stream was cut off, and might have their action, whether the water cut off was a part of an underground water course, or percolated through the strata of the earth.
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The opinion of the court was delivered, at the circuit session in September, 1856, by
Bennett, J.
This is the first time, within my knowledge, that the question has ever come before our courts, in relation to the rights of adjoining proprietors of lands to water percolating under the surface, through wet and porous ground, and the case may be considered somewhat important in principle, as well as novel, in this state. The court below, on this point, told the jury, in sub- ■ stance, that the defendant had the right to prevent the escape of water from his own land to the plaintiff’s tub, which he had sunk on his own land, and that he might lawfully do all that was necessary to restore the water to its original flow, and that it was not material what his motive was; and that he had the right, on his own land, to prevent the natural flow or escape of water, in or under ground, from his to the plaintiff’s land, provided it was done to secure, in a reasonable manner, a supply of water for himself, his farm, and cattle; but if done solely to injure the plaintiff, and deprive him of water, and not to benefit himself, then he would bé liable. This charge is evidently based upon the ground that there-were certain correlative rights existing between these parties, in the use of the water percolating in and under the surface of the earth. The rules of law which govern the use of a stream of" water, flowing in its natural course over the surface of lands belonging to different proprietors, are well settled, and the correlative rights of the adjoining proprietors are clearly defined. Each pro[54]*54prietor of the land has the right to have the stream how in its natural course over his laud, and to use the same as he pleases for his own purposes, not inconsistent with a similar right in the pro* prietors of the land above or below him, but no proprietor above can diminish the quantity or injure the quality of the water, which would otherwise naturally descend, nor can any projwietor below throw back the water ■ upon the proprietor above, without some license or grant. But we think the law governing running streams is not applicable to underground water,and that no light can be obtained from the law"of 'surface streams and if it is to be established that there are correlative rights existing, between adjoining proprietors of land, to the use of water percolating the earth, an entire new chapter in the law will be necessary to define what these rights are, and to put them on some tangible and practical ground, that the rules concerning them may be applied to common use. But from the very nature of the case, this seems impracticable. ¡
The laws of the existence of water under ground, and of its progress while there, are not uniform, and cannot be known with any degree of certainty, 'nor can its progress be regulated. It sometimes rises to a great height, and sometimes moves in collateral directions, by some secret influences, beyond our comprehension.
The secret, changeable, and uncontrollable character of under-1 ground water, in its operations, is so diverse and uncertain that we cannot well subject it to the regulations of law, nor build upon it a system of “rules," as is done in the case of surface streams. Their nature is defined, and their progress over the surface may be seen and known, and is uniform. They are not in the earth and a part of it, and no secret influences move them, but they assume a distinct character from that of the earth, and become subject to a certain law, — the great law of gravitation.
There is, then, no difficulty in recognizing a right to the use of water flowing in a stream as private property, and regulating that - use by settled principles of law. We think the practical uneertanties which must ever attend subterranean waters is reason enough why it should not be attempted to subject them to certain and fixed rules of law, and that it is better to leave them to be [55]*55enjoyed absolutely by the owner of tbe land, as one of its natural advantages, and in the eye of the law a part Of it, and we think we are warranted in this view by well-considered cases.
In the case of Acton v. Blundell et al., 12 M. & W. 324, it was held that the owner of land, who had made a well in it, and thereby enjoyed the benefit of underground watery had no right of action against an adjoining proprietor, who, in sinking for and getting, coal from his own soil, in the usual and in a proper manner, caused the well to become dry. A query is added whether it would have made any difference if the well had been enjoyed by the plaintiff for more than twenty years. In the case of J^oath v. Driscoll, 20 Conn., the doctrine is fully advanced', that no right is gained by a mere continued preoccupancy of water under the surface by any artificial means for a period of fifteen years or more. The court say, “ each owner has an equal and complete right to , the use of his land an^, to the water which is in itand they say “the water combined'with the earth, or passing through it by percolation, or by filtration, or chemical attraction, has no distinctive character of ownership from the earth itself, any more than the ■ metallic oxyds, of which the earth^is composed,” and they further add, “ water, whether moving or motionless, in the earth, is not, in. in the eye of the law, distinct ‘fk>m- the earth.” If it is true that , subterranean water is to be treated as a part of the earthj 'it must follow that there are no correlative rights in the enjoyment of such water, between adjoining proprietors of land, and both the case in * tbe 12th of M. & W. and 20 Conn, proceed upon that ground. The case of Greenleaf v. Francis, 18 Pick. 117, goes upon the same principle, and it was there held that no action would lie against a man who dug a well on his own land, although he thereby took the water from his neighbor’s well, in the absence of all right acquired by grant, or an adverse user. The case is really put upon the ground that “ every one has the liberty of doing, on his own ground, whatever he pleases, even though he occasion some damage to his neighborand the court say, “ there is nothing in the case, then at bar, which limited 'or restrained the owners of the estates severally, from having the absolute dominion of the soil extending upwards, and below the surface, as far as each pleased.” This, in effect, negates the position that there can be, upon common principle'', correlative rights in underground water.
[56]*56The case of Dickinson v. The Grand Junction Canal Company, 9 Eng. Law and Eq. 520, is not opposed to the views taken in the foregoing cases. In that case the water was proved to have been taken from the river, after it formed a part of the stream, not by reasonable use by another riparian proprietor, but by digging a well i and this was treated as a diversion of surface water, and actionable at common law; and, in regard to the abstraction of the water which never did form part of the river, but had been prevented from doing so by the sinking of the wells, it was held, that the mill-owners, being entitled to the beneiit of the stream in its natural course, were deprived of part of that beneiit, if the natural supply of the stream was cut off, and might have their action, whether the water cut off was a part of an underground water course, or percolated through the strata of the earth. In this case the injury complained of was the diminution of water in a surface stream, and the law applicable to surface streams was applied. The cases, cited by the plaintiff’s counsel, which relate to surface streams can give little or no aid in the question before us. The case of Smith v. Adams, 6 Paige 435, is also a case where the underground water, which was cut off by an excavation on the defendant’s land, supplied a spring, and this spring caused a flow of surface water, and the decision was, that the person' who had the right to the use of the water in its natural course, or by a prescriptive right, out of its natural course, and was injured by the excavation, might have redress for the injury. Here, too, the person complaining was injured in his rights to the use of flowing water. Such is also the case in Balston v. Benstead, 1 Campbell 463, and no doubt other cases of a like character may be found in the books.
There is no ground to claim that the plaintiff has been injured in his right to the use of water in a surface stream flowing in its natural channel, so far as the case is now before this court, and he can claim no prescriptive right to the water.
The tub was sunk by the plaintiff on his own land, in 1852, and as his evidence tended to prove, a foot or more below the channel of the brook, and that, from this tub, the water was taken by artificial means for the use of the plaintiff; and the case shows that the plaintiff’s evidence tended to prove that this tub was supplied with water, which filtrated under ground from the brook, and also from the adjoining land of the defendant; and the case, so far as it is [57]*57sent up to us, only concerns the right of the defendant to cut off the filtration of the water from his own land to the plaintiff’s tub - by, artificial means, and the consequences, if ivantonly done.
This then, is fairly a question, as to the rights of the plaintiff in underground water. Putting this case, then, upon the ground that the water in. question, while in the earth of the defendant, though percolating through it, is not distinct from it, in the eye of thé law ^becomes an important inquiry-«whether the act of the defendant, in the obstruction of the under ground water upon his own premises, can be made actionable,' simply upon the ground that the motive was bad which induced it. The act of the defendant the obstruction of the water, being in itself lawful, could not subject the defendant to damages unless, by reason thereof, some right of the plaintiff has been violated. The maxim, “ Sic utere tuo, ui dlienum non laedas,” applies only to cases where the act complained of violates some legal right of the party; and it has been attempted t<} be shown that this underground water cannot bé made the ject of correlative rights. It is said in Cornyn’s Digest, under the head of Nuisance, that an action on the case does not lie for the reasonable use of any right, though it be to the annoyance of another. This, it may be said, implies that an action would lie if the use of one’s right was unreasonable.
This, no doubt, is true, under proper limitations, as in cases where there is a right common to both parties, as in the use of a public highway, or of the air; or where there is a duty to perform, and a correlative right growing out of it, as the repair of a ruinous house standing so near to the house of another, as to endanger it from its fall. In such a case, no doubt, a repair could be compelled; and, in case of the fall, an action would lie for the special damage. There are also many cases in the books, relating to the relative use of surface streams, where the case has turned upon the question, whether the use was reasonable, and for the party’s own convenience or benefit, or wanton and malicious, and done to prejudice the rights of another. In such cases there are correlative rights to the use of the water, and the boundary of the right is a reasonable tese of it. But- such cases have no analogy to the case at law, and it may be laid down as a position not to be controverted, that an act legal in itself, violating no right, cannot be made actionable on [58]*58the ground of the motive which induced it. j Such was the case of South Royalton Bank v. Suffolk Bank, 27 Vt. 505. If the act is lawful, although it may be prejudicial, it is damnum absque injuria. On this point the case of Mahan v. Brown, 13 Wend. 261, is a direct authority. There the defendant had built a high fence for the sole purpose of obstructing the lights of his neighbor’s house; and it was held, that no action would lie, where the lights were not ancient, and no right had been acquired by grant or user ; and that the motive with which the act was done was immaterial. Tjfra case goes upon the ground, that the plaintiff was not injured in a legal right.
This is not like the case where the air is contaminated so as to become noxious. There a correlative right is invaded. In the case of Greenleaf v. Francis, 18 Pick. 117, it is true, the court charged the jury that if the defendant dug the well where he did, upon his own land for the purpose of injuring the plaintiff, and not for the purpose of obtaining the water for his own use, the defendant was liable in that action. In that case, the verdict was for the defendant, and the plaintiff was the excepting party. The plaintiff could not complain of that part of the charge; and, in bank,C-there was no occasion to review that part of it; and it is no point in the decision, though Judge Putnam does remark, in the course of his opinion,- that “ the rights of the defendant should not bo exercised from mere malice as the judge ruled below,” but no such point was in judgment. The exceptions came from the plaintiff, and it can only be regarded as an obiter dictum of the judge; the case found, that the defendant had dug his well in that place on his land, where it was most convenient for him; and we think, as applied to a case like the one then at bar, and the one now before us, the position was unsound, and against principle and authority.
Judgment of the county court reversed, and the cause remanded.