BARTCH, J.
This action was brought to restrain the defendants from continuing to divert water from Butterfield creek, the use of which the plaintiff claims by right of prior appropriation.
It appears from the record that, about the year 1852, various persons settled upon lands where the village of Herri-man is situated, and appropriated all the water of Butterfield creek for the purposes of irrigation and domestic use. After-wards those entitled to the use of the water organized the plaintiff corporation, for the purpose of controlling its use and [98] distribution according to tbe respective rights of the shareholders; and the corporation is the owner of the water so appropriated, and represents all the parties beneficially interested in the appropriation and use thereof. All the water running in the natural stream was so used, by those persons and their successors, from the time of the first appropriation until about the year 1894, when, about two miles above the point of diversion of the plaintiff, the defendants erected a head gate in the natural channel of the creek, and diverted about one-half of the water then flowing in the stream, and from that time until the commencement of this suit the defendants have continued to divert such portion of the stream. Prior to the diversion of any water by them from the creek, the defendant company had become the owner of a number of mining claims, and to develop these claims, and for the' purpose of extracting minerals therefrom, the mining company had driven two tunnels upon its own land; the one, the Queen tunnel, extending into the mountains about 2,900 feet, and the other, or Butterfield tunnel, over 8,200 feet. In the construction of these tunnels the water in dispute was developed, turned into the creek, and, after flowing in the natural channel for a considerable distance, diverted by the defendants, at their point of diversion, by means of the head gate. The plaintiff claims, and introduced evidence tending to show, that the construction of the tunnels caused a number of ( springs, out of which water theretofore flowed into the creek, to dry up and cease flowing, and that, except for the tunnels, the water flowing from them would flow from the springs. 'The defendants introduced evidence tending to show that, in the vicinity of where the springs in question are claimed to have formerly existed, springs are still flowing; that the construction of the tunnels did not have the effect of causing any •springs to cease flowing; that, if any springs ceased to flow, it was the result of other causes, such as less precipitation for several successive years, the destruction of timber and under[99] growth, wbicb formerly retarded the snow from melting and retained moisture, etc.; and that the streams of water flowing oht of the tunnels came from percolation and small undefined and unknown subterranean streams. The evidence shows that water comes into the Butterfield tunnel from innumerable places beyond a point therein about 5,500 feet from the mouth thereof. There appears to be no surface indication of any channel or water course between the springs in question and the tunnels, and the springs claimed to have been-affected are sitirate from nearly a mile to a mile and a half distant from the tunnels. At the trial the court entered a decree in favor of the defendants, and the plaintiff appealed.
This case was before us on a former occasion, and we then reversed it, and remanded it for a new trial. 19 Utah 453, 57 Pac. 537, 51 L. R. A. 930. At the former trial it 1 was, the same as at this, decided in favor of the defendants, and the plaintiff then, same as now, was the appellant. On this appeal, the appellant in the first instance insists that, under the “law of the case,” this court should set aside the findings and decree of the trial court, and order judgment entered as prayed for in the complaint; and that the questions now herein presented were adjudicated on the former appeal, and have become res judiccda. The .efficacy of the general rule here invoked is not to be doubted. The rule, however, is not entirely without limitations. It does not apply to expressions of opinions on questions the disposition of which was not necessary for the decision, or to the reasoning or illustrations in an opinion, however important in determining what was decided. Nothing in a decision which is merely obiter dictum is controlled by the rule. Nor does a decision, as to a question of fact, fall within the rule, when, upon the retrial, material evidence not offered at the first trial is introduced. So the doctrine of res judicata does not apply where a judgment is reversed and remanded for a new trial because material findings of fact are not supported by the proof, and when at [100] tbe second trial additional evidence is offered and admitted. But upon all questions involved in tbe judgment tbe decision of tbe appellate court is conclusive. This appears to be tbe settled law.
In Elliott, App. Proc., section 578, tbe author, after stating that “it is a firmly settled principle that tbe decisions of tbe appellate tribunal constitute tbe law of tbe case upon all tbe points in judgment,” says: “It is, however, to be borne in mind that tbe rule does not go to tbe extent of foreclosing a review of all tbe questions discussed, for it does not, by any means, go to that length. It is only such questions; as were before tbe court for decision, and such as were expressly or impliedly decided, that are conclusively adjudicated. Tbe reasoning or illustrations of tbe court do not eonstitute 2 decisions, and hence tbe reasoning and tbe illustrations, although they may be important as aids in determining what was actually decided, do not constitute tbe binding adjudication.” In Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct. 654, 29 L. Ed. 858, one question was whether, on a former appeal, certain matters bad been determined, and bad become tbe law of tbe case. In an opinion written, on that appeal, by Mr. Justice Eield, certain expressions were made upon certain legal questions involved in tbe ease, but not then directly before tbe court for determination. Tbe decree was reversed, and tbe cause remanded, with directions to take further proceedings in accordance with tbe opinion. 113 U. S. 618, 5 Sup. Ct. 606, 28 L. Ed. 1109. Tbe lower court, on tbe retrial, it seems, considered itself bound by tbe expressions of opinion so inadvertently made, and disposed of tbe case accordingly. On tbe second appeal, it was urged that what was stated in tbe opinion of tbe appellate court bad become tbe law of tbe case. On this question,- Mr. Justice Eibld^ who again delivered tbe opinion of tbe court, said: “We said, however, that tbe grant of these additional sections might be regarded as one of quantity — an inadvertence for which [101] tbe writer of tbat opinion, wbo is also tbe writer of this one, is alone responsible. Tbe statement was not at all material to tbe decision, wbicb was tbat a deduction should bare been made by reason of tbe intersection of tbe two grants, so far as tbe prior grant was located witbin tbe extension. We recognize tbe rule tbat wbat was decided in a case pending before us on appeal is not open to reconsideration in tbe same case, on a second appeal upon similar facts. Tbe first decision is tbe law of tbe case, and must control its disposition; but tbe rule does not apply to expressions of opinion on matters, tbe disposition of wbicb was not required for tbe decision.” So, -in Mattingly v. Pennie, 105 Cal. 514, 39 Pac. 200, 45 Am. St. Rep. 87, it was said: “It is settled beyond controversy tbat a decision of tbis court on appeal, as to a question of fact, does not become tbe law of tbe case. But plaintiff contends tbat tbe question tbus presented of the insufficiency of the evidence to support a verdict for plaintiff was a question of law, and was tbe very fact in judgment on tbat appeal. Assuming, without deciding, tbat tbe view is correct, we are nevertheless of opinion tbat tbe point now presented is not tbe same as tbat so supposed to have been decided on tbe former appeal, and tbat we are therefore now entitled to consider it without being concluded by tbe former decision. We adhere to wbat was said on that subject in Wixson v. Devine, 80 Cal. 388, 22 Pac. 224, and will not extend tbe application of tbe doctrine of tbe daw of tbe ease’ beyond tbe cases in wbicb it has hitherto been held to apply.” In Union School Tp. v. First Nat. Bank of Crawfordsville, 102 Ind. 464, 2 N. E. 194, it was said: “Tbe principle tbat a decision on appeal governs tbe case throughout all its subsequent stages we fully recognize, but we do not understand it to be wbat appellee’s counsel' assert. In our judgment, a decision rendered on appeal does not conclusively determine merely incidental or collateral questions, but determines only such questions as are [102] presented for decision, and are decided, as essential to a just disposition of the pending appeal.” Wixson v. Devine, 80 Cal. 385, 22 Pac. 224; Clark v. Hershy, 52 Ark. 473, 12 S. W. 1077; Maddox’s Ex’r v. Williams, 87 Ky. 147, 7 S. W. 907; Hughes v. Railway Co., 78 Mich. 399, 44 N. W. 396; Sprague Inv. Co. v. Mouat Lumber & Inv. Co. (Colo. App.), 60 Pac. 179; Railway Co. v. Fox, 60 Neb. 531, 83 N. W. 744.
Having thus seen that a decision of an appellate court constitutes the law of the case only as to such questions of law as were involved in the judgment, and as were presented to the court and expressly or impliedly decided, it now becomes important to determine what questions were before this court and decided on the former appeal in this case. When a suit is brought, the questions to be tried must be determined by the pleadings; and all will concede that no questions can be determined by the trial court or jury except such as have been put in issue. On appeal, all questions to be determined must be raised by assignments of error, and in the appellate court only questions so raised can be presented and determined. 3 It will thus be observed that, before the court below can try and determine a question, the same must be put in issue by the pleadings, and that, before the appellate court can review the action of the trial court to determine a question, such question must be raised by an assignment of error. Not only must the question be so raised on appeal, but all the errors relied upon must, under the rules of this court, be plainly and distinctly set forth in the appellant’s brief. It is a general rule of practice in this court that all errors assigned, but not insisted upon in the appellant’s brief, will be disregarded, and considered as waived and as raising no question for determination. Only such questions, therefore, in any given case, as are raised by assignments of error, and presented in the appellant’s brief, are before the Supreme Court for determination.
On the former appeal, in the present case, it appears from [103] an examination of the appellant’s brief that .all the questions' presented and insisted upon were questions of fact, and a perusal of the opinion then delivered by Mr. Justice Basexk will show that this court simply determined that the eleventh finding of fact, and a part of the sixth, were erroneous, and were not supported by the evidence, and that plaintiff’s exceptions to them on that ground were well taken. These were the only matters discussed and decided in that opinion, and thereupon the cause was reversed and “remanded for a newv trial” generally. It is quite clear that only questions of fact were presented and determined on the former appeal, and, as we have seen, the determination of such questions on appeal does not become res judicata, where the judgment is reversed, and the cause remanded for a new trial generally, without any specific directions, and where, as in this ease, a considerable amount of material evidence not offered at the first trial is introduced upon retrial. TJnder these circumstances, mere expressions of opinion, as to the law, which were not required for the decision, can not become the law of the case, and do not preclude us from now determining the law applicable to the facts. Erom the foregoing considerations, I am of the opinion that the decisive questions presented on this appeal have not, by virtue of our former decision, become res judi-cata, and we are therefore now at liberty to determine them.
The appellant insists that the evidence does not warrant the ninth finding of fact, which reads: “That the driving of said tunnels, or either of them, did not dry up or diminish the flow of any spring or springs in Butterfield canyon, or in Tooele fork or Spring gulch, or any spring or springs flowing into Butterfield creek or any tributary thereof. If any such springs dried up or diminished the flow, it was from other causes than said tunnels or either of them.” Upon careful examination of the testimony upon which this finding was based, I am unable to say that the proof does not support the finding. It is shown that the springs, which, it is claimed, [104] have ceased to flow, are situate from nearly a mile to a mile and a half from the tunnels. Butterfield canyon extends in a direction substantially east and west, and the tunnels are located on the north side of the canyon, and extend into the mountain on that side. The timber and undergrowth which formerly retarded the melting of the snow and retained the moisture have been removed and destroyed. The country in that vicinity appears to be stratified and there is evidence tending to show that the dip of the stratification is towards the north, and that consequently, on the north side of Butter-field creek and canyon, the waters sink into the soil and rocks, and are carried by the stratification along the bedding planes in the opposite direction from Butterfield creek. The witnesses Stevenson and Doremus, experts of known ability, after explaining the topography of the country in question, each testified that in his opinion, after an examination of that section of country, lasting for a period of ten days, the springs in Spring gulch and Tooele fork, where, it is claimed, most of the springs in question are located, were not affected by either tunnel; the witness Stevenson stating that it was a physical impossibility for the springs to be dried by the tunnels. The witness Doremus also stated that he “saw nothing to indicate springs had dried.” The witness Black, on this subject, testified as follows: “Lived in Butterfield canyon from ’73 to ’91, about a mile above mouth of Butterfield tunnel; ran sawmill for awhile; got logs from Spring gulch and Tooele fork; well acquainted with springs there; examined gulches three times since December, ’95; same springs running now as during period of residence; more water now in Butterfield creek below tunnel than when I lived there.” Further reference to the testimony in support of the finding is not deemed necessary, although there is much other evidence of similar import in the record. Then there is also testimony tending to show that the springs in question at one time existed, and in the opinions of several witnesses they were affected, and have [105] ceased flowing, because of the driving of the tunnels. Such, it appears, was the opinion of Dr. Talmage, a geologist of known ability.,, That, on the point here under consideration, there is a substantial conflict in the evidence is manifest from an examination of it. How, then, can this court interfere with the findings of fact in dispute ? The rule has been firmly established in this jurisdiction that the appellate court will not interfere to set aside a finding of fact where there 4 is a substantial conflict in the evidence relating thereto. This rule applies with especial force in this instance, since the judge before whom the cause was tried not only had an opportunity to see the witnesses upon the stand, and observe their demeanor, and the frankness and apparent candor with which they made their statements, but also, accompanied by the representatives of both parties, including 'an expert on each side, went upon the ground, and made a personal examination of the subject-matter of the suit, and such inquiries as were likely to elicit the facts.
Judge Eolapp, who was the trial judge, in deciding the ease, as appears, among other things, said: “After hearing the evidence and arguments, I personally visited the premises, and have since given the case more than ordinary attention. . . . After a most careful consideration of that evidence, it is quite apparent that not even a vague inference can be formed from the testimony as to even the approximate location of any subterranean channel having definite or any banks, in the ordinary acceptation of that word, connecting the tunnels and the springs. Much less can a guess be ventured as to the direction of the flow of any underground stream carried in such unknown channel. It is true that a conclusion was reached hy plaintiff’s experts, based upon various theories, to the effect that they could account for no other cause for the drying up of these springs except the excavation of the defendants’ tunnels, but the reasons offered for such conclusion were wholly unsatisfactory to my mind, and did not 'accord [106] with the physical facts observable upon the ground. The topography of the country in and around Butterfield creek shows that the stratification has a general northeasterly and southwesterly strike, and a general northwesterly dip, with occasional very decided changes and curves; in fact, the testimony and observations on the ground show that the dip of the stratified rocks east of St. James gulch [a gulch lying east of the tunnels and west of the ‘Blue Springs’] is to the north, while the dip of the rocks west of St. James gulch is to the west. . . . Accepting as true the testimony relating to facts [apart from mere conclusions expressed by witnesses], coupled with the conditions found both inside and outside of the tunnels, and the stratifications of the rocks between the tunnels and the springs, and the significant existence of several running springs situate above the tunnels, and at various points between the tunnels and the ‘Blue Springs,’ and the surroundings and appearances of the plaintiff’s dry springs themselves,v one can not honestly come to a different conclusion than that the waters issuing from the defendants’ tunnels are percolating waters only.” As to the causes which may have led to the drying up of springs and the effect of the tunnels therewith, the judge said: “I think the testimony would as fully warrant a conclusion that it was produced by the want of normal rainfall in recent years, by the removal of timber from the watershed, and the herding of large flocks of sheep thereon, and various other causes referred to in the testimony. I think that the only reasonable conclusion to be reached from the testimony in this case is that the waters formed in defendants’ tunnels are percolating and seepage waters, having no connection whatever with plaintiff’s springs, and that the same is true as to waters feeding or having fed plaintiff’s springs mentioned in this suit.”
It will thus be noticed that, after hearing all the testimony, and after a personal inspection of the premises, the trial judge was firmly convinced that the tunnels did not affect [107] tbe springs; and I can perceive no ground upon which to set aside the finding here under consideration.
In Leonard v. Shatzer, 11 Mont. 422, 28 Pac. 457, the main question was whether or not the water of a spring which had been interfered with by the defendant, in its natural flow, reached a certain creek, the waters of which had been appropriated and used by the plaintiff. The trial court, upon a substantial conflict of the evidence, and after a personal inspection of the premises, found the fact upon which the question depended in favor of the defendant, and, on appeal, the Supreme Court said: “The court below heard the evidence, and personally examined the premises. This is just such a case in which the Supreme Court will not disturb the 'finding.” This co.urt, in Miller v. Livingston, 22 Utah 174, 61 Pac. 569, held: “On an appeal of an equitable action, the appellate court will not disturb the findings and decree of the trial court, which had the opportunity of observing the manner and bearing of the witnesses while testifying, in the absence of apparent oversight or mistake.” So, in Larsen v. Onesite, 21 Utah, 38, 59 Pac. 234, this court, speaking through Mr. Justice Mister, said: “The trial court had the advantage of seeing the witnesses, of hearing their testimony, and observing their demeanor on the witness stand, and was therefore better qualified to judge of their candor and truthfulness than those not placed in the same position. Under such circumstances, this court will not disturb the findings and judgment unless they are found to be so manifestly erroneous as to clearly demonstrate some oversight or mistake, on the part of the trial court, which materially affected the substantial rights oí the appellants.” In Dwyer v. Manufacturing Co., 14 Utah 339, 47 Pac. 311, it was said: “The rule is well settled in this State that where a case is tried in a court sitting as a court of' chancery, and the evidence is conflicting, the findings of fact will be conclusive in the appellate court, unless they are so manifestly against the weight of the evidence as to demon-' [108] strate some oversight or mistake.” McKay v. Farr, 15 Utah 261, 49 Pac. 649; Watson v. Mayberry, 15 Utah 265, 49 Pac. 479; Klopenstine v. Hays, 20 Utah 45, 57 Pac. 712; Whitesides v. Green, 13 Utah 341, 44 Pac. 1032, 57 Am. St. Rep. 740; Dooly Block v. Salt Lake Rapid Transit Co., 9 Utah 31, 33 Pac. 229, 24 L. R. A. 610.
If, however, notwithstanding the evidence in support of the finding, it were admitted that it was unwarranted, still such admission could not avail the appellant, as will be observed upon further consideration of the facts and of the 5 law applicable to them. This is so because the court further found: “That the waters that came into said tunnels during the prosecution of the work therein, and that have since and that now come into them, are waters percolating from the surface into the rocks, and through the cracks, fissures, and seams in said rocks, till they find an outlet into the tunnels through innumerable small spaces, through which the waters flow and drip into said tunnels. At no time before or during the making of said tunnels, or since, did any of the waters coming into said tunnels flow underground in streams that were known to exist, or that could be discovered, or that had well-defined channels with*beds and banks; but said waters, before the making of said tunnels, were caused by rains or melting snows ■entering the surface of the ground and percolating through the rocks, where they, either remained stationary, or moved in the rocks through the small cracks, fissures, and seams therein, and in courses' and directions unknown and that were not then and are not now visible to observation; and their existence and course is only a matter of theory and speculation.”
It is true, the appellant also insists that the evidence is insufficient to support this finding, but upon thorough examination, and without referring to the testimony in detail, on-this point, I am of the opinion that the proof amply warrants the finding. The evidence absolutely fails to show [109] that any known and well-defined subterranean streams connected the springs with either of the tunnels. On the contrary, the proof is, as found by the court, that the water flows into the tunnels through innumerable small spaces, through small cracks, fissures, and seams in the rocks, and that it is not water flowing underground in streams known to exist, or that could be discovered or observed, or that had well-defined channels with beds and banks, but water the existence and course of which was a matter of theory and speculation. There is no evidence whatever showing that any one, before the driving of the tunnels, knew how the water existed in that mountain — whether it was percolating through soil' or rocks, running in streams, or was motionless. Its movements were unknown and incomprehensible. There were no surface indications of channels or streams, or of any body of water, where the tunnels were located. Not until the tunnels cut the water-bearing strata did any person, so far as shown in evidence, pretend to know that the water existed there in streams, and that those streams supplied springs a mile and a half distant. Previous to that time, the water and its movements and courses, and even its existence at that place, were as hidden to mankind as the metallic oxides which also enter into the composition of the earth. Nor were the tunnels driven for the purpose of developing a stream of water, or with any malice toward the appropriators of the surface stream. They were driven as a mining venture in the hope of finding ore. This was a legitimate enterprise, in which the owner of the land had the right to engage, and the water which he found, in digging the tunnels, where no known or defined streams existed, belongs to him as much as does the land itself; and this, even if thus, unexpectedly, in the nature of things, he gains an advantage over his neighbor. Such water, so hidden in the bowels of the earth, belongs to the owner of the soil, and he has the right to dig for it upon his own land and appropriate it and use it if he chooses to do so; and if thereby a loss re-[110] suits to bis neighbor, it is damnum absque injuria. Such right exists in the owner because, by the general consent o£ mankind, which is inferred from the very nature of the right* every owner of land is entitled to the natural advantages belonging to it. Water standing in the land underneath the surface, or passing through it, or into it, by filtration, percolation, chemical attraction, or in undefined and unknown streams, is such an advantage, which the owner of the land is left to enjoy. The law of surface streams does not apply to such water. If it were otherwise, no man would be safe in •operating a mine, or even in digging a well, upon his land, for, by so doing, he might interfere with percolation, or cut an 'undefined stream hidden from observation, and thereby diminish or stop the flow of his neighbor’s spring, and render himself liable in damages, however innocently the work might have been performed. The sequence would be the hindrance or prevention of improvements and progress. Where streams of water appear upon the surface, or in well-defined and known subsurface channels havings beds and banks, there the owners of the soil over or through which they pass are bound to take notice of the rights of all others to the water; but, as to water of the nature of that developed by the tunnels in question in this ease, the law is well settled that it belongs to the owner of the land; and where, as here, springs appear to exist, which flow into a surface stream, and they are not shown to be supplied by known or defined streams, the presumption is that they are formed by ordinary percolation. Such appears to be the settled law both in England and in this country.
In Cooley, Torts (2 Ed.), pp. 689, 690, the author says: “If one by an excavation on his own land draws off the subterranean waters from the land of his neighbor to the prejudice of the latter, no action will lie for the consequent damage. This is fully settled in England by the leading case of Acton v. Blundell, 12 Mees. & W. 324, and in a later case it is decided that prescriptive rights can not be gained, in subterra-[111] neons waters, which will preclude such excavations on adjoining grounds as may draw them off. These decisions have been generally followed in this country, and it may be considered settled law that, if the well dug by one man ruins the well or spring of his neighbor by drawing off its water, it is damnum absque injuria. Probably, if the subterraneous water were a stream flowing in a well-known course it would be different, and one through whose land it flowed would be protected against its being drawn away from him. Put one claiming rights in such a stream would be under the necessity of proving its existence and tracing it — not an easy task in any case.” So, in Gould, Waters, section 280, it is said: “Water percolating through the ground beneath the surface, either without a definite channel or in courses which are unknown and unas-certainable, belongs to the realty in which it is found. The rule that a man may freely and absolutely use his property so long as he does not directly invade that of his neighbor, or consequentially injure his clearly defined rights, is applicable to the interruption of subsurface supplies of water or of a stream; and the damage resulting therefrom is not the subject' of legal redress. The landowner may, therefore, make a ditch to drain his land, or dig a well thereon, or open and work a quarry upon it, or otherwise change its natural condition, although by so doing he interrupts the underground sources of a spring or well on his neighbor’s land.” In Kin. Irr., section 49, the author says: “Percolating waters are those which pass through the ground beneath the surface without definite channels, although the same rules of law govern those which have definite channels but the course of which is unknown and unascertainable. 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.”
[112] This court in Crescent Min. Co. v. Silver King Min. Co., 17 Utah 444, 54 Pac. 244, 70 Am. St. Rep. 810, where, as here, water was developed by driving a tunnel for mining purposes, and after flowing from the tunnel'was claimed by the plaintiff, speaking through Mr. Justice MiNER, said: “The waters issuing from the artificial tunnel into the lake are found to be underground, percolating waters from the mining claim of the defendant, and not waters naturally flowing in a stream with a well-defined channel, banks, and course. Under such a state of facts, the law seems to be well settled that water percolating through the soil is not, and can not be, distinguished from the soil itself. The owner of the soil is entitled to the waters percolating through it, and such water is not subject to appropriation. The ordinary rules of law applying to the appropriation of surface streams do not apply to percolating and subterranean streams with undefined and unknown courses and banks.” So, in Irrigation Co. v. Michaelson, 21 Utah 248, 60 Pac. 943, 51 L. R. A. 280, 81 Am. St. Rep. 687, it was said: “Water commingling with the ground or flowing through it by filtration or percolation, or by chemical attraction, is but a component part' of the earth, and has no characteristic of ownership distinct from the land itself. In the eye of the law, water so commingled and flowing, or motionless, underneath the surface, is not the subject of ownership apart and distinct from the soil. If, however, subsurface streams of water flow in clearly defined channels, it is otherwise; for then the rules of law applicable to surface streams and waters apply.” The Supreme Court of Pennsylvania in Haldeman v. Bruckhardt, 45 Pa. 514, 84 Am. Dec. 511, says: “A surface stream can not be diverted without knowledge that the diversion will affect a lower proprietor. Not so with an unknown subterraneous percolation or stream. One can hardly have rights upon another’s land which are imperceptible — of which neither himself nor that other can have any knowledge. No such right can be supposed to have been [113] taken into consideration when either the upper or lower tract was purchased. The purchaser of lands on which there are unknown subsurface currents must buy in ignorance of any obstacle to the full enjoyment of his purchase indefinitely downwards, and the purchaser of lands on which a spring rises, ignorant whence and how the water comes, can not bargain for any right to a secret flow of water in another’s land. It would seem, therefore, most unreasonable that the latter should have a right to prevent his neighbor from enjoying his own land in the ordinary way either by digging wells, cellars, drains, or by quarrying and mining.” Then, after reviewing authorities, the court further says: “There are known streams to which, if the lower proprietor has any rights, they are perceptible, and require no subsurface exploration before their course can be defined. We are not, however, to be understood as intimating that an owner may maliciously or negligently divert even an unknown subterranean stream to the damage of a lower proprietor. But in the enjoyment of his land he may cut drains or mine or quarry, though in so doing he interfere with the flowage of water in hidden, unknown, underground channels.” In Frazier v. Brown, 12 Ohio St. 294, it was observed: “The law can not properly limit the ordinarily absolute dominion of the owner of the soil, in respect to things concealed and hidden in the bowels of the earth, nor recognize an adjoining proprietor as having claims upon, or rights in, a thing passing under the surface of his neighbor’s land, the existence of which was first revealed by the very act which would constitute the subject-matter of his com: plaint.” So, in Ocean Grove Camp Meeting Ass’n v. Asbury Park Com’rs, 40 N. J. Eq. 447, 3 Atl. 168, it was said: “The courts all' proceed upon the ground that waters thus used and diverted are waters which percolate through the earth, and are not distinguished by any certain and welLdefined stream, and, consequently, are the absolute property of the owner of the fee as completely as are the ground, stones, minerals, or' [114] other matter, to any depth whatever beneath the surface. The one is just as much the subject of use, sale, or diversion, as the other.” Washb. Easem. (4 Ed.), p. 505, par. 2; Kin. Irr., sec. 48; Gould, Waters, secs. 281, 282; Acton v. Blundell, 12 Mees. & W. 324; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Taylor v. Welch, 6 Or. 199; Williams v. Ladew, 161 Pa. 283, 29 Atl. 54, 41 Am. St. Rep. 891; Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352; Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721; Trustees, etc., of Village of Delhi v. Youmans, 50 Barb. 316; Village of Delhi v. Youmans, 45 N. Y. 362, 6 Am. Rep. 100; Chatfield v. Wilson, 28 Vt. 49; Chase v. Silverstone, 62 Me. 175, 16 Am. Rep. 419; Mosier v. Caldwell, 7 Nev. 363; Metcalf v. Nelson (S. D.), 65 N. W. 911, 59 Am. St. Rep. 746; Deadwood Cent. R. Co. v. Parker (S. D.), 86 N. W. 619.
The appellant further contends that the .'respondents abandoned the water flowing from the tunnels, by turning or permitting it to flow into Butterfield creek, and that, 6 therefore, it was subject to appropriation the same as unappropriated water of a surface stream.' On this point, the court found that, “in turning the waters of the Queen and Butterfield tunnels into Butterfield creek, the Butterfield Mining Company did not intend to abandon the same or the use thereof, but intended to take the waters from the creek at some point further down, and to apply and use the same, before reaching the creek, for the purpose of milling its ores, when needed for that purpose.” Counsel for appellant insist that the evidence is insufficient to support this finding, but, from an examination of the testimony, I think, the finding was justified. It is evident that there was no intention on the part of the owners to abandon the water, and no adverse title has been acquired under the statute of limitations or by prescription. As we have seen, the respondents, who were the owners of the land, were also the owners of the water, and they had the right to use it or dispose of it in any legitimate way they saw [115] fit. Eor the purgóse of applying it to some proper use, the owners had, under the circumstances appearing in evidence, the right to turn it into the natural channel of Butterfield creek, and, after permitting it to flow therein for some distance, had the right to divert it again from such channel, if by so doing they did not divert more water, after making due allowance for evaporation and seepage, than belonged to them, and did not interfere with any rights of prior appropriators of the waters naturally flowing in the said channel.
There appears to be nothing in the record which would warrant the position that the respondents were diverting more water than belonged to them, or that they unlawfully interfered 7 with the rights of any prior appropriator. The mere turning of the water in the natural stream was not an abandonment of it, nor did such act prevent the owners from again claiming it. The burden, however, is upon him who turns water into a natural stream to show that he has not taken more out of it than belonged to him. This, according to the findings, and which, I think, are supported by the proof, was shown. Butte Canal & Ditch Co. v. Vaughan, 11 Cal. 143, 70 Am. Dec. 769; Wilcox v. Hausch, 64 Cal. 461, 3 Pac. 108.
Very close scrutiny and careful consideration reveal no prejudicial error in this record, and I am of the opinion that the judgment ought to be affirmed.