Ellsworth, J.
This is an application to a court of equity, to prevent the defendant from using a certain reservoir of water, situate upon his premises.
The court, doubtless, possesses the necessary power; but it is not to be exercised as a matter of course, even when the plaintiff suffers some injury to his real estate. Whenever the right is doubtful, or needs the investigation of a jury, upon facts in dispute, a court of equity is always reluctant to interpose its summary authority; for it is rather the duty of the court to protect acknowledged rights, than to establish new and doubtful ones.
We think the case, even if its merits were less equivocal than they are, belongs to that class which renders the interposition of equity inexpedient and questionable: its multifarious and peculiar facts commend it to a legal investigation.
But as the case has been discussed on its broadest merits, and is one of novelty, and some practical importance, we are not unwilling, in giving judgment, to pass upon these merits, and, if possible, put an end to the subsisting controversy.
It appears, that the plaintiffs, for more than fifteen years before the commencement of this suit, were the owners of a reservoir of water, situate in the North-East corner of their lot, made by excavating the ground a few feet below the surface. In this reservoir, water stood, sufficient for the use of the plaintiffs’ cattle; but there never was any stream of water running into or from it. The water percolated through the earth, but never rose to a level with the adjoining land. Within fifteen years before this suit, the plaintiffs had opened another reservoir, at a short distance from the first, which they [540]*540call a well, which was of the depth of a few feet, and at a place higher up the hill than the first. The water stood in the well somewhat higher than it did in the first reservoir, but never rising so as to run off; and no stream was known to run into it. The plaintiffs inserted an aqueduct into the well to carry water, upon the principle of the syphon, over higher ground, to a large cistern on other land, to supply themselves and their neighbours with fresh water, which they did at considerable pecuniary profit.
Recently, the defendant, on his lot adjoining the plaintiffs’, made a small excavation, in which the water appears, and stands naturally at a level below the water in the plaintiffs’ well; but no stream naturally runs into or from the defendant’s said basin; nor does the water rise to the surface of the land. From this basin the defendant, by a trough, carries the water to his lands adjoining.
It is found, that the defendant is acting from honest motives to advance his interests, without any design unnecessarily to injure the plaintiffs.
It is further found, that since the defendant made his basin as aforesaid, the consequence and effect has been, that water has not entered and stood at sufficient height in the plaintiffs’ well, to enable them to draw water through their pipes to their cistern. This is the injury complained of.
Now, although this effect is found to result from the defendant’s acts, yet it is not found, how this is the result; and the judge expressly says, he is not able to find, whether the water, which before entered the defendant’s well, was interrupted and prevented from passing into the well, by reason of the defendant’s basin; or whether the water would naturally first pass into the basin, and then into the plaintiffs’ land; nor indeed where was the origin of the water, or what its progress, or manner of percolating through the earth, nor where was its natural outlet, if there was any at all.
Now, two things are to be observed, in deciding upon the foregoing facts; first, to lay out of the case any artificial use of water, for more than fifteen years, by which the plaintiffs have acquired anew right; for the plaintiffs’ well, which has caused their first reservoir to become dry, (as is the fact,) is of less than fifteen years standing; and secondly, the mode [541]*541of the injury cannot be ascertained from testimony in the case.
The case, when viewed most favourably for the plaintiffs, is simply this. Have they, by mere prior occupancy, acquired an advantage over the defendant, in the use of this water? Or, in other words, can one of two adjoining proprietors, by first opening a watering place, prevent other persons from doing the same, on their own land; though by so doing, water is prevented from percolating the land so as to supply the first made reservoir.
We have already said, that this case does not involve a right acquired, by artificial use for fifteen years; but in the following reasons it will appear, that as to adjoining proprietors who open the earth for reservoirs of water, this distinction is not the rule; for nothing is gained, by a mere continued preoccupancy of water under the surface. Why should any advantage be gained, by preoccupancy? Each owner has an equal and complete right to the use of his land, and to the water which is in it. 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; not more than the metallic oxids of which the earth is composed. Water, whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth. The laws of its existence and progress, while there, are not uniform, and cannot be known or regulated. It rises to great heights, and moves collaterally, by influences beyond our apprehension. These influences are so secret, changeable and unconlroulable, we cannot subject them to the regulations of law, nor build upon them a system of rules, as has been done with streams upon the surface. Priority of enjoyment does not, in like cases, abridge the naturall rights of adjoining proprietors. No one, building upon the line of his lot, can prevent his neighbour from digging a cellar, though thereby his building may be seriously endangered and injured. These principles are elaborately discussed and decided in Thurston v. Hancock, 12 Mass. R. 220. Panton v. Holland, 17 Johns. R. 92. Callender v. Marsh, 1 Pick. 434. Lasa-la & al. v. Holbrook, 4 Paige, 169. Wyatt v. Harrison, 3 B. & Adol. 871. (23 E. C. L. 205.) Greenleaf v, Francis, 18 Pick. 117.
[542]*542Further, we may say, that, by general consent of mankind, which is to be inferred from the nature of the right itself, each person must be left to enjoy any natural advantage belonging to his own land; and water, appearing and standing, either naturally or by artificial means, but never constituting a running stream, is such a natural advantage; were it otherwise, one man, by sinking a well, though comparatively unimportant, might prevent the sinking of other wells, and the improvement of the neighbourhood, by draining marshes, &c., and even the opening of mines of metal or coal; as the water might not percolate, with the same freeness or abundance as before. Besides, no man is bound to know that his neigh-bour’s well is supplied, by water percolating his own soil; and he ought not, therefore, to be held to lose his rights, by such continued enjoyment.
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Ellsworth, J.
This is an application to a court of equity, to prevent the defendant from using a certain reservoir of water, situate upon his premises.
The court, doubtless, possesses the necessary power; but it is not to be exercised as a matter of course, even when the plaintiff suffers some injury to his real estate. Whenever the right is doubtful, or needs the investigation of a jury, upon facts in dispute, a court of equity is always reluctant to interpose its summary authority; for it is rather the duty of the court to protect acknowledged rights, than to establish new and doubtful ones.
We think the case, even if its merits were less equivocal than they are, belongs to that class which renders the interposition of equity inexpedient and questionable: its multifarious and peculiar facts commend it to a legal investigation.
But as the case has been discussed on its broadest merits, and is one of novelty, and some practical importance, we are not unwilling, in giving judgment, to pass upon these merits, and, if possible, put an end to the subsisting controversy.
It appears, that the plaintiffs, for more than fifteen years before the commencement of this suit, were the owners of a reservoir of water, situate in the North-East corner of their lot, made by excavating the ground a few feet below the surface. In this reservoir, water stood, sufficient for the use of the plaintiffs’ cattle; but there never was any stream of water running into or from it. The water percolated through the earth, but never rose to a level with the adjoining land. Within fifteen years before this suit, the plaintiffs had opened another reservoir, at a short distance from the first, which they [540]*540call a well, which was of the depth of a few feet, and at a place higher up the hill than the first. The water stood in the well somewhat higher than it did in the first reservoir, but never rising so as to run off; and no stream was known to run into it. The plaintiffs inserted an aqueduct into the well to carry water, upon the principle of the syphon, over higher ground, to a large cistern on other land, to supply themselves and their neighbours with fresh water, which they did at considerable pecuniary profit.
Recently, the defendant, on his lot adjoining the plaintiffs’, made a small excavation, in which the water appears, and stands naturally at a level below the water in the plaintiffs’ well; but no stream naturally runs into or from the defendant’s said basin; nor does the water rise to the surface of the land. From this basin the defendant, by a trough, carries the water to his lands adjoining.
It is found, that the defendant is acting from honest motives to advance his interests, without any design unnecessarily to injure the plaintiffs.
It is further found, that since the defendant made his basin as aforesaid, the consequence and effect has been, that water has not entered and stood at sufficient height in the plaintiffs’ well, to enable them to draw water through their pipes to their cistern. This is the injury complained of.
Now, although this effect is found to result from the defendant’s acts, yet it is not found, how this is the result; and the judge expressly says, he is not able to find, whether the water, which before entered the defendant’s well, was interrupted and prevented from passing into the well, by reason of the defendant’s basin; or whether the water would naturally first pass into the basin, and then into the plaintiffs’ land; nor indeed where was the origin of the water, or what its progress, or manner of percolating through the earth, nor where was its natural outlet, if there was any at all.
Now, two things are to be observed, in deciding upon the foregoing facts; first, to lay out of the case any artificial use of water, for more than fifteen years, by which the plaintiffs have acquired anew right; for the plaintiffs’ well, which has caused their first reservoir to become dry, (as is the fact,) is of less than fifteen years standing; and secondly, the mode [541]*541of the injury cannot be ascertained from testimony in the case.
The case, when viewed most favourably for the plaintiffs, is simply this. Have they, by mere prior occupancy, acquired an advantage over the defendant, in the use of this water? Or, in other words, can one of two adjoining proprietors, by first opening a watering place, prevent other persons from doing the same, on their own land; though by so doing, water is prevented from percolating the land so as to supply the first made reservoir.
We have already said, that this case does not involve a right acquired, by artificial use for fifteen years; but in the following reasons it will appear, that as to adjoining proprietors who open the earth for reservoirs of water, this distinction is not the rule; for nothing is gained, by a mere continued preoccupancy of water under the surface. Why should any advantage be gained, by preoccupancy? Each owner has an equal and complete right to the use of his land, and to the water which is in it. 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; not more than the metallic oxids of which the earth is composed. Water, whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth. The laws of its existence and progress, while there, are not uniform, and cannot be known or regulated. It rises to great heights, and moves collaterally, by influences beyond our apprehension. These influences are so secret, changeable and unconlroulable, we cannot subject them to the regulations of law, nor build upon them a system of rules, as has been done with streams upon the surface. Priority of enjoyment does not, in like cases, abridge the naturall rights of adjoining proprietors. No one, building upon the line of his lot, can prevent his neighbour from digging a cellar, though thereby his building may be seriously endangered and injured. These principles are elaborately discussed and decided in Thurston v. Hancock, 12 Mass. R. 220. Panton v. Holland, 17 Johns. R. 92. Callender v. Marsh, 1 Pick. 434. Lasa-la & al. v. Holbrook, 4 Paige, 169. Wyatt v. Harrison, 3 B. & Adol. 871. (23 E. C. L. 205.) Greenleaf v, Francis, 18 Pick. 117.
[542]*542Further, we may say, that, by general consent of mankind, which is to be inferred from the nature of the right itself, each person must be left to enjoy any natural advantage belonging to his own land; and water, appearing and standing, either naturally or by artificial means, but never constituting a running stream, is such a natural advantage; were it otherwise, one man, by sinking a well, though comparatively unimportant, might prevent the sinking of other wells, and the improvement of the neighbourhood, by draining marshes, &c., and even the opening of mines of metal or coal; as the water might not percolate, with the same freeness or abundance as before. Besides, no man is bound to know that his neigh-bour’s well is supplied, by water percolating his own soil; and he ought not, therefore, to be held to lose his rights, by such continued enjoyment. He cannot know that the first well requires any other than the natural and common use of water under the surface; nor can he know from whence the water comes; nor by what means it appears in one place or the other; nor which of the persons who first or afterwards opens the earth, encroaches upon the right of the other. Tbe law has not yet extended beyond open running streams.
Nor can any light be obtained from the law of surface streams. Such streams are recognized as private property: and their use is regulated by principles of obvious equity and necessity. Their nature is defined; their progress over the surface seen, and known, and uniform. They are not in the secret places of the earth, and a part of it; nor is there any secresy in the influences which move them. As soon as they appear and pass over the surface, they assume a distinct character, and are subject to the great law of gravitation. The purchaser of land knows what he purchases, and what controul he can exercise over such a stream, and what are the rights of those above or below him. Each may use them as the common atmosphere; but none can injuriously interrupt their progress, or render them unfit for common use. Their laws are as fixed and public, as the laws of freehold estates. But what are the laws of water percolating in the earth? Speaking on this subject, Ch. J. Tindal says, in Acton v, Blundell, 12 M. & W. 348., “The ground and origin of the law which governs streams running in their natural course, would seem to be this ; that the right enjoyed by the [543]*543several proprietors of the lands over which they flow, is, and always has been, public and notorious; that the enjoyment has been long continued, indeed, time out of mind, and uninterrupted, each man knowing what he receives, and what has always been received, and what he transmits, and what has always been transmitted, to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages; or perhaps it may be considered as a rule of positive law, the origin of which is lost, by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice Story, as an incident to the law and that whoever seeks to found an exclusive use, must establish a rightful appropriation, in some manner known and admitted by the law. But in the case of a well, sunk by a proprietor in his own land, the water which feeds it from a neighbouring soil, does not flow openly in the sight of the neighbouring proprietor, tut through the hidden veins of the earth, beneath its surface. No man can tell what changes these under-ground sources have undergone, in the progress of time ; it may well be, that it is only of yesterday’s date that they first took the course and direction which enabled them to supply the well.
“Again, no proprietor knows what portion of water is taken from beneath his own soil; how much he gives originally, or how much he transmits only, or how much he receives. On the contrary, until the well is sunk, and the water collected, by draining into it, there cannot properly be said, with reference to the well, to be any flow of water at all.
“In the case, therefore, of the well, there can be no ground for implying any mutual consent or agreement, for ages past, between the owners of the several lands beneath which the under ground springs may exist, which is one of the foundations on which the law, as to running streams, is supposed to be built. Nor for the same reason, can any trace of a positive law be inferred from long continued acquiescence and submission, whilst the very existence of the underground springs, or of the well, may be unknown to the proprietors of the soil.”
The case of Greenleaf v. Francis, is like the case on trial. This is the marginal summary or note; “In the absence of all right, acquired by grant, or adverse use for twenty years, [544]*544the owner of land may dig a well on any part thereof, notwithstanding he therehy diminishes the water in his neigh-bour's well, unless in so doing. he is actuated by a mere malicious intent to deprive his neighbour of water."
We advise that the plaintiffs', bill be dismissed.
The other Judges were of the same opinion.
Bill dismissed.