Hanson v. McCue
Before: Crockett, Wallace
Synopsis
Law of Underground Currents of Water.—Where underground currents of water, flowing in defined channels, are shown to exist, the rules of law which govern the use of similar streams flowing upon the surface of the earth, are applicable to them.
Springs Presumed to be Supplied by Percolation.—In a controversy respecting the use of the waters of a spring, where there was nothing to show that it was supplied by any defined flowing stream; held, that it must he presumed to be formed by the ordinary percolations of water in the soil.
Percolating Waters Belong to Owner of Soil.—Waters filtrating or percolating in the soil belong to the owner of the freehold—like the rocks and minerals found there; and he may use them as he chooses, free from any usufructuary rights of others.
Bights of Owners of Springs of Water.—Where the owner of a spring of living water, supplied by percolation only, and having no natural channel or outlet, constructed an artificial channel, by means of which he conducted the water over certain intermediate vacant lands to his residence, and a subsequent occupant of a portion of the intermediate land enjoyed the use of the Tvater flowing through the channel for fifteen, years; held, that such occupant acquired no rights as against the owner of the spring, and could not prevent him from tapping such spring and using all its waters for his own profit.
No Presumption of Grant of Basement against one not called on to Complain.—Where water, after leaving a spring supplied by percolation alone, was conducted by an artificial channel to premises below and there appropriated; held, that as the owner of the spring had no right to complain of such appropriation helow him, the fact that he did not complain for fifteen years and upwards would not create any presumption of a grant of an easement as against him, nor prevent him from using all the water of his spring as he pleased.
Reasons oe Presumption oe Grant oe Basement erom User eor Length oe Time.—The presumption of the grant of an easement, when indulged against a proper party, is because his conduct, in submitting to the use for such a length of time without objection, cannot be accounted for upon any other hypothesis.
Opinion — Wallace
By the Court, Wallace, J.: This is an action brought by Hanson to restrain the defendant McCue from prosecuting the work of digging a tunnel on the lands of the latter, having for its object the obtaining of water for the purpose of selling the same in the neighboring Town of San Rafael as an article of commerce. A perpetual injunction was decreed, and a motion for a new trial being denied, the case comes here upon appeal.
The defendant McCue is the owner in fee and in possession of certain premises situated in or near the Town of San Rafael, in Marin County, upon which there is a spring of living water having no natural channel or outlet. He deraigns his title through one Timothy Murphy, who owned [307]the premises as early as the year 1844, when he constructed an artificial channel, by means of which he conducted the waters of the spring along the surface of the earth through a wooden trough, across a dry gulch, for a distance altogether of several hundred yards, in a southwesterly direction, to another lot where he had a growing vineyard, which he by this means irrigated. This artificial channel, before it reached the vineyard, passed over a considerable tract of land then unclaimed and unoccupied, intervening the spring and the vineyard, a portion of which was afterwards, in 1854, taken possession of by one Smith, and subsequently, in 1856, sold by him to Hanson, the plaintiff, constituting the premises or a part of the premises now owned by the latter. The artificial channel has ever since been maintained, and it brings to the premises of the plaintiff Hanson a stream of living fresh water, which is used by him for culinary and general domestic purposes, and for irrigating the garden, ornamental grounds, fruit trees, flowers, etc. growing thereon; and he has no water on his premises except that found in this channel, or in a well which is fed by the percolations from the channel. The complaint alleges that the defendant McCue is digging a ditch or tunnel on his premises where the spring is found, in such a way that, if the digging be continued, it will inevitably cut off and intercept “ the hidden and subterranean veins, streams, and sources of said spring, and which supply the same with water, and will thereby divert and lead away the waters which would otherwise flow into said spring, and will so lessen, diminish, or entirely cut off and stop the usual and ordinary supply and amount of water in said spring that no water would flow therefrom to or upon said premises of the plaintiff, to his great and irreparable injury,” etc.
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