Gould v. Eaton

California Supreme Court Mar 21, 1896 No. L. A. No. 23Published

Before: Harrison

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Holding. The court held that subterranean waters percolating through soil or rock are the property of the landowner, and the owner may appropriate them even if doing so diverts water from adjacent lands or streams, provided the water does not constitute a defined underground stream.

Issues

Whether subterranean waters percolating through sandstone constitute a defined stream subject to surface water laws.
Whether a landowner may lawfully intercept and divert percolating waters that would otherwise contribute to a surface stream.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule is well established that the principles of law which govern the right to waters flowing upon the surface of the earth are inapplicable to waters which are beneath its surface and percolate through the soil.”

“So long as the water is in a condition of filtration or percolation it is a part of the soil and subject to the sole dominion of the proprietor of the land in which it is found.”

“The mere diversion of its direction does not, however, change its character from percolating water to a flowing stream.”

Synopsis

Water Rights—Percolating Water—Diversion through Tunnel— Right of Owner of Soil.—The principles of law which govern the right to waters flowing upon the surface of the earth are inapplicable to waters which percolate through the soil; and such percolating waters, so long as they are in a condition of percolation, and do not form part of a defined stream, belong to the owner of the land regardless of the material through which they percolate, whether it be loose sand or sandstone, and such owner may, by a tunnel, intercept and develop such waters, and divert and appropriate them to his own use.

Id.—Direction of Percolation—Seam of Clay—Right of Diversion from Adjacent Land.—The fact that the course of percolating waters is arrested by a seam of clay, and that they percolate through porous sandstone lying close to the seam of clay, along such seam, in a definite direction toward adjacent lands, does not affect the exclusive dominion over such percolating waters by the owner of the soil, and his mere diversion of such direction does not change their character as percolating waters; nor does he violate the rights of the owner of the adjacent lands by diverting and appropriating such waters, so as to prevent them from reaching the adjacent lands, or so as to destroy advantages therefrom previously enjoyed by the adjacent proprietor.

Findings—Inferences of Fact—Appeal—Presumption—Support of Judgment.—The inference of one fact from another must be made by the trial court, unless such inferred fact is a necessary conclusion from the findings made; and if the facts found are such as might authorize different inferences therefrom, it will he presumed upon appeal that the inference made by the trial court was one that will uphold rather than defeat the judgment.

Harrison, J. The Cold Spring brand) of Montecito creek has its rise in the Santa Inez Mountains, and flows in a southerly direction through a canyon on the southerly slope of said mountains. These mountains in the neighborhood of said stream are composed chiefly of parallel strata of sandstone, extending across the canyon, and separated by seams parallel with the strata, filled with clay which is impervious to water. This sandstone is porous and fissured with seams and cracks, both parallel with the strata and transversely thereto. The trend of the strata is nearly cast and west, and nearly at right angles with the general course of the canyon and of the stream, and the dip of the strata is toward the north, and at an angle of about eighty degrees. The stream has a fall of about four hundred feet to the mile, and its natural supply is the rain which falls upon the adjacent mountains, and descends into the sandstone, percolating through it, and passing [642]along the seams and cracks thereof in a direction with the trend of the strata. The plaintiff is the owner of a tract of land through which the stream flows, and from which his land derives a benefit. In October, 1892, the owner of a tract of land extending on bpth sides of the stream above that of the plaintiff granted to the defendants the right to enter thereon and excavate a tunnel for developing water, and in pursuance thereof the defendants commenced the construction of a tunnel at a point about thirty feet west of the stream, and at an elevation of about four feet above its level, and continued the construction of said tunnel in a northerly direction for about six hundred feet. The tunnel was constructed so as to be throughout the greater part of its length below the level of the stream, and so that this depth increased gradually toward the head or northern end, where it was about fifty feet below the level of the stream. At a point about three hundred feet from the mouth of the tunnel there is a bold outcropping of one of the strata of said sandstone, and for a space of thirty yards along the canyon, extending from near the foot of the western slope of the mountains to the .margin of the stream, a distance of about one hundred feet, the water, prior to the construction of the tunnel, percolating through this stratum, moistened the ground and sustained thereon a growth of ferns. Within this growth of ferns there were, prior to the construction of the tunnel, certain small springs, the waters of which came to the surface in such quantities as to be visible, and percolating through said ferns seeped into the stream along the western bank thereof, but did not form a defined channel or current. The line of the • tunnel was a short distance west of this growth of ferns and the locality of these springs, and also about fofty feet below the level of the same, and the effect of its construction has been to intercept and divert into and through the tunnel the waters that had previously supplied the springs, and to cause the same, and the seepage therefrom into the stream, to wholly disappear. The porous charac

Gould v. Eaton

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