mining, and discovers, when too late, that the appropriation of the water has already been made. Further, the advantage on one side, and the detriment to the other, may bear no proportion. The well may be sunk to supply a cottage, or a drinking-place for cattle; whilst the owner of the adjoining land may be prevented from winning metals and minerals of inestimable value. And, lastly, there is no limit of space within which the claim of right to an underground spring can be confined in the present case, the nearest coal-pit is at the distance of half a mile from the well: it is obvious the law must equally apply if there is an interval of many miles. Considering, therefore, the state of circumstances upon which the law is grounded in the one case to be entirely dissimilar from those which exist in the other; and that the application of the same rule to both would lead, in many cases, to consequences at once unreasonable and unjust; we feel ourselves warranted in holding, upon principle, that the case now under discussion does not fall within the rule which obtains as to surface streams, nor is it to be governed by analogy therewith. No case has been cited on either side bearing directly on the subject in dispute. The Roman law forms no rule, binding in itself, upon the subjects of these realms; but, in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe. The authority of one at least of the learned Roman lawyers appears decisive upon the point in favor of the defendants; of some others the opinion is expressed with more obscurity. In the Digest, Lib. 39, Tit. 3, De aqua et aquae pulviae arcandae, Sec. 12, "Denique Marcellus scribit: Cum eo, qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem ; et sane non debet habere, si non animo vicini nocendi sed suum agrum meliorem faciendi id fecit." ... It is scarcely necessary to say that we intimate no opinion whatever as to what might be the rule of law if there had been an uninterrupted user of the right for more than the last twenty years; but, confining ourselves strictly to the facts stated in the bill of exceptions, we think the present case, for the reasons above given, is not to be governed by the law which applies to rivers and flowing streams, but that it rather falls within that principle which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbor's well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot become the ground of an action. We think, therefore, the direction given by the learned judge at the trial was correct, and that the judgment already given for the defendants in the Court below must be affirmed. Judgment affirmed. 249. MEEKER v. EAST ORANGE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 1909 ERROR to Supreme Court. Actions by Frank W. Meeker against the City of East Orange. Judgment for defendant (70 Atl. 360), and plaintiff brings error. Reversed. Ralph E. Lum, (Guild, Lum & Tamblyn, on the brief), for plaintiff in error. Jerome D. Gedney, for defendant in error. PITNEY, Ch. Plaintiff brought two actions in one of the District Courts of the city of Newark to recover damages for the diversion by the defendant of percolating underground water. In each case the District Court rendered judgment in favor of the defendant, and upon appeal to the Supreme Court the judgments were affirmed. By writs of error the records are brought here for review. The cases were submitted to the trial Court upon agreed statements of fact. In one case it is stipulated that plaintiff owns and occupies a farm of about 100 acres, situate in the valley of Canoe brook, in the townships of Millburn and Livingston, in the county of Essex. He is a milkman, and has for a number of years used his farm for the pasture and support of his cows and horses. Canoe brook and two small streams tributary thereto flow through his farm. Upon the farm there is also a spring, inclosed by a springhouse, the water of which has for years been used by the plaintiff for drinking purposes and for the storing and keeping of his milk. His cattle in pasture have for years resorted to the brook and its tributaries for drinking water. The defendant, the City of East Orange, under the authority of "An Act to enable cities to supply the inhabitants thereof with pure and wholesome water," approved April 21, 1876 and the Acts supplemental thereto and emendatory thereof (P. L. 1876, p. 366; Gen. St. 1895, pp. 646–650, §§ 902–917), acquired a tract of land containing about 680 acres situate in the valley of Canoe brook and in the township of Millburn, and installed thereon a water plant consisting of about 20 artesian wells, situate farther down the stream than plaintiff's farm and distant upwards of a mile therefrom. In the construction of these wells, and of the works, mains, and reservoirs connected therewith, the city has expended more than $1,000,000. A few years prior to the commencement of the action, the city began to take water from the wells, and has thus taken percolating underground water, which, but for its interception, would have reached the plaintiff's spring or stream. No water other than percolating water has been taken, and no water has been taken out of any surface stream or from the spring of the plaintiff after it (the water) has appeared upon the surface or in any surface or stream. In this action the plaintiff seeks damages for the diversion of the underground water that otherwise would have reached his spring and streams. In the other action the agreed statement of facts differs only in that it shows the existence upon plaintiff's farm of a well which for years had provided water for the various purposes of the plaintiff, and that as a result of the defendant's operations it had taken percolating underground water which otherwise would have reached this well, and had also taken percolating underground water from beneath the surface or soil of the plaintiff's land to such an extent that his crops will not now grow as they did formerly, and the taking of such percolating water has damaged the plaintiff's hay and crops, and also has reduced the level of the water in his well. For this diversion damages are sought. The judgments under review are based upon the theory that the city has an absolute right to appropriate all percolating water found beneath the land owned by it, and to use the water for purposes entirely unconnected with the beneficial use and enjoyment of that land, to the extent, indeed, of making merchandise of the water and conveying it to a distance for the supply of the inhabitants of East Orange, and that although by such diversion the plaintiff's spring, well, and stream are dried up, and his land rendered so arid as to be untillable, it is damnum absque injuria. The judgments are attacked upon the ground that the law recognizes correlative rights in percolating subterranean waters, that each landowner is entitled to use such waters only in a reasonable manner and to a reasonable extent beneficial to his own land, and without undue interference with the rights of other landowners to the like use and enjoyment of waters percolating beneath their lands, or of water courses fed therefrom. The law respecting the rights of property owners in percolating subterranean waters is of comparatively recent development; the first English decision bearing directly upon the question having been rendered in 1843. Acton v. Blundell, 12 M. & W. 324, 13 L. J. Exch. 289. This was followed by Chasemore v. Richards (1859) 7 H. L. Cas. 349, 29 L. J. Exch. 81, 5 Jur. N. s. 873, 1 Eng. Rul. Cas. 729. These cases may be taken as establishing for that jurisdiction the rule upon which the judgments under review are based. They were followed by a considerable line of decisions in this country, in which the English rule was adhered to, and which will be found discussed in Washburn on Easements, 363-390; Angell on Water Courses, §§ 109-114p; 30 Am. & Eng. Encyc. Law (2d Ed.) 310-313. The soundness of the English doctrine was, however, challenged by the Supreme Court of New Hamp shire in a well-considered case decided in 1862 (Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179), where it was elaborately reasoned that the doctrine of absolute ownership is not well founded in legal principles, and is not so commended by its practical application as to require its adoption; that the true rule is that, the rights of each owner being similar, and their enjoyment dependent upon the action of other landowners, their rights must be correlative and subject to the operation of the maxim sic utere, etc.; so that each landowner is restricted to a reasonable exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others. This decision was followed by Swett v. Cutts (1870) 50 N. H. 439, 9 Am. Rep. 276, where the Court again laid down that the landowner has not an absolute and unqualified property in all such water as may be found in his soil, to do what he pleases with it, as with the sand and rock that form part of the soil, but that his right is to make reasonable use of it for domestic, agricultural, and manufacturing purposes, not trenching upon the similar rights of others. The doctrine, thus enunciated, has come to be known in the discussion of the topic as the rule of "reasonable use." The question as to which of these contrary rules obtains in this State has not been set at rest by any previous adjudication in this Court. In Ocean Grove v. Asbury Park (1885) 40 N. J. Eq. 447, 3 Atl. 168, both parties were seeking a general supply of water for the respective summer resorts. Ocean Grove obtained by boring upon its own land a supply of water for its inhabitants. Asbury Park sought water by boring upon lands of third parties with the consent of the latter. Vice Chancellor Bird refused an injunction upon the ground that subterranean percolating waters are the absolute property of the owner of the fee, citing the leading English cases and some American decisions that follow them. His decision could, perhaps, have been based upon the doctrine of reasonable use, because neither party was proposing to confine its use of the waters to the beneficial enjoyment of the lands from which they were taken. . . . In the absence of any anciently established rule of the English common law upon the subject, and of any contrary decision in this Court, and in view of what will shortly appear, that the decisions in other juris. dictions are conflicting, with the trend of modern decisions in this country strongly in favor of adopting the doctrine of reasonable use, this Court is at the present time open to decide the cases at bar in accordance with sound reason and general principles of law and justice. A brief review of the leading English decisions will not be out of place. Acton v. Blundell (1843) 12 M. & W. 324, 13 L. J. Exch. 289, held that a landowner has no such right or interest in a subterranean water course as to enable him to maintain an action against a landowner who, in carrying on mining operations upon his own land in the usual manner, drains away the water from the land of the first-men tioned owner and lays his well dry. This decision might well have been based upon the doctrine of reasonable use; but it was rested upon the absolute ownership, on the part of the mine-owner, of all that lay beneath the surface of his land. . In Chasemore v. Richards (1859) 7 H. L. Cas. 349, 29 L. J. Exch. 81, 5 Jur. N. s. 873, 1 Eng. Rul. Cas. 729, the facts were that the plaintiff was the occupier of an ancient mill on the River Wandle; that he and his predecessors for more than 60 years had used and enjoyed as of right the flow of the river; and that the river was supplied above the plaintiff's mill in part by the rainfall on a district many thousand acres in extent, comprising the town of Croydon and its vicinity; the water sinking into the ground to various depths and then flowing and percolating through the strata to the river, part rising to the surface, and part finding its way underground in courses which continually varied. The defendant represented the members of the local board of health of Croydon, who, for the purpose of supplying that town with water, sunk a well upon their own land in the town and about a quarter of a mile from the river, and pumped out large quantities of water for the supply of the town, thereby intercepting underground water that otherwise would have found its way into the river, and so to the plaintiff's mill. The question was whether the plaintiff could maintain an action for this diversion, abstraction, and interception of the underground water. The Court of Exchequer, upon the authority of Broadbent v. Ramsbotham, 11 Exch. 602, 25 L. J. Exch. 115, gave judgment for the defendant, which was affirmed by the Court of Exchequer Chamber, Justice Coleridge dissenting (2 Hurl. & Norm. 168); the House of Lords affirmed the judgment under review upon grounds that practically overrule the decision in Dickinson v. Grand Junction Canal Co. The decision in Chasemore v. Richards has been treated as finally settling the law for England, and has been followed or approved in numerous subsequent English cases. A few of the earlier American decisions may also be noted. In Greenleaf v. Francis (1836) 18 Pick. (Mass.) 117, the Supreme Court of Massachusetts held that, in the absence of rights acquired by grant or adverse user, a landowner may dig a well on any part of his land, notwithstanding he thereby diminishes the water in his neighbor's well, unless in so doing he is actuated by a mere malicious intent to deprive his neighbor of water. Although this case is sometimes cited as authority for the rule afterwards established in England, the reasoning of the opinion is consistent with the doctrine of "reasonable user." The same is true of Roath v. Driscoll (1850) 20 Conn. 533, 52 Am. Dec. 352. Wilson v. City of New Bedford (1871) 108 Mass. 261, 11 Am. Rep. 352. Here the city had constructed a reservoir from which water percolated underground to the plaintiff's cellars about a thousand feet distant, and prevented the natural passage of water underground into the natural stream on which the dam of the reservoir was con |