structed. The Court sustained the plaintiff's right of action, citing Chasemore v. Richards without disapproval, but holding that the principle upon which it is decided did not prevent the plaintiff from having a recovery. Chase v. Silverstone (1873) 62 Me. 175, 16 Am. Rep. 419, held that a defendant who dug a well on his own land in good faith for the obtaining of water for his own domestic uses was not liable to damages that incidentally resulted to plaintiff by means of the diversion of water that had been accustomed to percolate or flow in an unknown subterranean current into the plaintiff's spring. The decision is fully justifiable under the doctrine of "reasonable user," and, indeed, is so justified in the opinion. But the Court goes further and cites with approval Acton v. Blundell, Chasemore v. Richards, and later English cases. But it is not too much to say that the rule adopted in Chasemore v. Richards, and the reasoning upon which it was rested, have not withstood the test of time, experience, and ampler discussion, and it is entirely clear that the strong trend of more recent decisions in this country is in the direction of a repudiation of the English rule and the adoption of the doctrine that there are correlative rights in percolating underground waters; that no landowner has the absolute right to withdraw these from the soil to the detriment of other owners, and is limited to reasonable uses. A brief review of some of the recent decisions will suffice. The earlier cases in New York repeatedly approved the rule as laid down in Acton v. Blundell and Chasemore v. Richards. Ellis v. Duncan (1885) 21 Barb. 230, affirmed by Court of Appeals, see 29 N. Y. 466, 45 N. Y. 363, 6 Am. Rep. 100; Goodale v. Tuttle (1864) 29 N. Y. 459, 466; Pixley v. Clark (1866) 35 N. Y. 520, 527; 91 Am. Dec. 72; Village of Delhi v. Youmans (1871) 45 N. Y. 362, 6 Am. Rep. 100; Phelps v. Nowlen (1878) 72 N. Y. 39, 28 Am. Rep. 93; Bloodgood v. Ayers (1888) 108 N. Y. 400, 405, 15 N. E. 433, 2 Am. St. Rep. 443; Van Wycklen v. City of Brooklyn (1890) 118 N. Y. 424, 24 N. E. 179. But most, if not all, of these decisions would be equally justified under the doctrine of "reasonable user"; and in Smith v. City of Brooklyn (1899) 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664, the Court of Appeal sustained an action against the city for the diversion and diminution of natural stream upon the plaintiff's land, although it appeared that this was caused by the arrest and collection of underground waters which fed the stream by percolation through the earth, and in Forbell v. City of New York, (1900) 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 696, 79 Am. St. Rep. 666, the same Court held that a municipal corporation which, by the operation of a water system consisting of wells and pumps on its own land, taps the subsurface water stored in the land of an adjoining owner and in the contiguous territory, leads it to its own land, and by merchandising it prevents its return, whereby the value of the land of such owner is impaired for agricultural purposes, 1 is liable to him for the damages occasioned thereby. The Court in this case clearly rested its judgment upon the doctrine of "reasonable user." See, also, Reisert v. City of New York (1903) 174 N. Y. 196, 66 N. E. 731. . . . Katz v. Walkinshaw, (1902) 141 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 36, 64, held that the owner of a portion of a tract of land which is saturated below the surface with an abundant supply of percolating water cannot remove water from wells thereon for sale, if the remainder of the tract is thereby deprived of water necessary for its profitable enjoyment. Cohen v. La Canada Land Co (1907) 151 Cal. 680, 91 Pac. 584, 11 L. R. A. n. s. 752, held (distinguishing Katz v. Walkinshaw and other California cases) that percolating waters may be taken for use of land other than that where found, if this can be done without injury to adjoining owners. Barclay v. Abraham (1903) 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. Rep. 365, held that, while a landowner has a right to make such beneficial use of water from underground reservoirs in the improvement of his estate as he may choose, there is no right to draw water from such underground reservoir merely for the purpose of wasting it, to the injury of other landowners having equal rights to use and means of access to it, or of maliciously depriving them of its beneficial use. Pence v. Carney (1905) 58 W. Va. 296, 52 S. E. 702, 6 L. R. A. N. S. 266, 112 Am. St. Rep. 963, held that the owner of land who explores for and produces subterranean percolating water within the boundary of his land is limited to a reasonable and beneficial use of such water, when to otherwise use it would deplete the water supply of a valuable natural spring of another on adjoining or neighboring land, and thereby materially injure or destroy such spring. Erickson v. Crookston Waterworks Co. (1907) 100 Minn. 481, 111 N., W. 391, 8 L. R. A. N. s. 1250, 10 Am. & Eng. Ann. Cas. 843, held that the law of correlative rights applies to the use by adjoining landowners of waters drawn from an artesian basin, and that such proprietors must so use their wells as not to unreasonably injure their neighbors. Erickson v. Crookston Waterworks Co (1908) 105 Minn. 182, 117 N. W. 435, 17 L. R. A. N. s. 650, was a second appeal after a second trial of the case above, reported under the same title. On the present occasion the Court reiterated the doctrine of "reasonable user." A review of the reasoning upon which the English doctrine respecting percolating underground waters rests will demonstrate, as we think, that this reasoning is unsatisfactory in itself, and inconsistent with legal principles otherwise well established. Thus, in Acton v. Blundell, 12 M. & W. Exch. 349, Tindal, C. J., in undertaking to show the inapplicability to percolating waters of the law that governs running streams, declared that the ground and origin of the law respecting the latter would seem to be that the right enjoyed by the several proprietors of the lands over which they flow is, and always has been public and notorious, that the enjoyment has been long-continued, ard uninterrupted, and therefore based upon the implied assent and agreement of the proprietors of the different lands from all ages, while underground waters, being concealed from view, there can be no implied mutual consent or agreement between the owners of the several lands respecting them. But, as has been since repeatedly pointed out, the right of the riparian owner to the flow of a natural stream arises ex jure naturæ, and not at all from prescription or presumed grant or acquiescence arising from long-continued user. See remarks of Parke, B., in Broadbent v. Ramsbotham, as reported in 25 L. J. Exch., at page 121; and remarks of Lord Wensleydale in Chasemore v. Richards, 7 H. L. Cas., at pages 382, 383, 29 L. J. Exch. 87, 1 Eng. Rul. Cas. 752, 753, and cases cited. Again, in Acton v. Blundell, 12 M. & W. 351, the Chief Justice said: "If a man who sinks a well in his own land can acquire by that act an absolute and indefeasible right to the water that collects in it, he has the power of preventing his neighbor from making any use of the spring in his own soil which shall interfere with the enjoyment of the soil." Obviously he failed to note that there is a middle ground between the existence of an absolute and indefeasible right and the absence of any right that the law will recognize and protect. There is room for the existence of qualified and correlative rights in both landowners. The English rule seems to be rested at bottom upon the maxim, "Cujus est solum, ejus est usque ad cœlum et ad inferos." Thus, in Acton v. Blundell, 12 M. &. W. 354, Tindal, C. J., said that the case fell 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." Here the impracticability of applying the rule of absolute ownership to the fluid, water, which by reason of its nature is incapable of being subjected to such ownership, is apparently overlooked. If the owner of Whiteacre is the absolute proprietor of all the percolating water found beneath the soil, the owner of the neighboring Blackacre must, by the same rule, have the like proprietorship in his own percolating water. How, then, can it be consistent with the declared principle to allow the owner of Whiteacre to withdraw, by pumping or otherwise, not only all the percolating water that is normally subjacent to his own soil, but also, and at the same time, the whole or a part of that which is normally subjacent to Blackacre? Where percolating water exists in a state of nature generally throughout a tract of land, whose parcels are held in several ownership by different proprietors, it is, in the nature of things, impossible to accord to each of these proprietors the absolute right to withdraw ad libitum all percolating water which may be reached by a well or pump upon any one of the several lots, for such withdrawal by one owner necessarily interferes to some extent with the enjoyment of the like privilege and opportunity by the other owners. Again, the denial of the applicability to underground waters of the general principles of law that obtain with respect to waters upon the surface of the earth is in part placed upon the mere difficulty of proving the facts respecting water that is concealed from view. But experience has demonstrated in a multitude of cases that this difficulty is often readily solved. When it is solved in a given case, by the production of satisfactory proof, this reason for the rule at once vanishes. It is sometimes said that, unless the English rule be adopted, landowners will be hampered in the development of their property because of the uncertainty that would thus be thrown about their rights. It seems to us that this reasoning is wholly faulty. If the English rule is to obtain, a man may discover upon his own land springs of great value for medicinal purposes or for use in special forms of manufacture, and may invest large sums of money upon their development; yet he is subject at any time to have the normal supply of such springs wholly cut off by a neighboring landowner, who may with impunity sink deeper wells and employ more powerful machinery, and thus wholly drain the subsurface water from the land of the first discoverer. In the case before us, the City of East Orange might have its under ground water supply cut off or materially impaired by the establishment of deeper wells and more powerful pumps upon some neighboring tract, even upon the tract owned by the plaintiff. In short, under that rule, might literally makes right, and we are remitted to: "The simple plan, That they should take who have the power, And they should keep who can." For a further elaboration of the grounds upon which the English rule is open to criticism, and upon which the doctrine of "reasonable user" of subterranean percolating waters is supported, reference may be made to the dissenting opinion of Mr. Justice Coleridge, in Chasemore v. Richards, 2 H. &. N. 188-195; to the judgment of Lord Wensleydale in the House of Lords in the same case (7 H. L. Cas. 384–389, 29 L. J. Exch. 87, 88, 1 Eng. Rul. Cas. 754-777); and to the opinions in the recent American cases above cited. Upon the whole, we are convinced, not only that the authority of the English cases is greatly weakened by the trend of modern decisions in this country, but that the reasoning upon which the doctrine of "reasonable user" rests is better supported upon general principles of law and more in consonance with natural justice and equity. We therefore adopt the latter doctrine. This does not prevent the proper user by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation, or otherwise; nor does it prevent any reasonable development of his land by mining or the like, although the underground water of neighboring proprietors may thus be interfered with or diverted; but it does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it thereby result that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pastorage, or other legitimate uses. It results that the judgments of the District Court and of the Supreme Court must be reversed. 250. OHIO OIL COMPANY v. INDIANA OIL COMPANY SUPREME COURT OF THE UNITED STATES. 177 U. S. 190, 20 Sup. 576 1900 ARGUED December 18, 19, 1899. Decided April 9, 1900. In error to the Supreme Court of the State of Indiana to review a decision affirming a judgment sustaining a statute prohibiting the waste of natural gas and oil. See same case below, 150 Ind. 698, 50 N. E. 1125. Affirmed. The title, preamble, and first section of a law enacted in 1893 by the State of Indiana (Acts 1893, p. 300) are as follows: "An Act Concerning the Sinking, Safety, Maintenance, Use, and Operation of Natural Gas and Oil Wells, Prescribing Penalties and Declaring an Emergency. Whereas, great danger to life and injury to persons and property is liable to result from the improper, unsafe and negligent sinking, maintenance, use and operation of natural gas and oil wells; therefore, "Sec. 1. Be it enacted by the general assembly of the State of Indiana, That it shall be unlawful for any person, firm, or corporation having possession or control of any natural gas or oil well, whether as a contractor, owner, lessee, agent, or manager, to allow or permit the flow of gas or oil from any such well to escape into the open air without being confined within such well or proper pipes or other safe receptacle, for a longer period than two (2) days next after gas or oil shall have been struck in such well. And thereafter all such gas or oil shall be safely and securely confined in such well, pipes, or other safe and proper receptacles." The issue which this record presents, on the subject of the law just referred to, is this: Did the enforcement of the first section of the statute produce as to the persons whose obedience to its commands were coerced by injunction, a taking of private property without adequate compensation; that is, did the execution of the statute amount to a denial of due process of law contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States? |