Hinton v. Little , 50 Idaho 371 ( 1931 )

The complaint alleges and the affidavits in support of the temporary injunction are of similar effect, and the testimony of the witness for the plaintiffs on the hearing in regard to the temporary injunction, shows undenied and undisputed except by defendants' answer, which merely generally denies the allegations of the complaint, that the territory in question is underlaid at a depth of from two to three hundred feet, and beneath an impervious stratum, by subterranean waters confined horizontally between this upper impervious stratum and lower stratum, of such a nature as to force this subterranean water when artificial openings are made in the upper stratum to, and in some instances above, the surface of the ground. Laterally the subterranean waters are evidently continuous and permeate throughout the basin, inasmuch as the allegations and evidence show that the flow of all the wells are more or less interdependent and are affected by the increased or diminished flow of each well. The engineer for the plaintiffs further testified that the water entered this subterranean basin from high mountains lying to the south of the basin. Evidently there is thus some movement of this water at least into the basin from the south and laterally beneath the ground and between the different wells.

Respondents contend that the same rule is to be applied to the appropriation of these subterranean waters as is applied to surface waters, namely, first in time is first in right. Appellants contend on the other hand for either what is known as the English or common-law doctrine, that the owner of the surface of the ground owns all the water within his land, or the so-called American doctrine. It is evident that the English doctrine cannot be applicable because when any one of the land owners in question, so far as the evidence now shows, takes water from his well, it diminishes the flow in the other wells; hence it would seem apparent that he is taking not alone that which belongs to him, as underlying his land, but is in some measure at least, taking either directly or indirectly that which comes from underneath the land of other owners. Appellants contend for what is sometimes called the American, or the correlative use doctrine, in effect this, that under circumstances as disclosed above, each surface owner is entitled to take his proportionate share of the entire body of underground water, in the particular basin underlying the lands in question and affected by the different wells. There are numerous authorities which sustain the English doctrine and there are authorities which define and sustain the American doctrine of correlative use, the first case probably clearly announcing the American doctrine being Katz v. Walkinshaw,141 Cal. 116, 99 Am. St. 35, 70 P. 663, 74 P. 766, 61 L.R.A. 236. Without attempting to enumerate, cite, examine or distinguish all of the decisions from the different jurisdictions, which have had occasion to touch upon this question, there are in this state four decisions which bear upon the question.

Appellants contend that King v. Chamberlin, 20 Idaho 504,118 Pac. 1099, 1100, and Public Utilities Com. v. Natatorium Co., 36 Idaho 287, 211 P. 533, sustain their doctrine, and respondents contend that Le Quime v. Chambers,15 Idaho 405, 98 P. 415, 417, 21 L.R.A., N.S., 76, and Bowerv. Moorman, 27 Idaho 162, Ann. Cas. 1917C, 99, 147 P. 496, 500, sustain their position. From an analysis of these four cases and a consideration of the legislative enactments therein cited, with regard to subterranean waters, we have a fairly well-defined announcement both by this court and the legislature as to what rule is to be applied in this state in connection with the appropriation of underground waters. It appears to be now fairly well settled that all underground subterranean waters are percolating waters, that is, that there is more or less movement, both perpendicular and horizontal, through the earth and rocks. Therefore, whether underground waters move in a well-defined channel, either in a generally confined direction as to the points of the compass or spread out laterally, is merely a question of difference or degree.

It would seem, therefore, that it is impossible to attempt to lay down one rule with regard to subterranean waters, existing more or less as a relatively stationary body of water under the ground, and subterranean waters in which there is a decided movement. In any event, the facts in the case at bar show that there is movement of the underground waters involved in this litigation and we need pass herein on no other situation.

In Le Quime v. Chambers, supra, a spring upon certain land at no time prior to its diversion flowing a sufficient quantity or volume to form a surface stream or carry any water beyond the limits of the subdivision on which it arose, was appropriated. The land on which the spring arose was filed upon by one Irwin. Upon a contest Chambers was given a preference right to file on the land and tore up Le Quime's pipe, which he had theretofore used to convey the water in question to other lands. Chambers contended, as the appellants do herein, that the ownership of the land gave him the exclusive right to this water. Le Quime contended that the water was subject to appropriation, and he being prior in point of time was entitled to it, though the case really involved water coming naturally to the surface, not by way of an artificial well; the court said in this connection:

"It is next contended by respondent that since the waters going to make up this spring are purely seepage and percolating waters and do not come from any well-defined subterranean stream, they are not subject to location under the laws of this state, and that their appropriation is, therefore, not protected under the act of Congress. In line with this contention it is argued that percolating and seepage waters are as much a part of the land itself as the soil, the rock, and stone found therein, and that such waters are not the subject of appropriation or diversion. The principal case relied on by respondent in support of this contention is Southern Pac. R. R.Co. v. Dufour, 95 Cal. 615, 30 P. 783, 19 L.R.A. 92. In that case it was held that "The law controlling the rights to subterranean waters not running through a channel or defined course is very different from that affecting the rights of surface streams. In the former case the water belongs to the soil, is a part of it, is owned and possessed as the earth is, — it may be used, removed and controlled to the same extent by the owner; and no action will lie for injuries caused by cutting it off.' This case, however, has been distinguished and greatly modified, if not entirely overruled, on this particular point in the more recent cases of Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. 35, 70 P. 663, 64 L.R.A. 236, and opinion on rehearing, 74 P. 766, and the case of Cohen v. La CanadaL. W. Co., 142 Cal. 437, 76 P. 47.

"The fact that the water of this spring in its natural state, before any appropriation or diversion, was lost in the adjacent soil and did not flow off the land in a definite stream can make no difference, and in no way abridges the right of the first comer to locate and appropriate and develop the same for a useful or beneficial purpose."

The appellants argue, however, that this language in the opinion negatives respondents' contention.

"If the land on which this spring was located had already been patented before the location by appellants, then a different question would arise."

It will be observed, however, that immediately following the phrase above quoted, the opinion said:

"On the other hand, the government, by act of Congress, invites persons to enter upon the public domain for the purpose of locating, appropriating and diverting any waters thereon found for such useful and beneficial purposes as are recognized by the laws of the state or jurisdiction within which the lands are located. The statute of this state, sec. 1 of the act of March 11, 1903 (Sess. Laws 1903, p. 223), specifically recognizes the right of any person, association or corporation within this state to appropriate and divert 'the waters of any natural streams, springs or seepage waters or lakes or other public waters in the state of Idaho.' The water involved in this case comes clearly within the purview of the foregoing statute.

"In the case of Sullivan v. Northern Spy Min. Co.,11 Utah, 438, 40 P. 709, 30 L.R.A. 186, the supreme court of Utah held that the 'discoverer of percolating waters on public lands, by digging a well for the purpose of collecting the same for use, acquires an easement in the land for the maintenance of his well and the right to the water as an appropriator thereof as against a subsequent locator of the land upon which the well is situated."

It is thus apparent that this case clearly held that seeping, percolating subterranean waters, though not in a well-defined stream, are the subject of appropriation, and that the rule of first in time, first in right, is applicable thereto.

King v. Chamberlin, supra, involved only surface water "impounded by a land owner wholly upon his own land by means of dams and dikes and collected from the melting snows and surface water." This case therefore is not in point in the controversy here because the waters involved in the instant case were not impounded on or beneath appellants' lands by any act of theirs.

Bower v. Moorman, supra, involved relative appropriation rights in adjacent wells where the taking of water from one well affected the flow in the other, the court stating the three pertinent questions to be considered as follows:

"First, the right of a land owner to drive a well on his own land in order to obtain subterranean waters; second, to what depth and under what conditions may a well be driven before a permanent injunction will lie at the instance of an adjoining land owner, who is a prior appropriator of subterranean waters, for an interference with the flow of water in said adjoining land owner's well; third, are subterranean waters in this state subject to appropriation for a beneficial use."

The third and last of these considerations is the pertinent and decisive question herein and was clearly, unequivocally and decisively disposed of. After reviewing the so-called English doctrine and the reasonable use of correlative right doctrine, as announced in Katz v. Walkinshaw, supra, and quoting sec. 3242 of the Rev. Codes (C. S., sec. 5558), to the effect that "the right to the use of waters of rivers, streams, lakes, springs and subterranean waters, may be acquired by appropriation" and citing Le Quime v. Chambers, supra, the court holds:

"Any interference with a vested right to the use of water, whether from open streams, lakes, ponds, percolating or subterranean water, would entitle the party injured to damages,and an injunction would issue perpetually restraining any suchinterference." (Italics ours.) And again, "Had the wells been permitted to flow freely without any obstruction and in the usual and ordinary manner, it could then easily have been determined whether there was a loss of water in the Bower wells, and if this were found to be true, it would necessarily follow that it was caused by reason of the construction of the Moorman well."

And the further discussion in this case on page 183 of 27 Ida., 147 Pac., at 503, clearly shows that the doctrine or rule of correlative use was not in any way being sanctioned, since the court points out that before an injunction will issue it must appear that the second appropriator's well diminishes the flow in the first, and there is no suggestion of joint or correlative use or right. It seems clear, therefore, thatBower v. Moorman, supra, positively sustains respondents' position.

Taking up now the last case, Public Utilities Com. v.Natatorium Co., 36 Idaho 287, 211 P. 533, while there is a discussion therein as to the appropriation of subterranean waters, the question involved was whether the Natatorium Company which delivered hot water, procured from wells upon its lands, to various users for the purpose of heating their houses, was a public utility. The majority held there was no intention on the part of the company to dedicate this water to a public use and that the water was not public water, so as to compel the company by its use of the water in the manner in which the water was used to become a utility, expressly stating, 36 Ida., at 300, 211 P. 533, 535, that:

"The right to appropriate subterranean waters is not involved in this case as disclosed by the record and the cases cited in support of the right to appropriate subterranean waters have no application."

It is therefore unnecessary to consider further PublicUtilities Com. v. Natatorium Co., supra, since the court itself stated therein that it did not involve the question before us here.

We then have a clear statement in Bower v. Moorman, supra, to the effect that subterranean waters are the subject of appropriation. That being true, it follows that the judgment herein should be affirmed, since the waters here were appropriated by the respondents prior to the time that the appellants sought to take from their wells the amount of water now claimed by them.

Judgment affirmed; costs awarded to respondents.

Lee, C.J., and Varian and McNaughton, JJ., concur.

Petition for rehearing denied.