Bassett v. Salisbury Manufacturing Co. , 43 N.H. 569 ( 1862 )

Bartlett, J.

No land-owner has an absolute and unqualified right to the unaltered natural drainage or percolation to or from his neighbor’s land. In general it would be impossible for a land-owner to avoid disturbing the natural percolation or drainage, without a practical abandonment of all improvement or beneficial enjoyment of his land. Any doctrine that would forbid all action of a landowner, affecting the relations as to percolation or drainage between his own and his néighbors’ lánds, would in effect deprive him of his property; and so far from being an application of the maxim, “ cujus est solum,” &c., would work a general' denial of effect to it. If A has the absolute and unqualified right to receive from and discharge into the adjoining land of B all the drainage and percolation, as they naturally flow between that land and his own, this is substantially a right to a use of B’s land, practically depriving the latter of all beneficial enjoyment of his property, and in effect amounting to an appropriation of it; and as B and the other neighboring landowners must have similar rights, the improvement, or beneficial occupation of land, becomes in fact impossible, and property in the soil for nearly all useful purposes is annihilated. But we do not think it follows from this, as some recent cases have held, that a land-owner lias the full and unlimited ownership, and the absolute and unqualified right of control of all water in or upon his land not gathered into natural water-courses; for the iron-existence of an absolute right does npt conclusively disprove the existence of a qualified right. Nor do we think that the maxim, cited can be applied to establish an unqualified ownership of such waters in all cases, any more properly than it can be relied on to prove an absolute property in all the air within one’s bounds. If the land-owner has the absolute and unqualified ownership of all such water in or upon his land, his neighbor, by digging or otherwise, has no more right to take away his property water than his property sand. If, as respects the soil, he may dig as he pleases, he is still in general limited by the rule that in digging he must not take away his neighbor’s soil by effectually removing its natural supports. If a natural pond, of uniform depth, is equally divided between two land-owners, or if they have dug a well, half on the land of each, it perhaps would not be claimed that one may pump his half of the pond or well dry, without regard to the half of his neighbor. But however this may be, if the water, not gathered into natural water-courses, belongs absolutely to the owner of the land, because it is part of the soil, and for that reason only, it must be subject to the same law as the other components of the soil; the sand, loam and rock ; which may not ordinarily be removed by an adjacent owner by the withdrawal of their natural supports; for the maxim from which such ownership is deduced, when applied without qualification, as it must be to lead to this conclusion, allows no sound distinction.

But such a doctrine would lead to exactly the same mischiefs that have caused the rejection of that first discussed; it would prevent all improvement or beneficial enjoyment of land in precisely the same wray. To be sure, the language and the doctrines of some of the cases would seem to allow the land-owner not only all the water in his land, but all he can draw thither; but such a rule, it seems to us, is in direct conflict with the principle upon which the theory is founded, and must lead in many cases to an interminable struggle for possession or removal of waters in the soil. Indeed, we do not know of any decision that perfectly carries out this dóctrine of absolute ownership to its logical result; but, so far as we are aware, the cases maintaining it go no further than the somewhat illogical view last suggested; probably because of the entire incompatibility of the former with any beneficial use of land. But this departure from the principle upon which they found their theory does not seem to us to have saved them from difficulty or inconsistency. Nor do we think a sufficient foundation for this doctrine'of absolute ownership can be found in the alleged difficulty of determining the direction and extent of percolation and drainage. In a large number of cases no such difficulty exists, and the remainder may be provided for consistently, and in accordance with settled legal principles. We need not examine the argument as to the nonexistence of a presumed grant, drawn from this alleged difficulty, for we do not understand the theory of our law of water-courses to rest upon any such foundation; nor need 'we inquire whether some of the eases which use the.term “common consent,” in treating of the supposed origin of aquatic rights, may not have confounded that with the doctrine of presumed grants which could come from particular persons only in any given case.

If this doctrine of absolute ownership is not well founded in legal principles, certainly there is nothing in its practical operation that so cpmmends it to our approval as to lead to its adoption. It must, if held as in several cases, leave every where a conflict of right and enjoyment, irreconcilable in law or in fact; and however held, it will, in a variety of cases, lead to incalculable mischiefs. Logically followed out, this doctrine, if confined to the water naturally in or upon the land, would forbid almost all interference by each landowner with his own land; or if applied to all the waters found in or upon the land not gathered into natural water-courses, would take away all remedy for malicious acts in relation to them. But the injustice of the latter result has led to an exception in several jurisdictions, that seems anomalous under the theory they adopt. As already suggested, we are not aware that any of the cases have followed this doctrine of absolute ownership rigidly to its logical conclusion, so as to forbid all interference with another’s property water, situate in his land ; but even when not pursued so far, it gives rise to other inconsistencies. If A owns a tract of land upon the westerly bank of a river, he may maintain an action against B, who, by obstructing the river, throws its waters into his soil throughout its whole extent, unreasonably, and to his injury, and recover for the entire damage; else we must hold that A can only recover for the injury to the film of soil in immediate contact 'with the water-course, and for the raising of the water in the channel over his land; and we can see no legal distinction in this respect between throwing water into or uponUnother’s soil. But if A sells to C the easterly-half of his land, he'-loses all remedy for the continuance of the same injury to the residue'o.f his land; or, if he sells to C the westerly half, C can have no rémedy.for the same injury, since the water only percolates through the land of A. Or if a distinction is asserted between the water of the river and the water in the soil in such case, suppose B, instead of throwing the water of the river itself into O’s land, by unreasonably obstructing the stream, forces the river water into the land of A, and thereby drives from the latter’s land into the land of C an amount of water precisely equal to that first supposed, producing exactly the same injury to it, is 0 to be without remedy, where the injury is the same, produced in the same general way, and by the same cause, because of a difference, not in the nature or effects of the water, but merely in its immediate and not necessarily its ultimate source ? Such distinctions and such results do not commend themselves to our judgment. Upon this theory you can have no more right to remove from your neighbor’s land a film of water than a film of clay, for both are equally and absolutely his property. t lit can not be held that you have the right to dig as you please upon! /your own land near a neighbor’s well, provided “ the last rib of earth” ¶ I that holds the water is not removed, even though the effect of the '^operation may be to drain the well by percolations, for upon this, theory why the proviso ? ' Practically the same result is reached in either case; and if the proposition were correct, it would follow that here the law allows indirectly what it forbids directly. If the prohibition has any reason, it is the preservation of the neighbor’s well; or, in other words, of his water in it, for that is its only valuable purpose. And this reason is equally applicable in either case. We think that no foundation for such a distinction can be found in the law. If the last rib of earth is yours, you may, upon this doctrine, remove it because it is yours, and because of your right to do as you please with your own ; and any denial of your right, in such case, because of your neighbor’s well, strikes at the foundation of the whole theory. If it is your neighbor’s, you have no right to remove it, solely because it is his, and not because it confines the water in his well. It is to be observed, however, that the allowance of the removal of the last rib of earth in such case, when it belongs to yourself, disregards the absolute rights given to the neighbor by the same theory, quite as much as the denial of that light would disregard your own.

It seems to us inconsistent to hold that ordinarily you may not drain a water-course by digging away the bank, which is your land, and yet to sustain a doctrine which would allow you to dig so near it as to draw off all its water by percolation. In either case you deal directly with your own merely; but in the former you are forbidden, only because by so doing you take what is not absolutely your own ; because you drain a water-course. This is the sole and the sufficient reason. In the other case exactly the same reason exists for not doing a similar act, producing precisely the same effects, that constitute the only objection in the former, and therefore the flaw of the cases should be the same; and it would seem to follow (that ordinarily you may not. drain a water-course dry by means (of percolation into your pits. Although the law does not generally rallow one directly to deprive the land-owners below of the natural advantages of a common water-coirrse, yet this doctrine, as held in some of the cases, would sometimes permit this mischief indirectly, by allowing all the sources of supply to be cut off from the stream.

But it is unnecessary to multiply examples or follow the doctrine in its varied applications; for we think enough instances have been selected to show the nature of the difficulties attendant on it. The law regulating water-courses has its origin or foundation in the benefits and injuries that may arise from water; and among the former the propulsion of machinery is but one of many. These benefits and injuries may often be quite similar in cases of underground and surface drainage, and of drainage by water-courses. In such inquiries the ultimate source of the water is never regarded ; and the immediate source seems to us equally immaterial, since it in no way changes the nature or'effect of the water; and the regulations now settled by the law of water-courses were established, not because of any peculiarity in the origin of water in streams, but because of the good or harm that may result from its management or use. Therefore, so far as a similarity of benefits and injuries exists, there should be a similarity in the rules of law applied. Whether the deposition or detention of water in or its removal from land is caused by a water-course, or by other means, can create ordinarily no difference in the effects of such deposition, detention, or removal.

We think it does not follow, as some of the cases seem to assume, that because a land-owner has not the absolute and unrestricted right of drainage to or from his neighbor’s land, he has no rights of drainage whatever, and that each land-owner has the entire and unqualified ownership of all water found in his soil, not gathered into natural water-courses, in the common acceptation of that term.

There is another view entitled to consideration. If the rights are not absolute and unqualified, they are qualified, or there are no rights at all. We need not argue that some rights exist; that the owner of the land may make some use of the water in it; that he may do some acts that will affect to some extent the drainage ; that a well may be dug, under some circumstances, although it will draw water by percolation from a water-course, from adjoining land, or even from the well of a neighbor. If the views we have expressed are correct, they have already indicated the sole ground of the qualification of the land-owner’s right in such cases, and that is, as in certain cases of water-courses, the similar rights of others ; and this will of course determine the extent of the qualification, which, as in the analogous eases suggested, and for the same reasons, is the rule of reasonable use — of a reasonable exercise of one’s own right. The rights of each land-owner being similar, and his enjoyment dependant upon the action of the other land-owners, these rights must be valueless unless exercised with reference to each other, and are correlative. The maxim, “ Sic niere,” &c., therefore applies, and, as in many other cases, restricts each to a reasonable exercise of his own right, a reasonable use of his own property, in view of the similar rights of others. Instances of its similar application in eases of water-courses, where the detention, pollution, or unnatural discharge of the water is complained of, of highways, of alleged nuisances in regard to air or by noises, &c., &c., and of the manner of the application, are too numerous and familiar to need more special mention. As in these eases of the water-course, so in the drainage, a man may exercise his own right on his own land as he pleases, provided he does nofmterfere with the rights of others. The rights are correlative, and, from the necessity of the case, thJj right of each is only to a reasonable user or management; and| whatever exercise of one’s right or use of one’s privilege, in such] case is, under all the circumstances, and in view of the rights of] others, such a reasonable user or management is not an infringe-' meat of the rights of others ; but any interference by one land-owner with the natural drainage, injurious to the land of another, and not reasonable, is unjustifiable. Every interference by one land-ownek with the natural drainage, actually injurious to the land of another,] would be unreasonable, if not made by the former in the reasonable use of his own property. Although the plaintiffs’ land was not situated upon the river, yet, if the defendants, by means of their dam,: obstructed its natural drainage to the actual injury of the plaintiff, they are liable, unless the obstruction was caused by the reasonable use of their own land or privilege; and the reasonableness of the use would depend upon the circumstances of the case. What, in any particular ease, is a reasonable use or management, is ordinarily a mixed question of law and fact, to be submitted to the jury under the instruction of the court.

There is no necessary conflict 'between these views and the cases which hold that a riparian proprietor below has in general no right to raise the water of the stream above its natural level upon the land of a ripai’ian proprietor above. From a right to the reasonable use of one’s own property or privilege, there does not usually result any right to the reasonable use of another’s property or privilege. It may be that in case of such flowage the law holds the use unreasonable, or that no question of reasonableness arises, because there may exist no necessity in the case that one should be allowed thus to flow back upon the land of his supra-riparian neighbor similar to the necessity which requires the application, of the doctrine of reasonable use in eases of the unnatural detention, discharge, or pollution, of the waters of a stream, and of drainage, in order that each proprietor should have any practically valuable enjoyment of his unquestioned right or property. But these matters are no.t necessarily before us here, and we do not intend to pass upon them at the present time.

In this view we encounter none of the objections that we have suggested as inseparable from the other doctrines, and it obviates some difficulties and anomalies that would otherwise exist. The law as to malicious acts ceases to form an exception to ’the general rule; and the cases of difficulty in the previous determination of the direction or extent of drainage are disposed of by the submission of this difficulty of determination to the jury, as one of the matters of fact bearing on the question of reasonableness. Again it is admitted that it is not essential to a water-course that the banks should be absolutely unchangeable, the flow constant, the size uniform, or the waters entirely unmixed with earth, or flowing with any fixed velocity ; but the law does not and can not fix the limits of variation in these particulars. Where a water-course originates, and is supplied from a natural lake, the current in the latter may be hardly perceptible, yet it maybe doubted if any one could justify the entire withholding of its waters from the stream it should 'feed. Indeed, it is by no means certain that the entire absence of current in a lake would prevent the application of the general principles that protect the rights of land-owners on running streams ; for perhaps it will be found that owners of land upon such lakes have similar qualified rights to the enjoyment of these waters in their natural condition, and to the reasonable use of them, and may claim, that the water shall not be unreasonably raised, lowered, or polluted, to their injury. If the general principles governing the use of water-courses were to be applied, so far as may be, to all water naturally percolating or draining, then the occasion for a definition in the respects first mentioned would cease in many cases; and if they wei’e to be extended to all water that may be put in motion by operations upon land, there then would be no call for any distinction in the principles, but only for an accurate discrimination of the facts essential to their correct application, with reference to the rights of others, and the legal necessities of the cases under their varying circumstances. But these questions are not now before us, and we do not propose to examine them here.

The views we have adopted seem to us but an extension of rules, Avell settled and long applied in cases of similar water rights, to a class of cases but recently brought into much discussion before courts governed by the common law; and rules which, we think, accord with many analogies of the law, and will in general Avork no injustice or particular hardship to those interested.

We are aware that since the case of Acton v. Blundell, the weight of authority elsewhere is against the vieAV of the law which we have adopted. A number of cases have been cited by the defendant’s counsel, and more may now be found, in which the reasoning conflicts with the .conclusion at which Ave have arrived; but, with the highest respect for the tribunals that have pronounced those decisions, we are compelled to differ from the views they have expressed. These cases are all of recent date, and a considerable number of conflicting decisions, and several dissenting opinions, show that their doctrines have not met with uniform acceptance. It is unnecessary for us to inquire into the merits of the results reached in these eases; for though we might be satisfied with such results in particular instances, we are unable to assent to the reasoning by which they have been reached. We are not aAvarethat the doctrine of Aeton v. Blundell, and of the cases which folloAv it, has been adopted in any decision in this State; but so far as the subject has been considered at all here, we think our decisions have not tended in the direction of that case. See Portsmouth Aqueduct Co. v. Concord & Portsmouth Railroad (Rockingham, June term, 1860); Bassett v. The Salisbury Manf. Co., 28 N. H. 451; Rowe v. Addison, 34 N. H. 306; Johnson v. Railroad, 35 N. H. 569. The verdict must be set aside and a

New trial granted.