WATER RIGHTS IN THE WESTERN STATES THE LAW OF PRIOR APPROPRIATION OF WATER AS APPLIED ALONE IN SOME JURIS- OF STATUTES OF ALASKA, ARIZONA, COLORADO, HAWAII, IDAHO, KANSAS, MONTANA, NEBRASKA, NEVADA, NEW MEXICO, NORTH DAKOTA, OKLAHOMA, OREGON, PHILIPPINE ISLANDS, SOUTH DAKOTA, TEXAS, UTAH, FORMS BY SAMUEL C. WIEL Of the San Francisco Bar THIRD EDITION IN TWO VOLUMES REVISED AND ENLARGED TO JUNE 1, 1911 VOLUME II SAN FRANCISCO BANCROFT-WHITNEY COMPANY 1911 L26029 Ht Funds 1 7 1946 COPYRIGHT, 1905 BY SAMUEL C. WIEL COPYRIGHT, 1908 BY SAMUEL C. WIEL COPYRIGHT, 1911 BY SAMUEL C. WIEL THE FILMER BROTHERS ELECTROTYPE COMPANY SAN FRANCISCO WATER RIGHTS IN THE WESTERN STATES. PART V. § 1039. The English rule. § 1040. CHAPTER 42. HISTORICAL. A. ENGLISH RULE. Contrasted with the common-law rule of watercourses. § 1039. The English Rule.-In 1843 the law of percolating water was first separately considered in the English case of Acton v. Blundell.1 In this case it was said the question was one of equal novelty and importance. The law of watercourses had at that time been well settled, to wit, that the corpus of the water was not the subject of property while in its natural course, and that the only private right thereto was the purely usufructuary right to have the water flow so that it could be used, as we have already set forth at length.2 But as to percolating water the court held 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. The movements of ground water were held too uncertain to base rights therein on the usufructuary principle of flow and Such water, instead of being in a class with the air, and not the subject of ownership, was considered "that it rather falls within the principle which gives to the owner of the soil all that lies beneath its surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or veinous earth, or part soil, part water." (The maxim, "Cujus est solum, ejus est usque ad coelum et ad inferos.") The corpus of the percolating water was held to be the subject of private ownership and real property as a part of the soil; whereas the corpus of running water is not part of the soil, nor property in any sense of the word. use. Under this rule, which was adopted generally throughout the United States,3 no rights whatever were recognized in the use of 1 12 Mees. & W. 324. For a few earlier but unimportant cases, see Cooper v. Barber, 3 Taunt. 99; Tenant v. Goldwin, 2 Ld. Raym. 1089, 92 Eng. Reprint, 222; Balston v. Bensted (1808), 1 Campb. 463; Hammond v. Hall (1840), 10 Sim. 552, 59 Eng. Reprint, 729. The American case of Greenleaf v. Francis (1836), 18 Pick. (Mass.) 177, had been de cided before Acton v. Blundell, and had reached much the same result. 2 Supra, Part I. See, also, sec. 684 et seq. 3 The old rule is stated by Judge Temple in Katz v. Walkinshaw, speaking of decisions which assert and apply literally the maxim, "Cujus est solum, ejus est usque ad inferos," and that "water percolating in the ground, diffused percolating water as a separate thing; it was regarded as a mere ingredient of the soil-one of the constituents of the soiljust as feldspar and mica are constituents of granite. The man who owned water-soaked soil had a right to do with it what he wanted, and he could dig out the soil, carrying the water with it,. or he could leave the soil and take out only the water; and to look into any change resulting in the constituents of his neighbor's soil was deemed beyond the province of the law. So long as the percolating water stayed in the soil, the owner of the soil could take it, and take all that came there; likewise his neighbor, who could hence drain it all away. It was not recognized as a thing to which any definite value could be given. This old rule of diffused underground water is somewhat like the law of diffused surface water, already mentioned; 5 both were too uncertain in their movements to found any right upon distinct from the land wherein or whereon they happened to lie. Leaving out the exception of cases of malice below mentioned, this is also the civil-law rule. The law in this respect was emphatically affirmed in the House of Lords in Chasemore v. Richards,8 though Lord Wensleydale (Baron Parke) rendered an opinion inconsistent with the rule, and in the line of the or held there in saturation, belongs to the landowner as completely as do the rocks, ground, and other material of which the land is composed, and therefore he may remove it or sell it or do what he pleases with it." 4 Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585. 5 Supra, sec. 34 et seq. 6 After referring, by way of argument, to diffused surface water cases, it was said: "These cases apply to the right to surface water not flowing in any defined natural watercourse. But, of course, the principles they establish are equally, if not more strongly, applicable to subterranean water of the same casual, undefined, and varying description." Chasemore v. Richards, 7 H. L. Cas. 349, 11 Eng. Reprint, 140, Lord Chelmsford. The modification in America of the law of percolating water below considered is also in some American jurisdictions adopted as to diffused surface water. 7 Droit Civile Francais, par Aubrey & Rau, vol. III, 4th ed., p. 34. In Acton v. Blundell it was said: "The Roman law forms no rule, binding in itself, upon the subjects of these 8 (1859) 7 H. L. Cas. 349, 11 Eng. Reprint, 140. See, also, New River Co. v. Johnson, 2 El. & El., Q. B., 434 (105 Eng. Com. L.); Regina v. Metropolitan Board of Works, 3 Best & S. 708, 9 Jur., N. S., 1008 (113 Eng. Com. L.); Hodgkinson v. Ennor, 4 Best & S. 229 (116 Eng. Com. L.). The main question in Chasemore v. Richards was whether a right in percolating water could be obtained by prescription, a point expressly left open in Acton v. Blundell, and it was held that it could not, expressly disapprov ing Balston v. Bensted, supra. |