the court, in Chasemore v. Richards, 7 H. L. Cas. 349, 370, say: “In such a case as the present, is any right derived from the use of the water of the river Wandle for upwards of twenty years for working the plaintiff's mill? Any such right against another, founded upon length of enjoyment, is supposed to

The question went to the House of Lords in Chasemore v. Richards, 7 H. L. Cas. 349; s. c. 5 Hurl. & N. 982, Am. ed. In this case a land-owner and millowner, who had for upwards of sixty years enjoyed the use of a stream which was chiefly supplied by percolating underground water, produced by rainfalls, lost the use of the stream after an adjoining owner had dug, on his own ground, an extensive well for the purpose of supplying water to the inhabitants of the district (many of whom had no title as land-owners to the use of the water). It was held that he had no remedy; the judgment of the Exchequer Chamber (2 Hurl. & N. 168) being affirmed.

The opinion expressed by Lord Ellenborough in Balston v. Bensted, supra, as to the prescriptive right to such water, was now overruled, and its inconsistency with Dickinson v. Grand Junction Canal Co., supra, pointed out. But this latter case was itself criticised in that the judges had failed to follow the distinction between underground percolating water and visible watercourses, as laid down in Acton v. Blundell, and commended by themselves.

Upon the question of prescription,

is presumed from the owner of what is sometimes called the servient tenement. But what grant can be presumed in the case of percolating waters, depending upon the quantity of rain falling or the natural moisture of the soil, and in the absence of any visible means of knowing to what extent, if at all, the enjoy ment of the plaintiff's mill would be affected by any water percolating in and out of the defendants' or any other land? The presumption of a grant only arises where the person against whom it is to be raised might have prevented the exercise of the subject of the presumed grant; but how could he prevent or stop the percolation of water?"

There is, then, according to the highest authority in England, no such thing as a prescriptive right to underground percolating water, such as is produced by rainfall or the natural moisture of the soil; and the same case (Chasemore v. Richards) also decides that a party has no valid claim to such water (so as to be able to maintain an action for cutting it off) jure naturæ. It was impossible, the court observed, to reconcile such a right with the natural and ordinary rights of land-owners, or to fix any reasonable limits to the exercise of such a right. Such a right would interfere with, if not prevent, the drainage of land by the owner. And this case was put Suppose a man should sink a well upon his land which should not affect his neighbor's mill; in that case

no action could be maintained. But suppose that many land-owners should sink wells upon their lands, and thereby absorb so much of the percolating water as would sensibly and injuriously diminish the quantity of water at the mill, could an action be maintained against any one of them, and, if any, which? for it is clear that no action could be maintained against them jointly.

Lord Wensleydale (better known as Mr. Baron Parke) hesitated, however, as to the application of the rule to the particular case, though he assented to the correctness of the general principle; doubting if the defendant had any right to pump out water for the whole neighborhood, including those who would themselves have had no right to take it. See Bassett v. Salisbury Manuf. Co., 43 N. H. 569, infra.

Our courts have generally reached the same conclusions with those arrived at in Chasemore v. Richards. Chase v. Silverstone, 62 Maine, 175; Greenleaf v. Francis, 18 Pick. 117; Wilson v. New Bedford, 108 Mass. 261; Roath v. Driscoll, 20 Conn. 533; Chatfield v. Wilson, 28 Vt. 49; Ellis v. Duncan, 21 Barb. 230; Wheatley v. Baugh, 25 Penn. St. 528; Frazier v. Brown, 12 Ohio St. 294; Delhi v. Youmans, 50 Barb. 316; Bliss v. Greely, 45 N. Y. 671; Mosier v. Caldwell, 7 Nev. 363; Hanson v. McCue, 42 Cal. 303. But see Bassett v. Salisbury Manuf. Co., 43 N. H. 569; Swett v. Cutts, 50 N. H. 439, where the unqualified right of the land-owner to cut off percolating water was rejected, and the doctrine of a right to do so in the reasonable use of the soil adopted.

The rule, except in New Hampshire, seems, therefore, to be that land-owners have an unqualified right to underground percolating water, just as they

have to the very soil itself (and so the doctrine is expressly stated in many of the cases), and not the mere right to a reasonable use of it. The right is like that to the appropriation of surface water not running in defined channels, and not like that to the water of regular streams. But a land-owner would probably have no right to corrupt underground water to the injury of his neighbor.

In Frazier v. Brown, supra, it was held that it made no difference that the defendant had acted with mere malice in cutting off the subterraneous water. And to the same effect are Chatfield v. Wilson, 28 Vt. 49; Rawstron v. Taylor, 11 Ex. 369, 378, Martin, B. But this is not clear. The doctrine of the Roman law, as we have seen, was otherwise; and so is that of Greenleaf v. Francis, 18 Pick. 117, and Wheatley v. Baugh, 25 Penn. St. 528, 533. See also Chasemore v. Richards, 7 H. L. Cas. 349, 388; Panton v. Williams, 19 Johns. 92; Radcliff v. Brooklyn, 4 Comst. 195, 204; Goodloe v. Cincinnati, 4 Ohio, 500.

The distinction suggested in Dickinson v. Grand Junction Canal Co., supra, between underground water which percolates through the soil and that which runs below the surface in a defined channel, is recognized in other cases. See New River Co. v. Johnson, 2 El. & E. 435, 445, Crompton, J.; Chasemore v. Richards, 7 H. L. Cas. 349, 374; Smith v. Adams, 6 Paige, 435; Wheatley v. Baugh, 25 Penn. St. 528; Cole Silver M. Co. v. Virginia Water Co., 1 Sawyer, 470. And so of underground ditches. See Livingston v. McDonald, 21 Iowa, 160, 165, showing, also, the difference between ditches for drainage and streams having banks. Luther v. Winnisimmet Co., 9 Cush.

171, 174; Ashley v. Wolcott, 11 Cush. 192; Gillett v. Johnson, 30 Conn. 180; Hoyt v. Hudson, 27 Wis. 656; Broadbent v. Ramsbotham, 11 Ex. 602; 3 Kent's Com. 440, note 1 (12th ed.). See further, as to drainage, Waffle v. New York, &c., R. Co., 58 Barb. 413. If a well or an excavation withdraws water from a defined surface channel, as well as subterraneous percolations, an injunction may be obtained. Grand Junction Canal Co. v. Shugar, Law R. 6 Ch. 483. See Dickinson v. Grand Junction Canal Co., supra.

Of course if the water of a stream, whether above or below ground, be polluted so as to work an injury to a lower proprietor, he can maintain an action therefor, unless the upper proprietor has acquired a right by grant or prescription to poison the water. See Wheatley v. Chrisman, 24 Penn. St.

298; O'Riley v. McCheeney, 3 Lans. 278; Merrifield v. Worcester, 110 Mass. 216.

The last-named case was an action against a city for polluting the water of a stream by sewage, and it was decided that so far as the pollution was the effect of the system of sewage adopted by the defendant, it was not actionable; otherwise, if the pollution was attributable to the negligence of the defendants, either in managing the system or in the construction of the sewers. And a municipal corporation has, it is held, the like right to cause the water collecting in the gutters of buildings and streets to flow upon land, its natural outlet, in a single stream, when otherwise it would have flowed over the land in small currents. Phinizy v. Augusta, 47 Ga. 260. See Hough v. Doylestown, 4 Brewst. 333.