asserted himself to be the owner of a certain meadow, and that for twenty years and more, before December 1832, he and those under whom he claimed and derived his title, were in peaceable possession thereof, with all the rights and privileges of a certain spring and watercourse thereon situated, and passing and flowing upon and over, and extending and running through a part of the meadow, for the purpose of irrigation, and for drink for his cattle feeding therein; that the defendants, knowing the premises, in December, 1832, dug and sunk a deep well, fountain, and pit, in an adjacent close, and dug a trench therefrom, and laid and placed iron pipes leading from the well or fountain to the city of Providence; whereby they diverted the water from the said spring, and so diverted the natural flow of the spring and watercourse, that they were dry a considerable portion of the year, &c. of opinion that if the gravamen was made out by sufficient proof, the plaintiff was entitled to relief under the bill. The case of Balston v. Bensted,' he held to be directly in point. The defence principally turned upon a denial of the matter of fact, that the spring and watercourse in question had been diverted at all, or, if diverted at all, that it had been caused by the digging of the well and fountain and water pipes of the company; and the company attributed the diminution of the water alleged, to other natural causes wholly independent of their well or fountain. In consideration of the contradictory nature of a great mass of testimony relating merely to the matter of fact, and dependent upon the credibility of witnesses, the Court proposed that the following questions should be submitted to a

Mr. J. STORY was clearly

1 Balston v. Bensted, 1 Campb. R. 463.

jury to aid in the decision:-1st. Whether there was any such diversion of the water as that alleged? 2d. If so, what damages have been sustained thereby? 3d. What is the permanent diminution or loss in value of the plaintiff's meadow land, occasioned thereby? The case of Balston v. Bensted, relied on by the Court, was tried at the Summer Assizes, 48 Geo. 3, 1808, and it was therein held by Lord Ellenborough, that the owner of a close cannot lawfully cut a drain, whereby the supply of water to the spring of an adjoining close, after an enjoyment of it for twenty years, is diminished. Lord Ellenborough held, early in the trial, that the only question was, whether the diminution of the supply of water had been caused by the drain dug by the defendant. The causation, (according to the reporter,) being clearly made out, it was agreed, upon the recommendation of the Court, that the water should be conveyed from the defendant's quarry to the plaintiff's works, in the manner that should be directed by an arbitration; and a juror was therefore withdrawn.

§ 112. In Smith v. Adams, in the Court of Chancery of New York,' it was held, that where a spring is supplied by a hidden stream passing through the earth, the owner of the land above where the water of the spring issues has no right to divert such water, by an excavation or artificial works upon his own land, to the injury of the riparian proprietors below, who are supplied by the waters of such spring in their natural course, or by prescriptive use. The complainant was the owner of a ten acre lot with a cloth-dressing establishment; and he was also the owner of another lot of

1 Smith v. Adams, 6 Paige, (N. Y.) Ch. R. 435.

one acre adjoining the lands of the defendant, and separated from the ten acre lot by a turnpike road. Upon the one acre lot, and only a few feet below the defendant's line, there issued out of the slate rock, from the direction of the defendant's land, a perennial spring; the waters of which, when flowing in their natural course, ran across the one acre lot, and thence through the defendant's lands situated lower down, into a creek which ran through the ten acre lot, at a point below the complainant's ten acre lot. In 1804, the then owner of the two lots belonging to the complainant, laid an aqueduct of logs, from the spring, across the turnpike, to the ten acre lot, for the purpose of carrying water to a distillery which was then in operation there. By this aqueduct the greatest portion of the water of the spring was diverted from its natural course over the defendant's lands below the spring lot, and was discharged upon the ten acre lot. This change of the natural course of the water had continued by means of the aqueduct, and the waters thus diverted had been used for different purposes upon the ten acre lot, down to the time of filing of complainant's bill, in 1831. The whole water thus diverted was seldom actually used by the complainant and those under whom he claimed, but a very considerable portion thereof had been suffered to run to waste. The defendant and his father, from whom he derived title to his lands above and below the spring, had for more than thirty years been in the habit of resorting to the spring and taking water therefrom for cattle and for domestic purposes. In 1825, the defendant laid an aqueduct of logs from the spring to his house, and thereby conveyed a small portion of the water in that direction for the use of his family, &c.; and he continued to use the water in that man

ner without objection or molestation for about five years. In 1830, for some unexplained cause, that part of the defendant's aqueduct which was continued for a short distance in the soil of the complainant's lot, to reach the spring, was torn up and destroyed by the plaintiff's direction. The defendant being thus deprived of the power of using a portion of the water in this way, dug down upon his own land, a short distance above the spring, until he struck the subterranean stream ; and from this point he laid a new aqueduct to his house. The Vice-Chancellor, upon the hearing before him, decided, that the complainant had established a prescriptive right to divert so much of the water of the spring as would pass through an aqueduct of one and a quarter inch in diameter, and to use the same at his discretion; and to have the whole of the residue of the waters to pass over his spring lot in their natural course. He, therefore, decreed accordingly, and granted a perpetual injunction to restrain the defendant from diverting any portion of the waters which supplied the spring, from their natural channel. From this decree the defendant appealed to the Chancellor, who concurred with the Vice-Chancellor in the conclusion that the evidence established a prescriptive right in the complainant to divert a portion of the waters of the spring across the defendant's land; but as to the subterranean diversion, he said, "It is necessary then to examine whether the diverting the water found in the earth, in the defendant's own land, to the extent to which the water has been diverted by Adams in this case, entitles the complainant to the extraordinary remedy of a perpetual injunction under a decree of this Court; upon principle, I think the rights of the parties must be the same whether the spring issues from the earth upon

the land of Adams, or after passing under ground through his land, first makes its appearance upon the surface of the earth upon the lot of Smith, a little farther down. The only difficulty presented in the latter case is to establish the fact that the water diverted is the same which, in its natural course, issued upon and flowed across the lands below. And such was the decision of Lord Ellenborough in Balston v. Bensted.1 Here the fact is clearly established, that the stream of water of half an inch in diameter, which the defendant has diverted to his house by means of the aqueduct upon his own land, is a part of the larger stream which naturally issued from the earth upon the spring lot below. The law being well settled, that the owner of the superior heritage has no right to detain or divert the water which passes through his land, to the injury of those who were accustomed to receive it upon their lands below, there can be no reasonable doubt of the complainant's right to sustain an action, in the appropriate tribunal, for this abstraction of a part of the water of the spring, if he has in fact sustained any damage either directly, or by the prospective diminution of the value of the spring lot."

§ 113. In Greenleaf v. Francis, in the Supreme Court of Massachusetts, it was held, that in the absence of all rights acquired by grant or adverse user for twenty years, the owner of land may dig a well on any part of it, notwithstanding he thereby diminishes the water in his neighbor's well; unless, in so doing, he is actuated by a mere malicious intent. It appeared that the plaintiff's cellar was dug fourteen years before, and

1 Cited in the preceding section.

2 Greenleaf v. Francis, 18 Pick. Mass. R. 117.