that the prisoner had so conducted with reference to the officer's omission that he had estopped himself from interposing the omis sion to the officer's use of the process to justify the arrest. In the service of criminal process, while it is the duty of an officer having made an arrest, to take the prisoner, as soon as circumstances will reasonably permit, before the court to which the warrant is returnable for hearing, still this duty is not so imperative that its performance, at least as between the officer and the prisoner, may not be omitted, and if omitted at the prisoner's request, of such a nature that the prisoner may not be estopped to interpose the omission to the officer's use of the warrant to justify such acts under it as were regular and lega *1. If the imprisonment is made use of to extort money from the prisoner, or to compel him against his will to pay a debt such conduct makes the imprisonment a duress, which will render every act done under it voidable, and makes those directing or participating in the improper use of the process liable as trespassers ab initio."

* *

SOME OBSERVATIONS ON THE RIGHTS OF LANDOWNERS IN SUBTERRANEAN PERCOLATING WATER.

The law relative to the control that a landcwner has over the subterranean waters on his land is of growing importance for several reasons. Water in some form is necessary to the very existence of man and to the enjoyment of his land. Without it his land becomes a desert, of no value for agricultural purposes and unfit for habitation. In parts of this country that are not blessed with a sufficient amount of rainfall to nourish and sustain vegetation, the supply of subterranean water which can be obtained by means of wells and shafts sunk into the earth becomes of immense value. With it the land is a garden, without it a desert. It is stated upon good authority that in some parts of California water is worth $1000 per inch of flow, and there would be a like value in other states of like soil and climate.

In the growing cities not located upon rivers or other bodies of water, the question of obtaining a supply of wholesome water for municipal purposes is of vital importance, and as in such cases the supply can only be obtained from subsurface water, this fact has greatly increased litigation of this character, and the courts are each

year dealing with more cases involving the questions of rights in such waters.

Subterranean waters are usually divided into two distinct classes: First, those underground bodies or streams existing in a known and well defined channel; and second, those underground waters which ooze or percolate through the earth, called percolating waters. The courts have universally endeavored to apply the rules of law applicable to surface streams or bodies existing in well defined channels, to the waters of the class first above named.1 But as to the rules of law applicable to the use of water of the second class or percolating water, the courts of this country and England are not entirely in concord. The English rule, and that of the earlier American cases is based upon the mixim, "Cujus est solum ejus est usque ad inferos," (whose the soil is, his it is from the heavens to the depths of the earth) while the later American cases are based upon the maxim of the civil law, "Sic utere tuo ut alienum non laedos" (that one must use his own so as not to injure another.)

Hence we find the English rule to be that underground percolating waters belong to the soil, and the owner of the land may search and explore for and obtain them at will and use them at pleasure, though in so doing he might drain or entirely divert such waters from the lands of adjacent or neighboring owners to which they would otherwise necessarily pass.2 The fact that the first English case upon this subject was decided in the year 1840,3 shows the comparative

(1) 30 Am. & Eng. Enc. Law, p. 311; Wheelock v. Jacobs, 70 Vt. 162, 43 L. R. A. 105, 67 Am. St. Rep. 659 and note; Pence v. Carney (W. (Va.), 52 S. E. Rep. 702, 6 L. R. A. (N. S.) 266. Underground waters are presumed to be percolating waters until the contrary is shown. See 30 Am. & Eng. Enc. Law, p. 311; Barclay v. Abraham, 121 Iowa, 619, 64 L. R. A. 255, 10 Am. & Eng. Dec. in Eq. 716 and note; Acton V. Blundell, 12 Mees & W. 335.

(2) Hammond v. Hall, 10 Sim. 552, 4 Jur. 694; Acton v. Blundell, 12 Mees & W. 324; Dickinson v. Grand Junction Canal Co., 7 Exch, 301, 21 L. J. Exch. (N. S.) 241; Broadbent v. Ramsbotham, 11 Exch. 602; Grand Junction Canal Co. v. Shugar, L. R. 6 Ch. App. 483; Bradford v. Pickles, A. C. 587; New River Co. v. Johnson, 2 El. & El. 435, 8 Week. Rep. 179. See the following American cases following the English rule: Frazier v. Brown, 12 Ohio St. 294; Metcalf v. Nelson, 8 S. D. 87, 56 N. W. Rep. 911; Huber v. Merkel, 117 Wis. 355, 62 L. R. A. 589, 98 Am. St. Rep. 933, 94 N. W. Rep. 354; Taylor, Adm'r v. Fickas, 69 Ind. 172; Greenleaf v. Francis, 18 Pick. 117; Roath v. Driscoll, 20 Conn. 533. 52 Am. Dec. 352. See Ang. Waters, Sec. 114 where cases are collected.

ly modernness of the subject. The case of Acton v. Blundell, decided in exchequer chamber in the year 1843, is regarded as the leading English case upon the subject of percolating waters. It was an action for damages occasioned by working a coal mine on adjoining land, which interfered with water which was flowing underground to plaintiff's spring. The lower court instructed the jury, "that, if the defendants had proceeded and acted in the usual and proper manner in the land for the purpose of working and mining a coal mine therein, they might lawfully do so." After holding that this instruction was a correct statement of the law, the Chief Justice said: "This case falls within that principle which gives to the owner of the soil all that lies beneath the surface; that the land immediately below is his property, whether it is solid rock, or previous ground, or venous earth, or part soil and part water; that the person who owns the surface may dig therein and apply all that is there found to his own purposes at his free will and pleasure; and that if in the exercise of this right he intercepts or draws off the water collected from underground springs in his neighbor's well this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot be the ground of an action." The doctrine thus expressed by the learned court has been called the "cujus est solum doctrine," and, as is tersely said by an American court, "furnishes a rule of easy application, and saves a world of judicial worry."5

Another interesting English case upon this subject is the case of Chasemore v. Richards, where a mill owner sought to obtain damages from a town who had dug a deep well near the river upon which the mill was operated, and by pumping large quantities of water therefrom materially diminished the flow of the river and prevented the use of his mill as efficiently as before. The case was first decided in exchequer chambers in favor of the defendant, Mr. Justice Coleridge dissenting, on the grounds that the use of the water by the city to such an extent was not a reasonable one. On appeal to the House of Lords the judges held unanimously for the defendant sustaining fully the cujus est solum doctrine, without qualification, and this was affirmed by

(4) Acton v. Blundell, 12 Mees. & W. 324. (5) Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. Rep. 663, 74 Pac. Rep. 766. (6) Chasemore v. Richards (in Exch.) 2 Hurlst. & N. 168 (in House of Lords) 7 H. L Cas. 349, 7 Week. Rep. 685.

***

the House. But Lord Wensleydale, however, who had doubts, pronounced an opinion which seems to the writer to be in harmony with the doctrine of "reasonable use" as pronounced by the later American cases. His Lordship sail, "According to the rule of reason and law, Si utere tuo ut alienum non laedas, it seems right to hold that * * * * (a landowner) ought to exercise his right in a reasonable manner, with as little injury to his neighbor's rights as maybe. But I doubt very greatly the legality of the defendant's acts in abstracting water for the use of a large district in the neighborhood, unconnected with his own estate, for the use of those who would have no right to take it directly themselves, and to the injury of those neighboring proprietors who have an equal right with themselves. It does not follow that each person who was supplied with water by the defendant could have dug a well himself on his own land and taken the like quantity of water, so that the defendant may have taken much more than would have been abstracted if each had exercised his own right."

Another English case which in some respects seems to conflict with the Chasemore case, is the case of Grand Junction Canal Co. v. Shugar,' where the right to intercept the waters of a spring, the source of supply of a running stream was asserted. In denying this right Lord Hatherby said: "You have a right to all the water which you can draw from the different sources which may percolate underground, but that has no bearing at all on what you may do with regard to water which is in a defined channel, and which you are not to touch. If you cannot get at the underground water without touching the water in a defined surface channel, I think you cannot get at it at all."

One of the main arguments used in support of the doctrine of the English cases is, that a landowner owns the water percolating in his soil, as he does the rock or minerals therein, and that he should have the same right to use such water as he has to use the minerals, and that if the owner cannot destroy a stream or natural pond by drawing the water from it through percolation, then he could not drain a marsh, or clear his land if these operations would tend to decrease the percolation from a stream or natural pond upon a neighbor's land. An early Ohio cases

(7) Grand Junction Canal Co. v. Shugar, L R. 6 Ch. App. 483.

(8) Frazier v. Brown, 12 Ohio St. 294. See also Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 72. See article in 14 Alb. Law J. 63.

following the English rule, thus states the reasons for the same: "In the absence of express contract and of positive authorized legislation as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing, or filtrating through the earth, and this mainly from considerations of public policy: (a) Because the existence, origin, movement, and course of such waters, and the causes which govern and direct their movements, are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in helpless uncertainty, and would be, therefore, practically impossible; (b) Because any such recognition of correlative rights would interfere, to the material detriment of the commonwealth, with drainage, and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building, and the general progress of improvement in works of embellishment and utility."

While the early rule both in England and this country, is as stated above, the weight and trend of the recent authorities in America is to qualify the early rule by limiting the use by the owner of the land who searches therein, and produces percolating water, to a reasonable and beneficial use of such water, where to use it otherwise would deprive the owners of adjacent and neighboring lands of the enjoyment of the waters of their lands, in other words the recent cases recognize the correlative rights of adjacent land owners in such waters and limits the landowner's use thereof to a reasonable one, taking into consideration the circumstances in each case.

The geography of this country has caused different rules to be applied as to the control of subterranean waters here, than those applied in England. It is evident that rules which might work well in an island like England, with a bounteous supply of water, might operate disastrously if indiscriminately applied to so diversi

(9) Bearing on the rule of the reasonable use of, and the correlative right to percolating water by landowners see: Forbell v. New York, 164 N. Y. 522, 51 L. R. A. 695, 79 Am. St. Rep. 666, 58 N. E. Rep. 644; Willis v. Perry, 92 Iowa, 297. 26 L. R. A. 124; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276; Stillwater Water Co. v. Farmer, 89 Minn. 58, 60 L. R. A. 875, 99 Am. St. Rep. 541, 93 N. W. Rep. 907; Gagnon V. French Lick Springs Hotel Co., 163 Ind. 687, 68 L. R. A. 175, Walkinshaw, 141 72 N. E. Rep. 849; Katz v. Cal. 116, 64 L. R. A. 236, 99 Am. St. Rep. 35; Erickson v. etc. Crookston Waterworks, Co. (Minn.), 111 N. W. Rep. 391.

fied a continent as this, with its well watered lands, and its arid stretches, and desert lands. As is well stated in a recent case, "nothing is better settled than that the fundamental principles of right and justice on which the common law is founded, and which its administration is intended to promote, require that a different rule should be adopted whenever it is found that, owing to the physical features and character of a state, and the peculiarities of its climate, soil, products, and water supply, the application of a common law rule tends constantly to cause injustice and wrong, rather than the administration of justice and right."

"10

Of the English cases, and of the common law on this subject, Mr. Farnham, in his late work on Waters & Water Rights11 says: "When it is remembered that the first English case dealing with percolating water arose in 1840, and that it was not decided that the landowner might exhaust the water to furnish a municipal water supply until 1860, it will be at once seen that there was no English law on the subject at the time the common law was adopted by statute, in most of the American states, and that the opinion of the Anierican courts as to what is the common law is as good as subsequent English courts. Therefore, in any case, the ques

tion can be decided on its merits, giving the English decisions the weight to which they are entitled, but without the necessity of regarding them as binding precedents."

By a review of several of the recent American decisions upon the question of the rights of landowners in percolating waters, the tendency of the modern decisions may be best seen. In the case of Forbell v. City of New York12 the city sunk wells and installed a pumping station near the plaintiff's land, and the pumping had the effect to lower the underground water table on his land and thus made it unfit for the cultivation of celery or water cresses. In the lower court a perpetual injunction was obtained against the city from so operating their station and injuring plaintiff's land, damages in the sum of $6,000 were also awarded him. On affirming the judgment of the lower court, and upholding that of

(10) Erickson v. Crookston, etc. Co. (Minn.), 111 N. W. Rep. 391.

(11) Farnham on Waters & Water Rights, Vol. 3, p. 2718.

(12) Forbell v. City of New York, 164 N. Y. 522, 51 L. R. A. 695, 79 Am. St. Rep. 666, 58 N. E. See also Smith v. Brooklyn, 18 App. Rep. 644. Div. 346, 46 N. Y. Supp. 141.

the appellate division of the supreme court, Mr. Justice Landon, speaking for the New York court of appeals, said: "The defendant makes merchandise of the large quantities of water which it draws from the wells that it has sunk upon its two acres of land. The plaintiff does not complain that any surface stream or pond or body of water upon his own land is thereby affected, but does complain, and the courts below have found, that the defendant exhausts his land of its accustomed and natural supply of underground or subsurface water, and thus prevents him from growing upon it the crops to which the land was and is peculiarly adapted, or destroys such crops after they are grown or partly grown. The defendant does not take from its own land simply its natural or accustomed supply or holding, but by means of its appliances and operations it takes and appropriates a large part of the natural and accustomed supply or holding of the plaintiff's land." After stating the general rule as to a landowner's right to use all the percolating water that might be found under his land, and giving the reasons therefor the court further said: "But there are features in this case to which these reasons do not apply. As already intimated, the defendant installed its pumping plant knowing that the underground operation and habit of this store of water in its own and neighboring lands, including the plaintiff's, a total area of from five to eleven square miles, would enable it to capture the greater part of it. In the cases in which the lawfulness of interference with percolating waters has been upheld, either the reasonableness of the acts resulting in the interference, or the unreasonableness of imposing an unnecesary restriction upon the owner's dominion of his own land, has been recognized. In the absence of contract or enactment, whatever it is reasonable for the owner to do with his subsurface water, regard being had to the definite rights of others, he may do. He may make the most of it that he reasonably can. It is not unreasonable, so far as it is now apparent to us, that he should dig wells and take therefrom all the water that he needs in order to have the fullest enjoyment and usefulness of his land, as land, either for purpose of pleasure, abode, productiveness of soil, trade, manufacture, or for whatever else the land as land may serve. He may consume it, but must not discharge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in

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the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and others whose lands are thus clandestinely sapped, and their value impaired."

The courts of New Hampshire were among the first in this country to recognize the doctrine of correlative rights of landowners respecting the appropriation and use of percolating waters.1 13 These courts applied the maxim, "Sic utere tuo ut alienum non laedas," and followed the reasoning of Lord Wensleydale in his opinion in the Chasemore case.

The case of Stillwater Water Co. v. Farmer14 is a well considered one much cited as a leading case upon this subject in America. It was an action brought to restrain the defendant from interfering with subsurface waters, which, percolating through the ground, served in part to supply a spring situated upon plaintiff water company's property, which spring the latter used to furnish its patrons, the people of Stillwater, with water for domestic use. The action was dismissed when plaintiff rested at the trial below upon the ground that no cause of action had been established. In reversing the case, Mr. Justice Collins, speaking for the Supreme Court of Minnesota, said: "The question in this case, reduced to its last analysis, involves the defendant's right to collect by drainage these fugitive subsurface waters, and then to waste them, to the annihilation of plaintiff's business, and to the great discomfort and injury of the people who depend upon the plaintiff for water for domestic use. * * If the collection of these waters was essential and necessary that defendant might use them for any reasonable purpose, or, even if, from the evidence, it could be found that he was competing with the plaintiff, and proposed to use the water for a public purpose, or if it were necessary that the natural conditions of his land should be disturbed and subsurface waters drained in order to improve it, then there would be very little doubt as to the rule to be applied, and of the correctness of the conclusion reached by the court below. But such is not the situation presented by this record. The

(13) Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276.

(14) Stillwater Water Co. V. Farmer, 89 Minn. 58, 60 L. R. A 875, 99 Am. St. Rep. 541, 93 N. W. Rep. 907.

facts are not seriously in dispute, and they have compelled defendant's counsel to take the position that their client, as owner of the soil, has an absolute and unqualified right to collect, divert, and waste these percolations, although the plaintiff by these apparently unnecessary and capricious acts, is, and will be further, to a greater extent, and almost wholly, deprived of waters heretofore appropriated and used by it to supply the people of Stillwater with a pure article for domestic purposes, and to their great injury. * * *But we have arrived at the conclusion that, irrespective and independent of his motive, he has no absolute legal right to collect these subsurface waters solely that they may be wantonly wasted, and that he may be restrained from so doing. It is true that this action must be disposed of upon principles involving natural rights of property, and, while we are first to look to the extent of the defendant's ownership in the land in which he has dug the trench, we are not to altogether lose sight of the fact that he has collected the water for no worthy purpose, and that he is squandering it, to the injury of the public.

Having this very situation in mind, a learned textbook writer has suggested that the maxim, Cujus est solum, ejust est usque ad coelum, is not strictly and absolutely applicable to all of the relations of adjoining land proprietors. 'It is obvious,' he says, 'that neighbors cannot be mutually indifferent to each other's doings.' As applicable to their relations and their acts, this author further says: The common law, otherwise so jealous of such interference between the owner and his property, imposes upon him the simple rule, Sic utere tuo ut alienum non laedas.'15 * * * We therefore formulate and announce the rule governing the facts here to be that, except for the benefit and improvement of his own premises, or for his own beneficial use, the owner of land has no right to drain, collect or divert percolating waters thereon, when such acts will destroy or materially injure the spring of another person, the waters of which spring are used by the general public for domestic purposes. He must not drain, collect or divert such waters for the sole purpose of wasting them."

In a recent Indiana case18 the court uses sim

(15) Quotation from Angell, Water Courses, 7th ed. Sec. 114.

(16) Gagnon v. French Lick Springs Hotel Company, 163 Ind. 687, 68 L. R. A. 175, 72 N. E. Rep. 849.

ilar reasoning in holding that a landowner cannot maliciously drill and pump water from a subterranean channel, to the injury of an adjacent landowner, who has a valuable mineral spring upon his land which was injured by such pumping. The court there said: "The strong trend of the later decisions is toward a qualification of the earlier doctrine that the landowner could exercise unlimited and irresponsible control over subterranean waters on his own land, without regard to the injury which might thereby result to the lands of other proprietors in the neighborhood. Local conditions, the purpose for which the landowner excavates or drills holes or wells on his land, the use or nonuse intended to be made of the water, and other circumstances have come to be regarded as more or less influential in this class of cases, and have justly led to an extension of the maxim, 'Sic utere ut alienum non laedas' to the rights of landowners over subterranean waters, and to some abridgment of their supposed power to injure their neighbors without benefiting themselves." It should be stated, however, that the subterranean stream tapped in this case was one having a more definite channel than mere percolating water, but the court cites cases dealing with percolating waters as authority for its holding.

In the case of Pence v. Carney, 17 the question of the reasonableness of the use of percolating waters was considered, and the court, while holding squarely that the defendant in the case could not unreasonably use such water, held further that the evidence did not show an unreasonable or a malicious use thereof. On the question as to the means of ascertaining what a reasonable use would consist of, the court said: "We must yield assent to the late doctrine of reasonable and beneficial use, which constitutes rather a qualification of the early rule than an announcement of a new rule. The later doctrine seemes to us to be sustained by the weight of authority, as well as by the weight of reason. What is a reasonable and beneficial use under this late doctrine must be determined in the light of the facts and circumstances appearing in each case as it arises. We do not desire to be understood as announcing any fixed rule applicable to all cases as to the question of what constitutes such reasonable and beneficial use. Such rea