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(- lowa, —, 201 N. W. 118.) Fleming v. Lockwood, 36 Mont. plaintiff's contributory negligence, 384, 14 L.R.A.(N.S.) 628, 122 Am. the purpose of the statute was not St. Rep. 375, 92 Pac. 962, 13 Ann. to make the owner of a canal abCas. 263, was an action to recover solutely liable for damages occadamages for injuries to plaintiff's sioned by water seepage, but was land by seepage from an irrigation limited to negligence in the respects ditch. Plaintiff was unsuccessful. mentioned. This decision, being unThe court held that the question of der the statute, is not in conflict, we negligence was applicable in such a think, with cases relied upon by apcase. Referring to the maxim that pellant. a man is bound so to use his own The Michigan case, Gilbert v. as not to injure that which belongs Showerman, 23 Mich. 448, is cited to his neighbor, the court said: to the proposition that while every “This maxim furnishes, in a general person is entitled, generally speaksense, the rule by which every mem- ing, to the exclusive and uninterber of society possesses and enjoys rupted enjoyment of his premises, his property; but it is not an iron- that right is not absolute and unlimclad rule without limitations.

ited, and that it is subject to reasonThe doctrine of the maxim is not able limitations which have regard inconsistent with the rule of law to the rights of others not less than that a man may use his own proper- to the general public welfare, and ty as he pleases, for all purposes for that all property is held subject to which it is adaptable, without being these general regulations, which are answerable for the consequences, if necessary to the common good and he is not an active agent in de general welfare. signedly causing injury,—if he does Dunsmore v. Central Iowa R. Co. not create a nuisance, or if he ex- 72 Iowa, 182, 33 N. W. 456, is cited ercises due care and caution to pre- to the proposition that, in the abvent such injury."

sence of negligence in the construcIf the rule in regard to irrigation tion or operation, the inconvenience ditches is applicable to the instant or damage which result to other case, then the case is in point for landed proprietors in the vicinity, appellee. Some of the cases hold but whose property is not directly that even in states where the com- taken, is not the basis of an action mon law obtains, it will not be fol- for damages which necessarily relowed where conditions are such as sult from the maintenance and opto make common-law rules inapplic- eration of the improvement. That able. In desert countries and some was an action to recover for annoyof our western states, the question ance from dust and smoke from the of water, or irrigation, is a condi- operation of a coal chute, wherein tion of paramount importance. plaintiff was not an abutting owner,

In Bridgeford v. Colorado Fuel & and where no negligence was shown. I. Co. 63 Colo. 372, 167 Pac. 963, it One of the principal contentions was held that under the statute of of defendant is that the owner of Colorado providing that no person land has the right to construct and or corporation shall cause waste wa- maintain a reservoir or dam on his ter or the water from any ditch, own property, provided only he is flume, or other place, to flow upon not negligent in so doing; that he any highway, so as to damage the has a lawful right so to do. The same, liability of a canal owner for cases cited by it are, for the most injury caused by seepage from the part, to sustain that proposition. It canal onto a road is limited to seep- may be conceded that this is the corage caused by negligent construc- rect rule in some cases.

It may tion, operation, or maintenance. be conceded for the purposes of this Plaintiff did not allege or prove neg- case that one has the lawful right ligence in these respects. The court to excavate the earth on his own said, eliminating the question of land for the purpose of storing wa


ter, provided that it is properly con- legislature from pumping water or structed and maintained, and that gas arising therefrom, from wells he will not be liable for escaping located on his property, which reach water by percolation or otherwise, a common reservoir, absolutely or to the injury of others, provided he merely because he thereby interferes is not negligent, or that the pond with the flow of water from his or reservoir is not a nuisance. But neighbor's well.

neighbor's well. The court said does this principle apply to the erec- that the doctrine of the English tion of a dam across a river, which cases in that respect and to that exbacks the water up to the injury of tent was challenged by the New others ? If so, why? The very Hampshire court and other courts. purpose of erecting a dam is to raise a

See also Meeker v. East Orange, 77 the water above it. Necessarily this N. J. L. 623, 25 L.R.A.(N.S.) 465, will be the effect, and this is so 468, 134 Am. St. Rep. 798, 74 Atl. whether the dam is negligently con- 379; Katz v. Walkinshaw, 141 Cal. structed and maintained or whether 116, 64 L.R.A. 236, 99 Am. St. Rep. it is done without negligence. The 35, 70 Pac. 663, 74 Pac. 766. Such right to construct the dam and is the rule in this state, as we shall throw the water back on others can see in a moment. 40 Cyc. 626, states only be obtained by a grant of some that “the general rule is that percokind. Otherwise it is unlawful, and lating water is subject to the absoit must be that this is so whether lute disposition of the owner of the the dam is constructed negligently realty where it is found, and there or properly.

is, therefore, no correlative right on We have now referred to all the the part of an adjoining owner to cases cited by appellee, except the have such water reach or flow into Wilson Case, in 72 Iowa, 451, 34 N. his land; nor does the law recognize W. 203, a decision under our dam any such thing as a prescriptive statute, and which will be referred right to the benefit of waters perto in a moment.

colating or flowing subterraneously A word further at this point in through the land of another. But regard to the diminished use of in a few states it is considered that water on one's land and the reason- an owner may make only a reason. able use thereof as affected by seep- able use of percolating water, harage or percolation to other land, and ing regard to the needs of other the correlative rights of the differ- owners whose land such water ent owners to such use. We find would naturally enter,”-citing on that where such doctrine obtains it the last proposition, Barclay v. is on the cry that the water under Abraham, 121 Iowa, 619, 64 L.R.A. one's land is a part of the real es- 255, 100 Am. St. Rep. 365, 96 N. W. tate. This was the doctrine of the 1080; Burroughs v. Saterlee, 67 earlier cases, but the later cases hold Iowa, 396, 56 Am. Rep. 350, 25 N. that the doctrine of absolute owner- W. 808. ship is not well founded, and that The Barclay Case also involved a the true rule is that he and other question as to a well-defined sublandowners are restricted to a rea- terranean stream, but held that subsonable exercise of his own rights, terranean waters are presumed to and a reasonable use of his own be percolating unless the supply is property, in view of the same rights shown by the party so asserting, to of others. Hathorn v. Natural Car- be from known and defined bonic Gas Co. 194 N. Y. 326, 23 stream. It should be presumed in L.R.A. (N.S.) 436, 128 Am. St. Rep. the instant case. In the Burroughs 555, 87 N. E. 504, 16 Ann. Cas. 989. Case it is held that when one in good This is in regard to draining one's faith seeks a well on his own land, land by percolation. It was held in the owner of a well on adjoining that case that a landowner cannot land has no cause of complaint if constitutionally be forbidden by the the water from his well is drawn

(- Iowa, —, 201 N. W. 118.) off or

decreased by percolation Am. St. Rep. 818, 54 Atl. 179; Colthrough the earth; but when sub- ton v. Onderdonk, 69 Cal. 155, 159, terranean water flows in a distinct 58 Am. Rep. 556, 10 Pac. 395. channel, an adjoining owner of land Referring to some of the cases has no more right to divert its just cited, 40 Cyc. 684, lays down course than if the stream were on the rule that one who stores water the surface of the earth. And so, for his own purposes must so conwhere plaintiff had an artesian well struct his dam or other works as to on his land, and defendants after- preclude injury to the property of wards, by boring on their adjoining others by leakage, seepage, or perland, intercepted the same stream, colation, citing the Pixley Case and thereby causing the water to cease other cases, among them the Kanflowing in plaintiff's well, but the kakee Water Co. Case, holding that quantity of water was ample for the question of negligence is immaboth parties, and could easily be terial, the duty being absolute. In made to flow at both wells by a sim- Vogt v. Grinnell, 133 Iowa, 363, 364, ple adjustment of defendant's pipes, 110 N. W. 603, an action for damheld that defendants were properly ages for polluting the water of a required so to adjust their pipes as stream by sewage, it was held that not to cut off plaintiff's supply of no question of negligence was inwater, and that an injunction was volved. properly granted to secure that end. In Losee v. Buchanan, 51 N. Y. No question of backwater in either 476, 481, 10 Am. Rep. 623, referring of those cases.

to the Pixley Case, it is said: “It But it is said in Reed v. State, 108 matters not whether the damage is N. Y. 414, 15 N. E. at page 738, occasioned by the overflow of or the supra: “It does not at all follow percolation through the natural from the right that a landowner has banks, so long as the result is occaof lawfully digging on his own land sioned by an improper interference for his own use, even though he with the natural flow of the stream. thereby interrupts a subterranean

The liability was the same current which feeds his neighbor's whether the water was dammed up well or spring, that he has also a and caused to overflow or to percoright to divert running water into late through the banks of the an underground channel and there stream. It was a case of flooding by flood his neighbor's land."

lands by damming up the water of Other cases wherein the Pixley a stream, and the liability of a Case is cited, and generally fol- wrongdoer in such a case has never lowed, and we think the weight of been disputed.” authority is in harmony with the In the St. Peter Case, it was held Pixley Case, are 1 Eng. Rul. Cas. that the defendant having no right 272, 273, 18 Eng. Rul. Cas. 725; 23 to invade the premises, which, for Eng. Rul. Cas. 809, 40 Cyc. 684; the purpose of this case, were the Kankakee Water Co. v. Reeves, 45 possession of the plaintiff, it matters Ill. App. 285; Losee v. Buchanan, not whether or no he made his inva51 N. Y. 476, 481, 10 Am. Rep. 623; sion without negligence. In Smith St. Peter v. Denison, 58 N. Y. 416, v. Brooklyn, 160 N. Y. 357, 45 423, 17 Am. Rep. 258; Smith v. L.R.A. 664, 665, 54 N. E. 787, the Brooklyn, 160 N. Y. 357, 45 L.R.A. Pixley Case is cited and followed, 664, 665, 54 N. E. 787, 6 Am. Neg. the court saying: "It is settled by Rep. 663; Sullivan v. Dunham, 161 the decision of the courts of this N. Y. 290, 47 L.R.A. 715, 76 Am. St. state, and it is the rule in England, Rep. 274, 55 N. E. 923, 7 Am. Neg. that no one may divert, or obstruct, Cas. 126; Hathorn v. Natural Car- the natural flow of a stream for his bonic Gas Co. already referred to; own benefit, to the injury of anAvery v. Vermont Electric Co. 75 other.” That was an action for Vt. 235, 59 L.R.A. 817, and 878, 98 draining the underground sources of

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a surface stream. See also Forbell it, which had either damaged or env. New York, 164 N. Y. 522, 51 tirely destroyed it.

DefendL.R.A. 695, 79 Am. St. Rep. 666, 58 ant seems

to claim that he N. E. 644, an injunction case. had a right to blast rocks with gun

In Sullivan v. Dunham, the Pix- powder on his own lot, .. even ley Case is cited and followed. That if he had shaken Mrs. Colton's house was a case where one who exploded to ruins, provided he used care and a blast upon his own land, and skill in so doing, and although he thereby caused a piece of wood to ought to have known that by such fall upon a person lawfully travel- act, which was intrinsically dangering in a public highway. The de- ous, the damage would be a necesfendant was held liable, although sary, probable, or natural consethe blast was fired for a lawful pur- quence. But in this he is mistaken," pose and without negligence. A citing the Pixley Case. possible distinction because blasting Though not citing the Pixley and is intrinsically dangerous, and yet like cases, it has been held that in defendant was blasting lawfully, not many instances where there is no a question of storing a dangerous recovery at common law, the legissubstance.

lature has provided indemnity for Avery v. Vermont Electric Co. injuries suffered by abutters and was a condemnation case where a others. Thus, under a tunnel statpetition for appointment of commis- ute, the owner of abutting land sioners to assess damages to be paid whose cellar was flooded owing to for the flooding of property under the unauthorized removal of a bulkthe flowage acts was dismissed. It head, was held entitled to compeninvolves the question of the right sation. Fifty Associates v. Boston, to condemn. The court also held 201 Mass. 585, 88 N. E. 427. See that the right of the legislature to also MacGinnis v. Marlboroughregulate the rights common to ri- Hudson Gas Co. 220 Mass. 575, parian owners does not empower it L.R.A.1915D, 1080, 108 N. E. 364. to permit a lower owner to dam the See also Brennan Constr, Co. v. water back on the upper owners of Cumberland, 29 App. D. C. 554, 15 the land, when necessary to do so to L.R.A.(N.S.) 535, 10 Ann. Cas. 865, develop the full power of the stream, where it is held that one who stores and require the upper owner to take upon his premises near a navigable his share of the value of the stream river, large quantities of oil, the esin money, and that the flowing of cape of which is bound to do the land by a dam for manufacturing greatest amount of damage and inpurposes is a taking within the jury to persons using the stream, is meaning of the constitutional pro- liable for the injury done in case of vision regulating the taking of land an escape of the oil, although it ocby right of eminent domain. The curs without any negligence on his Pixley Case is referred to in the part. While that case has reference note at page 878 of 59 L.R.A.

to escape of oil, there is a note at In Colton v. Onderdonk, plain- page 541, 15 L.R.A.(N.S.), in regard tiff recovered damages which she to the escape of water, and cites claimed defendant had caused to her Rylands v. Fletcher, L. R. 1 Exch. dwelling house while he was en- 265, 1 Eng. Rul. Cas. 235–Exch. gaged in blasting rock in grading L. R. 3 H. L. 330, 6 Mor. Min. Rep. another lot adjoining plaintiff's. 129, 1 Eng. Rul. Cas. 256. In the The court said: “It would make no instant case the agreed statement of material difference whether that facts states that license had been damage, resulting proximately and duly granted to defendant to connaturally from the act of blasting struct the dam as provided in chap

was caused by rocks thrown ter 1, title 9, of the Code, but withagainst [plaintiff's] dwelling house out stating how otherwise it had or a concussion of the air around been granted the right. In that

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(- lova, —, 201 N. W. 118.) chapter (Code 1897, § 1921) it is license was granted, plaintiffs would provided that any person who owns have been bound by the assessment. land on one or both sides of a wa- It will be observed that the statute tercourse, and desires to erect or does not limit the persons to be heighten any dam thereon, or con- made parties to those owning land struct or enlarge a race therefrom, abutting on or touching the river; for the purpose of propelling any neither does it limit the question to mill or machinery, erected or to be lands which will be overflowed, and erected thereon, by the water there- to lands which will be “otherwise of, may file in the office of the clerk affected thereby." There can be no of the district court of the county question but that plaintiffs' lands in which such mill or machinery is were injuriously affected, by water or is to be erected, a petition desig- percolating to their lands by reason nating himself as plaintiff, and the of the dam. That is conceded. owners of lands affected thereby as A construction of Code, $ 1921, defendants, and describing with rea- was involved in Wilson v. Hanthorn, sonable certainty the locality where 72 Iowa, 451, 34 N. W. 203, cited such mill or machinery is or is to by appellee, and in other cases not be erected, with that of such dam cited. It was there held substanor race, and also of the lands that tially that a person seeking a license will be overflowed or otherwise af- under the statute to erect a dam fected thereby. Following sections must make all persons parties whose provide for impaneling a sheriff's lands “will be overflowed or otherjury, and that the jury shall view wise affected thereby;" but this the lands described in the petition means only those persons whose and appraise the damages each of damages are the direct result of defendants will sustain by reason of the erection of the dam under the such lands being overflowed or oth- circumstances existing at the time; erwise injuriously affected. Section and when this has been done, and 1927 provides that, when the report such persons have been compensat

, of the jury is filed, the clerk shall is- ed, the licensee may proceed with sue an order directing the defend- safety under his license, and he canants to appear at the next term of not afterwards be held liable for court and show cause why a license damages subsequently accruing to should not be granted, etc.; also for other lands through a concurrence filing objections. Under $ 1930, li- of contingent causes which could not cense may be granted if the court be foreseen, and whose results could shall find

the license is rea- not be estimated at the time of prosonable and for the public benefit, curing the license. That was an acetc. Section 1933 reads: "No pro- tion in equity to abate a milldam, ceedings under this chapter shall and to recover damages. The quesbar an action which could have been tion of percolation was also in the maintained if this chapter had not case, but not decided directly. It been enacted, unless the prosecution was intimated, however, that damor action was actually foreseen and ages might be recovered because of estimated upon the inquest."

percolation. On this point the court Another section ($ 1934) pro

said: “The question of the percovides for bringing in another party lation is not quite as easy to be diswho has not been made a party, and posed of as a question of fact. We whose land is affected, at any time are not prepared to say that, if the before final decree. We must as- soil had become saturated by reasume that whatever rights appellee son of percolation, standing water, has in the premises are under this from whatever source it might chapter. It had the right to make come, would not less readily be abplaintiffs parties. Had this been sorbed, and, if not absorbed, that indone, and notice given them with an jury might not be sustained. But, opportunity to be heard before the in the view which we have of the

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