Fleming v. Lockwood, 36 Mont. 384, 14 L.R.A. (N.S.) 628, 122 Am. St. Rep. 375, 92 Pac. 962, 13 Ann. Cas. 263, was an action to recover damages for injuries to plaintiff's land by seepage from an irrigation ditch.

Plaintiff was unsuccessful. The court held that the question of negligence was applicable in such a case. Referring to the maxim that a man is bound so to use his own as not to injure that which belongs to his neighbor, the court said: "This maxim furnishes, in a general sense, the rule by which every member of society possesses and enjoys his property; but it is not an ironclad rule without limitations.

The doctrine of the maxim is not inconsistent with the rule of law that a man may use his own property as he pleases, for all purposes for which it is adaptable, without being answerable for the consequences, if he is not an active agent in designedly causing injury,-if he does not create a nuisance, or if he exercises due care and caution to prevent such injury."

If the rule in regard to irrigation ditches is applicable to the instant case, then the case is in point for appellee.

Some of the cases hold that even in states where the common law obtains, it will not be followed where conditions are such as to make common-law rules inapplicable. In desert countries and some of our western states, the question of water, or irrigation, is a condition of paramount importance.

In Bridgeford v. Colorado Fuel & I. Co. 63 Colo. 372, 167 Pac. 963, it was held that under the statute of Colorado providing that no person or corporation shall cause waste water or the water from any ditch, flume, or other place, to flow upon any highway, so as to damage the same, liability of a canal owner for injury caused by seepage from the canal onto a road is limited to seepage caused by negligent construction, operation, or maintenance. Plaintiff did not allege or prove negligence in these respects. The court said, eliminating the question of

plaintiff's contributory negligence, the purpose of the statute was not to make the owner of a canal absolutely liable for damages occasioned by water seepage, but was limited to negligence in the respects mentioned. This decision, being under the statute, is not in conflict, we think, with cases relied upon by appellant.

The Michigan case, Gilbert v. Showerman, 23 Mich. 448, is cited to the proposition that while every person is entitled, generally speaking, to the exclusive and uninterrupted enjoyment of his premises, that right is not absolute and unlimited, and that it is subject to reasonable limitations which have regard to the rights of others not less than to the general public welfare, and that all property is held subject to these general regulations, which are necessary to the common good and general welfare.

Dunsmore v. Central Iowa R. Co. 72 Iowa, 182, 33 N. W. 456, is cited to the proposition that, in the absence of negligence in the construction or operation, the inconvenience or damage which result to other landed proprietors in the vicinity, but whose property is not directly taken, is not the basis of an action for damages which necessarily result from the maintenance and operation of the improvement. That was an action to recover for annoyance from dust and smoke from the operation of a coal chute, wherein plaintiff was not an abutting owner, and where no negligence was shown.

One of the principal contentions of defendant is that the owner of land has the right to construct and maintain a reservoir or dam on his own property, provided only he is not negligent in so doing; that he has a lawful right so to do. The cases cited by it are, for the most part, to sustain that proposition. It may be conceded that this is the correct rule in some cases. It may be conceded for the purposes of this case that one has the lawful right to excavate the earth on his own land for the purpose of storing wa

ter, provided that it is properly constructed and maintained, and that he will not be liable for escaping water by percolation or otherwise, to the injury of others, provided he is not negligent, or that the pond or reservoir is not a nuisance. But does this principle apply to the erection of a dam across a river, which backs the water up to the injury of others? If so, why? The very purpose of erecting a dam is to raise the water above it. Necessarily this will be the effect, and this is so whether the dam is negligently constructed and maintained or whether it is done without negligence. The right to construct the dam and throw the water back on others can only be obtained by a grant of some kind. Otherwise it is unlawful, and it must be that this is so whether the dam is constructed negligently or properly.

We have now referred to all the cases cited by appellee, except the Wilson Case, in 72 Iowa, 451, 34 N. W. 203, a decision under our dam statute, and which will be referred to in a moment.

A word further at this point in regard to the diminished use of water on one's land and the reasonable use thereof as affected by seepage or percolation to other land, and the correlative rights of the different owners to such use. We find that where such doctrine obtains it is on the cry that the water under one's land is a part of the real estate. This was the doctrine of the earlier cases, but the later cases hold that the doctrine of absolute ownership is not well founded, and that the true rule is that he and other landowners are restricted to a reasonable exercise of his own rights, and a reasonable use of his own property, in view of the same rights of others. Hathorn v. Natural Carbonic Gas Co. 194 N. Y. 326, 23 L.R.A. (N.S.) 436, 128 Am. St. Rep. 555, 87 N. E. 504, 16 Ann. Cas. 989. This is in regard to draining one's land by percolation. It was held in that case that a landowner cannot constitutionally be forbidden by the

legislature from pumping water or gas arising therefrom, from wells located on his property, which reach a common reservoir, absolutely or merely because he thereby interferes with the flow of water from his neighbor's well. The court said that the doctrine of the English cases in that respect and to that extent was challenged by the New Hampshire court and other courts. See also Meeker v. East Orange, 77 N. J. L. 623, 25 L.R.A. (N.S.) 465, 468, 134 Am. St. Rep. 798, 74 Atl. 379; Katz v. Walkinshaw, 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766. Such is the rule in this state, as we shall see in a moment. 40 Cyc. 626, states that "the general rule is that percolating water is subject to the absolute disposition of the owner of the realty where it is found, and there is, therefore, no correlative right on the part of an adjoining owner to have such water reach or flow into his land; nor does the law recognize any such thing as a prescriptive right to the benefit of waters percolating or flowing subterraneously through the land of another. in a few states it is considered that an owner may make only a reasonable use of percolating water, having regard to the needs of other owners whose land such water would naturally enter,"-citing on the last proposition, Barclay v. Abraham, 121 Iowa, 619, 64 L.R.A. 255, 100 Am. St. Rep. 365, 96 N. W. 1080; Burroughs v. Saterlee, 67 Iowa, 396, 56 Am. Rep. 350, 25 N. W. 808.

But

The Barclay Case also involved a question as to a well-defined subterranean stream, but held that subterranean waters are presumed to be percolating unless the supply is shown by the party so asserting, to be from a known and defined stream. It should be presumed in the instant case. In the Burroughs Case it is held that when one in good faith seeks a well on his own land, the owner of a well on adjoining land has no cause of complaint if the water from his well is drawn

a surface stream. See also Forbell v. New York, 164 N. Y. 522, 51 L.R.A. 695, 79 Am. St. Rep. 666, 58 N. E. 644, an injunction case.

In Sullivan v. Dunham, the Pixley Case is cited and followed. That was a case where one who exploded a blast upon his own land, and thereby caused a piece of wood to fall upon a person lawfully traveling in a public highway. The defendant was held liable, although the blast was fired for a lawful purpose and without negligence. A possible distinction because blasting is intrinsically dangerous, and yet defendant was blasting lawfully, not a question of storing a dangerous substance.

Avery v. Vermont Electric Co. was a condemnation case where a petition for appointment of commissioners to assess damages to be paid for the flooding of property under the flowage acts was dismissed. It involves the question of the right to condemn. The court also held that the right of the legislature to regulate the rights common to riparian owners does not empower it to permit a lower owner to dam the water back on the upper owners of the land, when necessary to do so to develop the full power of the stream, and require the upper owner to take his share of the value of the stream in money, and that the flowing of land by a dam for manufacturing purposes is a taking within the meaning of the constitutional provision regulating the taking of land by right of eminent domain. Pixley Case is referred to in the note at page 878 of 59 L.R.A.

The

In Colton v. Onderdonk, plaintiff recovered damages which she claimed defendant had caused to her dwelling house while he was engaged in blasting rock in grading another lot adjoining plaintiff's. The court said: "It would make no material difference whether that damage, resulting proximately and naturally from the act of blasting

was caused by rocks thrown against [plaintiff's] dwelling house or a concussion of the air around

Defend

it, which had either damaged or entirely destroyed it. ant seems

to claim that he had a right to blast rocks with gunpowder on his own lot, . . . even if he had shaken Mrs. Colton's house to ruins, provided he used care and skill in so doing, and although he ought to have known that by such act, which was intrinsically dangerous, the damage would be a necessary, probable, or natural consequence. But in this he is mistaken," citing the Pixley Case.

Though not citing the Pixley and like cases, it has been held that in many instances where there is no recovery at common law, the legislature has provided indemnity for injuries suffered by abutters and others. Thus, under a tunnel statute, the owner of abutting land whose cellar was flooded owing to the unauthorized removal of a bulkhead, was held entitled to compensation. Fifty Associates v. Boston, 201 Mass. 585, 88 N. E. 427. See also MacGinnis v. MarlboroughHudson Gas Co. 220 Mass. 575, L.R.A.1915D, 1080, 108 N. E. 364. See also Brennan Constr. Co. v. Cumberland, 29 App. D. C. 554, 15 L.R.A. (N.S.) 535, 10 Ann. Cas. 865, where it is held that one who stores upon his premises near a navigable river, large quantities of oil, the escape of which is bound to do the greatest amount of damage and injury to persons using the stream, is liable for the injury done in case of an escape of the oil, although it occurs without any negligence on his part. While that case has reference to escape of oil, there is a note at page 541, 15 L.R.A. (N.S.), in regard to the escape of water, and cites Rylands v. Fletcher, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 235-Exch. L. R. 3 H. L. 330, 6 Mor. Min. Rep. 129, 1 Eng. Rul. Cas. 256. In the instant case the agreed statement of facts states that license had been duly granted to defendant to construct the dam as provided in chapter 1, title 9, of the Code, but without stating how otherwise it had been granted the right. In that

chapter (Code 1897, § 1921) it is provided that any person who owns land on one or both sides of a watercourse, and desires to erect or heighten any dam thereon, or construct or enlarge a race therefrom, for the purpose of propelling any mill or machinery, erected or to be erected thereon, by the water thereof, may file in the office of the clerk of the district court of the county in which such mill or machinery is or is to be erected, a petition designating himself as plaintiff, and the owners of lands affected thereby as defendants, and describing with reasonable certainty the locality where such mill or machinery is or is to be erected, with that of such dam or race, and also of the lands that will be overflowed or otherwise affected thereby. Following sections provide for impaneling a sheriff's jury, and that the jury shall view the lands described in the petition and appraise the damages each of defendants will sustain by reason of such lands being overflowed or otherwise injuriously affected. Section 1927 provides that, when the report of the jury is filed, the clerk shall issue an order directing the defendants to appear at the next term of court and show cause why a license should not be granted, etc.; also for filing objections. Under § 1930, license may be granted if the court shall find the license is reasonable and for the public benefit, etc. Section 1933 reads: "No proceedings under this chapter shall bar an action which could have been maintained if this chapter had not been enacted, unless the prosecution or action was actually foreseen and estimated upon the inquest."

Another section (§ 1934) provides for bringing in another party who has not been made a party, and whose land is affected, at any time before final decree. We must assume that whatever rights appellee has in the premises are under this chapter. It had the right to make plaintiffs parties. Had this been done, and notice given them with an opportunity to be heard before the

license was granted, plaintiffs would have been bound by the assessment. It will be observed that the statute does not limit the persons to be made parties to those owning land abutting on or touching the river; neither does it limit the question to lands which will be overflowed, and to lands which will be "otherwise affected thereby." affected thereby." There can be no question but that plaintiffs' lands were injuriously affected, by water percolating to their lands by reason of the dam. That is conceded.

A construction of Code, § 1921, was involved in Wilson v. Hanthorn, 72 Iowa, 451, 34 N. W. 203, cited by appellee, and in other cases not cited. It was there held substantially that a person seeking a license under the statute to erect a dam must make all persons parties whose lands "will be overflowed or otherwise affected thereby;" but this means only those persons whose damages are the direct result of the erection of the dam under the circumstances existing at the time; and when this has been done, and such persons have been compensated, the licensee may proceed with safety under his license, and he cannot afterwards be held liable for damages subsequently accruing to other lands through a concurrence of contingent causes which could not be foreseen, and whose results could not be estimated at the time of procuring the license. That was an action in equity to abate a milldam, and to recover damages. The question of percolation was also in the case, but not decided directly. was intimated, however, that damages might be recovered because of percolation. On this point the court said: "The question of the percolation is not quite as easy to be disposed of as a question of fact. We are not prepared to say that, if the soil had become saturated by reason of percolation, standing water, from whatever source it might come, would not less readily be absorbed, and, if not absorbed, that injury might not be sustained. But, in the view which we have of the

It