1114.) The taking of a judgment at law is held not to abrogate or defeat the vendor's lien to secure the debt. Kane v. Mann, 93 Va. 239 (24 S. E. Rep. 938). The renewal of a purchase money note or the execution of a note to a third party or assignment of the note given for purchase money, does not destroy the vendor's lien. Upland Land Co. v. Ginn, 144 Ind. 434 (43 N. E. Rep. 443). Where a vendor's lien is reserved in the deed, upon payment of the purchase money, it is the duty of the vendee to execute a proper release of the lien, and a tender of the purchase money made on condition of such release being executed is valid. Engelbach v. Simpson, 12 Tex. Civ. App. 188 (33 S. W. Rep. 596).

Sec. 967. Enforcement of vendor's lien-Practice. In equitable proceedings to enforce a vendor's lien, it is held not to be necessary to aver a tender of a deed. Johnson v. Kurtz, 97 Tenn. 503 (37 S. W. Rep. 222). Under Ala. Code, § 3605, providing that in "suits for the enforcement of equitable liens, execution may issue for the balance found due after a sale of the property ordered and decreed to be sold," it is held that the plaintiff in an action to enforce a vendor's lien is entitled to a deficiency judgment although his complaint does not contain a specific prayer therefor. Tompkins v. Cooper, 97 Ga. 631 (25 S. E. Rep. 247). In a suit to enforce a purchase money lien on the land, no convention of the lienholders of the debtor is necessary; and in a suit to enforce the lien for one of several notes for purchase money of land, it is not error to decree a sale without provision for other notes not matured when the suit began. Long v. Perine, 41 W. Va. 314 (23 S. E. Rep. 611). It is held that where a vendee defends against a suit to foreclose a vendor's lien on the ground of a defect in title, he must establish that the title was a failure in whole or in part, that there was danger of eviction, and also such circumstances as would prima facie repel the presumption that at the time of the intended to run the risk of a defect. 89 Tex. 250 (34 S. W. Rep. 443). not undertake to state where the title to the land resides, nor that petitioner will be able to show on a trial that the vendor had no title, nor that he, the petitioner, did not enjoy the

purchase he knew and Brown v. Montgomery, A petition which does

benefits of the purchase by taking possession and enjoying the use of the property, but merely states, upon advice received, that the vendor had no title, cannot be accepted as showing sufficient cause for setting aside a decree to enforce a vendor's lien on the property, and permitting the petitioner to defend the suit on the merits. Buford v. Ward, 108 Ala. 307 (19 So. Rep. 357).

Sec. 968.

WASTE.

EPITOME OF CASES.

Miscellaneous notes.

Where the cutting

of timber by a widow in possession of her dower estate works no permanent injury to the estate in remainder, and the proceeds from the timber were applied to making necessary repairs she is not guilty of waste. Lunn v. Oslin, 96 Tenn. 28 (33 S. W. Rep. 561). Particular allegations held insufficient to show threatened waste by a tenant. Bucklen v. Cushman, 145 Ind. 51 (44 N. E. Rep. 6). A lessor's right to maintain an action for waste committed by the lessee during his term is not affected by the fact that the lease was within the statute of frauds, or that he had subsequent to the commission of the waste complained of, for a valuable consideration, accepted a surrender of the lease. Marshall v. Rugg,

Wyo. (44 Pac. Rep. 700). Particular answer to a complaint by a mortgagee to enjoin waste held insufficient. Henry v. Watson, 109 Ala. 335 (19 So. Rep. 413).

WATERS AND WATERCOURSES.

METCALF v. NELSON.

(8 S. Dak. 87.)

Ownership of springs. In the absence of evidence as to its source, it will be presumed that a natural spring of water is formed by the ordinary percolation of water in the soil. Water so percolating through the soil or coming to the surface in a spring belongs to the owner of the soil in such a sense and to such an extent that he is entitled to the exclusive right to use and dispose of the same. A complaint which shows the plaintiff to be the owner of land upon which such a spring is located, and that the defendant, against his objection, and in defiance of his protest, has willfully and habitually taken large quantities of water from such spring, states a cause of action in favor of the plaintiff and against the defendant. Fuller, J., dissenting.

KELLAM, J.

(Syllabus by the Court.)

While some ques

Sec. 969. Statement of the case. tion is made as to the sufficiency of the description as set out in the complaint, we think it is sufficiently definite for the purpose of this action, and shall treat the complaint as alleging that the plaintiff, who is now appellant, was at the time mentioned, the owner of a parcel of land upon which was located a spring of water, and that without his consent and against his objection the defendant removed from said spring and hauled away a large quantity of water for his own use and for purposes of sale, and that the value of the water so taken was $500, for which amount judgment was demanded. At the trial the court sustained defendant's objection that the complaint did not state facts constituting a cause of action, and rendered judgment for defendant. Plaintiff appeals. The grievance complained of is not the trespass upon or injury to plaintiff's real estate, but the asportation of water issuing from said spring, and claimed to belong to plaintiff. The interesting question therefore is, did the plaintiff have such property rights in and to the corpus of the water in such spring as would entitle him to recover for what was carried away?

Sec. 970. Percolating waters-Removal of water from a spring. Subterranean waters, not flowing in a defined course or channel, but percolating and seeping through the earth, are a part of the realty. This is statutory here (Comp. Laws, § 2771), and is the law generally. In Wilson v. City of New Bedford, 108 Mass. 265 (11 Am. Rep. 352), the court said: "The percolating water belongs to the owner of the land as much as the land itself, or the rocks and stones in it." To the same effect are Roath v. Driscoll, 20 Conn. 533 (52 Am. Dec. 352); Village of Delhi v. Youmans, 45 N. Y. 362; Frazier v. Brown, 12 O. St. 294; City of Emporia v. Soden, 25 Kan. 588 (37 Am. Rep. 265); Railroad Co. v. Dufour, 95 Cal. 615 (30 Pac. Rep. 783); Clark v. Conroe, 38 Vt. 469; Taylor v. Fickas, 64 Ind. 167 (31 Am. Rep. 114). As to the water rights of owners of land in which springs are located, the authorities distinguish between springs that are fed by the seeping of water generally through and from the surrounding earth and those that are formed by the breaking out upon the surface of definite underground water courses; the latter being governed by the same rules of law as surface streams. For a collection of cases exemplifying this distinction, see note to Wheatley v. Baugh, 25 Pa. St. 528 (64 Am. Dec. 727). In the absence of evidence, it will be presumed that the spring was formed and fed by the percolation of water through the surrounding soil, and was not the outbreak upon the surface of a subterranean stream. Hanson v. McCue, 42 Cal. 303. In Elster v. City of Springfield, 49 O. St. 82 (30 N. E. Rep. 278), it was said that, as it was not shown from what source the spring was supplied, it would be inferred that it came from percolation through the earth in the vicinity of the spring. See, also, Swett v. Cutts, 50 N. H. 439 (9 Am. Rep. 276). As the hidden water in the plaintiff's soil belonged to him as a part of it, he might, by artificial means, separate it from the soil, and it would still belong to him. He might sink a well, into which such water would work its way, and the accumulation in the well would still be his, and subject to his proprietary control. Davis v. Spaulding, 157 Mass. 431 (32 N. E. Rep. 650; 19 L. R. A. 102). If the water which fills this spring is not subject to the law of running streams, but to that of percolating water, did the

plaintiff lose his ownership of it when it appeared upon the surface? If a cloud had burst on plaintiff's land, and filled a cavity thereon with rain, it would, while so confined, belong to plaintiff, and we are unable to see why or how the question of ownership can be made to depend upon which way the water comes from. Suppose this percolating water appeared at the surface only at the point of the spring, and at once sank away again into the surrounding soil, resuming its character of wandering, seeping water, would the plaintiff's proprietary right come and go with the appearance and disappearance of the water? It must be remembered that we are not dealing with a running stream, or with riparian rights, but simply with percolating waters which have combined and struggled to the surface on plaintiff's land. We think the plaintiff had more than the ordinary usufruct in the water of this spring, so long, at least, as it was held in the spring. He might consume or dispose of it if he chose. He might convey it away in pipes, or carry it off in tanks. If medicinal he might bottle it, and sell it for the healing of the nations. It would be inconsistent with the maintenance of such right in plaintiff to allow that the defendant or any other stranger had also the right, in hostility to the plaintiff, to take and carry away water from the same spring. While it may not be technically correct to say that the landowner is the absolute owner of percolating waters gathered into a spring or well, such is often the expression of the courts and text writers, and probably means what, in respect to water, is practically equivalent to ownership,-the exclusive right to use and dispose of it. While the precise question presented by this case appears to be novel, there are many cases which recognize the right of the owner of land upon which a spring so appears to sell and dispose of the right to all or a portion of the water it supplies. See Buffum v. Harris, 5 R. I. 243; Bliss v. Greeley, 45 N. Y. 671 (6 Am. Rep. 157); Clark v. Conroe, 38 Vt. 469. Applying these views to the facts stated in the complaint, we think the conclusion must be that plaintiff had such an ownership of or interest in the water in this spring as entitled him to the exclusive right to use and dispose of it. While the complaint does not expressly aver damages or detriment to the plaintiff in the hauling away by the defendant of