water from the spring, we think it does show an invasion of the plaintiff's right, from which the law presumes damage. 5 Am. & Eng. Enc. Law, p. 2, and cases cited. Under our practice every action is an action on the case, and, while it may be that the plaintiff is not entitled to recover specifically for so many gallons of water taken from the spring, we think the complaint shows a right in plaintiff, and a violation of it by defendant. It seems to us that the complaint states facts which, if proved, would entitle the plaintiff to at least nominal damages. Whether he can or ought to recover more is for him to demonstrate in the trial court. This case does not present the question of whether, after trial, a judgment for defendant ought to be reversed, because on the facts proved the plaintiff ought to have had a judgment for nominal damages. The question here is purely a legal one. To sustain this judgment we must say as a matter of law that the facts stated in the complaint do not constitute a cause of action; that they do not show a right in plaintiff and a violation of it by defendant. For the reasons stated we are of the opinion that the circuit court was wrong in ruling that the complaint did not state facts constituting a cause of action. Its judgment for defendant following such ruling is reversed, and the case remanded for a new trial.

FULLER, J. (dissenting).

No trespass upon or injury to real property being alleged, and no damages being claimed, it is, in my judgment, obnoxious to the creative plan, and as inconsistent with the law of nature, to permit plaintiff to recover for water which he could not use, and did not desire to appropriate, as it would be under similar circumstances to grant him a money judgment for the value of sunlight or the free air of heaven. There was no usurpation of right, and there is no rule of law by which to grant or measure a recovery, in the absence of any claim or pretense that plaintiff had sustained injury. Assuming, but not conceding, that the complaint in this action, under the liberal view of a majority of this court, states facts which would, if proved, entitle plaintiff to nominal damages, the judgment of the court below ought not to be disturbed. Unless it becomes necessary to preserve or define some legal right clearly

invaded or involved, appellate courts do not usually feel called upon to reverse a judgment to enable a party to recover nominal damages. 2 Enc. Pl. & Prac. 535; Benson v. Village of Waukesha, 74 Wis. 31 (41 N. W. Rep. 1017);Lumber Co. v. Williams, 73 Mich. 86 (40 N. W. Rep. 940); McAllister v. Clement, 75 Cal. 182 (16 Pac. Rep. 775); McCauley v. Mc Keig, 8 Mont. 389 (21 Pac. Rep. 22); Williams v. Brown, 76 Ia. 643 (41 N. W. Rep. 377). The judgment of the court below should be affirmed.

Note. The owner of land upon which springs are situated is the absolute owner of the waters flowing therefrom which he may use or sell, having regard to the riparian rights of the lower owners; and where such waters are taken under the right of eminent domain he is entitled to compensation on the basis of such ownership. Harwood v. Village of West Randolph, 64 Vt. 41 (24 Atl. Rep. 97). The granting of an easement of right of way over lands does not deprive the owner of the fee of the benefit of waters flowing from a spring. Smith v. Holloway, 124 Ind. 329 (24 N. E. Rep. 886). The owner of a spring cannot acquire by prescription the right to waters feeding it which percolate through the lands of an adjoining owner so as to deny the latter the right to use his own land for legitimate purposes, though the direct effect of such use be to drain the spring. Elster v. City of Springfield, 49 O. St. 82 (30 N. E. Rep. 274). But where a grantor in a conveyance of land having a spring on it inserts a clause, "I also quitclaim all right and title which I have in and to what water would naturally flow into the above-described springs and wells," neither he nor his successors in title have any right to interfere, by acts on adjoining land, with the natural flow of percolating waters which feed the spring. Minard v. Currier, 67 Vt. 489 (32 Atl. Rep. 472).

EPITOME OF CASES.

Sec. 971. Pertaining to dams. The grant of a right to flood a part of a farm by the erection of a dam will preclude the maintenance of an action for injuries caused by the dam to the remaining portion. Nunamaker v. Columbia Water-Power Co., 47 S. C. 485 (25 S. E. Rep. 751; 34 L. R. A. 222; 58 Am. St. Rep. 905). Mill owners who have acquired the right to dam water by prescription cannot extend their flowage beyond what existed during the period of the prescription. A. P. Cook Co. v. Beard, 108 Mich. 17 (65 N. W. Rep. 518). North Carolina Act Dec. 24, 1887, authorizing the board of trustees of the Columbia Canal to

construct dams construed and applied. Leitzsey v. Columbia Water-Power Co., 47 S. C. 464 (25 S. E. Rep. 744; 34 L. R. A. 215).

Sec. 972. Pollution and diversion of flowing waters -Injunction to prevent. An injunction will lie to prevent the pollution of flowing waters. Jussup & Moore Paper Co. v. Ford, 6 Del. Ch. 52 (33 Atl. Rep. 618). The court say: "To so pollute a stream as to render it useless to riparian owners below, is practically, as to them, to destroy the stream, and to destroy their rights therein as riparian owners. The authority of a court of equity to restrain the pollution of natural streams of water, where such pollution will cause irreparable injury and loss to a riparian owner in his accustomed and necessary legal use of the waters thereof, is unquestionable, and established by numerous authorities." Fluids discharged from a sewer, although colorless, sterilized and apparently innoxious, may, by combination with other substances found in the river, become the occasion of decomposition and consequent pollution so as to afford ground for an injunction. Morgan v. City of Danbury, 67 Conn. 484 (35 Atl. Rep. 499). A lot owner is not entitled to an injunction restraining the making of municipal improvements by a city because they will obstruct a natural watercourse running over his lot where it appears that he refused an offer of the city to make proper arrangements to flow the water by connection with a sewer. Richardson v. City of Eureka, 110 Cal. 441 (42 Pac. Rep. 965).

Sec. 973.

Draining cemeteries. A cemetery association will not be permitted to discharge an underground drain into a running stream to the injury of the riparian owners, although such stream be otherwise somewhat polluted by surface drainage. Barrett v. Mt. Greenwood Cem. Ass'n, 159 Ill. 385 (42 N. E. Rep. 891; 50 Am. St. Rep. 168; 31 L. R. A. 109). The court say: "It is a well-recognized branch of equity jurisdiction to restrain by injunction the fouling of running streams that pass over the lands of others, by connecting sewers therewith, or by other means, so as to endanger the comfort and health of others, or to cause irreparable injury

to their property rights." Citing, High. Inj. p. 508, §§ 794, 795; People v. City of St. Louis, 5 Gilman 351 (18 Am. Dec 339); Wahle v. Reinback, 76 Ill. 322; Metropolitan City Ry Co. v. City of Chicago, 96 Ill. 620; Minke v. Hopeman, 87 III. 450; Catlin v. Valentine, 9 Paige 575 (38 Am. Dec. 567); Lyon v. McLaughlin, 32 Vt. 423; Village of Dwight v. Hayes, 150 Ill. 273 (37 N. E. Rep. 218; 41 Am. St. Rep. 367).

Sec. 974. Subterranean waters Rights of land owner. The owner of land through which subsurface water, without any definite, distinct, and known channel, percolates or filters through the soil to that of an adjoining owner, is not prohibited from digging into his own soil, and appropriating water found there to any legitimate purposes of his own, though, by doing so, the water may be entirely diverted from the land to which it would otherwise naturally have passed; but, if the subterranean water has assumed the proportions of a stream flowing in a well defined channel, the owner of the land through which it flows will not be authorized to divert it, pollute it, or improperly use it, any more than if the stream ran upon the surface in a well defined course. The only difference in the application of the law to surface and subsurface streams is in ascertaining the character of the stream. If it does not appear that the waters which come to the surface are supplied by a definite flowing stream, they will be presumed to be formed by the ordinary percolations of water in the soil; such presumption being necessary on account of the difficulty in determining whether the water flows in a channel beneath the soil. Tampa Waterworks Co. v. Cline, 37 Fla. 586 (20 So. Rep. 780; 53 Am. St. Rep. 262; 33 L. R. A. 376). It is held that the principles governing water upon the surface of the earth are inapplicable to waters beneath its surface, and percolating through its soil. The water which is held by the soil is a portion of the soil itself, and belongs to the owner of the land. Gould v. Eaton et al, 111 Cal. 639 (44 Pac. Rep. 319; 52 Am. St. Rep. 201). As to when percolating waters will be included in proceedings to appropriate water rights, see Hollingsworth & Vose Co. v. Foxborough Water Supply Dist., 165 Mass. 186 (42 N. E. Rep. 574).

WILLS.

EPITOME OF CASES.

Sec. 975. As to the validity of devises of real estate. A will revoked by a subsequent marriage of the testator is void for any purpose. Sloniger v. Sloniger, 161 Ill. 270 (43 N. E. Rep. 1111). A mere naked possibility or reverter descends to one's heirs and cannot be devised. Trustees of Presbyterian Church v. Venable, 159 Ill. 215 (42 N. E. Rep. 836; 50 Am. St. Rep. 159). A devise must not suspend the ownership of the estate devised. Succession of Mc Can, 48 La. 145 (19 So. Rep. 220). The rule that where one standing in a fiduciary relation obtains a devise of valuable property to the exclusion of lawful heirs it will be presumed that fraud or undue influence was applied, is not applied to a case where the devise is made to the wife of the testator. Orth v. Orth, 145 Ind. 184 (44 N. E. Rep. 17; 57 Am. St. Rep. 185). Where the only qualification of an absolute devise is that a certain person shall hold and manage the property during the life of the devisee, paying the income therefrom to him, the devisee may dispose of the corpus of the estate by will. In re Boies' Estate, 177 Pa. St. 190 (35 Atl. Rep. 724). A power of a testator to dispose of his real estate by will is to be determined by the law of the place where the land is situated. Carpenter v. Bell, 96 Tenn. 294 (34 S. W. Rep. 209).

A devise

Sec. 976. Killing of the testator by the deviseeValidity of the devise-Right of inheritance. of land is not rendered void in law by the killing of the testator by the devisee; but such crime authorizes equity to deprive the devisee of the estate. Ellerson v. Westcott, 148 N. Y. 149 (42 N. E. Rep. 540). The court say: "A will may be void for many reasons. It may not have been executed with the forms required by law. It may dispose of the property upon limitations in contravention of law. The testator may,