We think the foregoing very able opinion must commend itself to our readers. The early and leading case of Acton v. Blundell, 12 M. & W. 324, holds that the owner of land, through which water flows in a subterranean course, has no right or interest in it which will enable him to maintain an action against an adjoining landowner, who, in carrying on mining operations, in his own land, in the usual manner, drains away such water and leaves a well dry. There is here some query expressed whether the case would be the same, if the well had been an ancient one. But the later cases have not sustained this doubt. All wells on a man's own land are legal, and none the more so for being ancient. And the owner of such well acquires no rights, by prescription, against the owner of the adjoining land, whose springs contribute to supply the water by which the well is fed, unless it come from well-defined channels upon the surface or so near the surface as to be well known and clearly understood.

To create a right in one owner of land, against an adjoining landowner, to the use of water coming from his land, there must be something more than a mere surface drainage over the entire face of the land occasioned by unusual freshets, or other extraordinary

9

causes: Luther v. Winnisimmet Co., Cush. 171. There must be a 66 regular," well-defined "channel," "with banks or sides:" BIGELOW, J., in Ashley v. Wolcott, 11 Cush. 192, 195. It is not essential that it should be a constantly flowing stream, but it must be a stream, or water flowing in a channel, or over a bed, which, if dry at some seasons, gives unmistakable evidence that the water will return to its accustomed course, in the ordinary course of the seasons: Id.; Shields v. Arndt, 3 Green's Ch. 234, 246. The passage of water from rain, or melting snow, over the surface of land for twenty years, gives no right to its continuance: Parks v. Newburyport, 10 Gray 29. The principle involved, and indeed the facts in the case last cited, resemble very closely those in the principal case. Here the surface-water, in times of extraordinary rains, and the melting of the snow in the spring of the year, was accustomed to pass off from the plaintiff's land, over the defendant's land, until the latter, having occasion to erect an enginehouse upon his land, had, by filling in the dirt around the same, hindered the former free flow of the water across his land. And the same principles are fully recognised in Dickinson v. Worcester, 7 Allen 19, 20, by BIGELOW, C. J. The learned judge here says: “A co

situation, or surface of his land, by raising or filling it to a higher grade, by the construction of dikes, the erection of structures, or by other improve ments which cause water to accumulate from natural causes, on adjacent land, and prevent it from passing off over the surface."

There seems to be nothing very definite in the civil-law writers upon this particular point except, that it is fully agreed in the body of the Roman law (Dig. lib. 89, tit. iii. s. 12), that if one by digging on his own land, in good faith, and with no purpose of injuring his neighbor, nevertheless dry up his well by diverting the underground currents from it, there is no remedy by action.

"Marcellus scribit, cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse agi, nec de dolo actionem; et sane non debet habere; si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit." But the distinction between surface-water, accumulating in low places from the melting of snows in the spring, and that which had formed more or less permanent channels in the earth in its passage, would not be likely to attract the attention of writers in most of the European countries, and especially in Italy, where no snows ever cover the ground.

The cases all agree that one by digging a well and using it, or using a surface-spring upon his own land, for ever so long a time, acquires no easement in or servitude upon the land adjoining, and from which the supply of the well or the surface-spring may come. And this rests upon very obvious grounds, viz., that the owner of the adjoining land cannot, from the nature of the case, know or understand, that the supply of water is derived from his land; and no rights can be acquired by mere use, unless it is adverse to the party against whom such rights are claimed,

his part: Greenleaf v. Francis, 18 Pick. 117. But this case assumes that the party shall act in good faith and not from a malicious intent to injure his neighbor, as some of the cases seem to justify: Chatfield v. Wilson, 28 Vt. 49. In cases of mere adverse user it requires the full period of the Statute of Limitation as to lands, to perfect the prescriptive right. But there are cases where the party acts in ignorance of any counter claim, and the adverse party knowing of his own right being thereby infringed, keeps silent and allows the other party to expend money in creating erections which he would not have made if informed of the claim of the adverse party, where the law imposes an estoppel at once upon the party thus disguising his claim, and thereby misleading his adversary: Gray v. Barrett, 20 Pick. 186; where the point is well presented by SHAW, C. J. The general rule of law, that the owner of land can have no action against an adjoining proprietor, for carrying on such operations upon his own land as he deems for his advantage, although he thereby drain the well or the surface-springs upon the land of the other party, is well illustrated in the leading case of Acton v. Blundell, 12 M. & W. 324. The argument in this case and the opinion of Lord Chief Justice TINDAL, give a most satisfactory view of the law upon this point, from that date backwards to the times of the civil-law writers. And the more recent decisions, which are very numerous, have not essentially qualified the rule here laid down. See Roath v. Driscoll, 20 Conn. 533.

There is a very recent decision in the Queen's Bench (July 1871), Mason v. The Shrewsbury & Hereford Railway Co., 20 W. R. 14, in which the Lord Chief Justice COCKBURN and Justice BLACKBURN give separate opinions, where an other point in the law affecting water

righ. is thoroughly discussed, viz., How far a landowner acquires a prescriptive right to the continuance of running water, which is produced by the diversion of a perennial stream for some temporary purpose; but which had been continued in its new channel for a very long period, about sixty years. It is here held, that where water is allowed to be diverted from its natural course by parliamentary powers, in order to support the grant of a canal, and thus thrown upon the land of others and the former bed of the stream left dry, whereby it is gradually filled up, so that when the canal is converted into, or discontinued by reason of, a railway being constructed along the line, and the stream restored to its former channel, the land across which it flows is flooded in time of high water, in consequence of the channel having thus gradually filled up by disuse, that the landowner who thus suffers has no legal remedy. This question is extensively considered by POLLOCK, C. B., in the leading case of Wood v. Waud, 3 Exch. 748, where it was held, that a mill-owner who had made extensive and valuable erections upon a stream fed largely from the artificial drainage of mining lands, could maintain no action against those who by building a more extensive drain, in another direction, had diverted the water from the former drain, and thus rendered the mill useless. The learned judge illustrates the subject very extensively by reference to numerous cases of artificial drainage, and concludes that the continuance of such drainage by these artificial means and for obviously temporary objects, gives the landowners below no right to make erections depending upon the permanency of the flow of water produced by such artificial means and for temporary purposes. It would seem from The National G. M. Co. v. Donald, 7 W. R. 185, that in all cases of the diversion of a natural stream, under par

liamentary powers, in the creation of public works, that when the works are discontinued, or the necessity for the diversion ceases, the landowners from whom the stream is thus diverted have the right to insist upon its restoration to its former course. But it seems to be questioned in the case last cited, whether a public company possess any such functions or powers that their acquiescence in the use of the water in a particular mode by others could give any rights beyond the continuance, or except as against the company.

It will not be of interest probably here, to go more into detail upon this subject except to refer to some of the later cases. The earlier cases will be found digested in admirable system and great thoroughness in Mr. Perkins's late edition of Angell on Watercourses. The precise point, so thoroughly and ably discussed in the principal case, respects mainly surface-water, where there is no clearly-defined channel for its escape. For the fact that water at one particular season in the year during the melting of the snow in spring, and at one particular point in the artificiai drain by the side of the highway, had been accustomed to spread out upon the defendant's land for more than twenty years, and thus soak into the soil, could not be regarded as thereby creating a prescriptive right in all adjoining proprietors to have it continued, or even to have created such a right, on behalf of the public authority, because this is merely the diffusion of surfacewater, in a particular manner or in a particular direction. And no rule of law seems to be better settled, as we have before shown, than that it is the right of every landowner, to change the diffusion of surface-water at his will and pleasure, provided it be done in good faith, in the enjoyment, and for the greater usefulness of his own land. It seems to have been held, in some cases.