Jackson v. Walton, Tr.

at the time of the conversion, as evidenced by a demand and refusal, even although the value had been increased by the previous tortious acts on the part of the defendant, which might have subjected him to an action; yet it does not necessarily-follow, that the same rule of damages would obtain in a suit against Abbott's vendee. It is to be presumed that Walton bought the stone in good faith, and was not guilty of any intentional wrong upon the rights of Camp, and when the trustee had annexed these stone to his freehold, the title to them would not attach in Camp, but they would belong to the trustee, when they became a part of his realty. The right of property was thereby changed, and, however it might be in a suit against Abbott and upon which we have no occasion to express any opinion, we think Walton could not be held liable to Camp for the increased value of the stone produced by their being quarried, wrought and delivered to the trustee by Abbott.

foot.

The amount of hewed stone delivered was 114 feet, and the value of these stone in the quarry, is found to be one cent per If it was to be conceded that, in an action by Abbott against Walton for the value of the stone, Walton would have the right to retain to the amount of the value of the stone in the quarry, upon the ground of his liability to Camp yet this cannot lead to the reversal of the judgment of the county court. The commissioners decided from the disclosure and facts found by them, that Walton was indebted to Abbott in the sum of sixty dollars, and was his trustee in that sum. It is no where found that this sum was the precise value of the stone as delivered; and, for ought which appears from the commissioner's report, they may have deducted the value of the stone while in the quarry, from what would otherwise be the amount of Walton's indebtedness. It is consistent with the report that they should have done it; and we are not to presume they did not, for the sake of reversing the judgment of the county court. The case of Martin v. Porter 5 M. & W. 351, and Wingate v. Smith 20 Maine 287, to which we have been referred by the defendant's counsel, are not cases where a change in the title to the property had been effected.

Judgment of the county court is affirmed against the trustee with costs, and is, pro forma, affirmed against the principal debtor with

out costs.

Chatfield v. Wilson.

LEWIS CHATFIELD 2. WALTER M. WILSON.

Underground water. Mere motive not actionable.

There are no correlative rights existing between the proprietors of adjoining lands, in reference to the use of the water in the earth, or percolating under its surface. Such water is to be regarded as part of the land itself, to be enjoyed absolutely by the proprietor within whose territory it is; and to it the law governing the use of running streams is inapplicable.

An act legal in itself, and which violates no right, cannot be made actionable on account of the motive which induces it.

ACTION ON THE CASE for the disturbance of a water course. The declaration contained three counts, the first and second charging the defendant with having lowered and changed the channel of a brook, which divided the farms of the plaintiff and defendant, and diverting the water therein; and the third complained of an interference by the defendant, with the natural flow or passage, by percolation, of the water through the defendant's land, to the plaintiff's, by means of which a reservoir or tub on the plaintiff's land was supplied with water. Plea, the general issue; trial by jury, March Term, 1855,-POLAND, J., presiding..

The plaintiff's evidence tended to prove that the defendant's farm lay north and east of the plaintiff's; and that the plaintiff's farm and the defendant's land lying north of it were divided by a small brook, which came from a spring further east on the defendant's land, and run westerly, and that sometimes, in the summer, the brook would become wholly dried up. At the north-east corner of the plaintiff's farm, and on the south side of the brook, there was a small piece of level ground, some ten or fifteen feet wide, and extending up and down the brook about two rods, which was partly on the plaintiff's land, and partly on the defendant's land lying east; that this piece of flat ground was wet, porous and spongy, so that by digging into it the cavity would fill with water; that, prior to the act of the plaintiff in laying his aqueduct as hereinafter stated, there was no water apparent on the surface of this piece of flat ground, and no appearance of a spring of water there, but that the water in the soil came from the brook above by percolation through the soft soil and upon the surface of the flat rock under the soil; that some four or five years previous

Chatfield v. Wilson.

to the spring of 1852, the plaintiff, by leave of the defendant, dug a hole in this piece of flat ground, a few feet over the line on the defendant's land, and in this hole placed a tub which filled with water, and laid an aqueduct of lead pipe from the tub to his buildings, and from that time up to the spring of 1852, procured in this manner an ample supply of water for his buildings, for which he paid the defendant annually the sum of one dollar and fifty cents; that in the spring of 1852, there was some difficulty between the plaintiff and the defendant, and the defendant notified the plaintiff to remove his tub and pipe from the defendant's land, and the plaintiff, accordingly, took up his tub, and placed it in a hole in the flat ground on his own side of the line, but within a short distance of it, and also very near the bank of the brook; that his lead pipe was placed in this tub, and that he continued to be well supplied with water until about the first of July, 1852; that the tub, when placed on the plaintiff's own land, was sunk to the depth of a foot or more below the channel of the brook, and that the tub and aqueduct were supplied with water by the filtration of the water from the brook directly, and also through the soil and under the soil, on the defendant's side of the line. The plaintiff's evidence also tended to prove that about the 1st of July, 1852, the defendant dug away and lowered the channel of said brook, beginning some two or three feet above, and east of the plaintiff's corner, and extending twelve or fifteen feet below, so that the water of the brook was thereby made to run in the new channel, two or three feet further north, and about a foot lower than before; that the defendant also dug a channel from the hole where the plaintiff's tub had formerly stood in his land, out into the channel of the brook, so as to carry all the water which collected there into the new channel he had made for the brook, above the plaintiff's corner; and that the defendant filled up the side of this channel, from the hole or spring to the brook on the side next to the plaintiff's tub with dry hard earth, so as to prevent any filtration of water, through or under the soil on his land, to the plaintiff's tub, and that these acts of the defendant, prevented the water from accumulating in the plaintiff's tub, either from the brook directly or through or under the soll of the defendant's land, and that the plaintiff thereby was wholly deprived of water by his said aqueduct; and that these acts of the defen

Chatfield v. Wilson.

dant were not necessary, and were not done by the defendant with any purpose of supplying himself with water, for any purpose, but solely with the design of thereby depriving the plaintiff of water by his aqueduct. The defendant claimed, and his evidence tended to prove that, previous to the plaintiff's putting his tub and pipe into the defendant's land, as above stated, there was an open visible spring of water, where the tub was placed, the water from which flowed north into the brook on the defendant's land, in a natural channel, and that there was never any such flow of the water of the brook through or under the soil on the defendant's land, as the plaintiff claimed. The defendant also claimed that the plaintiff's tub, after the same was placed on his own land, was not supplied with water by the natural percolation of the water through the soil, either from the brook, or from the water of this land or spring, but that it was supplied with water from the defendant's spring, through a blind or underground ditch, which the plaintiff had made without his license or permission, and that the only effect of his acts, of which the plaintiff complained, was to restore the flow of the water to its natural condition, as it was before anything had been done by the plaintiff. The defendant also claimed that what was done by him, was done for the purpose of providing water for his pasture, and not to injure the plaintiff; and he also denied making any change of the channel of the brook, as claimed by the plaintiff. The charge of the court relative to the turning of the channel of the brook was not excepted to. In relation to the other part of the case, the court charged (among other things not excepted to,) that the defendant had a right to prevent the flow or escape of water from his own land to the plaintiff's tub by any artificial means that the plaintiff had used to obtain it, and that he might lawfully do all that was necessary to restore the water to its natural flow, and that it was not material what his purpose or motive was; and that the defendant would not be liable for any act of his, upon his own land, in preventing the natural flow or escape of water, in or under the soil from his land to the plaintiff's, provided such act was done for the purpose of reasonably providing himself, or his farm or cattle, with a supply of water; but if they found that the acts of the defendant did prevent the usual and natural flow of the water, in or under the

Chatfield v. Wilson.

ground from the defendant's soil to the plaintiff's, and that these acts were done by the defendant solely with the purpose of injuring the plaintiff, and depriving him of water, and not with any purpose of usefulness to himself, then he would be liable to the plaintiff for such damages as he thereby sustained. The jury returned a verdict for the plaintiff on all the counts in his declaration. To so much of the charge as is above detailed, the defendant excepted.

for the defendant.

There was error in the charge that, if the defendant prevented the percolation in order to deprive the plaintiff of the water, without any purpose of usefulness to himself, he would be liable, &c.

In the well-considered case of Acton v. Blundell, 12 M. & W. 324, no such distinction is made, and the doctrine of the absolute right of the owner of the soil, to the entire control, at will, of this species of water, on his own land, is fully established. See also Greenleaf v. Francis, 18 Pick. 117.

If underground water in its percolations and filtrations, from its peculiar nature, and from our ignorance of its course, and the laws that control it, is not subject to the law as it applies to running water, then that of it which is on any man's land, like any other thing which makes the soil, or is contained in it, is absolutely the owner's.

The entire dominion of the owner over his own soil is settled beyond question. Thurston v. Hancock, 12 Mass. 220; Panton v. Holland, 17 Johns. 92.

If a man does an illegal act with a good motive, he is nevertheless liable to an action; so, if he does a legal act with a bad motive, no action will lie against him. Hathaway v. Allen, Brayton, 152. Buller's N. Prius 14. Runnels v. Bullen, 2 N. H. 532. Greenleaf v. Francis, 18 Pick. 117. In this last case the court say, "every one has the liberty of doing in his own ground whatsoever he pleases, even though it should occasion to his neighbor some other sort of inconvenience."

O. H. Smith and F. V. Randall for the plaintiff.

The flowing of the water in its natural course to the plaintiff's land was an incident thereto, as much as the right to have the soil