in them as they do in surface streams. This right is determinable by the fact that there is "knowledge, actual or reasonably acquirable, of their existence, location and course. "149 The proprietor of land through which such a subterranean stream passes is not entitled to the same rights over the water therein as he is over the water filtrating through the ground. He is allowed to make a reasonable use thereof, but anything more constitutes a wrong against the lower land owners under whose land the stream passes.150 A person cannot materially divert

water from a natural watercourse below the surface of the earth any more than he can that in a surface stream.

151

This right is in the nature of an easement, and is similar in character to that which the riparian owner of streams above ground has in the waters flowing in them. But as this easement does not arise until the water has assumed a definite channel, it follows that where a spring is formed from percolating water, the owner thereof cannot complain if it is destroyed by the act of a neighbor in digging a well, even though the spring had been in use for a consid

149 Collins v. Chartiers Valley Gas Co., 131 Pa. St. 143, 17 Am. St. Rep. 791, 18 Atl. 1012.

150 Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721; Burroughs v. Saterlee, 67 Iowa, 396, 56 Am. Dec. 350, 25 N. W. 808; Saddler v. Lee, 66 Ga. 45, 42 Am. Rep. 62; Strait v. Brown, 16 Nev. 317, 40 Am. Rep. 497; Cross v. Kitts, 69 Cal. 217, 58 Am. Rep. 558; Hale v. McLea, 53 Cal. 578; Smith v. Adams, 6 Paige, 433; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265; Whetstone v. Bowser, 29 Pa. St. 65; Williams v. Ladew, 161 Pa. St. 283, 41 Am. St. Rep. 891, 29 Atl. 54; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 53 Am. St. Rep. 262, 20 South, 780; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265; Whetstone v. Bowser, 29 Pa. St. 65; Williams v. Ladew, 161 Pa. St. 283, 41 Am. St. Rep. 891, 29 Atl. 54; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 53 Am. St. Rep. 262, 20 South, 780.

151 Castalia Trout Club Co. v. Castalia Sporting Club, 8 Ohio C. C. 94.

erable length of time.152 And in case it is not perfectly apparent that water comes from an underground stream, it is presumed to arise from percolations. 153 In some localities where streams flow over beds of gravel or other loose formations, it is a known fact that below the surface, and sustaining the surface stream, a body of water is slowly passing through the gravel or other matter forming the bed. Any deduction from such under-stream diminishes the surface stream. These two are deemed, as in fact they are, but parts of one stream, and the underground portion is subject to the same rules as the surface stream.154

§ 679. Filthy Deposits.-An owner of property who keeps upon his premises filthy substances of such a character that either the same will pollute the atmosphere, or secretions therefrom will percolate the ground, keeps them at his peril, and if they escape to the land of another causing injury such deposits become a nuisance for which the land owner is liable.155 Such percolations may injure percolating waters or subterranean streams, in either of which cases a right is violated.155 If waste and filth from a gas company deposited in an excavation pol

152 Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352; Frazier v. Brown, 12 Ohio St. 294; Elster v. Springfield, 49 Ohio St. 83, 30 N. E. 274; Wheelock v. Jacobs, 70 Vt. 162, 67 Am. St. Rep. 659, 40 Atl. 41; Crescent Min. Co. v. Silver King Min. Co., 17 Utah, 444, 70 Am. St. Rep. 810, 54 Pac. 244.

153 Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276.

154 Vineland Irr. Dist. v. Azusa Irr. Co., 126 Cal. 486, 494, 495, 58 Pac. 1057.

155 Hauck v. Tidewater Pipe Line Co., 153 Pa. St. 366, 34 Am. St. Rep. 710, 26 Atl. 644.

156 Ante, sec 677.

lutes a neighboring well, a wrong is done,157 So if coal-oil escapes from the place where stored, and percolates through the soil to the detriment of an adjoining land owner, 158 or if manure collected in a vault underneath a barn causes similar injury.' 159 Likewise, the one who maintains a privy vault on his premises is liable for the injuries to his neighbors which flow therefrom,160 and if the result is the pollution of streams of water, it constitutes a nuisance. 101 A creamery whose filth and refuse was allowed to flow by percolation and through a ditch upon the land of an adjoining proprietor was held liable for the injury caused thereby.162 Injury may follow from the odors arising from filth which has been collected, and hence when any substances upon one's premises impregnate the atmosphere with unwholesome or offensive matter such a one is responsible therefor as for a nuisance.163

§ 680. Riparian Rights in Streams and Watercourses May Make Reasonable Use. The principles of law governing the rights of riparian owners are well settled. All the people have common rights in the rivers or public waters; they may use the water, and

157 Beatrice Gas Co. v. Thomas, 41 Neb. 662, 43 Am. St. Rep. 711, 59 N. W. 925; Brown v. Illinois, 27 Conn. 84, 71 Am: Dec: 49; Pottstown Gas Co. v. Murphy, 39 Pa. St. 257.

158 Kinnaird v. Standard Oil Co., 89 Ky. 468, 25 Am. St. Rep. 545, 12 S. W. 937; Hauck v. Tidewater Pipe Line Co., 153 Pa. St. 366, 34 Am. St. Rep. 710, 26 Atl. 644.

159 Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56; Livezey v. Schmidt, 96 Ky. 441, 29 S. W. 25.

160 Haugh's Appeal, 102 Pa. St. 442, 49 Am. Rep. 193.

161 People v. Elk River etc. Co., 107 Cal. 221, 48 Am. St. Rep. 125, 40 Pac. 531; Chapman v. Rochester, 110 N. Y. 273, 6 Am. St. Rep. 366, 18 N. E. 88.

162 Price v. Oakfield etc. Creamery Co., 87 Wis. 536, 24 L. R. A. 333, 58 N. W. 1039.

163 Pennoyer v. Allen, 56 Wis. 502, 43 Am. Rep. 728, 14 N. W. 609.

164

ride over it. There is no such thing as absolute ownership of the water in any stream, riparian owners merely having the right to the use of the water as it flows, subject to certain conditions and limitations. One may become the owner by taking it from the stream and confining it in barrels or tanks, but so long as it flows it is as free to all as the light and the air. Inhabitants of cities and villages watered by a stream may use the water as well as a riparian owner, provided they have access to the stream by a public highway. And so is an incorporated municipality situated on a natural flowing stream to be considered as a riparian proprietor with equal rights as individual owners, and subject to the same liabilities.165 It may use as much of the water as may be necessary for its own purposes, as well as to supply water to its inhabitants for domestic purposes, returning to the stream the water not used.166 There is this important limitation upon the right of a riparian owner to use the water, which is universally recognized, namely, that he must make a reasonable use of it. The rights of all riparian proprietors are coequal, consisting, in general, in the right to have waters in any stream, navigable or otherwise, continue to flow in the same condition in respect to volume, direction, and speed and purity, as nature prescribes, subject, however to a reasonable use of the waters by other landholders through whose lands the stream passes. 167

164 Philadelphia v. Collins, 68 Pa. St. 116: Philadelphia v. Commissioners, 7 Pa. St. 348; Appeal of Haupt, 125 Pa. St. 211, 17 At!. 436.

165 City of Canton v. Shock, 66 Ohio St. 19.

166 Id.

167 Cary v. Daniels, 8 Met. 466, 41 Am. Dec. 532. "When it [water] takes a course and settles into a natural channel, it becomes the right of every person to have it flow over his land in the natural channel, undiminished in quantity and unimpaired in quality, except to the extent that grows out of and is inseparable from a reasonable use of it for the usual and ordinary purposes of life by

Any unreasonable use of the waters which materially and injuriously diminishes or increases the volume of the stream, changes the direction in which it flows or the speed with which it passes along its course, or which renders the waters impure, is wrongful and constitutes a nuisance. In navigable or floatable streams any use which materially interferes with navigation or their use for floating purposes is also a nuisance. A lower proprietor cannot complain if such reasonable use appreciably diminishes the amount of water in the stream.168

But in this question it is of importance to know what is a reasonable use. In determining this all the circumstances and conditions surrounding each particular case should be taken into consideration. Thus, the size of the stream, the number of riparian owners, the needs and wants of the community, the character of the country in which it is located, and the customs and usages in regard to the use of the water must all be taken into account.169 The amount of water taken and used without being returned must, under ordinary circumstances, be proportioned to the full amount in the stream and the number of persons

those above him on the stream": 1 Wood on Nuisance, sec. 332. See, also, Ulbricht v. Eufala Water Co., 86 Ala. 587, 11 Am. St. Rep. 72, 6 South. 78; Tennessee Coal etc. Co. v. Hamilton, 100 Ala. 252, 46 Am. St. Rep. 48, 14 South. 167; Clark v. Pennsylvania R. Co., 145 Pa. St. 438, 27 Am. St. Rep. 710, 22 Atl. 989; Clinton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373; Hayes v. Waldron, 44 N. H. 584, 84 Am. Dec. 105; Merrifield v. Lombard, 13 Allen, 16, 90 Am. Dec. 172; Davis v. Getchel, 50 Me. 604, 79 Am. Dec. 636; Benton v. Johncox, 17 Wash. 277, 61 Am. St. Rep. 912, 49 Pac. 495; Gehlen v. Knorr, 101 Iowa, 700, 70 N. W. 757, 63 Am. St. Rep. 416, and cases cited.

168 Anderson v. Cincinnati Southern R. Co., 86 Ky. 44, 9 Am. St. Rep. 263, 5 S. W. 49.

109 Jones v. Adams, 19 Nev. 78, 3 Am. St. Rep. 788, 6 Pac. 442; Evans v. Merriweather, 3 Scam. 492, 38 Am. Dec. 107; Dumont v. Kellog, 29 Mich. 420, 18 Am. Rep. 102; Anderson v. Cincinnati Southern Ry., 86 Ky. 44, 9 Am. St. Rep. 263, 5 S. W. 49.