SUBTERRANEAN WATERS. Subterrane an streams, as distinguished from subter ranean percolations, are governed by the same rules, and give rise to the same rights and obligations, as flowing surface streams ; Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec.
721; 2 H. & N. 186. The owner of the land under which a stream flows can, therefore, maintain an action for the diversion of it, if such diversion took place under the same circumstances as would have enabled him to recover, if the stream had been wholly above ground; Wheatley v. Baugh, 25 Pa. 528,, 64 Am. Dec. 721 ; Haldeman v. Bruckhart, 45 Pa. 518, 84 Am. Dec. 511; 5 H. & N. 982 ; Cole Silver Min. Co. v. Water Co., 1 Sawy. 470, Fed. Cas. No. 2,989. But in order to bring subterranean streams within the rules gov erning surface streams, their existence and their course must be, to some extent, known or notorious ; Roath v. Driscoll, 20 Cuun. 533, 52 Am. Dec. 352 ; Haldeman v. Bruck hart, 45 Pa. 518, 84 Am. Dec. 511; it must be proved that there was a well defined and discerned stream, and not merely a percola tion; Williams v. Ladew, 161 Pa. 283, 29 Atl. 54, 41 Am. St. Rep.. 891. Where there is nothing to show that the waters of a spring are supplied by any defined flowing stream, the presumption will be that they have their source in the ordinary percolations of water through the soil ; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299. As these percolations spread themselves in every direction through the earth, it is impossible to avoid disturbing them without relinquishing the necessary en joyment of the land ; the law does not there fore forbid their disturbance ; Craig v. Ship pensburg Borough, 7 Pa. Super. Ct. 526.
The question has arisen how far one has the right to gather in his well or reservoir water which otherwise would have perco lated through the soil of his property. It is suggested by Judge Cooley as a satisfac tory principle that it may lawfully be done for the actual use of the proprietor inas much as the waters belong to no one until they are collected and they may be appro priated by the one who collects and puts them to use; but one will not be permitted to dig a hole to injure his neighbor ; 14 Alb.
L. J. 63. He considers it impracticable to apply to subterranean waters percolating through the soil the same rules which are used to regulate the rights of the proprietor in a running stream. "Such a rule," he adds, "would raise questions of unreasonable use and cause difficulties both of evidence and application that would make the right of such waters more troublesome than valu able." Id. This question was considered in Acton v. Blundell, 12 M. & W. 324, by Tin dal, C. ,T•, who drew a distinction between such cases and those which concerned sur face streams, and held the defendant liable in damage for drawing off a supply of water from a well used to run a mill, by a coal-pit three quarters of a mile from the well. This case was afterwards referred to as making for the first time a distinction between un derground and surface waters ; 7 Exch. 282, 300; it is recognized as settling the rule in England, and is followed in many of the American courts; 7 H. L. Cas. 349; 12 Q. B. 753; Frazier v. Brown, 12 Ohio St. 310; Chase v. Silverstone, 62 Me. 175, 16 Am. Rep. 419; Clark v. Conroe's Estate, 38 Vt. 473; Brown v. Illius, 25 Conn. 593. See Ang. Wa ters, § 114, where the cases are collected.
It is held that subterranean waters flow ing in known, definite channels, are subject to the same rule as surface waters; Williams v. Ladew, 161 Pa. 283, 29 Atl. 54, 41 Am. St. Rep. 891; 17 L. R. Ir. 459; otherwise they may be drained; 7 H. L. Cas. 349 ; Delhi v. Youmans, 50 Barb. (N. Y.) 316; Chase v. Silverstone, 62 Me. 175, 16 Am. Rep. 419 (though done with malice; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93; [1895] A. C. 557; but see Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276); but not, it is held, if the supply of water in surface streams on the land of adjoining owners is thereby dimin ished; L. R. 6 Ch. 483.