Where the owner of land sinks a well sole ly for the purpose of draining his neigh bor's spring, statutes in thirteen states pro vide that he must make compensation for his malevolent act. In two other states the opposite has been decided. Ames, Lectures on Leg. Hist. 449.
The only classification of subterranean wa ters made by the common law is based on the method of transmission through the ground, and is that they belong to one of only two classes, namely : 1. Underground currents of water flowing in known and defin ed channels or water courses. 2. Water passing through the ground beneath the sur face in channels which are undefined and un known. The rights to the waters of the first class are governed by the rules of law governing surface streams; while the wa ters of the second class are treated as mere percolations, and, therefore, as belonging to the owner of the soil wherein they are found; 7 H. L. Cas. 349. The first of these subterranean water courses have all the characteristics of surface water courses; that is, they have beds, banks forming a channel, and a current of water. Under the arid region doctrine of appropriation, the tendency has been more and more to treat the waters flowing or percolating beneath the surface the same, to a great extent, as surface streams, except as to what is now known as 'diffused percolations, i. e. those waters which, so far as known, do not con tribute to the flow of any definite stream or body of surface or subterranean waters, and as to these there still remains a distinction, in that they are considered as a part of the very soil itself and belong to the realty in which they are found. Diffused percolations being but a component part of the ground where they are found, it follows that they are not subject to ownership separate and distinct from the soil itself. And from their very nature they cannot be treated as are the waters of defined and known streams, either surface or subterranean. It therefore fol lows that there can be no riparian rights to these waters; Willow Creek Irr. v. Michael son, 21 Utah, 248, 60 Pac. 943, 51 L. R. A. 280, 81 Am. St. Rep. 687; Howard v. Perrin; 200 U. S. 71, 26 Sup. Ct. 195, 50 L. Ed. 374.
Those subterranean waters whose chan nels are known and defined are subdivided into known independent subterranean water courses, and known dependent subterranean water courses. The former are those which, independent of the influence of any surface streams, flow underneath the surface of the land in well defined and known channels, the courses of which can be distinctly trac ed ; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 South. 780, 33 L. it. A. 376, 53 Am. St. Rep. 262; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585. Where an independent underground stream has once become defined and known as such, the same principles of law of the jurisdiction where the same is found governs it as governs the surface streams. Therefore, if the laws of that par ticular jurisdiction recognize only the com mon law of riparian rights, only such rights attach to these streams, and in favor of the riparian owners thereon; Willis v. Perry, 92 Ia. 297, 60 N. W. 727, 26 L. R. A. 124. In
those states where the common law of ripa rian rights has been abolished, and the law recognizes only the rights which can be ac quired by the arid region doctrine of appro priation, such is the law governing the rights which can be acquired to the waters of these streams. And, in those states which have the dual laws governing waters within their respective jurisdictions of both the common law of riparian rights and the arid region doctrine of appropriation, the same rules govern the rights to the known independent subterranean water courses and the waters flowing therein as govern surface streams; Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674; Strait v. Brown, 16 Nev. 317, 40 Ani. Rep. 497. See IRRIGATION.
The second class are the known, defined, subterranean water courses. These waters are dependent for their supply upon the sur face streams, or are the underfiow, sub-sur face flow, sub-flow, or undercurrent, as they are at times called, of surface streams. These waters may be defined as those which slowly find their way through the soil, sand, and gravel constituting the beds of streams, or the lands under and adjacent to the sur face streams, and are themselves a part of the surface streams. The underfiow of sur face streams, being portions of them, are governed by the same rules as the surface streams themselves; L. R. 6' Ch. 483; Delhi v. Youmans, 45 N. Y. 362, 6 Am. Rep.- 100; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585; Vineland Irr. Dist. v. Irr. Co., 126 Cal. 486, 48 Pac. 1057, 46 L. R. A. 820; Platte Valley In. Co. v. Mill. Co., 25 Colo.' 77, 53 Pac. •334; Herrinian Irr. Co. v. Keel, 25 Utah 96, 69 Pac. 719.
The rule that there are correlative rights in percolating water which would prevent one person who could gain access to it from exhausting it to the injury of others having an equal access to it was adopted in Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35.
The right to take subterranean water for use at a distance cannot be determined by the relative area or value of the local lands and those to which it is to be taken ; New port v. Water CO., 149 Cal. 531, 87 Pac. 372, 6 L. R. A. (N. S.) 1098; in Cohen v. Water Co., 151 Cal. 680, 91 Pac. 584, 11 L. R. A. (N. S.) 752, it was held that percolating wa ter might be taken for use on land other than that on which it was found, if it could be done without injury to adjoining owners or prior appropriators.
See IRRIGATION; RIPARIAN RIOHTS; PERCO LATINO WATERS; WATERS; WATER-COURSES.
As between two corporations pumping wa ter from their respective premises for sale, one cannot complain of the diversion of per colating water by the other; Merrick Water Co. v. Brooklyn, 32 App. Div. 454, 53 N. Y. Supp. 10.
The plaintiff cannot recover damages be cause the defendant, while draining its land, withdrew water from the subterranean soil of the plaintiff's adjoining land which caused a consolidation of the earth and a settle ment of the surface ; N. Y., etc., Filtration Co. v. Jones, 39 Wash. L. R. 718 (D. C. Ct. App.).