Surface Water. In Hoyt v. Hudson, 27 Wis. 656, 659, 9 Am. Rep. 473, the difference between the civil and the common law was thus stated: "The doctrine of the civil law is that the owner of the upper or dominant estate has a natural easement or servitude in the lower or servient one, to discharge all waters falling or accumulating upon his land, which is higher, upon or over the land of the servient owner, as in a state of nature ; and that such natural flow or passage of the water cannot be interrupted or prevented by the servient owner to the detriment or injury of the estate of the dominant or any propri etor. . . . The doctrine of common law is that there exists no such natural easement or servitude in favor of the owner of the supe rior or higher ground or fields as to mere surface water, or such as falls or accumu lates by rain or the melting of snow, and that the proprietor of the inferior or lower tenement or estate may, if he choose, law fully obstruct or hinder the natural flow of such water thereon; and in so doing may turn the same back upon or over the lands of other proprietors, without liability for in juries ensuing from such obstruction or di version ; Walker v. R. Co., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837, a case arising in 'New Mexico, where the common law rule was adopted.
The doctrine of the common law with re spect to the obstruction and flow of mere surface water is not only in force in England, but is in Connecticut, Indiana, Massachusetts, Missouri, New Jersey, New Hampshire, New York, Vermont and Wisconsin; Eulrich v. Richter, 37 Wis. 226 ; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519 ; Beauchamp v. Taylor, 132 Mo. App. 92, 111 S. W. 609 ; Clay v. R. Co., 164 Ind. 439, 73 N. E. 904 ; Kansas City & E. R. Co. v. Riley, 33 Kan. 374, 6 Pac. 581.
Other cases in effect adhere to the civil law doctrine-that as against the rights of the upper proprietor, the owner of the servient estate cannot obstruct surface water when it has found its way to and is running in a natural drainage channel or depression ; Glass v. Fritz, 148 Pa. 324, 23 Atl. 1050 ; Lawton v. R. Co., 61 S. C. 548, 39 S. E. 752 ; Alabama G. S. R. Co. v. Prouty, 149 Ala. 71, 43 South. 352 ; Launstein v. Launstein, 150 Mich. 524, 114 N. W. 383, 121 Am. St. Rep. 635.
The common law doctrine is adopted in Oklahoma with certain qualifications ; Chi cago, R. I. & P. Ry. Co. v. Groves, 20 Okl. 101, 93 Pac. 755, 22 L. R. A. (N. S.) 802 ; the owner of land cannot collect the water in an artificial channel or volume and pour it upon the land of another to his injury ; Davis v. Fry, 14 Okl. 340, 78 180, 69 L. R. A. 460, 2 Ann. Cas. 193; Davis v Crawfordsville, 119 Ind. 1, 21 N. E. 449, 12 Am. St. Rep. 361; Rychlicki v. St. Louis, 98 Mo. 497, 11 S. W. 1001, 4 L. R. A. 594, 14 Am. St. Rep. 651; Fremont, E. & M. V. R. Co. v. Marley, 25 Neb. 138, 40 N. W. 948, 13 Am. St. Rep. 482 ; he cannot interfere with the flow of surface water in a channel ; where water has been accustomed to gather and flow along in a well defined channel where by frequent running it has worn or cut into the soil, it may not be obstructed to the injury of the dominant tenant ; Earl v. De Hart, 12 N. J. Eq. 280,
72 Am. Dec. 395; Sinai v. Ry. Co., 71 Miss. 552, 14 South. 87 ; Boyd v. Conklin, 54 Mich. 590, 20 N. W. 595, 52 Am. Rep. 831; Norfolk & W. R. Co. v. Carter, 91 Va. 587, 22 S. E. 517 ; where by force of the surface water a ditch has been formed, a lower • tenant cannot even fill up such ditch to the original level of the swale or channel ; Ribordy v. Murray, 177 Ill. 134, 52 N. E. 325. The rule of the civil law is in force in Pennsyl vania, Iowa, Illinois, California, Louisiana, and is referred to with approval in Ohio ; Walker v. R. R. Co., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837.
See Rait v. Furrow, 74 Kan. 934, 85 Pac. 934, 6 L. R. A. (N. S.) 157, 10 Ann. Cas. 1044.
Percolating water. A city built extensive wells, which drew off the water percolating through the plaintiff's land, thus rendering it unfit for crops. The defendant was held liable for the damage done; Forbell v. New York, 27 Misc. 12, 56 N. Y. Supp. 790, fol lowing Smith v. Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141. The court laid down the general doctrine that the right to per colating water comprises only the right to use it on the owner's land.
One may not divert percolating water from his neighbor for purposes other than his own beneficial use or the improvement of his premises ; Stillwater Water Co. v. Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. Rep. 541; whenever interference with percolating waters has been allowed, it has been incident to a reasonable use on the land ; Smith v. Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141; diversion for any other purpose is unlawful ; Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35; the use can only be according to the usual law of waters ; Forbell v. New York, 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666.
Subterranean waters are classified at com mon law as underground currents flowing in known and defined channels; and water passing in channels which are undefined and unknown. The rights to the waters of the first class are governed by the rules of law governing surface streams ; while the waters of the second class are treated as mere per colations and belong to the owner of the soil where found ; Kinney, Irrigation, etc., § 1155. The right to waters of the first class (supra) was recognized in [1902] 2 Ch. 655, 665, fol lowing 7 Ex. 300, as belonging to the owner of the land just as if the stream had been wholly above ground; but if the course of the underground channel is not known, and can not be ascertained except by excavation, the lower riparian owner on the stream has no 'right of action for the abstraction of the underground water ; [1902] 2 Ch. 655.