1 Pick. 434; Lasala et al. v. Holbrook, 4 Paige, 169 [25 Am. Dec. 524]; Wyatt v. Harrison, 3 Barn. & Adol. 871; S. C., 23 Eng. Com. L. 380; Greenleaf v. Francis, 18 Pick. 117.

Further, we may say, that, by general consent of mankind, which is to be inferred from the nature of the right itself, each person must be left to enjoy any natural advantage belonging to his own land; &nd water appearing and standing, either naturally or by artificial means, but never constituting a running stream, is such a natural advantage; were it otherwise, one man, by sinking a well, though comparatively unimportant, might prevent the sinking of other wells, and the improvement of the neighborhood, by draining marshes, etc., and even the opening of mines of metal or coal; as the water might not percolate with the same freeness or abundance as before. Besides, no man is bound to know that his neighbor's well is supplied by water percolating his own soil; and he ought not, therefore, to be held to lose his rights by such continued enjoyment. He can not know that the first well requires any other than the natural and common use of water under the surface; nor can he know from whence the water comes; nor by what means it appears in one place or the other; nor which of the persons who first or afterwards opens the earth encroaches upon the right of the other. The law has not extended beyond open running streams. Nor can any light be obtained from the law of surface streams. Such streams are recognized as private property: and their use is regulated by principles of obvious equity and necessity. Their nature is defined; their progress over the surface seen and known and uniform. They are not in the secret places of the earth, and a part of it; nor is there any secrecy in the influences which move them. As soon as they appear and pass over the surface, they assume a distinct character, and are subject to the great law of gravitation. The purchaser of land knows what he purchases, and what control he can exercise over such a stream, and what are the rights of those above or below him. Each may use them as the common atmosphere; but none can injuriously interrupt their progress or render them unfit for Their laws are as fixed and public as the laws of freehold estates. But what are the laws of water percolating in the earth?

common use.

Speaking on this subject, Chief Justice Tindal says, in Acton v. Blundell, 12 Mee. & W. 348: "The ground and origin of the law which governs streams running in their natural course would seem to be this: that the right enjoyed by the several

proprietors of the lands over which they flow is, and always has been, public and notorious; that the enjoyment has been long continued, indeed, time out of mind, and uninterrupted, each man knowing what he receives, and what has always been received, and what he transmits, and what has always been transmitted, to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages; or perhaps it may be considered as a rule of positive law, the origin of which is lost, by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice Story, as an 'incident to the law;' and that whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law. But in the case of a well sunk by a proprietor in his own land the water which feeds it from a neighboring soil does not flow openly in the sight of the neighboring proprietor, but through the hidden veins of the earth, beneath its surface. No man can tell what changes these underground sources have undergone in the progress of time; it may well be that it is only of yesterday's date that they first took the course and direction which enabled them to supply the well. Again, no proprietor knows what portion of water is taken from beneath his own soil; how much he gives originally, or how much he transmits only, or how much he receives. On the contrary, until the well is sunk, and the water collected by draining into it, there can not properly be said, with reference to the well, to be any flow of water at all. In the case, therefore, of the well, there can be no ground for implying any mutual consent or agreement for ages past between the owners of the several lands beneath which the underground springs may exist, which is one of the foundations on which the law, as to running streams, is supposed to be built. Nor for the same reason can any trace of a positive law be inferred from long-continued acquiescence and submission, whilst the very existence of the underground springs, or of the well, may be unknown to the proprietors of the soil."

The case of Greenleaf v. Francis is like the case on trial. This is the marginal summary, or note: "In the absence of all right, acquired by grant or adverse use for twenty years, the owner of land may dig a well on any part thereof, notwithstanding he thereby diminishes the water in his neighbor's well, unless, in so doing, he is actuated by a mere malicious intent to deprive his neighbor of water." We advise that the plaintiffs' bill be dismissed.

The other judges were of the same opinion.

Bill dismissed.

EQUITY WILL NOT INTERFERE BY INJUNCTION WHERE RIGHT IS DOUBTFUL: See Snowden v. Noah, 14 Am. Dec. 547; Hart v. Mayor of Albany, 24 Id. 165; Nevitt v. Gillespie, 26 Id. 696; State v. Mayor etc. of Mobile, 30 Id. 564; Rosser v. Randolph, 31 Id. 712. The principal case is cited as authority for this doctrine, in Falls Village Water Power Co. v. Tibbetts, 31 Conn. 168.

WATER PERCOLATING IN THE SOIL IS PART OF IT, and the owner may deal with it and exercise control over it as fully as over the land, and may, for that purpose, dig wells or reservoirs on his land, although, by so doing, the water is prevented from running into or drained from wells or springs on adjoining land: Brown v. Illius, 25 Conn. 594; S. C., 27 Id. 94; Emporia v. Soden, 25 Kan. 608, citing the principal case. See, as to the right to drain subterranean waters, the note to Gardner v. Newburgh, 7 Am. Dec. 534. As to the right to drain a swamp on one's own land, for the purpose of improving it, where the filtration of water into a stream running through another's land is thereby destroyed, and the volume of water in the stream diminished, see Thayer v. Brooks, 49 Am. Dec. 474.

PRIOR APPROPRIATION OF WATER OF STREAM, rights acquired by: See the note to Heath v. Williams, 43 Am. Dec. 269.

CASES

IN THE

SUPREME COURT

OF

FLORIDA.

CITY OF TALLAHASSEE V. FORTUNE.

[3 FLORIDA, 19.]

TRESPASS ON THE CASE LIES AGAINST A MUNICIPAL CORPORATION for non. feasance in permitting a large ditch, gully, or chasm to remain at one end of a public street, into which the plaintiff's mare falls and sustaina injuries from which she dies.

PLAINTIFF MUST SHOW HE ACTED WITH COMMON PRUDENCE AND CARE to maintain an action of trespass on the case against a municipal corporation for damages sustained for its non-feasance in permitting a publio nuisance to remain.

PERSON HITCHING HORSE IN PUBLIC STREET IS NOT GUILTY OF Negli. GENCE where the horse escapes and falls into a ditch in the street, which the municipality carelessly allows to remain open, so as to bar his action against the city.

APPEAL from a judgment of the Leon county circuit court. The opinion states the case.

Archer, for the appellant.

Papy, contra.

By Court, LANCASTER, J. Fortune, the appellee in this court, brought suit by action of trespass on the case, against the appellant, the city of Tallahassee, in Leon county circuit court, alleging that a certain street within the corporate limits of said city is, and for a long time has been, a common highway for the good citizens of Florida, and their horses and cattle, to go, return, pass and repass, at their will and pleasure, at all times. That plaintiff, on the third of October, A. D. 1848, was possessed of a gray mare of great value, to wit, of the value one hundred and twenty-five dollars. That said mare was employed by the

plaintiff on said third day of October in a lawful manner, according to the common usage and custom. That the street aforesaid was in the other parts thereof, except the east end, in good repair and condition, and passable for men and horses; that at the east end of said street, there was a large ditch, gully, or chasm, which obstructed the free passage of the same. That defendant, in no wise ignorant that said east end of said street was out of repair, and ruinous and impassable, permitted the same so to remain on the aforesaid third day of October, and for a long time before that time, and omitted, contrary to the legal duty of said corporation, to fill up and repair the said ditch, gully, or chasm, whereby the said mare of the plaintiff, then and there passing by, along, and over the said street, fell into the said ditch, gully, or chasm, and thereby became so much injured and bruised, that she died of the injuries and bruises occasioned by her fall as aforesaid.

To which declaration the defendant, by its attorney, filed a general demurrer; which demurrer was overruled by the court, and an inquiry of damages awarded to the plaintiff. Whereupon the defendant appealed to this court, and assigned as grounds for its appeal the following, to wit: 1. Trespass does not lie against a municipal corporation. 2. If the action lies, the declaration in this case shows that the injury resulted from the negligence of the plaintiff.

The first ground assigned will now be considered, to wit: Whether trespass lies against a municipal corporation; and it was urged in argument that actions for torts can only be maintained against money corporations. To understand the force of this objection, it may be necessary to look at the powers of the city of Tallahassee, as conferred by the act entitled "An act to incorporate the city of Tallahassee," approved the second of March, 1840: Pamphlet Laws, 42. This is a private act of the legislature was referred to as such by both counsel in the argument before this court; but we think may be noticed under the provision of the statute of November 12, 1828, which renders it unnecessary to plead specially private acts: See Tho. Dig. 332.

The act of incorporation provides that, by their corporate name (City of Tallahassee), they may sue and be sued, plead and be impleaded, and do all other acts as natural persons-may purchase and hold real, personal, and mixed property, and dispose of the same for the benefit of the city. By the second section, the government is vested in a city council, composed of an intendant