Hale

I concur in the judgment, on the ground that the defendant, in my opinion, has no right to divert the waters of the subterranean stream, if the spring of the plaintiff will thereby be materially injured.

Mr. Chief Justice Wallace did not express any opinion.

An examination of the English and American decisions on . the questions of law involved in this appeal leads us to the conclusion that, on the facts admitted by the pleadings or found *584 by the Court, the right of the defendant as against the plaintiff to use the water of the subterranean stream, which is -the subject of the action, is at most no greater than if it was a surface stream, on which the defendant was the upper and the plaintiff a lower riparian owner. Tested by this rule, the utmost- that can be claimed for the defendant on the facts is, that he is entitled to take from the stream as much water as he needs for watering his cattle and for domestic uses, such as cooking, washing, and the like, leaving the surplus to flow to the spring of the plaintiff in its natural channel. But the findings show that the defendant has diverted the whole body of the stream through pipes, in such a manner that no portion of the water can reach the spring; and the surplus at the commencement of the action was running to wasté, as appears from the admissions in the pleadings. If it were a surface stream, the plaintiff would be entitled to have it flow to and across his lands, in its…