397; 50 Am. St. Rep. 846; Turman v. Bell, 54 Ark. 273; 26 Am. St. Rep. 35; Rorer Iron Co. v. Trout, 83 Va. 397; 5 Am. St. Rep. 285, and note. SPECIFIC PERFORMANCE.-A VENDEE OF ONE WHO HAS AGREED TO CONVEY real property may, unless he is a purchaser in good faith and without notice, be compelled to perform the contract of his vendor: Ross v. Parks, 93 Ala. 153; 30 Am. St. Rep. 47, and note. TAMPA WATER WORKS COMPANY V. CLINE. [37 FLORIDA, 586.] WATERS AND WATERCOURSES-RIPARIAN RIGHTS.—A lower proprietor or owner of land bordering on a surface stream of water flowing in a well-defined channel has, in the absence of any modification of relative rights by contract or prescription, no right to throw the water back on him above, and is subject to the burden of receiving it from the proprietor above substantially undiminished in quantity and uncorrupted in quality, and this right arises, not from any supposed grant or from prescription, but ex jure naturae and as an incident to the soil. WATERS AND WATERCOURSES-RIPARIAN RIGHTS.— The right to the benefit and advantage of the water flowing in a welldefined channel past one owner's land is subject to similar rights of all the proprietors on the bank of the stream to the reasonable enjoyment of the natural bounty, and it is therefore only for an unauthorized and unreasonable use of the common benefit that any one owner has a just cause to complain. WATERS AND WATERCOURSES.-RIPARIAN RIGHTS of an owner to the ordinary use of water flowing in a well-defined natural channel past his land, extends to the supplying of natural wants, including the use of the water for domestic purposes of home or farm. WATERS AND WATERCOURSES-RIGHT TO PERCOLATING WATER.-The owner of land through which subsurface water, without any distinct, definite, and known channel, percolates or filters to the land of another, is not prohibited from digging into his land and appropriating the water to any useful purpose of his own, though by so doing the water may be entirely diverted from the land to which it would otherwise naturally pass, but if such subterranean water has assumed the proportions of a well-defined and constant stream, the owner of the land through which it flows is not authorized to divert it, or improperly use it, any more than if the stream ran upon the surface. WATER AND WATERCOURSES-SURFACE AND SUBTERRANEAN STREAMS.-The only difference in the application of the law to surface and subterranean streams is in ascertaining the character of the streams, and if underground currents of water flow in defined and known channels, the rules of law which govern the use of similar streams flowing upon the surface are applicable to them, but if it does not appear that the waters which come to the surface are supplied by a definite flowing stream, they are presumed to be formed by the ordinary percolations of water in the soil. WATERS AND WATERCOURSES.-A watercourse consists of water flowing in a certain direction by a regular channel having a well-defined and substantial existence, but the water need not flow continually the stream may be dry at times. WATER AND WATERCOURSES – RIGHT OF APPROPRIATION.-The fact that an individual or a corporation has a contract with a city to supply its inhabitants with water, and has expended large sums of money in the erection of a plant, does not confer any additional rights to appropriate water flowing in a natural and well-defined channel through the lands of different owners. WATER AND WATERCOURSES-RIGHT OF LANDOWNER-POLLUTION.—An owner has the right to take rock out of, or otherwise use, his own land as he desires, provided that, in so doing he does not divert or pollute a natural stream of water flowing through his land. WATER AND WATERCOURSES - SUBTERRANEAN STREAMS.-In the absence of affirmative proof that subsurface water is supplied by a definite flowing stream, the presumption is that it comes from ordinary percolations. Bill to enjoin a landowner from excavating on his land to the alleged injury of a stream of water. Decree dismissing the bill, and complainant appealed. Sparkman & Sparkman, for the appellant. W. A. Carter, for the appellee. 593 MABRY, C. J. The questions arising on the present record involve rights of adjoining landowners to water passing through the land not heretofore discussed by this court. The general subject to rights to water passing over or through lands requires some classification in dealing with the different phases of rights that may arise. A very well-considered case decided in Ohio, and hereafter referred to, classifies the subject as follows: 1. In respect to surface streams which flow in a permanent, distinct, and well-defined channel from the lands of one owner to those of another; 2. In respect to surface water-however originating-which, without any distinct or well-defined channel, by attraction, gravitation, or otherwise, are shed and pass 594 from the lands of one proprietor to those of another; 3. Subterranean streams which flow in a permanent, distinct, and well-defined channel from the lands of one to those of another proprietor; 4. Subsurface water which, without any permanent, distinct, or definite channel, percolate in veins or filter from the lands of one owner to the lands of another. The rights asserted by appellant in the bill filed appertain to the water of a natural spring alleged to be supplied by a well marked and defined subterranean stream flowing some twelve or fifteen feet below the surface across the lands of appellant and appellee, and the case does not call for a discussion of, and what is said has no application to, mere surface water without any distinct and well-defined channel, and which is shed and passes from the land of one owner to that of another. In the Ohio case men tioned (Frazier v. Brown, 12 Ohio St. 294), in speaking of flowing surface water in well-defined channels, it is said "that, notwithstanding the maxim which affirms the absolute and unlimited dominion of the proprietor of the soil upward and downward, the proprietor below has, in the absence of any modification of relative rights by contract or prescription, no right to throw the water back on him above, and has the right to receive it from the proprietor above substantially undiminished in quantity and uncorrupted in quality; and this right arises, not from any supposed grant or from prescription, but ex jure naturae, and for the reason that surface streams of flowing water are the gift of Providence, for the benefit of all lands through which they flow, and, as such, their usufruct is appurtenant to the lands through which they flow." This 595 statement contains the doctrine of the English common law as clearly announced in adjudications in that country. In the English case of Embrey v. Owen, 15 Jur. 633, it is stated that "the right to have the stream to flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes, but flowing water is publici juris, not in the sense that it is a bonum vacans to which the first occupant may require an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it." Sustaining this view are the following authorities: Wright v. Howard, 1 Sim. & S. 190; Mason v. Hill, 5 Barn. & Adol. 1; Wood v. Waud, 3 Ex. 748; Dickinson v. Grand Junction Canal Co., 9 Eng. L. & Eq. 513; Chasemore v. Richards, 7 H. L. Cas. 349; Tyler v. Wilkinson, 4 Mason, 397; 3 Kent's Commentaries, 439; Gould on Waters, sec. 204. The American adjudications to the same effect are numerous. The right to the benefit and advantage of the water flowing past one owner's land is subject to the similar rights of all the proprietors on the banks of the stream to the reasonable enjoyment of a natural bounty, and it is therefore only for an unauthorized and unreasonable use of a common benefit that any one has just cause to complain. Judge Story says, in Tyler v. Wilkinson, 4 Mason, 397: "The natural streams, 596 existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed, by operation of law, to the land itself. When I speak of this common right, I do not mean to be understood as holding the doctrine that there can be no diminution whatever, and no obstruction or impediment whatever, by a riparian proprietor, in the use of the water as it flows; for that would be to deny any valuable use of it. There may be, and there must be allowed of that, which is common to all, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general and valuable use of the water, perfectly consistent with the existence of the common right. The diminution, retardation, or acceleration, not positively and sensibly injurious by diminishing the value of the common right, is an implied element in the right of using the stream at all. The law here, as in many other cases, acts with a reasonable reference to public convenience and general good, and it is not betrayed into a narrow strictness, subversive of common sense, nor into an extravagant looseness, which would destroy private rights. The maxim is applied, Sic utere tuo ut non alienum laedas." As to the riparian rights to the ordinary use of water flowing past land, it extends to the supplying of natural wants, including the use of the water for domestic purposes of home or farm, such as drinking, washing, cooking, or for stock of the proprietor, and many authorities state that, if necessary for the purposes 597 mentioned, all the water of the stream may be consumed: Evans v. Merriweather, 3 Scam. 492; 38 Am. Dec. 106; Wadsworth v. Tillotson, 15 Conn. 366; 39 Am. Dec. 391; Anderson v. Cincinnati etc. Ry. Co., 86 Ky. 44; 9 Am. St. Rep. 263; Acquackanonk Water Co. v. Watson, 29 N. J. Eq. 366; Dumont v. Kellogg, 29 Mich. 420; 18 Am. Rep. 102; Gould on Waters, sec. 205. There are other uses than those mentioned to which, according to many authorities, flowing water in well-defined and distinct channels may be applied, but the disposition of the present case does not require a further statement as to the rights of adjoining proprietors to running surface water in well-defined channels over their lands. In reference to rights in subsurface water, there is apparent a contrariety of judicial opinion, as might be expected from the inherent difficulty of ascertaining definitely the character and extent of the right asserted. In the case of Acton v. Blundell, 12 Mees. & W. 324, the plaintiff was the owner of factory mills supplied by water from wells sunk into the ground, and it was alleged that plaintiff used the water of certain underground springs, streams, and watercourses which had run, flowed, and percolated into the wells, and the breach was, that the defendant had sunk divers pits, shafts, holes, and tunnels near the premises of plaintiff, by means whereof the water to the wells had been diverted and they had become dry. It was held that the owner of land through which water flows in a subterranean course has no right or interest in it which will enable him to maintain an action against a landowner, who, in carrying on mining 598 operations on his own land in the usual manner, drains away the water from the land of the first-mentioned owner and lays his well dry. In the opinion it was said, upon a consideration of the grounds and origin of the law controlling running surface streams, and the consequences that would result if the same law was made applicable to streams beneath the surface, that there was a marked difference between the two cases, and they were not governed by the same rule of law. The opinion points out the difference between surface streams where each man can know what he receives from the lands above, and what he transmits below, and of hidden and unknown supplies of water of which he has no knowledge and cannot be informed except by actual test in digging. The consequences that would result from the doctrine that one landowner cannot appropriate in any proper way the unknown sources of spring water on his land are also pointed out. As we construe this case from its facts, it had no reference to a subterranean stream with a marked and well-defined channel, but was dealing with subsurface percolating water. The case of Dickinson v. Grand Junction Canal Co., 9 Eng. L. & E. 513, already cited, goes a long way in opposition to the ruling in Acton v. Blundell, 2 Mees. & W. 324. It holds that the diversion of water from a well-defined surface watercourse, though never forming a part of the stream, but was prevented from doing so in its natural course by means of an excavation, was actionable, and that this was the case whether the water was part of an underground watercourse or percolated through the earth. The ruling in Dickinson v. Grand Junction Canal Co., 9 Eng. L. & Eq. 513, 599 in the particular mentioned, has, however, been repudiated in the case of Chasemore v. Richards, 7 H. L. Cas. 349. It was there held that the principles which regulate the rights of owners of land in respect to water flowing in known and defined channels, whether upon or below the surface of the ground, do not apply to underground water which merely |