Farm drainage / The Principles, Processes, and Effects of Draining Land with Stones, Wood, Plows, and Open Ditches, and Especially with Tiles

by Henry F. French

THE WATER OF PRESSURE.

Water that issues from the land, either constantly, periodically, or even intermittently, may, perhaps, be properly termed a spring. But there is often much water in the soil which did not fall in rain upon that particular field, and which does not issue from it in any defined stream, but which is slowly passing through it by percolation from a higher source, to ooze out into some stream, or to pass off by evaporation; or, perhaps, farther on, to fall into crevices in the soil, and eventually form springs. As we find it in our field, it is neither rain-water, which has there fallen, nor spring-water, in any sense. It has been appropriately termed the water of pressure, to distinguish it from both rain and spring-water; and the recognition of this term will certainly be found convenient to all who are engaged in the discussion of drainage.

The distinction is important in a legal point of view, as relating to the right of the land-owner to divert the sources of supply to mill-streams, or to adjacent lower lands. It often happens that an owner of land on a slope may desire to drain his field, while the adjacent owner below, may not only refuse to join in the drainage, but may believe that he derives an advantage from the surface-washing or the percolation from his higher neighbor. He may believe that, by deep drainage above, his land will be dried up and rendered worthless; or, he may desire to collect the water which thus percolates, into his land, and use it for irrigation, or for a water-ram, or for the supply of his barn-yard. May the upper owner legally proceed with the drainage of his own land, if he thus interfere with the interests of the man below?

Again: wherever drains have been opened, we already hear complaints of their effects upon wells. In our good town of Exeter, there seems to be a general impression on one street, that the drainage of a swamp, formerly owned by the author, has drawn down the wells on that street, situated many rods distant from the drains. Those wells are upon a sandy plain, with underlying clay, and the drains are cut down upon the clay, and into it, and may possibly draw off the water a foot or two lower through the whole village—if we can regard the water line running through it as the surface of a pond, and the swamp as a dam across its outlet.

The rights of land-owners, as to running water over their premises, have been fruitful of litigation, but are now well defined. In general, in the language of Judge Story,

"Every proprietor upon each bank of a river, is entitled to the land covered with water in front of his bank to the middle thread of the stream, &c. In virtue of this ownership, he has a right to the use of the water flowing over it in its natural current, without diminution or obstruction. The consequence of this principle is, that no proprietor has a right to use the water to the prejudice of another. It is wholly immaterial whether the party be a proprietor above or below, in the course of the river, the right being common to all the proprietors on the river. No one has a right to diminish the quantity which will, according to the natural current, flow to the proprietor below, or to throw it back upon a proprietor above."

Chief Justice Richardson, of New Hampshire, thus briefly states the same position:

"In general, every man has a right to the use of the water flowing in a stream through his land, and if any one divert the water from its natural channel, or throw it back, so as to deprive him of the use of it, the law will give him redress. But one man may acquire, by grant, a right to throw the water back upon the land of another, and long usage may be evidence of such a grant. It is, however, well settled that a man acquires no such right by merely being the first to make use of the water."

We are not aware that it has ever been held by any court of law, or even asserted, that a land-owner may not intercept the percolating water in his soil for any purpose and at his pleasure; nor have we in mind any case in which the draining out of water from a well, by drainage for agricultural purposes, has subjected the owner of the land to compensation.

It is believed that a land-owner has the right to follow the rules of good husbandry in the drainage of his land, so far as the water of pressure is concerned, without responsibility for remote consequences to adjacent owners, to the owners of distant wells or springs that may be affected, or to mill-owners.