On those questions there is, in recent cases, a conflict of authority. For illustrative cases endorsing the first theory, see Acton v. Blundell, 12 M. & W. 324; Mayor of Bradford v. Pickles, [1895] A. C. 587; Meeker v. East Orange, 76 N. J. Law, 435. For illustrative cases favoring the second theory, see Bassett v. Salisbury Mfg. Co., 43 N. H. 569 (where the question related to the right of the defendant to prevent water percolating under the surface of plaintiff’s land from passing off through defendant’s land); Katz v. Walkinshaw, 141 Cal. 116, 140, 141.
We are concerned here only to point out how the adoption of one or the other of the above conflicting views may affect the materiality of the landowner’s motive in the use of percolating water.
If the first theory is adopted, then, in some jurisdictions, the landowner would not be held liable, even though actuated by bad motive (Mayor of Bradford v. Pickles, [1895] A. C. 587); and, in all other jurisdictions, he would be liable only when, and because, he was actuated by bad motive.
But if the second theory is adopted, the landowner might frequently be held liable, irrespective of motive. On the second theory percolating water might be regarded as, in a certain sense, the common property of the adjoining owners (bearing some analogy to an underground lake); and it would be held that each owner is entitled to only a reasonable share, and is entitled to use that share only for certain purposes. See 3 Farnham, Waters, § 935. Upon this view an owner who uses more than his share, or who uses it for purposes outside those legally allowable, would be liable entirely irrespective of motive. “Later American cases,” says Professor Huffcut, “transfer the emphasis from the showing of ‘malice’ to a showing of ‘unreasonable user,’ which may or may not be accompanied by malice.” 13 Yale Law Journal, 222.
We may add that if bad motive should not be held, in itself, a substantive ground of liability, yet the existence of bad motive might be a piece of evidence bearing upon the question of reasonable user. User for the sole purpose of gratifying ill will might not be deemed reasonable.
On the general question of liability for malevolent acts in reference to percolating water, see, Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415; Huffcut, Percolating Waters: the Rule of Reasonable User, 13 Yale Law Journ. 222.
[588]. Statements abridged. Portions of opinion omitted.
[589]. In Rideout v. Knox, 148 Mass. 368, where a similar statute was held constitutional, it was held error to charge that defendant could not justify building the fence unless his sole motive was a legitimate use; malice must be the dominant motive. See also Ingwerson v. Barry, 118 Cal. 342; Gallagher v. Dodge, 48 Conn. 387; Holmes v. Fuller, 68 Vt. 207; Karasek v. Peier, 22 Wash. 419; Jones v. Williams, 56 Wash. 588; Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415.
[590]. The rest of the opinion is omitted. This case was followed in Carrington v. Taylor, 11 East, 571. See Lamprey v. Danz, 86 Minn. 317; Whittaker v. Stangvick, 100 Minn. 386; Meredith v. Triple Island Gun Club, 113 Va. 80.
[591]. Only the opinion of Bramwell, B., is given. Pollock, C. B., Martin and Pigott, BB., concurred.