Page:Harvard Law Review Volume 2.djvu/340

 322

HAR YARD LAW RB VIE W,

flows in an indefinite channel over his land into plaintiff's, and cites the Dudden case. It has been held several times that a defi- nite subterranean watercourse is none the less a watercourse for being subterranean. The spring was a portion of such a water- course. This case tells us nothing about the law of lakes. Gard- ner V. Newburgh^ is similar. Westz/. Taylor^ decides nothing as to Lake Cullaby itself, but only a question between two owners on the outlet, which was an ambiguous sort of thing, apparently with a current, but resembling a swale or surface depression about as much as a brook. One diked it off his land on to the plaintiff. The court held, this outlet on its facts amounted to a watercourse. Shaefer v. Marthaler ^ was an issue between two shore owners on a pond of four and one-half acres (probably private property). The court held that one owner must not drain the pond, thinking it not mere surface water, but a valuable reservoir. They do not decide it to be a watercourse. No outlet miller or riparian on the stream was a party, and we do not know who owned the bottom. This case is an interesting one, as it appears to declare that in Minnesota the abutters on, or owners of, a beautiful pond have some community of interest in it, but does not reach an assertion that the land-holders below have interest too, nor that the commu- nity among stream riparians is the same community as that among pond riparians. The point adjudicated in this case was differently decided in a Massachusetts great pond case.* Hebron Gravel Road Co. V, Harvey^ is also interesting as approaching our topic, but not exactly reaching it. Plaintiff complained of flooding by a dam across a " running stream of water called Lake Headley.'* The court queries whether the " body of water called Lake Head- ley was a running stream, or was it merely surface water } The complaint says it was a large stream of running water, and does not show that it was mere surface water." It is spoken of repeatedly as the "so-called Lake Headley." Instruction to jury was, "if you find its waters at north-east end percolated through gravel so as to reduce its waters with unusual rapidity, so great as to create a drawing or movement of the waters to that end, though imperceptible to ordinary observation, then it was a watercourse." There was evidence that the water passed through the porous g^vel with such rapidity as to create a continuous current from south-

1 Supra^ p. 317, note i. *Fay v, Salem, 11 1 Mass. 27.