Duhaime's Law Dictionary


Percolating Water Definition:

Water which seeps or filters through the ground without any definite channel and not part of the flow of any waterway (eg. rain water).

Related Terms: Underground Stream

In Clinchfield Coal Corporation v. Compton, Justice Burks of the Supreme Court of Virginia, the defendant claimed that the plaintiff coal company had improperly abandoned coal mining operations causing their land to collapse and obstruct underground water which apparently caused the defendant's streams and springs to dry up. Justice Burks wrote:

"Percolating waters are those which ooze, seep, or filter through the soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. The fact that they may, in their underground course, at places come together so as to form veins or rivulets does not destroy their character as percolating waters.

"Water which has fallen upon a mountain side and sunk into the earth, and which has followed the seams and cracks in the strata of sandstone of which the mountain is composed is percolating water, and its character as such is not altered by the fact that at one place it breaks through the sandstone, forming small springs, which, without a defined channel or current, find their way into the stream."

In Acton v. Blundell, the defendant-miners sunk pits on their land and drained away the water which flowed in a subterranean course under the property of the plaintiff. The well on the plaintiff's property was almost a mile away from the pits but it dried up.

Chief Justice Tindal writing for the Court of Exchequer:

"... that principle, which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbour’s well, this inconvenience to his neighbour falls within the description of damnum absque injuriâ, which cannot become the ground of an action."

In the case of percolating water, no well owner can know how much water is beneath his own soil or how it flows. The principle in Acton v. Blundell gives each property owner an absolute right to appropriate percolating water which he intercepts on his property or drains into it.

Some forty years after Acton v Blundell, Justice Brett wrote, in Ballard v Tomlinson:

"Percolating water below the surface of the earth is ... a common reservoir or source in which nobody has any property, but of which everybody has, as far as he can, the right of appropriating the whole."

In Higday v. Nickolaus, Justice Shangler of the Kansas City Court of Appeals adopted these words:

"In legal contemplation, subterranean waters fall into two classifications, either underground streams or percolating waters.

"An underground stream is defined as water that passes through or under the surface in a definite channel or one that is reasonably ascertainable.

"Percolating waters include all waters which pass through the ground beneath the surface of the earth without a definite channel and not shown to be supplied by a definite flowing stream. They are waters which ooze, seep, filter and otherwise circulate through the interstices of the subsurface strata without definable channel, or in a course that is not discoverable from surface indications without excavation for that purpose. The rule is that all underground waters are presumed to be percolating and therefore the burden of proof is on the party claiming that a subterranean stream exists."

Not all jurisdictions are satisfied with the free-for-all approach of the common law on the use and interception of percolating waters, neighbours be damned. Consider, for example, these words of Madam Justice Wedge of the Supreme Court of British Columbia in the 2011 case of Halalt First Nation v. British Columbia:

"At common law, a distinction has been made between groundwater and other watercourses. Groundwater, otherwise referred to as percolating water, was considered to be a common resource in which no person had property. Landowners could not claim ownership to groundwater beneath their land, but were entitled to withdraw as much percolating water as they were able to produce and capture.

"However, in British Columbia, the common law has been supplanted by the passage of the Water Protection Act: 'The property in and the right to the use, percolation and any flow of ground water, wherever ground water is found in British Columbia, are for all purposes vested in the government and are conclusively deemed to have always been vested in the government.'"

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