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private contractual obligations of the therefrom which it uses to supply its appropriator to deliver water to lots inhabitants, and thereby exhausts the which it had sold with water rights natural supply of underground or peris a private use, and not a public colating waters, from the surrounduse, and the rule of estoppel upon him ing regions, thus preventing adwho, without protest and knowingly, joining property owners from raising allows his property to be taken for a crops upon the land, is liable for public use, expensive works to be damages which the property owners installed, and public service begun, sustain thereby, and that they are is inapplicable. Burr v.
Maclay entitled to an injunction against the Rancho Water Co. (1911) 160 Cal. 268, continuance of such wrong. Forbell 116 Pac. 715.
v. New York (1900) 164 N. Y. 522, 51 In Newport v. Temescal Water Co. L.R.A. 695, 79 Am. St. Rep. 666, 58 (1906) 149 Cal. 531, 6 L.R.A.(N.S.) N. E. 644. It appears that the city 1098, 87 Pac. 372, where the defendant authorities knew, from an examinahad expended large sums of money tion of the surrounding territory, of in sinking wells in a natural basin the flow of water on its own and the overlying subterranean water, and in plaintiff's land, and that it could, by building conduits and flumes to con- the wells and appliances which it duct the water from these wells installed, draw the water into its own to a point without the basin for com- wells and thus deprive the plaintiff mercial purposes, an injunction was of his natural supply, and it was denied against the diversion of water said that this fact distinguished the at the instance of other property instant case from the ordinary case owners whose land overlay the basin, where the property owner was using who had remained acquiescent while under surface waters. The court obthe company was digging its wells served: "In the cases in which the and constructing its equipment, as lawfulness of interference with perwell as for a period of time there- colating waters has been upheld, after, although the court found that, either the reasonableness of the acts due in part to the operations of the resulting in the interference, or the refendant, the water saturation in unreasonableness of imposing an unthe basin had been lowered several necessary restriction upon the owner's feet. The findings of the trial court dominion of his own land, has been established that the land overlying recognized. In the absence of conthe basin was alkaline, and unfit for tract or enactment, whatever it is agricultural purposes.
reasonable for the owner to do with The right to take subterranean his subsurface water, regard being water for use at a distance cannot had to the definite rights of others, be determined by the relative area he may do. He may make the most of or value of the local lands and those it that he reasonably can. It is not to which the water is taken. Ibid. unreasonable, so far as it is now ap
parent to us, that he should dig wells c. New York mule.
and take therefrom all the water that The New York courts have adopted he needs in order to the fullest enthe rule that the owner's absolute joyment and usefulness of his land right to use percolating waters is as land,
either for purposes limited to a beneficial use
pleasure, abode, productiveness of premises and does not extend to giving soil, trade, manufacture, or for whata city or water company the right to ever else the land, as land, may serve. conduct the water from lands where He may consume it, but must not disthe wells are situated, to distant charge it to the injury of others. But points for commercial purposes, to the to fit it up with wells and pumps of injury of the adjoining landowner. such pervasive and potential reach
Thus, it has been eld that a city that from their base the defendant which digs wells and, by installing can tap the water stored in the plainpumping works, withdraws
withdraws water tiff's land, and in all the region
thereabout, and lead it to his own owner, for the purpose of manufacland, and by merchandising it prevent turing ice for sale. its return, is, however reasonable it But it has been held that where may appear to the defendant and its two corporations, owning adjoining customers, unreasonable as to the land, are both engaged in the collecplaintiff and the others whose lands tion of percolating water, not for use are thus clandestinely sapped, and upon the land itself, but for purposes their value impaired."
of transportation and sale to third And in case involving facts persons who have no right or intersimilar to those in the Forbell Case, est in the use of the water as consupra, it was held that the so-called nected with the land, that one such English rule in respect to the right corporation is not entitled to enjoin of a property owner to percolating the other corporation from sinking water is to be applied only where the additional wells on its property for use relates to a beneficial use of the the purpose of withdrawing water for land connected with its enjoyment, sale, notwithstanding that the result such as the ordinary purposes of of such acts is to diminish the supply agriculture, mining, domestic use, or of water percolating through the land, improvements, whether the same be and thereby to lower the level of the public or private, and is not to be plaintiff's well. Merrick Water Co. v. extended to give an absolute right Brooklyn (1898) 32 App. Div. 454, 53 to take percolating water by natural N. Y. Supp. 10, affirmed without opinmeans, or by means of pumps, and ion in (1899) 160 N. Y. 657, 55 N. E. conduct it to distant points for the 1097. The court stated that the effect benefit and profit of the taker, and of the decision in Smith v. Brooklyn, for the enjoyment of persons who supra, was to limit the right to divert have no claim of right to it, as percolating water by an adjoining against the property owners' adjoin- landowner to cases where the divering land from whence the water was sion was produced by the exercise of taken. Smith v. Brooklyn (1897) 18 a legal right to improve the land or App. Div. 340, 46 N. Y. Supp. 141, to make some beneficial use in connecaffirmed in (1899) 160 N. Y. 357, tion therewith, while in the case 45 L.R.A. 664, 54 N. E. 787, 6 Am. involved both were seeking to use Neg. Rep. 663.
the water for commercial purposes And in connection with Forbell v. from which they expected to derive New York, supra, see Westphal v. a profit, so that, under the circumNew York (1902) 75 App. Div. 252, stances, if one succeeded in getting a 78 N. Y. Supp. 58, affirming 34 Misc. greater supply than the other and 684, 70 N. Y. Supp. 1021, which was thereby diminished the common supaffirmed in (1904) 177 N. Y. 140, 69 ply, the situation would be the same N. E. 369, 15 Am. Neg. Rep. 399. as if each had sought to improve his
And in Dunbar v. Sweeney (1921) own land and one had secured more 230 N. Y. 609, 130 N. E. 913 (memo- water than the other, or as if one was randum opinion), it was held that damaged and the other not, which while one has the right to draw and would not give a cause of action. use subterranean waters such as may The doctrine of reasonable use and be necessary for, and incidental to, relative rights was expressly repudithe full use and enjoyment of his
ated. premises, which would include the right to use water for refrigerating
III. Doctrine of absolute ounership. purposes in a storage plant and for There are a few cases which upthe manufacture of ice to be used in hold the right of an owner of an refrigerator cars to preserve products artesian well to use the waters therestored by the property owner, such from in such quantities or manner as right did not include the right to use he chooses, regardless of the effect percolating water, and thereby drain of the use on his neighbor. the spring of an adjacent property Thus, it has been held that a land. owner has the right to dig an artesian trol as he sees fit so long as he does well on his land and use the water no injury thereby to others, and that therefrom as he chooses, or to allow it his right to use such water cannot be to flow away, regardless of the effect confiscated or interfered with by the of such use upon his neighbor's wells state or the public, and placed in the and that such right is not affected custody and control of the state enby any malicious intent on his part. gineer, any more than could the land Huber v. Merkel (1903) 117 Wis. 355, itself upon which the water happens 62 L.R.A. 589, 98 Am. St. Rep. 933, to be. St. Germain Irrigating Ditch 94 N. W. 354. The plaintiff in this Co. v. Hawthorne Ditch Co. (1913) 32 case brought a bill in equity to S. D. 260, 143 N. W. 124. This staterestrain the defendant from wasting ment was made in reference to a stator unreasonably using water from ute providing in substance that all artesian wells on his lands, and there- waters within the limits of the state, by interfering with the flow of water with the exception of navigable from the plaintiff's well situated over waters, belong to the public and inay the same artesian basin, but on a be used after an application to the higher level than the defendant's; the state engineer for a permit, which the petition alleged that the defendant court held was unconstitutional as intentionally and maliciously wasted violating the due process clause. The a part of the water, and that he sold question as to the right to divert part thereof. The opinion, however, water from artesian wells without the makes no point of the fact that the district was not before the court. defendant sold the water. It was said And in Clarke County v. Mississippi that the right of the owner to sink Lumber Co. (1902) 80 Miss. 535, 31 the well and use the water there- So. 905, the defendant sank an artefrom as he chose, regardless of the sian well for the purpose of obtaineffect upon his neighbor's well, was ing water to supply a pond for a a property right, arising out of the sawmill and planer, and by the use ownership of land and protected by of compressed air secured a flow of the common law, as such, which could water which greatly exceeded the not be taken away from him or im- natural flow therefrom, and which paired by an act of the legislature diminished the supply of water from unless by the exercise of the power other artesian wells on surrounding of eminent domain or police power. lots, and the court held that neither And the court held that a statute an injunction nor an action for dampurporting to regulate the use of ages would lie against the defendant water from artesian wells did not at the instance of other property constitute an exercise of the power of owners, the decision being based upon eminent domain, or justify an exer- the maxim, “cujus est solum, ejus est cise of the police power, and was, usque ad cælum.” It does not appear therefore, unconstitutional, on the from the case, however, whether the ground that in effect it constituted the place where the defendant was using taking of private property for private the water was beyond the limits of use without just compensation.
the artesian district, and no mention And it has been said that one who of this fact was made in the opinion. sinks an artesian well on his property And see Houston & T. C. R. Co. v. is the absolute owner of the water East (Tex.) supra, 1., and New York flowing therefrom, which he may con- cases supra, II. c.
G. S. G.
GEORGE SAEVOFF, Respt.,
Washington Supreme Court (Dept. No. 1) - January 19, 1923.
(123 Wash. 225, 212 Pac. 158.)
Notary public — attesting false affidavits - liability.
The mere signing by a notary public of the jurat to an affidavit, wherein to his knowledge the affiant swears falsely, does not render him liable on his official bond for the resulting damages.
[See note on this question beginning on page 920.]
APPEAL by defendants from a judgment of the Superior Court for King County (Dykeman, J.) in favor of plaintiff in an action brought to hold defendants liable on the bond of a notary public. Reversed.
The facts are stated in the opinion of the court.
Mr. James A. Dougan, for respond- turned the property back to Agkaent:
loff and Leekoff. In the meantime, Defendants were liable on the bond.
on January 10, Agkaloff petiKangley v. Rogers, 85 Wash. 250,
tioned the court to set side and va147 Pac. 898; Ehlers v. United States Fidelity & G. Co. 87 Wash. 662, 152
cate the default judgment. This Pac. 518; State ex rel. Gardner V.
motion was heard on March 30 and Webb, 177 Mo. App. 60, 164 S. W. 184; 31, and denied. Appellant, C. H. Williams v. Park, 63 Neb. 747, 56 Steffen, appeared as attorney for L.R.A. 759, 89 N. W. 395; 21 Stand- Agkaloff in his attack on the judgard Proc. p. 86; Sugg v. Thornton, ment, and also for Mrs. Motcher, 132 U. S. 524, 33 L. ed. 447, 10 Sup.
the garnishee defendant. ImmediCt. Rep. 163; First Nat. Bank v.
ately after the denial of the motion Manassa, 80 Or. 53, 150 Pac. 258; 20 R. C. L. "Partnership," $8 84, 94; Mc
to set aside the original judgment, Coy v. Bell, 1 Wash. 504, 20 Pac. 595. respondent caused the issuance of Fullerton, J., delivered the opin- doing business as the “Alps Café,”
writs of execution against Agkaloff, ion of the court:
and Mrs. Motcher. On January 8, 1920, the respondent obtained a judgment in the su
When the sheriff proceeded to the perior court of King county against café on April 2, he found it in the one Nick Agkaloff, doing business possession of three Japanese, and as the “Alps Café.” On the day investigation disclosed that these the judgment was entered, respond
men had purchased the business on ent caused a writ of garnishment to
March 27, 1920, from Agkaloff and be entered against one Mrs. J. B. Leekoff, who had given a bill of Motcher, who had purchased the sale, and who had executed the folbusiness, and who owed Agkaloff lowing affidavit under the Sales in and U. Leekoff a balance on the pur
Bulk Act (Rem. Comp. Stat. 1922, chase price more than sufficient to $$ 5832–5836): cover the judgment. She answered
“State of Washington, setting up such indebtedness and
County of King. later respondent took judgment against her. Mrs. Motcher operated “Nick Agkaloff and U. Leekoff, the café until March 12, and then, being first duly sworn, upon oath de
(123 Wash. 225, 212 Pac. 158.) pose and say, that they are the fied to his acquaintance with and owners of that certain restaurant knowledge of the person signing. known as Alps Café, located at 619 The Webb Case involved the forging King street, Seattle, Washington; of affidavits to clear up a title, and that there are no unpaid creditors, an examination of the case lso diswho have any accounts due and ow- closes the fact that there, too, the ing to them from the Alps Café or notary signed a false certificate. In that are to become due and owing the case of Williams v. Parks, the on or after the date hereof.
supreme court of Nebraska held a “Nick Agkaloff. notary liable for failing to give no
“U. Leekoff. tice of dishonor on protested paper, "Subscribed and sworn to before me a duty imposed upon him by statute. this 27th day of March, 1920.
No case has been cited to us, and "C. H. Steffen, an independent investigation has "Notary Public in and for the disclosed none, wherein a notary State of Washington, Re- public has been held siding at Seattle." liable on his bond
for Both executions were returned by
signing a ju- davits
rat to an affidavit the sheriff, "No property found."
wherein the affiant swore falsely. It This action was then commenced
may be that a notary public, who against C. H. Steffen, appellant, as a notary public, and his bondsmen,
was also an attorney, who counseled
or knowingly permitted a client to upon the theory that his act in ad
sign a false affidavit for the purministering an oath to Agkaloff,
pose of defrauding judgment crediknowing such affidavit to be false, was wrongful, and enabled Agkaloff such liability would not be imposed
tors, could be held accountable; yet to place his property beyond the
because of his official position as a reach of the writ of execution and
notary public, so as to hold him on defeat recovery on the judgment.
his bond. From a judgment for the full
In signing a jurat, such as the amount prayed, Steffen and his bondsmen have appealed.
one on the affidavit in question here,
the notary has fulfilled the duty he The only question that it is nec
owes as a public officer when he essary to discuss is whether, conced
swears the affiant. In such a jurat ing the affidavit to be false, and that the notary knew this to be a fact at
he does not certify to the truth of the time of administering the oath,
the statements made in the affida. the appellant Steffen, because of the vit, nor even to the identity of the act, became liable on his bond as a
person signing. Inasmuch as renotary public to answer for the loss spondent bases his right to a recoythe respondent suffered. In support
ery solely upon the alleged wrongful of his position respondent cites act performed by appellant as a noKangley v. Rogers, 85 Wash. 250, tary public, it necessarily follows, 147 Pac. 898; Ehlers v. United from what we have said, that his States Fidelity & G. Co. 87 Wash. action must fail. The appellant, in 662, 152 Pac. 518; State ex rel. Gard- signing the jurat even though he ner v. Webb, 177 Mo. App. 60, 164 knew the statements in the affidavit S. W. 184; and Williams v. Parks, to be false, was guilty of no viola63 Neb. 747, 56 L.R.A. 759, 89 N. tion of law or duty as such officer. W. 395.
Reversed and remanded, with inAn examination of these cases structions to dismiss. shows that none of them is in point.
Parker, Mitchell, Tolman, and The two cases from this court involved the taking of false acknowl- Bridges, JJ.,
.concur. edgments, wherein the notary certi- Petition for rehearing denied.