Maddocks v. Giles
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision:	1999 ME 63
Docket: 	Lin-98-440
Argued:	April 5, 1999
Decided:	April 26, 1999

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

SEWALL MADDOCKS et al.

v.

ELBRIDGE GILES d/b/a
E.A. GILES & SONS

CALKINS, J.

	[¶1]  Sewall and Janice Maddocks appeal from the entry of judgment
in the Superior Court (Lincoln County, Bradford, J.) after a jury verdict
finding that Elbridge Giles' excavation activities on his land did not interfere
with the flow of an underground watercourse benefitting the Maddockses'
land.  The Maddockses argue that the trial court erred by instructing the
jury on the absolute dominion rule, and they urge us to adopt a new rule
governing groundwater usage.  We decline to adopt a new rule, and we affirm
the judgment.
	[¶2]  The Maddockses own property adjacent to a gravel pit owned by
Giles.  The Maddockses do not live on this property; in fact, there is no
house on the property.  An underground spring that produced large
quantities of water has historically flowed beneath the Maddockses'
property.  In 1994 the Maddockses filed a complaint alleging that Giles'
excavation activities at the gravel pit caused the spring to run dry.  Giles
moved to dismiss on the ground that there is no cause of action for the
diminution or exhaustion of a neighbor's spring by the lawful excavation of
land through which underground water percolates.  The motion was
granted, but we vacated the dismissal in Maddocks v. Giles, 686 A.2d 1069
(Me. 1996) [hereinafter Maddocks I].  We recognized the general rule that a
person may use his land as he pleases for lawful purposes, but we noted that
a landowner may not disrupt a watercourse to the injury of neighboring
landowners.  See id. at 1071.  Because we concluded that the complaint
sufficiently alleged that Giles' excavation activities disrupted a watercourse
running beneath Giles' property to the Maddockses' spring, we remanded
for further proceedings.  See id.
	[¶3]  At trial, the Maddockses testified that Giles' excavation activities,
including dewatering the gravel pit to allow ever-deeper digging, caused the
spring to become exhausted.  Their expert hydrogeologist conceded that the
water underneath Giles' land flowing into the spring is presumed to be
percolating,{1} but added that percolating water can constitute a watercourse
because there is a general flow and predictable course.  Giles' expert
hydrogeologist testified that the water feeding the spring was percolating
water and that it could not constitute a watercourse because it has no sides
or bed, as a surface watercourse does.  He further testified that underground
watercourses do not exist in Maine, as these appear primarily in areas of
limestone deposits.	
	[¶4]  The absolute dominion rule, which has been the law in this
jurisdiction for a over a century, is reflected in the instructions given to the
jury in this case.{2}  The court gave the jury a verdict form that required it to
make a preliminary determination of whether the water feeding the spring
was a watercourse.  The judge instructed the jury to go no further if it found
the aquifer on Giles' land was not a watercourse.  The jury returned a
unanimous verdict that the source aquifer for the spring was not a
watercourse, and judgment was granted to Giles.
	[¶5]  The sole issue presented on appeal is whether we should depart
from the common law absolute dominion rule and adopt the groundwater
use rules set forth in Restatement (Second) of Torts § 858 (1979).{3}  The
absolute dominion rule is based on the premise that groundwater is the
absolute property of the owner of the land, just like the rocks and soil that
compose it.  See ROGER A. CUNNINGHAM, ET AL., THE LAW OF PROPERTY § 7.5
(1984).  In Chase v. Silverstone, 62 Me. 175, 183-84 (1873), we held that a
landowner who digs a well on his own property, thereby causing percolating
water to a neighbor's spring to dry up, is not liable for damages.  The rule
was affirmed in Chesley v. King, 74 Me. 164, 170 (1882):

[O]ne may, for the convenience of himself or the improvement of
his property, dig a well or make other excavations within his
own bounds, and will be subject to no claim for damages
although the effect may be to cut off and divert the water which
finds its way through hidden veins which feed the well or spring
of his neighbor.

	[¶6]  As we noted in Maddocks I, there is a limit to this rule of
unfettered capture:  a landowner cannot stop or divert the flow of a
watercourse to the injury of his neighbor.{4}  See Morrison v. Bucksport &
Bangor R.R. Co., 67 Me. 353, 356 (1877).  The scope of this exception,
however, is limited by the narrow definition of a watercourse:

To constitute a water course, it must appear that the water
usually flows in a particular direction; and by a regular channel,
having a bed with banks and sides; and (usually) discharging
itself into some other body or stream of water.  It may
sometimes be dry.  It need not flow continuously; but it must
have a well defined and substantial existence.

Id.; see also Card v. Nickerson, 150 Me. 89, 91, 104 A.2d 427, 429 (1954);
Johnson v. Whitten, 384 A.2d 698, 701 (Me. 1978).
	[¶7]  The absolute dominion rule is now the minority rule in the
United States.  A few states in addition to Maine continue to recognize the
rule.   See Wiggins v. Brazil Coal & Clay Corp., 452 N.E.2d 958, 964 (Ind.
1983); Gamer v. Town of Milton, 195 N.E.2d 65, 67 (Mass. 1964);
Friendswood Dev. Co. v. Smith-Southwest Indus., Inc., 576 S.W.2d 21, 27
(Tex. 1978); White River Chair Co. v. Connecticut River Power Co. of N.H.,
162 A. 859, 871 (Vt. 1932).  
	[¶8]  Most jurisdictions have adopted the reasonable use, or American,
rule or some variation of it.{5}  See Cunningham at § 7.5.  A representative
sample of these jurisdictions includes Adams v. Lang, 553 So. 2d 89, 91 (Ala.
1989); Bassett v. Salisbury Mfg. Co., 43 N.H. (6 Chandler) 569, 579 (1862);
Rothrauff v. Sinking Spring Water Co., 14 A.2d 87, 90 (Pa. 1940); Nashville
C. & St. L. Ry. v. Rickert, 89 S.W.2d 889, 896 (Tenn. Ct. App. 1935).  The
reasonable use rule requires that all uses of the water on the land from
which it is extracted must be reasonable.  See 6 Thompson on Real Property
§ 50.1 1(a) and (d) (David A. Thomas ed., 1994).  The usual interpretation of
reasonable simply prevents the landowner from wasting the water or from
transporting it off of the land for use elsewhere.  See CUNNINGHAM at § 7.5. 
	[¶9]  The Restatement approach abandons the common law
distinction between underground watercourses and percolating water.  See
Restatement (Second) of Torts § 845.  It provides that a landowner who
withdraws groundwater, whether in a watercourse or percolating, and "uses
it for a beneficial purpose is not subject to liability for interference with the
use of water by another."  Id. § 858(1).  If the withdrawal, however,
unreasonably causes harm to a neighbor by lowering the water table, exceeds
the owner's reasonable share, or has a direct effect on a watercourse and
unreasonably causes harm to one entitled to that water, then the owner may
be liable.  See id.  The Restatement rule is derived from principles of
reasonable use, but it differs from its predecessors.  The reasonable use rule,
of which there are variations, usually only requires that water not be wasted,
but the "Restatement balances the equities and hardships between
competing users."  Linda A. Malone, The Necessary Interrelationship
Between Land Use and Preservation of Groundwater Resources, 9 UCLA J.
ENVTL. L. & POL'Y 1, 11 (1990).  Three states have adopted the Restatement
approach.  See Cline v. American Aggregates Corp., 474 N.E.2d 324, 328
(Ohio 1984); Maerz v. United States Steel Corp., 323 N.W.2d 524, 530
(Mich. Ct. App. 1982); State v. Michels Pipeline Constr., Inc., 217 N.W.2d
339, 345 (Wis. 1974) (adopting now-altered RESTATEMENT (SECOND) OF
Torts, Tentative Draft No. 17, § 858 (1971)).
	[¶10]  The Maddockses argue that we should abandon the absolute
dominion rule because it is based upon faulty science.  It is generally
accepted that the absolute dominion rule was established because courts did
not understand how water flows underground.  Instead, courts looked to
established principles of property law that would allow them to resolve
disputes without having to probe beneath the surface.  See 1 Waters and
Water Rights § 4.05(c) (Robert E. Beck ed., 1991).  In rejecting the absolute
dominion rule, several courts have given modern science as a basis for
abandoning the old rule.  See e.g., Cline, 474 N.E.2d at 328 (Holmes, J.
concurring).
	[¶11]  We decline to abandon the absolute dominion rule.  First, we are
not convinced that the absolute dominion rule is the wrong rule for Maine. 
We recognize that we are not bound by the doctrine of stare decisis when
the underpinnings of the previous decisions are disproved and when the
conditions of society have changed so that the prior law no longer fulfills a
need and is counterproductive.  See Myrick v. James, 444 A.2d 987, 998
(Me. 1982).  Although modern science has enlightened our knowledge of
groundwater, this does not mean that the rule itself has interfered with
water use or has caused the development of unwise water policy.  The
Maddockses did not present evidence or point to any studies showing that
the absolute dominion rule has not functioned well in Maine.  Furthermore,
for over a century landowners in Maine have relied on the absolute dominion
rule.  See Friendswood Dev. Co., 576 S.W.2d at 29 (citing the reliance of
landowners on the absolute dominion rule as a significant factor in
upholding the old rule).  In the absence of reliable information that the
absolute dominion rule is counterproductive and a hindrance to achieving
justice, we will not depart from our prior decisions.
	[¶12]  Second, we are not persuaded that we, as opposed to the
Legislature, should be weighing the heavy policy considerations involved in
this issue, not the least of which is the reliance of land owners on the
present property laws.   The Legislature can study the ramifications of a
change in policy; it can call upon experts to give their opinions as to the
best water policy for Maine; and it can survey Maine's water needs.  We
conclude that at this time the question of whether to depart from our
common law on groundwater issues is best left to the Legislature.
	[¶13]  Finally, we are further constrained in making the requested
change because the Legislature has taken action in this area by creating the
Water Resources Management Board to do a comprehensive study of water
law in Maine.  See 5 M.R.S.A. § 6301 (Supp. 1989), repealed by 5 M.R.S.A.
§ 6306 (Supp. 1989).  The Board reported to the Legislature and suggested
that it adopt reasonable use principles.  See Maine Water Resources
Management Board, Board Findings and Recommendations 5 (Feb. 1991). 
The Legislature chose to leave the common law as it currently stands.{6}
	[¶14]  Because the absolute dominion rule is the law in Maine
governing the issue in this case and because the trial court correctly
instructed the jury on the absolute dominion rule, we affirm the verdict.
	The entry is
	Judgment affirmed.
Attorneys for the plaintiffs:

David J. Van Dyke, Esq.
Paul F. Macri, Esq.		(orally)
Berman & Simmons, P.A.
129 Lisbon St. 
P.O. Box 961
Lewiston, Maine 04243

Attorney for the defendant:

Gerard O. Fournier, Esq.	(orally)
39 Exchange St.
P.O. Box 7109
Portland, Maine 04112-7109

FOOTNOTES******************************** {1} . Most underground water gradually percolates through the various strata and is not flowing in a watercourse. See 3 Waters And Water Rights § 20.07(a)(4) (Robert E. Beck ed., 1991). This has led to a judicial presumption that underground water is percolating, and therefore the party asserting the existence of an underground stream has the burden of proof. See id. § 20.07(a)(2). {2} . The trial court instructed the jury that a property owner may use his land as he pleases for all lawful purposes but the owner may not interrupt or interfere with a watercourse benefitting another's land, whether that watercourse is above ground or below ground. The court further instructed the jury that a property owner could dig a well or make other excavations and not be subject to a claim for damages even though the effect of the excavation was to cut off and divert water which percolates through the ground or hidden veins to feed the neighbor's well or spring. The court defined a watercourse as a course of water flowing in a particular direction by a regular channel having a bed with banks and sides and usually discharging itself into some other body or stream of water. The court added that although it must have a well-defined and substantial existence, a watercourse need not flow continuously or never be dry. {3} . Section 858 of the Restatement (Second) of Torts states: § 858. Liability for Use of Ground Water. (1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless (a) the withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure, (b) the withdrawal of ground water exceeds the proprietor's reasonable share of the annual supply or total store of ground water, or (c) the withdrawal of the ground water has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water. (2) The determination of liability under clauses (a), (b), and (c) of Subsection (1) is governed by the principles stated in §§ 850 to 857. {4} . An additional exception prevents a landowner from maliciously wasting water to the detriment of a neighbor. See Chesley, 74 Me. at 177. {5} . A few jurisdictions, notably California, have adopted a rule of correlative rights as a variant on reasonable use principles. See City of Pasadena v. City of Alhambra, 207 P.2d 17, 28-29 (Cal. 1949); Jones v. Oz-Ark-Val Poultry Co., 306 S.W.2d 111, 115 (Ark. 1957). {6} . The Legislature had earlier enacted another exception to the absolute dominion rule by creating liability when a person withdraws groundwater in excess of household purposes for a single-family home and the withdrawal interferes with the preexisting household use of groundwater. See 38 M.R.S.A. § 404(1) and (2) (1989). This statute is inapplicable to the Maddockses because they did not have a preexisting household use of the spring water, and it is their desire to make a commercial use of the spring water.