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Basic Groundwater Problems

Raphael J. Moses, Proceedings of 14th Annual Rocky Mountain Mineral Law Institute (1968)

The Civil- and Common-Law Doctrine
The civil law and the common law were each based upon the doctrine that a man owned from the top of the sky above his land to the center of the earth beneath him. An early Pennsylvania judge summarized the historical background this way:
The Roman law, founded upon an enlightened consideration of the rights of property, declared that he who, in making a new work upon his own estate uses his right without trespassing either against any law, custom, title, or possession, which may subject him to any service towards his neighbours, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without any advantage to himself.He may raise his house as high as he pleases, although, by the elevation, he should darken the lights of his neighbour's house: Domat, 1047. He may dig for water on his own ground, and if he should thereby drain a well or spring in his neighbour's ground, he would be liable to no action of damages on that score: Domat, 1581; Pardessus, Traite des Servitudes, 76; Dig. [505] 39, 2, 24, 12; Dig. 39, 3, 1, 12; Dig. 39, 2, 26; Dig. 39, 3, 21. These principles of the civil law are also the recognized doctrines of the common law: Burg v. Pope, 1 Cro. Eliz. 118; Parker v. Foote, 19 Wend. 309; Hoy v. Sterrett, 2 Watts 331; Greenleaf v. Franc