I am not able to concur in the judgment of affirmance. It is true that the pleadings, the objections and exceptions (and the want of them), the findings, and certain occurrences at the trial, present such an uncertain, disjointed, and unsatisfactory record, that it was difficult to see what was or was not decided in the court below. But I think there should be a new trial, so that, under amended pleadings and proper findings, it may be discovered what the real facts of the case are, and what principle of law is applicable to the rights asserted by the parties. And I think that the deficiencies of the findings are ground for reversal.
In the complaint it is averred, in substance, that “ on the seventh day of October, A. D. 1886, the plaintiff appropriated the waters flowing into and from a certain spring [describing its location] to the extent of five (5) inches measured under a four-inch pressure; that it conveyed the said water to Cameron Station on its railroad, and used it for supplying its locomotives and employees with water; and that it continued to so use it until the-day of February, 1889, when defendant wrongfully diverted it from the pipes and tanks of plaintiff. The answer denies that plaintiff ever appropriated any of said waters at any time, or that defendant wrongfully diverted the same; and avers that since July 31, 1888, defendant has been the owner in fee of certain described land; that the spring is on said land; that *622“ the water flowing from said spring forms a natural watercourse flowing through defendant’s said land,” and that defendant, as a riparian owner, uses, and has the right to use, “said spring and watercourse” for domestic purposes, watering stock, etc., and that plaintiff, since said July 31,1888, has, by means of a pipe, tapped “ said spring, and the waters flowing therefrom,” and diverted them away from defendant’s land.
It is clear, therefore, from the pleadings, that there is a “ watercourse ” having its source at the spring. It is said that defendant “ withdrew” that part of his answer which admitted and averred this watercourse. In my judgment it certainly was not withdrawn. The part of the answer which contains this averment is called by the parties a cross-complaint. What happened was simply this: After defendant had rested, plaintiff’s counsel — for some reason—nhose to say that he desired to introduce the so-called cross-complaint in evidence; whereupon defendant’s counsel made the remark, “ I desire to say we dismiss the cross-complaint.” This remark amounted to nothing more than any other expressed desire for something never obtained, — even if any meaning could be attached to the word “dismiss” as therein used. The status of the answer was not changed in the least by the remark; and it would not have been changed if counsel had used the word “ withdraw.” He could not have withdrawn the answer by taking physical possession of the paper on which it was written and putting it in his pocket,—which would have been a much more palpable thing than the mere expression of a desire to withdraw it. The record could not have been changed to suit counsel’s desire without an order of court.
The main issue in the case, therefore, was, whether plaintiff had appropriated any part of this watercourse; and the only findings on this issue were, that “ the plaintiff did not, on the seventh day of October, 1886, appropriate the waters flowing into and from a certain spring, . ... to the extent of five inches measured under a four-*623inch pressure,” and “that plaintiff did, from the seventh day of April, 1866, up to the-day of February, 1889, enjoy the uninterrupted use of some water taken by it from said spring,” but that the amount was less than five inches. Of course these findings are utterly irresponsive to the said issue. And there were other findings fully as defective as these.
It is said, however, that defective findings on all other issues are immaterial, because the court found (in findings 5 and 7) that the spring was “fed solely by percolating waters,” and not by “ any running stream of water,” and that the water was taken away from the spring and watercourse by a trench which defendant dug on his own land near the spring, “ with a view of securing water for his sheep and stock.” I think that finding 7 is entirely too vague and uncertain to form a basis for the application of certain alleged doctrines about precolating waters. I have not been able' to find any case in which it has been held that a spring and watercourse originating in it can be lawfully undermined and destroyed by a trench or tunnel run for that express purpose, to the injury of a vested right in the watercourse. And the evidence in the case at bar tends strongly to show that defendant’s tunnel and trench were run for the express purpose of destroying the spring and watercourse; and that the main effect was, not to prevent percolating waters from flowing into the spring, but to compel the waters of the spring and watercourse to flow out, and down into the trench. I think, therefore, that the findings should have been more specific on this point, and should have stated the facts clearly and fully. It may be remarked that a watercourse is none the less a watercourse because it has its source in a spring fed by “ percolating ” waters. The case relied on by respondent is Hanson v. Me Cue, 42 Cal. 303; 10 Am. Rep. 292. There were two opinions delivered in that case, one of which was based mainly on Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721 (the citation in the opinion being incorrectly given as *62423 Pa. St.), and the other upon the trustees of Delhi v. Youmans, 50 Barb. 316. In the Pennsylvania case the facts were that “ a mining corporation, in the course of necessary operations in mining minerals from their own land, interrupted the percolations which supplied a spring on an adjoining tract”; and of course the court held that where a miner, working his mine in the usual way, interrupts percolating underground water, the result is incidental to the lawful use of his land, and if it causes loss to an adjoining proprietor, such loss is damnum absque injuria. In the case from 50 Barbour, the facts do not so clearly appear; but the court say that “ if the defendant’s excavation or ditch drew the water from the plaintiff’s spring instead of stopping the flow of water from defendant’s land to such spring, then the defendant would be liable in this action.” In Hanson v. McCue, 42 Cal. 303,10 Am. Rep. 292, itself, the facts were materially different from those in the case at bar. In that case, if there had been a natural watercourse running from the spring, which Hanson had appropriated years before McCue or his grantors had acquired any estate in the land, and McCue had afterwards diverted any of the water to the injury of Hanson’s prior right, then the facts would have been similar to those claimed by plaintiff in the present case. But the facts in that case were, that McCue’s grantor owned the land on which the spring was as early as 1844, in which year he constructed an artificial ditch, by which he carried the water several hundred yards to a vineyard. This ditch crossed a piece of “unoccupied and unclaimed” land, which Hanson did not acquire until a dozen years afterwards. When McCue undertook to change the course of the water, thus leaving the old ditch dry, Hanson claimed that he had acquired a right by prescription to have the water continue to flow in the old ditch; but the court held that there was no such prescriptive right, because McCue would have no right to complain that the water in the artificial channel, after leaving the spring, was used below by Hanson, and therefore there was no “ pre*625sumption of the grant of an easement.” Therefore, as Hanson had no right to the flow of the water through the artificial ditch, it made no difference what McGue did with it, — and that consideration was determinative of the case. But in the case at bar plaintiff claims that it appropriated the waters of the spring and watercourse to a useful and most necessary purpose, while the land on which they were situated was public land, and years before the defendant had any interest therein.
Nearly all the cases in which the disturbance of percolating water has been held harmless have been cases where the party charged has dug a well, or worked a mine, or made some other excavation in the lawful enjoyment of the ordinary use of his land, and where the loss to the complaining party was merely incidental to such use, and not the result of a direct intent to cause such loss. (Two very instructive and exhaustive opinions upon the subject are to be found in Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72, and Dickinson v. Canal Co., 7 Exch. 282.) I fear that the affirmance of the judgment of the case at bar, as it now stands, will make a precedent that will be misleading as to some interesting and important phases of the law of water rights. I think that the case should be retried under proper pleadings; and that there should be findings upon all the material issues, setting forth clearly and fully the pivotal facts of the case.
Rehearing denied.