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Right to Support of Subterranean Waters

In English common law, a neighbor has no right of support by water removed by a landowner on his/her own land[i].  On the other hand, under American rule, the right of a landowner to draw underground water from his/her land is not absolute, but limited to the amount necessary for the reasonable use of his/her land[ii].  Likewise, the rights of adjoining landowners are correlative and limited to reasonable use.

In New York Continental Jewell Filtration Co. v Jones, 37 App. D.C. 511 (D.C. Cir. 1911), the court observed that if one grants land to an adjoining landowner and then withdraws percolating water and causes subsidence damage to the adjoining land, the grantor will be held liable for the resulting damages.  However, damages will be granted only if the withdrawal of the percolating water will destroy the purpose for which the land was granted.

In New York C. R. Co. v. Marinucci Bros. & Co., 337 Mass. 469 (Mass. 1958), the court held that a construction company was liable for negligently causing subsidence to adjoining land, finding that in excavating to lay a sewer in land containing a large amount of subterranean water, the construction company failed to use sufficient sheathing to support the adjoining land and to prevent water and silt from the adjoining land from flowing into the excavation site. The court based its holding on the ground that a landowner owes a duty to the adjoining landowner to use reasonable care in excavating so that the lateral support of the adjoining land is not removed.

[i] Finley v. Teeter Stone, Inc., 251 Md. 428, 248 A.2d 106 (1968).

[ii] Id


Inside Right to Support of Subterranean Waters