Definition
Subterranean waters are waters that exist or flow beneath the surface of the earth. The term encompasses two legally distinct categories that courts have long treated differently:
1. Subterranean streams: Defined channels or watercourses flowing underground, traceable in their course and following a reasonably ascertainable path beneath the surface. These are treated analogously to surface watercourses.
2. Percolating waters: Groundwater that seeps, oozes, or diffuses through soil and rock without following a defined channel. This category has historically received far less legal protection for neighboring landowners and third parties who rely on it.
The distinction between these two categories determines which body of water law applies — and consequently who has rights to the water, who bears liability for diversion or contamination, and what remedies are available.
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Common Language
Modern common usage (Wiktionary): Water found or flowing underground, beneath the surface of the earth.
Historical common usage (Webster's 1913): Of or pertaining to that which is underground; subterranean.
The ordinary meaning maps closely enough onto both legal subcategories, but common usage collapses the critical legal distinction between underground streams and percolating waters. A layperson reading "subterranean waters" will not appreciate that the two types have operated under entirely different legal regimes — in some eras and jurisdictions, a landowner could freely destroy a neighbor's percolating water supply without liability, while interference with an underground stream carried the same consequences as diverting a river.
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Common Confusion
SUBTERRANEAN STREAMS vs. PERCOLATING WATERS: These are subcategories of subterranean waters but carry profoundly different legal consequences. Subterranean streams are governed like surface watercourses — ownership, rights of diversion, and remedies for interference follow riparian or prior appropriation principles depending on jurisdiction. Percolating waters have traditionally been subject to the "absolute ownership" or "English rule," allowing a surface owner to pump or drain them without regard to the harm caused to neighbors. Modern groundwater regulation has substantially eroded this distinction, but historical sources treat it as foundational, and older cases almost invariably turn on which category applies.
GROUNDWATER: Often used interchangeably with subterranean waters in modern regulatory and statutory contexts, but groundwater is the broader, more modern term. It appears throughout environmental statutes and administrative regulations without necessarily preserving the stream/percolation distinction that controlled common law outcomes.
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Recognized Forms
/SUBTYPES
1. Subterranean streams: Underground watercourses with a defined bed, banks, and current; governed by the same rules as surface streams.
2. Percolating waters: Diffuse underground moisture moving through soil without a defined channel; subject historically to the absolute ownership rule, and now increasingly subject to statutory groundwater management frameworks.
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Why It Matters in Research
The stream/percolation distinction is the central trap in historical research on this term. Pre-twentieth-century cases frequently deny relief for interference with percolating waters while simultaneously recognizing a full cause of action for diversion of an underground stream. A researcher who finds a case holding that a landowner has no remedy for destroyed groundwater supply must first determine whether the court classified the water as percolating — because a parallel line of authority would have reached the opposite result had a defined underground channel been established.
Bouvier's entry flags the tension explicitly: the Pennsylvania and English authority it cites establishes the stream rule clearly, but the parenthetical "But see 13 M. & W. 374" signals a competing strand that courts found difficult to reconcile. That divergence persisted well into the twentieth century and explains why jurisdiction-specific research is essential — courts in the same era could reach opposite results on nearly identical facts depending on how they characterized the water.
Modern regulatory corpora largely displace the stream/percolation binary. The Clean Water Act, Safe Drinking Water Act, and state groundwater codes use "groundwater" as an administrative term without tracking the common law classification. Researchers moving between historical case law and modern regulatory materials should treat these as overlapping but not interchangeable bodies of authority.
In the western United States, subterranean waters also intersect with prior appropriation doctrine and the Winters Doctrine for reserved water rights. A research thread that begins with a common law underground stream dispute may need to account for federal reserved rights if the land in question is adjacent to or underlies federal reservations or tribal lands.
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Historical Dictionary Support
Bouvier's treatment establishes the core principle with clarity: subterranean streams receive the same legal treatment as surface watercourses, and the landowner over whose property such a stream flows can maintain an action for its diversion. Bouvier cites Pennsylvania and English authorities in agreement on this point.
What Bouvier does not synthesize — and what later legal scholarship fills in — is the full common law architecture governing percolating waters. The absolute ownership rule, associated with the English case Acton v. Blundell and its American progeny, held that a landowner could intercept or destroy percolating water beneath a neighbor's land without incurring liability, because such water was considered incapable of ownership until reduced to possession. Bouvier's "But see" reference to 13 M. & W. 374 (Acton v. Blundell) hints at this competing authority without developing it, leaving a gap that researchers relying on Bouvier alone would need to fill from secondary treatise literature.
Historical dictionaries generally understate the degree to which courts struggled to determine, as a threshold factual matter, whether a given body of groundwater qualified as a stream at all. The evidentiary burden of proving a defined underground channel was often decisive — and often insurmountable — which meant the stream/percolation distinction functioned in practice as a near-absolute bar to recovery in ambiguous cases.
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Jurisdictional Note
Eastern states have generally followed riparian water law principles for subterranean streams, while applying the absolute ownership rule to percolating waters, though many have modified both by statute. Western states operating under prior appropriation doctrine have increasingly brought all groundwater, whether flowing in defined channels or percolating, within administrative permit systems that displace common law classifications. California's groundwater adjudication framework and the Western States Water Council's model provisions are significant modern reference points.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia: Water Rights — Federal Reserved Water Rights (Winters Doctrine)
The Law Mind Environmental & Energy Law Encyclopedia: Navigable Waters, Waters of the United States, and Jurisdiction
The Law Mind Administrative Law & Government Encyclopedia: Clean Water Act — NPDES Permits, Water Quality Standards, and Wetlands
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