This section contains the nature of the case and procedural background.

Ps own property adjacent to a gravel pit owned by D. Ps do not live on this property. There is no house on the property. An underground spring that produced large quantities of water historically flowed beneath Ps' property. Ps filed a complaint alleging that D's excavation activities at the gravel pit caused the spring to run dry. D 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. The appeals court then vacated the dismissal recognizing 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. At trial, Ps' expert hydrogeologist conceded that the water underneath D's land flowing into the spring is presumed to be percolating, but added that percolating water can constitute a watercourse because there is a general flow and predictable course. D's 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. The court instructed the jury that it was required to make a preliminary determination of whether the water feeding the spring was a watercourse. The jury held it was not a watercourse. D got the verdict and Ps appealed.

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