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

Michels (D) contracted with Metropolitan to install a sewer. The complaint alleges that Ds began pumping water from the wells of Greenfield at a rate of 5,500 gallons per minute to dewater the soil to a depth sufficient to permit tunneling. The State (P) asked that Ds be ordered to construct their sewer so as not to create a nuisance. The trial court granted D’s demurrer in that there was no cause of action. “If the waters simply percolate through the ground, without definite channel, they belong to the realty in which they are found, and the owner of the soil may divert, consume, or cut them off with impunity. If, on the other hand, the subterranean waters flow in a defined channel, the rules which govern the use of surface streams apply; but the presumption is that the waters are percolating waters until it is shown that they are supplied by a definite, flowing stream.” Malicious intent did not affect this right. This appeal resulted.

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