
    Ellis vs. Duncan and others.
    The owner of a farm may dig a ditch to drain his land, or open and work a quarry upon it, although by so doing he intercepts one of. the underground sources of a spring on his neighbor’s land, which supplies a small stream of water flowing partly through the land of each, and thereby diminishes the natural supply of water, to the injury of the adjoining proprietor.
    The rule that a man has a right to the free and absolute use of his property, so long as he does not directly invade that of his neighbor, or consequentially injure his perceptible and clearly defined rights, is applicable to the interruption of the sub-surface supplies of a stream, by the owner of the soil; and the damage resulting from such an interruption is not the subject of legal redress.
    MOTION to dissolve a preliminary injunction. The action was brought to restrain the defendants from digging ditches upon their land, or opening and working a stone or marble quarry thereon, so as to intercept or cut off the underground sources of a spring existing upon the plaintiff’s land adjoining the farm of the defendant, which supplied a small stream of water, flowing partly through the land of each party. It was alleged in the affidavits read by the defendants, on the motion, that the defendants purchased the farm adjoining the plaintiff’s land, with the intent of improving the same as a permanent residence. That finding a portion of said farm wet and springy, they caused drains and ditches to be dug and opened therein, for the purpose of rendering the same fit for cultivation, and also to draw the water from said springy ground into a reservoir, from whence their dwelling house was to be supplied. That the brook in question had always furnished a copious supply of water, at all seasons of the year, until a few years ago, when a considerable part of the water of the spring was diverted from the brook by one White, the grantor of the plaintiff, who blasted out, with powder, a quantity of stone from said spring, which caused the same to fail; and compelled him to excavate more stone therefrom; after which he inserted a lead pipe, and drained a large quantity of water thereby to the dwelling house now occupied by the plaintiff, since which the brook had failed in dry weather. It was further stated, in the affidavits, that the defendants having ascertained that a valuable quarry of building stone, or marble, existed upon the said land, they made arrangements to open the same, for the purpose of taking stone therefrom to construct a dwelling house; that they had made contracts for the erection of their proposed dwelling house, and were excavating the marble for the purpose of using the same in the construction of said dwelling house, when the injunction was served°upon them. The defendants claimed the right to dig the said drains and ditches, and make the said excavations, for the purposes aforesaid.
    
      C. W. Sandford, for the defendants.
    I. The owner of the soil has a right to all which lies beneath the surface. He may dig therein and apply all that is found to • his own purposes, at his free will and pleasure. And if, in the exercise of such right, he intercepts or drains off the water from underground springs in his neighbor’s land, this inconvenience to his neighbor is damnum absque injuria, which cannot become the ground of an action. (Angell on Water-courses, § 109-14. Acton v. Bell, 12 Mees. & Wels. 324. Greenleaf v. Francis, 18 Pick. 117. Gale & Whatley on Easements, 178.)
    II. There is much vulgar error touching rights supposed to exist beyond the line of the lot owner’s boundary. Much of it has been exploded in this country. ■ No judicial trace of it exists, except in England. (1.) The supposed riparian right. (Gould v. Hudson River R. R. Co., 2 Selden, 552. Lansing 
      v. Smith, 4 Wend. 9.) (2.) The supposed right of prospect and light from adjacent lands. (Myers v. Gemmel, 10 Barb. 540, 546.) (3.) The supposed right to have one’s building or earth supported by adjacent lands. (Radcliff's Ex'rs v. Mayor &c. of Brooklyn, 4 Comstock, 202. (4.) The supposed right to ancient lights. (Parker v. Foote, 19 Wend. 318. 10 Barb. 546.)
    III. The injunction should be dissolved, leaving the plaintiff to his action, if any injury should be sustained, upon which a right of action can be founded j the present suit being based upon mere supposition.
    
      A. L. Jordan, for the plaintiff;
    I. The general proposition, that “ the owner of the soil has a right to all which lies beneath the surface, and may dig therein and apply all there found to his own purposes,” is conceded. The same rule applies to every thing upon or above the surface. But no owner of land has a right to a stream of water flowing over it, except á right to so much thereof as is necessary for his reasonable use, with-» out materially injuring his neighbor below, by diverting, or his neighbor above by damming and throwing back. ¡No reason exists for not applying the same rule to an underground stream, as to a surface stream. All the difference arises from the difficulty of tracing the course of underground streams, so as to apply the rule.
    II. This is not the case of an underground stream. The spring was on the surface, from time immemorial; the stream flowing from its outlet was equally so, These are undisputed facts.
    III. The complaint is, that the defendants divert, or are operating to divert, this surface spring and surface stream, by excavating a deep pit (or quarry) and ditch to lead off the water therefrom, so close alongside as to cause the water to fall away, and divert and dry up both the spring and the stream. That the excavation will produce that effect, is not denied by the defendants, ji The authorities relied on by the plaintiff are 5 (3 Kent's Com. 539. Brown v. Best, 1 Wilson, 174. Duncombe v. Randall, Hetley, 34. Balston v. Bensted, 1 Camp. 
      463. Woolryche’s Law of Waters, Law Lib. vol. 62, p. 225. 10 Sim. Ch. Rep. 552. Dexter v. Providence Aqueduct Co., 1 Story’s C. C. Rep. 388. Smith v. Adams, 6 Paige, 435.) The eases of Greenleaf v. Francis, (18 Pick, 177,) Angell on Water Courses, §§ 109 to 114, and Acton v. Blundell, (12 Mees. & Welsby, 324,) cited by the defendant’s counsel are incidentally referred to and commented upon. They do not establish any different rule,
    IV. That the American courts have considerably modified' the English law of easements generally, is not denied; a fortiori they will not follow any recent decisions in England, (such as that cited from Meeson & Welsby,) which may be supposed to conflict with the law previously settled in this country,
    V. The mischief would be irremediable in this case, (as it would in other cases of a similar character,) by any rule of damages applicable to a suit at law. Moreover the action in this case is at issue, and will speedily be disposed of upon its merits, at the Westchester circuit, (or special term,) when if there be any serious dispute as to facts, the court may award an issue, but no such dispute about facts is shown to exist. The contrary will appear to be the fact, by the papers before this court.
   By the Court, S. B. Strong, J.

The question involved in this controversy is, whether the owner of a farm may dig a ditch to drain his land, or open and work a quarry upon it, when by so doing he intercepts one of the underground sources of a spring on his neighbor’s land, which supplies a small Stream of water flowing partly through the land of each, and , thereby diminish the natural supply of water, to the injury of the adjoining proprietor. There can be no doubt of the correctness of the injunction sic utere tuo ut alienum non Icedas : but I have frequently had occasion to remark that it refers to such injuries only, as the law will redress, and not to the large class which are usually denominated damnum absque injuria. Of the latter class are such as result immediately to one, by the lawful exercise of the rights of another. To award compensation for, or prevent the infliction of such injuries, would seriously arrest the march of improvement, and often so seriously impair the use of property as to render it of little or no value. The distinction between reasonable and unreasonable damages, in cases of this description, is not very definite or clear. In some particulars the rule has been solemnly settled by uniform decisions, while in others, and generally such as are very near the dividing line, the determinations have been conflicting, and in many there have been none at all. The distinction turns, generally, although not universally, upon the question whether the damages are direct or consequential. In the latter case, and especially where they result remotely from the exciting cause, they are not generally recoverable. In the interruption of a surface current, the injury from a diminution of the water would seem to be palpable, and so far direct that it would originate a valid cause of action. There, too, the owners have knowingly permitted the waters to flow in their natural course for the benefit of all those whose banks they pass, from time immemorial. They have acquired their title with a full knowledge of what is visible, and (presumptively) of the rights which result from it. ' But it is different when the principal stream is partially supplied by underground currents. The owners of the surface soil are not generally aware of their existence, and cannot be supposed to have voluntarily acquiesced in any appropriation of them. When they purchase they are ignorant o^ any obstacle to the free use of their property ab center ad’ ccelum ; and to arrest some valuable improvement, such as digging a well or cellar, draining the land, taking valuable ■ stones from a quarry, or leveling the ground for building or agricultural purposes, because it would cause some consequential, unforeseen, and possibly irremediable damage to another, would seem to be unreasonable and unjust. If the principle that the man who interrupts a sub-surface stream, to the prejudice of his neighbor, commits a wrong for which the law will give redress is sound, no one will be safe in purchasing land adjoining or Inear a private stream of water, as he may be restrained forever from making some valuable, and frequently, from the progressiveness of the age, necessary improvements. ,

[Kings General Term,

December 3, 1855

/ It seems to me that the rule that a man has the right to the tree and absolute use of his property, so long as he does not directly invade that of his neighbor, or consequentially injure his perceptible and clearly defined rights, is applicable to the interruption of the sub-surface supplies of a stream, by the owner of the soil; and that the damage resulting from it is not the subject of legal redress. The case of Acton v. Blundell, (12 Mees. Wels. 324,) sustains that principle; and the case is cited with approbation by Oh. J. Bronson, in giving the unanimous opinion of the court of appeals, in Radcliff’s Ex’rs v. The Mayor, &c. of Brooklyn, (4 Comst. 200.) The injury of which Mr. Radcliff’s executors complained, in that case, was much greater than any which can result to the plaintiff in this action, from the supposed wrong committed by the defendants. And although the facts were somewhat dissimilar, yet the principle which I have been considering is alike applicable to both.

If the injury of which the plaintiff complains had been -actionable, I should much doubt the propriety of granting an injunction, unless it had been of a much more serious character than what appears from the papers presented to us. If an injunction should be proper it must be perpetual, or at any rate endure as long as the water continues to run. The plaintiff might, in order to prevent an immediate damage to himself, interrupt and prevent improvements of real importance to the defendants, or those who may succeed them. A recovery of damages in an ordinary action would be a much more reasonable remedy. And the plaintiff may resort to that, notwithstanding the decision of this appeal.

The order granting a preliminary injunction must be reversed, with $10 costs, and the injunction must be dissolved.

Brown, S. B, Strong and Rockwell, Justices.]  