
    August Westphal and Metta Westphal, Appellants, v. The City of New York, Respondent. John H. Diekmann, Appellant, v. The City of New York, Respondent. Frederick Hiller, Appellant, v. The City of New York, Respondent.
    
      Bights in subterranean waters of. the owner of land—removal of the water by 'driven wells — New York city may use them in procuring its loater supply— measure of damages —planting of crops not suited to the conditions — constitutional rights waived by bringing an equity suit'.
    
    An owner of agricultural land has no property in the subterranean water appurtenant to such land, but simply a usufructory right therein; and where such subterranean waters are-withdrawn from the land by means of driven wells maintained as a part of the water works system of a city, the measure of damages is the decreased fee or rental value of the property with the water withdrawn.
    If the owner plants a particular crop thereon, with knowledge that it will, because of the withdrawal of the water, be a failure and that a different crop would yield a good return, he cannot—at least in an action in equity — recover the damages sustained by him in consequence of the failure of such crop.
    Where such owner elects to bring an equitable action against the city to restrain the operation of the driven wells, the court may render a judgment requiring him, upon payment of the damages awarded, to convey to the city his right, whatever it is, to operate the driven wells. The owner will not be heard to say that such disposition of the case invaded his constitutional rights, first, in that he received no notice of the city’s intention to acquire the property, and, secondly, in that his constitutional right to have the property appraised by a jury or three commissioners had been denied him, as, by choosing to treat the matter as a continuing trespass and by resorting to a court of equity for relief, the owner waives his constitutional right to a condemnation proceeding.
    The power to use driven wells in obtaining its water supply is included in the general powers delegated to the city of New York.
    Appeal by August Westplial and others, the plaintiffs in the three above-entitled actions, from judgments of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of July, 1901, and on the 25th day of October, 1901, upon decisions of the court rendered after a trial at the Kings County Special Term.
    The three cases were tried together.
    
      Charles Coleman■ Miller, for the appellants.
    
      B. Percy CIvittenden [James Mo Keen with him on the brief], for the respondent.
   Woodward, J.:

. These actions, involving the same general questions, were tried together, resulting in judgments in favor of the plaintiffs, at Special Term. The plaintiffs, who asked for the equitable interposition of the court to prevent a continuing trespass upon the part of the defendant, under the rule established in the cases of Smith v. City of Brooklyn (160 N. Y. 357) and Forbell v. City of New York (164 id. 522), are not satisfiéd with the amount of the recovery, and appeal from the judgments entered in their favor. The evidence received in this case was, tó a considerable extent, such as was condemned in the- case of Reisert v. City of New York (69 App. Div. 302), but there appears to have been no objection to its admission, and we are to determine whether the court below has determined the questions upon the evidence before it in accord with the established principles of equity jurisprudence.

The plaintiff, Westphal, is the owner of five and one-half acres of market garden land located in Kings county, extending from the Old Mill road to Spring creek, about 60Ó feet southwest of the Spring Creek pumping'station of defendant’s water works, and the learned court at Special Term has found that “ the operation by' the City of Brooklyn from 1894 to January 1st, 1898,' and by the defendant since that date, of the driven wells and pumping stations at Spring Creek station of defendant’s water works, formerly owned by the City of Brooklyn and now owned by the defendant, lowered and lowers the water table or level under plaintiff’s land from where it formerly was to a depth varying from said former level to about six feet below it, according to whether said pumps are worked or not,” and that “by reason of the operation of said pumping stations, and the lowering of said water table, the plaintiff has been damaged, up to the time of this trial, in the sum of $350, and the permanent damage to the plaintiff’s said land thereby is $300.” Upon this appeal Westphal urges a variety of propositions which it seems proper to consider.

Although the court below has adopted the short form of decision, as permitted by section 1022 of the Code of Civil Procedure, the appellant urges under point 1 that the finding that the lowering of the ground water by the pumping station is not constant, and hence not generally destructive of crops, is against the evidence. We do not think the court has made any findings which accord with the inferences suggested by the appellant. So far as the decision indicates anything it is that the pumps when in operation lower the water level about six feet, and it may- properly be assumed that these pumps are operated during the dry season, and that they would lower the water at that time to the extent of six feet below the normal level, but the learned court evidently based his estimate of the damages to be sustained upon the proposition that conceding the level to he lowered six feet, it did not operate to do the damages, claimed by the plaintiff.

It is well understood that where the water, is too far below the. surface to be affected by capillary attraction, and this does not exceed eighteen inches, it is of no value to growing plants, while the evidence of the plaintiff, which is unsupported, and which the court, was not bound to believe, is to the effect that the normal water level under the larger part of his possessions was from one to two feet, below the surface. There was other evidence read into the case from another action, which might justify the conclusion that the water level was much lower than this, and the whole case suggests a desire to establish damages rather than to vindicate justice, which justified the court at Special Term in refusing to-accept as true all of the testimony adduced. We do not find in the case evidence which warrants us in concluding that the learned court at Special Term was not acting within the legitimate sphere.of its duty in reaching the conclusion stated in the decision, and which is criticised under point 1 of plaintiff’s brief.

The same remarks apply to the contention raised under point 2 ■ it was for the plaintiff, not alone to produce testimony, but to bring-before the court convincing evidence of the damages alleged to have been sustained. The court is not, more than a jury would be, obliged to believe improbable and interested statements of a witness, and we are clearly of opinion that the evidence does not support the contentions of the plaintiff.

It is probably true that the plaintiff, as the owner or lessee of' the several pieces óf property involved, had a right to plant the land year after year with any kind of crop which it might please him to cultivate, but if it was true that the land was known to be unfitted for the growth of celery, and it was well adapted to some other crop, it cannot be that a court of equity would be bound to-allow the plaintiff for the crops which he might have raised with the water, without taking into consideration the question of whether the land might not have been used profitably in other directions. If the land was only fit for celery with the water, and was unfit for any other crop without it, there might be some grounds for claiming large damages, but so far as we know the land may have been actually benefited by the drainage; the land may have been much better adapted to the growth of some other line of vegetables, and If this was the case the plaintiff would have no claim in equity for the damages he had sustained by -reason of a failure of his celery -crop, if he knew at the time .that this crop would be a failure, and that a different crop would yield him a good return. Whatever the plaintiff’s rights might be as a mere matter of law, when he appears in a court of equity he is bound to do equity; he cannot go -on regardless of experience and known facts and increase the amount of liis damages and then expect that they will be fully reimbursed to him. These observations are peculiarly applicable to those who have been renting from year to year, and when it is remembered that a large portion óf the alleged losses occurred at a time when it was not believed that there could be any recovery, it tends strongly to discredit testimony to have witnesses declare that in spite of the known conditions they went on renting farms and inviting a certain loss of their labor and capital.

Taking this view of the question, we cannot concur in the contention of the plaintiff that the damages awarded were wholly Inadequate, and are unsupported by the evidence. The damages awarded, it seems to us, are fully as large as the credible evidence-warrants.

The plaintiff urges that the form of the judgment requiring the plaintiffs upon the tender of the amount designated to convey to the defendant “ the right to maintain and operate the said pumping stations as at present constructed,” etc., is not within the power -of the plaintiffs, but it does not seem profitable to consider this question. The plaintiffs may convey the. rights which they have, and this is all that is contemplated by the judgment, and the further suggestion that the award of fee damages to the plaintiff Westphal is in reality an award of the depreciation in value of the remainder of. their property after the water is taken from it, but includes nothing for the water, is equally without merit. The plaintiff has no property right in the water as such; lie does not own the particles of which it is formed. His property in the water Is in its use while it remains upon or under liis lands; it is the usufructory right, the same as in flowing water. He has the right to the use of the water, but he has no property in the water as such, and the measure of his damages, as we held in the case of Reisert v. City of New York (69 App. Div. 302), is the decreased fee or rental value of the property with the water withdrawn.

We will assume, without discussion,- that the defendant has a right to receive the conveyance of the rights of the various plaintiffs.

It is urged, however, that the plaintiff Westphal’s constitutional rights .have been invaded because it is alleged that the plaintiffs were given no notice of the city’s intention to acquire their property, and second, that the- -right to the appraisal of the property by a jury or by three commissioners has been denied to the plaintiff. The theory on- which this class of actions is maintained is that the defendant is a trespasser. This being true, the plaintiff has a remedy by an action at law for each day’s trespass, and if he chooses to go into a court of equity he must be deemed to have waived his constitutional right to a condemnation proceeding. It is well settled that a party may waive a rule of law or a statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right,, and no considerations of public policy or morals are involved, and having once done so he cannot subsequently invoke its protection. The rule of law which the courts will enforce in that class of cases, where the parties have substantial rights, and where ohjection is duly and seasonably made, will be deemed to have been waived by the plaintiff when he brings the action, and by the defendant if he pleads generally and goes to trial without insisting upon the benefits secured to him by the Constitution and the laws. (Sentenis v. Ladew, 140 N. Y. 463, 466, and authorities there cited.) It was not necessary that the city should give the plaintiff notice of an intention to commit a trespass; the plaintiff’s right of action depends upon the fact that the city did commit a trespass without the consent of the plaintiff, and the latter having invoked the aid of a court of equity is bound to satisfy the conscience of the court if he is to receive any compensation. It is not sufficient that there should be some evidence to support the plaintiff’s claim; - there must be evidence to judicially convince the court of the justice of his olaim, and, so far as we are able to gather the facts from the record,' the learned court at Special Term has awarded all of the damages which can be justified, and has properly refused to grant an absolute injunction.

The suggestion that the city has no authority to use driven wells is hardly of importance enough to be seriously considered. The method of securing water is purely an incident to the larger purposes of the municipality in procuring a water supply, and is necessarily included in the general powers delegated to the city for this main purpose.

The' further objections are rather too technical to engage the attention of this court, and we reach the conclusion that the judgments appealed from should be affirmed.

The judgments appealed from should be affirmed, with costs.

All concurred.

Judgments affirmed, with costs.  