
    Walter R. Smith, Appellant, v. The City of Brooklyn, Respondent.
    
      City water supply—use of driven wells by which the som'cesof a stream core cut-off— liability of the city. -
    The erection at a distance from-a city upon land purchased by the city, whose-soil admits of the ready percolation of water, of city water works consisting in part of wells and a conduit about twenty-seven feet below the surface of the-ground connected with powerful suction pumps, the effect of which is to lower-the spring level of the surrounding country and to dry up a stream nearly half a mile distant, which was fed by springs, and had run in a well-defined . channel for fifty years, forming, when dammed, a pond .valuable to the owner of the land, is an unjustifiable use by the city of the land acquired- by it, and. renders the city liable in damages to the owner of the pond.
    
      Appeal by the plaintiff, "V^alter R. Smith, from a judgment of the Supreme Court in fav^r/of the defendant, entered in the office of the clerk of the county of Queen's on the 24th day of February, 1897, upon the dismissal of his complaint by direction of the court after a trial at the Queens County Trial Term.
    • George Wallace, for the appellant.
    
      William G. Coolce, for the respondent.
   Hatch, J.:

For the purpose of furnishing the city of Brooklyn with a water supply the defendant constructed upon its land's in the county of Queens a reservoir, aqueduct and culverts, or conduits, for holding and carrying the water. In the process of construction of these works it excavated a trench, which, at Freeport, upon the line, was about twenty-seven feet below the surface of the ground, in which it placed a box for carrying the water during the construction of the work, and to operate as a conduit for the same thereafter. It also sunk a number of wells and connected them with powerful steam suction pumps. Pumping stations were constructed, and from the one at the west end of the conduit the average daily quantity of water taken, in 1895,. was 36,421,147 United States gallons. The amount withdrawn daily increases annually at about the rate of 6,000,000 gallons.

The plaintiff is the occupant of a farm situate near Freeport, upon which, when he entered into possession, was a stream of water running in a well-defined channel, fed by springs and from other sources. The brook, many years ago, had "been damned, forming a pond. Brook 'and pond had been in existence for over fifty years, and water remained in both the year round. The plaintiff used the pond for boat building and securing ice ; for the latter purpose it was of considerable value. The pond was distant from the. aqueduct about 2,400 feet. The bottom of the conduit is 16.8 feet below the bottom of the pond. The soil in the locality of these water works and of the surrounding country is of a sandy or gravelly nature through which water readily percolates. There began to be failure in the water of the brook and pond shortly after the work of construction began, and perceptibly so after the conduit trench was opened and the box put in. Both disappeared entirely upon the erection and operation of the pumping station at Freeport, and have remained dry ever since.

The evidence is abundant to warrant a jury in finding that the disappearance of the brook and pond is due to the draining of the territory where plaintiff’s farm is situated, and is, caused by the conduit and well's of the defendant in connection with the suction power . applied thereto. The defendant does not seriously controvert the claim made by the- plaintiff that its acts have had the effect of lowering the hydraulic grade or spring line in that vicinity, resulting in the loss of the brook and pond, and in the destruction of wells throughout a considerable'area of country in that, locality. While this result is not. challenged by the' defendant, its liability therefor' is denied. The ground upon which the defendant thus confidently plants itself has been discussed by most of the courts in nearly every State of the Union. ■ The English reports are likewise prolific in decisions, if not ini harmony of reason and conclusion. The defendant has adopted in support of its contention the language of Judge Peckham in Pixley v. Clark (35 N. Y. 520), where the learned judge says: “ An owner of the soil .may divert percolating water, consume or cut it off, with impunity.. It is the same as land, and cannot be distinguished in law from land. So the owner of the land is the absolute owner of the soil and of percolating water, which is a part of, and not different from the soil. No action lies against the owner for interfering with or destroying percolating or circulating water under the earth’s surface.” This doctrine cannot be questioned, although it was obiter to the decision.. In this respect it is in harmony with many of the discussions which have been had of the subject. The decisions of this State, ancient and modern, are committed to this view of the law, including this tribunal. (Ellis v. Duncan, 21 Barb. 230; Bloodgood v. Ayers, 108 N. Y. 400; Van Wycklen v. City of Brooklyn, 118 id. 427; Covert v. City of Brooklyn, 6 App. Div. 73.)

Admitting this doctrine to the extent to which these and other authorities in this State carry it,- does it fit the facts of the present case? It may be stated, with some degree of confidence, that no case -will be found in this State, and'our research has not enabled us to find one in any other State of this country, where the right has been upheld in the owner of land to destroy a stream, a spring or well upon his neighbor’s land, by cutting off the source of its supply, except it was done in the exercise of a legal right to improve the land or make some use of the same in connection with the enjoyment of the land itself, for purposes of domestic use, agriculture or mining or by structures for business carried on upon the premises. We are aware that the doctrine has been carried beyond this in England, but it has not yet been judicially declared here, (Chasemore v. Richards, 7 H. L. 349.) The present case, as we view it, differs radically from any reported case that we .are able to find in this country. While it is true that the city- owned the land upon which it placed its structure, and all of its acts were done upon its own property, it did not, however, make the erections or do the acts for the beneficial use and enjoyment of the land itself for any purpose of domestic use, agriculture, mining or manufacturing, as land was used in the cases which have arisen in this country. No one dwelt thereon or was expected to; no one used the water thereon, nor was it expected to be used in connection therewith; The sole purpose was to subordinate the use of the land to the particular purpose of a reservoir and conduit in which to gather, store and carry water to a distant place, for its benefit and profit, and for the en joyment of strangers who have no claim or shadow of right to it as against the plaintiff. It was its purpose not only to take the water which might come by natural percolation upon its land, but also to use artificial means and by powerful suction drain the adjoining land of its water. This purpose has been accomplished, and by' the construction of its conduit, the sinking of its wells and the suction of its powerful pumps the whole spring level of the surrounding country has-been lowered and running streams and ponds dried up. In view of these facts, let us examine the principle which underlies the right to percolating water and the reasons upon which it rests. It is not necessary that we should set them out herein at length, for they have been admirably stated and the cases reviewed, from the leading case of Acton v. Blundell (12 M. & W. 324), decided in the Exchequer Court of England, by Chief Justice Tindal, to the modern decisions of this country, in two cases, one in Pennsylvania (Wheatley v. Baugh, 25 Penn. St. 528), and in Ohio (Frazier v. Brown, 12 Ohio St. 294). Iii the last case the learned judge who wrote stated the principle and the reasons therefor in the following language:

“ The reasoning is briefly this: In the absence of express contract, and of positive authorized legislation as between- proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing or filtrating through the earth, and this mainly from considerations of public policy. 1. Because the existence, origin, movement and course, of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed, that -an attempt to administer any set of legal rules in respect to them would be involved in" hopeless uncertainty, and would be, therefore, practically impossible. 2. Because any such recognition of correlative rights would interfere to' the material detriment of the common wealth, with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building, and the general progress of improvement in works of embellishment and utility.”

' It seems clear from the reasoning of these cases that the right • which exists and which has been upheld relates to the beneficial use of the -land for some purpose for which the land can be used, connected with its enjoyment as land for the ordinary purposes of "agriculture, mining, domestic- use or improvement, either • public or private. In New Hampshire this view even has never obtained.. The courts of that. State have ably maintained the doctrine of correlative rights and obligations between owners of land, respecting the right to take and use percolating water, holding that the authority to take rests upon the right of reasonable use, applying thereto the maxim sic ute-re tuo. ut alienum non laeclas (Bassett v. Salisbury Manufacturing Company, 43 N. H. 569 ; Swett v. Cutts, 50 id. 445), "which is also the doctrine contended for by Lord Wensleydale, to be hereafter. noticed. This maxim has been rejected by our courts as applied to the right of use by a landowner of his land for the purposes already adverted to. ' But the reasoning of the cases is quite convincing' against- an extension of the doctrine beyond its present limit.

It needed no occult power to foresee that the construction of these water works, would drain a large part' of the territory contiguous thereto, and seriously diminish the water supply of adjoining owners. The conduit was conducted lower than the surrounding territory, the soil was of a character which admitted of ready percolation of water, and the object of the construction was to secure water. This was not an experiment. It was known that, if the proper excavations were made, channels created for water to run in, wells sunk and suction applied, the result would be to draw water to that construction. It is true that one might not be able to see just where the subterranean channel existed through which the water percolated, or how much water was retained in any particular pocket or fissure; nevertheless it was known, as well as though seen, that if these means Avere adopted the' result Avould be to draw the water to that place from the adjoining lands and streajms as certainly as though the open mouth of the conduit tapped a running stream and took it all. It is quite probable, also, that the drain will continually increase. Powerful -suction dfaiving the water in one direction necessarily creates channels; by the continuous running of the water therein its action wears away barriers and changes the formation which formerly held it, letting it run quicker and in increased quantities to the common goal. We may speculate much or little upon the question of where the property right begins in water that descends from the heavens, whether it could be legally caught by roofs and stored before entering the ground, or whether it must be permitted to fall and enter the earth. Such questions will be disposed of, undoubtedly, as they arise. We have the fact admitted by all legal writers that a property right exists in percolating water of as high a character as the right to the land itself; it is in fact a part of the land. It is a valuable right.- and its use is usually indispensable to the enjoyment of the land Avherein it is- found. This right is only qualified by the equal right of every adjoining landowner. The right of use is supported in either Avhen, for purposes of use upon the land, or of the land, injury results to one as an incident to such use. But it seems to me monstrous to assert that one landowner may deliberately and intentionally make an erection for the express purpose of draining the land of another of its percolating, water, and thereby destroy streams, springs, ponds and wells, and be supported in so doing upon the theory that it is the exercise of a legal right in the use of his land. An adjoining owner has no right to tunnel into another’s land for water or minerals or take away soil lying under the surface. But, if this doctrine is to he supported, he may erect upon his own land an appliance which will draw out all the w’ater, which would otherwise remain, without liability, and if water, why not the minerals. and the soil ? So far as property right is concerned, one is as much land as the other. The reason upon which the right has been supported to divert percolating water fails when applied to such conditions, as such right is limited to such water as naturally flows upon the land and not to a flow artificially created. So use your own. property as not to in jure another, is a maxim as old as civilized man and binding both in law and morals. It may be saved and applied, to percolating water and still support our prior decisions by placing the limitations upon it which reason and justicie suggest.

There remains to be considered another feature of the question raised by the record now before us. The stream which was diverted and which formed the pond was perennial. The witnesses say it had existed for fifty years to their knowledge, and, if fifty years, probably always, as streams have existed. It was fed by springs. The act of the defendant has cut off the feeders, and it no longer lives. The right to the use of a running stream is not rested upon a grant; it is jwrá natura. We need not discuss the rights of riparian owners in running streams, as that question is well settled. Among the rights thus established is that water may not be diverted from a running stream to the damage of a riparian owner. ' In the case of water already in the stream, this right is clear and we have no difficulty. But just here arises the trouble in this case. The water had not arrived at the stream.. Its destruction was complete, as its source of life was cut off. We are, therefore., to consider whether the property right of plaintiff is in the thing, the stream, or in the particles of water simply, which presently go to make it-up. The struggle’ to maintain. the principle of law applicable ■ to percolating water as applied to the diminution ,of running streams, in its application to a state of facts similar to those which' now confront us, has been- a source of much trouble and difficulty for the English courts. Pollock, C. B., in the case of Dickinson v. Canal. Co. (7 Exch. 280) held that where water had been taken from a running stream by the sinking of a well, it was an unlawful diversion of the water for. which the canal company was liable. In that case the water was abstracted both before and after it had reached the stream. The case was condemned by the House of Lords in Chasemore v. Richards (7 H. L. 349). This case was quite similar in its facts to the present, sufficiently so to make its principles applicable. The ground of the decision was based upon the rule applied to percolating water, as laid down in Acton v. Blundell (supra), and for reasons stated in the opinion of the judges furnished to the lords. In discussing the question Lord Wensleydale said : “ It has been now settled that, the right to the enjoyment of a natural stream of water on the surface, ex jure natural, belongs to the proprietor of the adjoining lands as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it as he is to all the other natural advantages belonging' to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction. * * * If the river Wandle in this case had been supplied by natural streams flowing into the river above ground, or in known definite channels below ground, the cutting off those streams to which the person entitled to the use of the river was entitled ex natura as feeders of the river, would be añ injury to him and give a right of action. And if this be true with regard to underground streams finding their way into the river, then comes the difficulty how to distinguish the smaller rivulets, and the drops of water ■which flow and percolate into and supply the river. ^ They are all equally the gifts of nature for the benefit of the proprietors of the soil through and into which they flow. They are all flowing water, the property in which is not vested in the owner of the soil any more than the property in the water of a river which flows through it on the surface.” The conclusion reached by this opinion resolved itself into the inquiry whether the right which took the water was exercised in a reasonable manner. Indeed, the argument of the learned lord carried him to a decision which fastened liability upon the defendant, but he voted the other way. There are other English cases decided upon the same reasons which prevailed in that case, but they are all reviewed in the Chasemore case, and it is not necessary to restate their views here. The state of the law in England would be clearly regarded as settled by the last decision, which was rendered in 1859, were it not for another decision rendered in 1871. (Grand Junction Canal Co. v. Shugar, 6 Ch. App. 483.) This was an action for- an injunction restraining the defendant from diverting the water of certain springs running in a pond which were cut off by a drain. Lord Hatherly, in delivering the opinion, said : “ Now, as regards the law of the case, I should think it beyond dispute after Chasemore v. Richards. Mr. Justice Wightman there -laid down the law very plainly in giving the opinion of the judges upon the subject, and the distinction was there drawn — and I should have thought, firmly established — between ■ water which comes no one knows exactly whence, and flows no one knows exactly how, either underground or on the surface, unconfined in any channel, either as rainfall or from springs of the earth, which may. vary from day to day, or spring up from beneath the surface in a direction which no one knows —• between that species of water and water once confined in a. regular channel. When I say once,’ of course I mean for such a-period of time as that there can be no difficulty raised with reference to the rights of the parties. * * * I do not think Chasemore v. Richards, or any other case, has decided more than this, that you have a right to all the water which you can draw from the different sources which may percolate under ground, but that has no bearing at all on what you may do with regard to water which is in a defined channel and which you are not to touch. If you cannot get at the underground water without touching the water in a defined surface channel, I think' you cannot get at it at all. You are not, by your operations or by any act of yours, to diminish the wafer which runs in this defined channel, because that is not only for yourself but for your neighbours also, who have a clear ■right to use.it, and have it come to them unimpaired in quality and' undiminished in quantity.” In view of the fact that the action in Chasemore v. Richards was for the recovery of damages for the diversion of water which supplied the, river Wandle, and that Mr. Justice Wightman said of such"claims that the right was “so indefinite and unlimited that, unsupported as it is by any weight of authority, we do not think that it can be well founded, or that the present action is maintainable,” we feel justified in observing that the two cases cannot stand together, even though it be judicially said that they do. One might as well attempt- to reconcile Malone v. Hathaway (64 N. Y. 5) with Kranz v. Long Island R. Co. (123 id. 1). The question here, however, is not of reconciliation; our search is for the. better reason. There is certainly an inconsistency in the rule which gives to an owner of land the usufruct of a stream which exists as a right ex natura, and yet vests in another; in his search after underground water, the right to destroy the stream absolutely. There is no difference in the injury inflicted, if the stream be taken, whether it be brought'about by drawing the water from the stream itself or cutting off the supply. The right is to have the water for purposes of use, in any lawful manner which the owner of the soil sees fit. ITe may erect an expensive plant upon the bank and depend upon the stream for carrying on the business which he conducts, and unless he have some measure of protection, an adjoining owner may utterly destroy his right and property by cutting off thesom'ce of the stream. The right .to a running stream is a fix§d, definite right, more secure than that of percolating water, as the one is. visible and open, the other obscure and uncertain. This right is to-receive the water and have it continually flow therein. It cannot be so en joyed if the only right therein be to the present particles of water. "We think it is not so limited, that the right is in and to the-stream as a distinct entity, and that where its source is known and its channel defined an adjoining owner has ordinarily no fight so to-use his property as to work a destruction of the stream. We think that the reasoning of Lord Wenslbydale in the Ghasemore case, and by Baron Pollock in the Dichinson case, and the limitation placed upon the Ghasemore case by Lord Hatherly, furnish the rule which more nearly corresponds to the rights of adjoining landowners in respect to running streams. So far as this question is concerned, it brings the view to. rest upon the maxim sic utere tuo ut alienum non laedas, and we think it applicable-to running streams with defined courses, whose existence is from . time immemorial. The doctrine of the Shugar case is favorably commented upon in Ætna Mills v. Brookline (127 Mass. 69, 71). The case, however, was disposed of upon another ground. We infer that the Court of Appeals is impressed with this view, by reason of the observation made by Andrews, Ch. J., in Covert v. Cranford (141 N. Y. 521). The same principle is decided by Mr. Justice Story in Dexter v. The Providence Aqueduct Co. (1 Story C. C. 387.) This decision was upon principle, as-well as the discredited authority cited. It is not, however, necessary for us in this case to lay down any fixed rule ; indeed, it must at all times depend upon the particular facts of the particular case' as applied to the doctrine ■of reasonable use and relative rights. It is sufficient now to say that the act of the defendant, under the facts of this case, is not sanctioned by- any of the authorities in this State or by any sound rule of law. The plaintiff made a case which entitled him to ¡recover such damages as he has sustained, and it was error to dismiss his complaint.

. The judgment should be reversed and a new trial granted, with ■costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  