
    Frederick Reisert, Appellant, v. The City of New York, Respondent.
    
      Diversion of subterranean waters, by driven wells, for a city water supply — the owner of the land thus injured is entitled to an injunction and damages — a finding that no damage resulted, not sustained.
    
    Where the city of New York, hy means of driven wells used for the purpose of furnishing a portion of its water supply, lowers the natural level of the subterranean waters appurtenant to adjacent agricultural land, without acquiring, either in condemnation proceedings' or by private contract, the right so to do, the owner of such land is entitled to an injunction restraining the operation of the pumps, if he is likely to sustain any damages in the future by reason of the trespass, and he is also entitled to recover the damages, the measure of which is the impairment of the rental value of the land consequent upon the diversion of the water, for the six years prior to the commencement of the action.
    When a finding that the owner of the land suffered no damages because of the diversion of the subterranean waters is insufficiently supported by the evidence, considered.
    Appeal by the plaintiff, Frederick Reisert, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 2d day of January, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term awarding the plaintiff nominal damages, but denying his motion for an injunction.
    
      James C. Van Siclen, for the appellant.
    
      James D. Bell [John J. Delany with him on the brief], for the respondent.
   Hooker, J. :

The plaintiff ,gñes fbr past damages and a permanent injunction restraining the operation of defendant’s pumps and driven wells near his farm-. It was admitted upon the -.trial that the operation of these wells had lowered the natural level of'the subterranean waters under the plaintiff’s property, and it was theie conceded that the only question in the case was the extent to "which the pumping stations had lowered the water table - and any damage traceable thereto. The sixth finding of fact is as fallows “ That by reason of said pumping and' trespass on and tó the plaintiff’s land and premises the plaintiff during-the past ten years lias suffered no damage to the rental value nor to the fee value of said premises.” ' The opinion of the learned trial court, delivered in deciding this case (Reisert v. City of New York, 42 Misc. Rep. 275), and its rulings , upon the trial, make it clear that it adopted the measure of damages'which has been determined to be the correct one governing cases of this kind. (Reisert v. City of New York, 174 N. Y. 196; S. C., 69 App. Div. 302; Smith v. City of Brooklyn, 160 N. Y. 357; Forbell v. City of New York, 164 id; 522.)

Applied to the facts in this case,, tl-ie rule of damages as laid, down by the decision of the Court of Appeals is to wliat extent the rental value of the lands, as affected by 'the diversion of the water, had. been substantially injured. Judge Bartlett, for the Court of Appeals in this case, has written these pertinent sentences (Reisert v. City of New York, 174 N. Y. 210): “In regard to the /position' of the defendant in this and kindred cases, it appears that since the year 1884 it has seen fit to occupy the position of a naked trespasser, and sought to justify its action on -the ground of paramount necessity arising .from the requirements of a great city for. an-.adequate supply -of pure and wholesome water. " If it is necessary in the public interest for the defendant-to subject the inhabitants of'Long Island to the damages incident to maintaining a large number of pumping stations-and driven wells, depriving exténsive sections of' the country of its underlying and percolating Waters, as well as drying . up its surface streams, and wells, the least it can do is to meet plaintiffs in a spirit of fairness, eschewing technicality, and ascertain their actual damages in the premises, and if hot -contented to pursue such a course to institute condemnation proceedings.’ It is time that the rights of the individual must yield to public necessity, but it should always be kept in mind that this result can only be fairly and legally accomplished by duly compensating the citizen for property damaged or destroyed.”

The evidence and the findings in this case establish beyond the possibility of dispute, under the rule announced by the Court of Appeals in the Forbell Case {supra), that the defendant is a naked trespasser; and if the plaintiff has sustained any damage whatever, and is likely to sustain any in the future by reason of the trespass, he is without doubt entitled to an injunction ; and if on the trial of these questions adequate proof is offered tending to show what the extent of his injury has been within the six years prior to the com mencement of the action, under the proper measure of damages, he is entitled.to a judgment for that amount.

The sixth finding of fact, that the plaintiff has suffered no damage to his premises, is insufficiently supported by the evidence, and the judgment must be reversed for that reason.

The pumping plant commenced its operation- in or about the month of May, 1885, ^vithin a few hundred feet of the plaintiff’s premises. Prior to that time a clear stream ran on the western boundary of plaintiff’s land for a portion of its course, and for a distance flowed through one corner of his farm. Before the pumps began to operate, this stream was between one and two feet deep, and in some places three feet; holes six feet in depth existed ; at the southerly portion of the farm the stream ran into and across plaintiff’s land, and at that point, before the commencement of the operation of the pumps, the plaintiff had started the establishment of a game and fish preserve, where he owned both sides of the stream. It was used for watering produce, horses, cattle, and for raising trout and watercresses. It was unnecessary at that time for the plaintiff to pump water for domestic or farm use. He had raised trout in the stream, which abounded there, and these he used for himself, and sold. The conclusion is irresistible that by reason of the maintenance and operation of the pumping stations this stream has practically dried up, and such water as is found- in its bed now is surface water, and although immediately following rains water flows through the creek, the flow soon stops, and what water remains is stagnant. Prior to the trespass the stream -was permanent, did not .dry up in summer, and seldom, froze over in the winter time. The plaintiff produced expert evidence.• tending to show that the difference in the fair rental value of his farm in the absence of the pumping station was considerably greater than it'was by reason of .the operation of the pumps, in conformity with the rule announced by the Court of Appeals in this case. The court ' admitted all the evidence tending to show the character and use made of the lands, the nature, of the crops .grown thereon and .the business conducted there; together with the gross and net income, prices, fertilizer, manure, and the help in the various years both before and after the trespass. The plaintiff’s expert evidence was based upon these circumstances and conditions, taken in connection with tlie effect upon agriculture which a considerable lowering of the water table would entail. The defendant called a number of experts, some of whom were farmers, the burden of whose testimony was that the lowering of the water table would not have any effect upon' the productiveness of the soil such as existed on Long Island in the vicinity of the plaintiff’s premises, and that the rental or usable value of plaintiff’s premises was not affected or diminished by reason of the consequences following from the defendant’s trespass; The plaintiff had occupied and worked the farm himself since the yéar 1883, and in the absence of its having been rented, either during’ the continuance of the trespass or otherwise, proof of the rental or-usable value was difficult to obtain. The Court .of Appeals held upon the prior appeal in this case that evidence of the character and extent of the usennade of the lands and off the nature of the crops and business conducted "there, together with evidence of the income, boffh gross and net, expenses, prices, fertilizer, manure and- help, when in their normal and usual condition as to subterranean waters, and also when deprived thereof-, was competent as tending-to -show-usable value. It is clear that unless direct proof of the- usable value was offered, based" upon actual rentals, under conditions which-would suggest-that fair, rent was being paid therefor, experts who might undertake to swear to the fair usable rental valúe could -not" give adequate answers, or' give the court valuable information to guide it in awarding damages, without taking into consideration all the conditions to which we have referred, and which the Court, off Appeals has said is; competent bn this question. It is clear from-the' record that the defendant’s experts did not testify upon a consideration of such facts and circumstances, and especially is it true that none of them was asked or appeared to consider the rental or usable value in the presence or absence of the natural, stream at the west erly end of the plaintiff’s farm. The conclusion is irresistible from •a consideration of this record that the plaintiff has suffered damage ■other than the sole item of ninety dollars, the cost of driving his wells further into the ground, which the court has allowed.

Both parties ask this court that in the event of a reversal final ■disposition should be made of the matter. The judgment of reversal should, therefore, contain a direction that an injunction issue restraining the defendant from maintaining and operating its conduit lines and pumping stations, and from diverting the surface and subterranean waters, not to become operative, however, if within a reasonable time, to be fixed by the judgment,' the defendant pay the plaintiff the value of the right to maintain and operate its conduit lines and power station as against the plaintiff, the amount to be appraised' by commissioners duly appointed; and the judgment should further provide that the action be remitted to the Special Term for the purpose of appointing a referee to take evidence and determine the amount of the plaintiff’s damages, with costs to the appellant.

Hirschberg, P. J., Bartlett, Woodward and Jenks, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs. Order to be settled before Hooker, J.  