
    Merrick Water Company, Respondent, v. The City of Brooklyn, Appellant.
    
      Real property— the flow of water percolating to a well from which water is sold, interrupted by wells dug on adjoining land for a city’s water supply.
    
    An owner of land who has sunk a well upon it, the water taken from which he sells to the inhabitants of the neighborhood, is not entitled to' enjoin a neighboring city from sinking wells upon adjoining land, and drawing therefrom its city water supply, although as a consequence thereof the percolation of water through the' soil to such owner’s well is interrupted, and the water in his well is lowered from seven to eight feet — certainly where it does not appear that any underground, stream of water supplying his well was cut off by such action- on the part of the city.
    Appeal by the defendant, The City of -Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-county of Queens on the 18th day of October, 1897, upon the report of a referee, as amended by an order entered in said clerk’s office on the 26th day of October, 1897.
    
      Almet F. Jenlcs [Jerome W. Goombs with him on the brief], for the appellant.
    ■ FranJdvn B, Lord, for the respondent.
   Hatch, J.:

The plaintiff is a corporation engaged in the business of collecting water and selling the same to its various customers thoughout the neighborhood where it has its principal place of business. The complaint avers that the land occupied by the plaintiff, and from which it obtains its water supply, is located on a subterranean stream supplied from a watershed which is particularly described; that such underground stream rises to the surface on the plaintiff’s land and flows into ponds owned by it. The complaint further avers that the defendant has acquired a considerable strip of land lying north of the plaintiff’s pumping station and its wells, upon which land it intends to sink about' eighty wells and draw therefrom a water supply for the city of Brooklyn, and that if it carries out such purpose it will draw the water from the plaintiff’s wells and the underground stream and also from the surface stream and said ponds, whereby the plain tiff' will be deprived of its water, its business will be destroyed and the locality in . which it seeks to carry on its business will be checked in its growth. The complaint demands judgment that the defendant be restrained from sinking its wells or-establishing a pumping station, or doing any other act upon its land), which will diminish the flow of water upon the plaintiff’s lands.

At the time, of the trial the defendant had sunk its wells,, established its pumping stations, was engaged in operating the. same and was carrying the water thus obtained to the city of’ Brooklyn. The proof tended to establish and the referee found that the effect of the defendant’s pumping had been to permanently lower the water in plaintiff’s well from seven to eight feet; that such lowering was caused by the defendant’s pumps in drawing the water from under the plaintiff’s well and the land on which it is situated. The evidence failed in support of the averment that, there existed a subterranean stream of water which supplied the plaintiff’s well. Upon this subject the proof was that the interruption, by the act of the defendant, was.of percolating water, and that as a consequence the water in the well was diminished in quantity,, as was the flow of the small surface stream running to the ponds,, which was practically if not entirely dried up, and that the quantity of water in the ponds was diminished. The case, therefore, presents the question of the diversion of percolating water by one corporation from the lands of another corporation, both of which are engaged in the collection of water not for use upon the land itself, but for purposes of transportation and sale to third persons who have no interest or right of use of the water as connected with the land. The learned referee has adopted the doctrine of this court as laid down in Smith v. City of Brooklyn (18 App. Div. 340).

That case presented the question of the relative right of the defendant and an adjoining landowner, who made use of his land and the running stream and pond thereon in connection with the land and for the purposes of its beneficial enjoyment. And this court held that as the defendant collected the water upon its land, not for any purpose of beneficial enjoyment of the land itself, but for purposes of - transportation and sale at a distant place to others having no right to it as against the owner of the land who was deprived of his stream and pond, it was an unlawful diversion of the water by the defendant for which the plaintiff had his right of action. And we further held that under the circumstances of that case the act of the defendant diverted the water from a running stream in which the plaintiff had a property right and that such diversion was. unlawful. But being mindful of the delicate nature of the question we were deciding, we expressly limited the rule to the particular case and its facts,’ announcing that no fixed rule could be laid down, but that each case must rest upon its particular fa.cts as applied to the doctrine of reasonable use and relative rights. The effect of that decision was to limit the right to divert percolating water by an adjoining owner of land to cases where the diversion was produced by the exercise of a legal right to improve the land or make some xtse 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, or other improvements either public or private. We recognized the rule that no liability was created by such. use of the land, even though the effect of it was to divert the percolating water from the land of the adjoining owners. This rule is firmly settled in the law of this State and elsewhere, as .appears by the decisions cited upon page 342 of the Smith case, and is only qualified by the diversion of water from a running stream which has existed from time immemorial. As to it -the maxim sic utere tuo ut alierium non Icedas is applicable, and from the inherent • difficulty resting in the nature of the rights of each party, can only be settled upon the facts out of which the controversy arises. It is,, therefore, manifest that the decision in the Smith case is not controlling of the present controversy.

In the present ease both corporations seek to obtain water in a similar manner, for a precisely similar purpose, i. e., for transportation and sale. Neither party intends to make Use of its land for any other purpose than will' facilitate the gathering and distribution of water. In this respect their rights are equal, one as great as the other, and we see no reason why the rule should not be applicable as would apply in case either owner desired to improve its land for purposes of use: Then, as we have seen, neither party would be liable for the diversion of percolating water because each is engaged in the exercise of a legal right, and the rights of eaeh are equal in the use and enjoyment of the land. When hoth seek to use their land for exactly the same purpose, and neither seeks to improve it for the purpose of beneficial enjoyment, but to make a profit from .the business carried on, the right to such use must also be equal. Under such circumstances, if one gets more than the other, we think there can be no more ground of complaint than would exist if both sought to improve their own land and one secured more than the other, or one was damaged and the other not. As applied to such obligations the doctrine of reasonable use and relative rights has never been adopted by any of the courts in this State, nor in any other State, so far as our research has discovered, except in New Hampshire. We are not able-to see, therefore, that the act of the defendant has infringed, upon any legal right which the plaintiff possessed. So far as the diversion of the small brook is concerned, we do not think that the facts warrant its-separation from the rule applicable to percolating water. There was little proof to show that its source, character or use was such as to make the rule of the Smith case applicable. It is not every rivulet or small stream to which such rule can be applied, as it is evident if such were the rule then an adjoining' owner might be unable to improve his property, or might improve and find himself liable for exercising his legal right. The destruction must be unreasonable when the rights of both parties are considered, and, as applied here, we think it was not sufficient to create a subject-matter of legal damage.

These views call for a reversal of the judgment.

All concurred.

Judgment reversed and new trial granted before a new referee to be appointed at Special Term, costs to abide the event.  