61 N.Y.S. 1005 | N.Y. App. Div. | 1900
The plaintiff in the present action challenged the right of the defendant to remove from his land subterranean waters which naturally remained thereon, or to divert the flow of percolating water which naturally and usually came thereto. His challenge has
The evidence given upon the trial established that the defendant has acquired title to two acres of land, and from this territory it pumps from three to ten millions of gallons of water daily. To obtain this immense quantity of water it draws to its pumps the water percolating underground over an area of from five to eleven square miles of territory, the witnesses varying in this regard, in and to the soil of which it has no legal right, title or interest except as heretofore specified. The evidence tended fairly to support the conclusion that the water level in the territory thus drained was reduced from ten to fifteen feet, and that this was either wholly or partially destructive of the crops growing or which could be grown upon the plaintiff’s land. It was stated by the engineer called by the defendant that the flow of the water to the pumps is caused by atmospheric pressure solely ; that the pumps create a draft and pressure of the atmosphere results, forcing the water to the pumps ; that it was not drawn thereto hy suction,- which, it is claimed, is an improper term to apply to the process. We are little concerned with the scientific explanation, however interesting and instructive it may be. It can matter little what the force which operates it is, so long as the undisputed fact remains that the means used hy the defendant despoils the land of the water which would naturally remain thereon, and thereby deprives the owner or occupant of its beneficial use and enjoyment. We are, therefore, presented with a case where the diversion if of percolating water running in no. defined channel; where the works of the defendant were erected upon its land for the express purpose of obtaining such water, and where it does obtain it to the substantial damage of the plaintiff. ' *
Under such circumstances, has the adjoining landowner a legal right to recover for the damage sustained and the equitable right to
Upon the main question but little can profitably be added to the discussion which has been already had. But upon further examination and consideration of the argument of the learned counsel for the appellant we'are inclined to think that he labors under a misapprehension of the principle which controls and governs our conclusion.. In the leading case of Acton v. Blundell (12 M. & W. 324) the right to intercept the flow of percolating water was supported for the reason that the use of the land (mining) in that case was the exercise of a legal right, and that as the flow of the waterin under-. ground channels was obscure, uncertain and unknown, any attempt to limit the use of the soil so -as to protect the right of the adjoining landowner therein would not only lead to unreasonable consequences, but from the nature of the case it would be impracticable, if not impossible, to award relief and protect the rights of both... These reasons and others which add no strength to defendant’s position, have furnished the basis for a denial of legal interference as between adjoining landowners in percolating waters ever since. Both reasons most clearly, fail when applied to the facts of the present case. We assert that .the act of the defendant in establishing this pumping station for the purpose of drawing to itself -all of the sub-surface water in a .given locality, situate in land, which it does not own and in which it has no interest, or such portion of the water as it chooses to take for its present or future needs, is not the exercise of a legal right with which it became invested when it purchased the land. The doctrine is that for the interception or diversion of percolating water which comes naturally upon the land, or is diverted by reason of any improvement thereon, no liability attaches. There is no "'Complaint made in this case for any such act. Ho improvement, was made upon the land by the defendant, nor did it intend to improve it. Ho percolating water was intercepted or
This is in no true sense the interception or diversion of percolating water within the meaning of that term as used by the courts, and it has never been used in connection with such a case until the right hiere insisted upon was asserted. Indeed, the act here did not intercept the flow of the water in the natural way, nor did it divert it by ■any act of improvement upon the land. It created a condition whereby all the water was drawn to one spot. That this result would follow was, for all practical purposes, as well known when the wells were driven as it was when the pumps were applied :and the conditions created. If the act is to be supported as the exercise of a legal right, then we must be prepared to say that the defendant may turn the area which it thus drains into •a desert and destroy, at least for agricultural purposes, a large tract of land ■ without even the pretense of improving its own. That such result would not be in consonance with justice must be the answer of every rational mind. We have not been able to .'find any adjudged case either béfore or since the opinion in the ■Smith case was written, where the doctrine has been carried to this extent,-or, indeed, where such injury could be contemplated as possible to arise between the ordinary use of land by adjoining ■ owners, except in this and the cases we have before considered. The present use of the land is for the purpose of obtaining what naturally belongs to the adjoining owners, and ought not to be permitted to be so far extended as not only to despoil but to destroy. ■Certainly, upon no legal or equitable principles can such use be •denominated the exercise of a legal right. Under .such conditions the question of motive is immaterial, as the same is immaterial where :a legal right exists to make the improvement which works the injury. It may be conceded that in the latter case the intent might be bad, and yet the right be supported, as was the case in Phelps v. Nowlen (72 N. Y. 40). But therein the right was clear to dig the ditch even though the effect was to divert the water. There
Those cases which have been reported since the Smith case was-decided by this court have hot added to the strength of the defendant’s position: So far as- there has been expression their tendency, we think, is to support the view we have heretofore taken and now take, even though they mostly involved the construction of special statutes. (United States v. Alexander, 148 U. S. 186; Proprietors of Mills, etc., v. Braintree Water Supply Co., 149 Mass. 478; Bailey v. Woburn, 126 id. 416; Wheelock v. Jacobs, 70 Vt. 162.)
. Wherever the rights of: adjoining landowners have been concerned the old rule of the absence of correlative rights has been asserted. But these cases do not apply where the right sought to-be exercised is not that of the use of the land, except for the specific-purpose either intentionally or necessarily of drawing such water from an adjoining owner. We are impressed with the importance of the question which we are now deciding,' as we are aware that it materially affects the city of New York, especially in the borough of .Brooklyn, in connection with its source of water supply and creates much embarrassment in the present source and expense of the future supply. But bearing all of these questions in mind we are
For these reasons we think the judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.