106 N.Y.S. 553 | N.Y. Sup. Ct. | 1907
The plaintiffs are owners of the Hathorn Mineral Spring at Saratoga and the defendants of the Dr. Strong’s Sanitarium in the same village. Plaintiffs’ spring, discovered in 1868, has discharged large quantities of mineral
In the absence of statutory regulations or private agreements, all waters are, in contemplation of law, regarded as either flowing or percolating. The former consists of those bodies, such as lakes, ponds and streams, which are upon or beneath the surface of the earth and whose boundaries and courses are well defined and reasonably ascertainable and whose existence is not of a temporary or ephemeral character. As to these, the owner of land has no title. His right to use or divert is measured by its reasonableness and limited to the premises along, through or over which the waters flow. The reason for this rule is found in the fact that all such riparian owners have rights therein, and one may not unreasonably interfere with another.
As all springs and streams, classed as running waters, draw their supplies from percolating waters, it follows of necessity that they are subject to diminution or exhaustion by use or diversion by the owner of the land from which they come. Pixley v. Clark, 35 N. Y. 520, 527; Bloodgood v. Ayers, 10S id. 400. Since the decision of Acton v. Blundell, 12 M. & W. 324, cited and followed by courts in our own country, it has been regarded also as settled law that the same rule applies to percolating waters in the lands of adjoining proprietors, and that one owner may dig and take all the percolating water he finds and use it to his own free will and pleasure; and if, by the exercise of such right, he intercepts or draws off the percolating waters of his neighbors’ land, such injury is damnum absque injuria.
These decisions were made to rest upon the difficulties of determining with reasonable certainty the movements of percolating waters, and because adjudications in respect thereto would be against public policy as interfering with drainage, mining and other public improvements. But the researches of science have made plain and certain many things that were then beyond our knowledge, and it is difficult to perceive any relation which this subject has to public policy. The rights of an owner in property below the surface should be regarded as inviolable as those in property upon the surface.
In passing on this and on other - questions of fact which may arise, I shall not attempt any review of the evidence in support thereof but simply indicate matters which have impressed and led me to my conclusions.' Among the witnesses are a number, possessing world-wide fame as specialists in the departments of chemistry and geology, who have made the springs of Saratoga objects of special study and whose opinions are entitled to the gravest consideration, as the topics upon which they speak are beyond the ordinary scope of judicial learning and observation.
From this and the other testimony in the case, I am of the view that the evidence shows with reasonable certainty that all the mineral springs and wells of Saratoga have a common source, consisting of a stratum of mineral rock of comparatively limited area and located far down in the earth. We may, however, leave to the domain of speculation the question whether such stratum is the remains of an extinct volcano, as claimed by some, or a remnant of the ancient Silurian ocean, as contended by others. Nevertheless, the fact of its existence is sufficiently demonstrated by its productions. The same may be said of the fact that surface waters percolate to this stratum; that, chemical action takes place, forming gas, and that the latter impregnates the water and forces it to the surface by the easiest and most direct route. Men who have spoken concerning these things have not testified solely from what they have observed or discovered at Saratoga, but their knowledge is drawn from many experiences and observations.
Perhaps the most striking and interesting feature of the situation at Saratoga is the presence of a pre-glacial geologi
The fact stands out in the proofs that the springs which come by way of the fault, as well as those which have been formed by borings, are liable to changes, due to different causes but, primarily, to the tendency of the outlets to become contracted or closed by obstacles and the formation of deposits thrown off by the waters. The history of the High Rock Spring, as read from its successive strata of muck and calcareous limestone, affords a striking illustration. But this does not explain the general decrease in the force of gas and flow of water in all the springs during recent years; and, in order to determine that question,' it .will be necessary to briefly review the situation from the beginning.
The history of the springs divides itself into three periods. During the first, only few springs were known, and these found their way to the surface by means of the geological fault. In some instances, the natural vents were supplemented by adjacent borings; but no pumps were employed, except to dislodge temporary obstructions or to remove surface water which occasionally found its way into the vents and by its weight held back the water charged with gas. It was during this period that the springs acquired their fame because of their medicinal virtues, and, in consequence, a considerable village with large and expensive hotels was built in their neighborhood, and multitudes resorted thither to partake of the healing waters. All these springs flowed by reason' of their own gas pressure. Their flow was generous
The second period is marked by extensive borings of wells. The popularity of the waters created a great demand, not only at the springs but throughout the country, and large quantities were bottled and sold for use elsewhere. This occasioned a quest for additional means of supply, and deep borings were resorted to. It was found that the mineral stratum lay along the east side of the fault and that borings along that line pierced the stratum and relieved the gas and water. In this manner wells, producing great volumes of water and strong forces of gas, were produced. In some instances the water spouted to a height of thirty feet above the surface; and, in others, only gas was discharged. It seemed as if the supply was inexhaustible; and, in one case, a spouting spring was left to flow for spectacular effect alone. I think the evidence indicates that, during this period, there was a diminution observed in the force of gas and flow of water throughout the entire system. I cannot affirm, but it is probable, that, had such borings been continued and sufficiently increased in number, they might have exhausted the supply; but events were not permitted to take that course. The business of extracting gas from the water and compressing it into steel cylinders for market had then assumed large proportions and became profitable. The demand for larger supplies of water for this purpose called for another and more effectual force to bring the water to the surface than that of the gas itself. This demand brings us to the third and present period, which begins with the installation of powerful deep well pumps in many of the wells and their ceaseless operation by steam power. That serious consequences would result should have been anticipated. I think the evidence leads to the conclusion that, since the general inauguration of pumps, there has been a marked and steady depreciation of gas pressure in all the springs and wells and', a lessening of the flow of water, and that, in many instances^
I think from this outline of the history of the springs, in connection with the teachings of the men of science who have been called, we may safely conclude that all the Sara-toga mineral waters come from a common source and are held in the earth in a state of percolation and that pumping upon one may seriously affect the force of gas and flow of water in another. Evidence, in respect to instances where such results have been observed, has been given; and what is true of these is, no doubt, true of all. The evidence, touching the direct effect, by pumping at the defendants’ well, upon the plaintiffs’ spring, is not as conclusive as it might be; but I think it will support a finding that an effect is produced and that gas and water, which otherwise would go to the plaintiffs’ spring, are diverted by the force of the pump to the well of the defendants. I cannot escape the conclusion that pumping at any one of the wells, which reaches the line of the mineral stratum producing the- gas, operates by lessening the force of gas and flow of water in all other wells and springs which draw their supply from that stratum.
There seems to be room to distinguish the situation at Saratoga (with its combination of mineral stratum, percolating water, geological fault, and'consequent gas, forcing water to the -surface) from the ordinary instances where rights in and to percolating waters have been involved; but I shall not attempt it. I prefer to rest the decision upon the ground that the employment of pumps, by which percolating waters of one landowner are drawn to the land of another, is
The plaintiffs in their complaint demand heavy damages, and there can be no question that their once valuable property and business have been largely deprived of value; but the defendants have, I think, been only a small and, T am sure, unintentional factor in bringing about such results. Defendants made their boring -without thought of securing mineral water or interfering with that of the plaintiffs. Tet, if their pumping constitutes an interference with the waters of the plaintiffs, it is not within their rights. The fact that they have put the water to a more meritorious use than the plaintiffs does not avail, for the doctrine of reasonable use has no application to percolating waters. The fact that they limit their use to the premises -where their well is located, while the plaintiffs in great part sell for use elsewhere, is also immaterial, for the reason that the owner of land and its percolating waters is not limited in his ownership. He may do what he will with his own.
The fact that others have by their pumping caused greater injury to plaintiffs’ spring makes the question of assessing damages practically impossible. The situation is one that does not call for charging one tort feasor for the acts of all. Many other wells were pumped long before the defendants’ was drilled. Defendants pumped only a short time before they were stayed by injunction. Furthermore, I do not regard the question of damages as important, and any attempt to partition them among all who- are employed in pumping would be unsatisfactory and a mere guess. I think plain
In view of the novel character of the questions involved, and that the main object sought by the plaintiffs is to rescue their spring from annihilation, the allowance of taxable costs is of small moment. I do not .feel that it is a case where an extra allowance should he granted, as the defendants have acted in good faith and have been put to great expense on the trial. Therefore, neither party is allowed costs as against the other.
Let findings of fact and conclusions of law he prepared, in accordance with the above, and submitted for signature.