53 N.Y.S. 10 | N.Y. App. Div. | 1898
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
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
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
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.