72 N.Y. 39 | NY | 1878
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *41 The act of the defendant in digging a ditch through the mound which had been formed around the spring on his land, and which had raised the surface of the water therein, was prima facie lawful, and a proper exercise of his right, as the owner of the land, to the enjoyment of the subterranean waters which flowed under the same. The effect of the embankment was to raise the water in the well, *43 which had been constructed upon the land of the plaintiff, higher than it naturally would have been, and the plaintiff had no right, by prescription or otherwise, to have it maintained by the defendant at that elevation.
The use of the water, as thus increased, was only enjoyed by the plaintiff by the mere permission or license of the defendant, which the latter could revoke at his pleasure. (Babcock v.Utter, 32 How., 439; Mumford v. Whitney, 15 Wend., 380;Clinton v. Myers,
The object of the defendant in digging the ditch, according to the finding of the judge, was not to lower the water for his own benefit and advantage, but with the intent to produce a diversion of the water from the plaintiff's well; and, in so far as such intent and purpose, under the circumstances, can constitute malice, his motive was malicious. The question arises, then, whether the defendant is liable for the consequences of an act done upon his own land, lawful in itself, because he was influenced by a motive which is alleged to be wrong, and the object was to prevent the use of water by an adjoining owner, which he would not have enjoyed but for the mound upon the land of the defendant. The right of an owner of land to a free and uninterrupted use of the same is absolute and complete, so long as he does not infringe upon the rights of his neighbors. And as a result of this well-settled principle, such owner is also entitled to the enjoyment and use of all springs hidden beneath the surface of the soil, and flowing therein by means of subterranean *44 and unknown channels, for all legitimate and proper purposes. In the case at bar, the plaintiff was enjoying the use of water which had been provided by the embankment on defendant's land, and the act of the defendant merely restored the water thus temporarily retained, to its previous natural course. It is not by any means clear that the assertion of a lawful right on one's own land, even although it is not designed to benefit the party who seeks to maintain it, and may injure an adjoining owner, constitutes legal malice for which a remedy by action exists. Strictly speaking, such an act is but a vindication of what the law sanctions, and, of itself, furnishes no just ground for complaint. It may have been lawfully done, by the defendant, to prevent a diversion of water, the use of which he claimed, and which if allowed to continue, by lapse of time, might ripen into a claim of right by prescription; and hence, although the ostensible object was to diminish water which has been unlawfully appropriated by another, the intent cannot well be considered as malicious, or the purpose a wrongful one.
That it proves injurious to another, is more the fault of the party who reaps a benefit from that which does not belong to him, than of the one who was originally entitled to it, and is only claiming his just rights. While the law does not allow an owner to erect on his own land, near the house of another, structures for carrying on an unwholesome and obnoxious trade, which may poison the air, and constitute a nuisance that interferes with a proper enjoyment of the property of an adjoining owner, and does not permit a person, in any form, to disturb a legitimate use of another's property, it also does not interpose its shield for the protection of such owner in what does not actually belong to him. If the exercise of a lawful right can be regarded as malicious and willful, then the obstruction of lights of a neighbor which are not ancient, and not entitled to protection for that reason, might be considered as a ground for the interposition of the courts, and the revocation of a temporary license to pass over the lands of another as unauthorized. The motive, *45 be it what it may in such a case, can have no effect, and does not prevent the assertion of the right of the real owner. (Mahan v. Brown, 13 Wend. 261).
There are cases in this State besides the one last cited, which sustains the principle that a party is not debarred from the vindication of a legal right because he is actuated by an improper motive. In Pickard v. Collins (23 Barb., 444), it was held that the injury arising by the use of one's own land to another's property must be a legal injury; an invasion of some legal right, as erecting a building, or carrying on a business which so obstructs the enjoyment of another of his property, as to amount to a nuisance, or removing the soil or placing something on the soil of another, and that the liability of the defendant does not depend upon the motives with which the erection was made. It was said that the fallacy of a contrary doctrine which was contended for, "consists in its overlooking a fatal defect in a right of action in such a case, the absence of any legal injury. Bad motives in doing an act which violates no legal right of another cannot make that act a ground of action." The case of Mahan v. Brown (supra), is reviewed at length and approved in the case last cited. In Clinton v. Myers
(
In Panton v. Holland (17 J.R., 92), some remarks are made as to acts, lawful in themselves, which became actionable if done with malice. That case was an action against an owner of adjoining lands, who, while digging for a lawful purpose on his own land, caused an injury to his neighbor's house, and is not in point. The doctrine laid down in the opinion in The Trustees ofDelhi v. Youmans (50 Barb., 320), is obiter, and is not upheld by the authorities relied upon. The principle discussed is also supported by other cases. In Chatfield v. Wilson
(
There are cases in other States where language is employed which, it is claimed, upholds the doctrine that an act lawful in itself may be made unlawful, because the party who does it is actuated by malice. (Wheatly v. Baugh, 25 Penn., 528; Roath
v. Driscoll,
In Chasemore v. Richards (7 House of Lords Cases 387), it is laid down that the owner of land has a right to the enjoyment of the land and to the underground waters upon it, and he may, in order to obtain that water, sink a well, but that he ought to exercise such right in a reasonable manner and with as little injury to his neighbors' rights as may be, and it is said that "the civil law deems an act otherwise lawful in itself illegal, if done with a malicious intent of injuring a neighbor, animovicino nocendi." So, also, it is said in some of the reported cases, that the owner of land may be liable when he uses his land as an instrument of injury or malice, or is actuated by a malicious intent.
The rules last stated may, perhaps, be applied in cases where it is entirely obvious that the act was done solely for the purpose of inflicting a wrong, and with no intention of vindicating a right or preventing a wrong being done to the interests of another. But not a single case is cited which sustains the doctrine that the owner of land cannot assert a legal right, while, as we have seen, there is considerable *49 authority in a contrary direction, as well as the dicta of some of the most learned and able judges.
It is said by Mr. Angell, "the question has been raised and discussed, in several of the cases cited, whether a land-owner, who by acts done upon his own ground, has intercepted underground waters, and prevented them from percolating into another land-owner's well, or has actually abstracted water from such well, will be liable therefor in consequence of being actuated in his operations by malicious motives. It will be observed, however, that in no one of these cases has a land-owner been held liable for such acts in any court of last resort merely on this ground." (Angell on Water-courses [6th ed.], § 114, p. 188.) Washburn, in his work on Easements (3d ed., p. 475), also says: "The presence or absence of malice, as a criterion of liability for digging in one's own field, is clearly stated in the civil law, and has been assumed as essential in determining similar questions at common law. But if one has a legal right to do certain acts in regard to his own property, it is difficult to imagine how he should forfeit those rights by doing them from unfriendly motives towards the party who is affected by them." The learned author cites from 8 Gray, 410, where the court says, that, "if the defendant had authority and acted within the scope of it, he is not a trespasser because his motives or purposes, with regard to the plaintiff, were unkind or malicious."
The result of the examination of the subject, is that neither upon principle nor authority was the defendant liable for doing a lawful act upon his own premises. In this aspect of the case, it is not necessary to determine whether, under a different state of facts, the motive or intent or the malice of the owner of the land should be taken into consideration.
For the reasons given, the judgment should be affirmed.
All concur, except EARL, J., dissenting; CHURCH, Ch. J., and ALLEN, J., absent.
Judgment affirmed. *50