85 N.Y.S. 989 | N.Y. App. Div. | 1903
This is an appeal from an order requiring the plaintiff to permit the defendant to enter upon his real property for the purpose of making a survey of the surface, boring beneath the surface to ascertain underground water levels, and permitting it to take and carry away samples of the soil. The action is brought to recover damage's alleged to have been suffered by the plaintiff by reason of the defendant’s alleged trespass upon the plaintiff’s realty, committed by means of the establishment of pumping stations and wells near his premises, whose operations have resulted in draining the plaintiff’s property of underground water, thereby reducing the underground water level, and consequently rendering it less productive and less fit for cultivation. The affidavit read in support of ithe motion and upon which the order was granted, was sworn to by an assistant corporation counsel of the defendant, the city of New York, who says that he has charge of the action and that from his preparation of the case, and by inquiry of and consultation with defendant’s officers he is informed and believes that the defendant and its officers have no knowledge by actual experience or test of the height of the water level prior to or since the construction of defendant’s pumps and wells, and plaintiff urges upon this appeal that the affidavit is insufficient. The order appears to have been granted under the provisions of section 1682 of the Code of Civil Procedure, and the remedy under that section appears to be in the nature of discovery or inspection. We think it will be admitted that the rules governing the allowance of other remedies of similar nature, in so far as the character of the affidavit upon which such orders are
We believe that there is an additional reason why this order should • have been denied. It is equally clear that where it is within the easy reach of á party who seeks discovery or inspection to procure knowledge of the facts with which he wishes to acquaint himself, especially when that access is offered by the adverse party whose rights of personal security are to be abridged if the order is made, he should exhaust all reasonable efforts to obtain such knowledge before resorting to the remedy under the Code. It appears, in this case that the attorney for the plaintiff, long prior to the application, offered to allow the defendant to bore holes upon plaintiff’s land, so-long as they did not interfere with his crops or business, and so long as they should be properly protected by the defendant, and to permit it to take measurements of the water in such holes once. a day during a prescribed test, and to allow -defendant to take samples of the soil from plaintiff’s land, imposing, however, the condition for this permission that the plaintiff be furnished with a topographical map, which it seems the defendant was about to make in any event; a verified record of the quantity of water pumped for a number of years past on each day, and the number of days the pumping station was working; to permit the plaintiff to go upon the lands of
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
■Bartlett, Woodward, Hirschberg and Jerks, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.