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Show NEW YORK 555 flow patterns and that negligence in the construction or operation of a dam or other impoundment will give rise to damages if lower riparians are harmed as a direct result of such negligence.189 3.6 Springs The rules governing spring water are largely intertwined with those governing ground water, and this section must be read in light of the discussion in section 4, infra. As a basic proposition, it can be said that springs which are supplied by percolating water and which are located on private land are subject to the control and use of the landowner, so long as such springs do not form a natural channel and flow onto lands of another or into a watercourse. Such use would not be limited to reasonable use restrictions, but would approximate the greater latitude accorded to use of diffused surface water. However, if springs are tributary to watercourses, whether by a surface channel, underground stream, or through percolation, it appears that they are part of the waters of the watercourse and, as such, are subject to reasonable use restrictions. A different question, of course, is the extent to which a user of spring water is protected in his source of supply. Whether the source of supply is an underground stream or percolating water, it is likely that reasonable use rules will apply to both the user of the spring waters and those who use the waters tributary to the spring. Early cases cannot be relied upon to sustain the above proposi- tions. Typical of such early decisions is one decided in 1871, where a landowner had dug a well on his land and diverted percolating water, thereby diminishing the flow of two large springs on neigh- boring lands which were used for municipal water supply.190 In denying the complaint of the village, the court said there would have been liability if the defendant had taken water from the springs after it had reached the springs, but where the defendant merely prevents: the water from reaching the spring ... by intercepting its percolation or un- derground currents, by digging a well upon [his] own land, for the use of his family and stock, this action will not lie.191 That position prevailed in New York for nearly 30 years, but was finally rejected in favor of reasonable use rules, as demon- strated by the cases discussed in section 4. It should be noted, how- ever, that the actual use above mentioned was for the landowner's family and livestock, and it is likely that in almost every instance such a use would also be sustained under the reasonable use test. Likely, but not certain. Questions also arise as to whether a spring actually forms a chan- nel (and thus becomes a watercourse) and flows upon lands of an- other. Where it appeared that spring waters did form such a chan- nel, and where a downstream plaintiff used such water for the i&Pixley v. Clark, 35 N.T. 520, 524 (1866). ^Village of Delhi v. Youmans, 45 N.T. 362 (1871). i»i Id. at 363. |
