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Show NEW YORK 559 land. The neighbor had used the pond to supply ice for sale and for boat building purposes. In this case the court did not think it im- portant or even relevant to apply the distinction which it had ap- plied in the first Brooklyn case, that is, whether the wells drew water directly from the pond or whether they merely intercepted percolat- ing waters which supplied the pond: That the diversion and diminution of the stream were caused by arresting and collecting the underground waters which, percolating through the earth, fed the stream, does not affect the question. When the fact was established upon the proofs that the defendant's works and wells had caused, by this subsidence of water, a diversion of the stream's natural flow in its channel, the injury was proved and the plaintiff's cause of action established. What- ever may be the rule with respect to the right of a landowner to use, for any of his purposes, the waters percolating through the earth and, thereby, to affect the sources of wells or springs upon his neighbor's land, the question is not one which is suggested by the present case. It is one thing to divert and to diminish the natural flow of a surface stream, by preventing its usual and natural supply, or by causing, through suction or other methods, a subsidence of its waters which percolate through the earth in underground ways and channels without haying connection with the supply of a surface stream. . . . The right of this plaintiff to the enjoyment of his running stream and to his pond was absolute.810 So, it was enough that the city's pumping interfered with the stream and pond, and the "right of this plaintiff to the enjoyment of his running stream and to his pond was absolute." If that state- ment is literally true, then, of course, a landowner could not even withdraw percolating water for essential household use for his own family, if the result would be to interfere in the slightest degree with the neighbor's pond. The court said nothing about limiting the city to a reasonable use of the water. The following year (1900), New York City was defendant in a case which also involved underground wells for municipal water supply,211 and which is perhaps the most important case in New York ground water law. The city drilled and pumped a number of wells, drawing down the water table in the aquifer so that it no longer afforded natural subirrigation of celery and water cress on the lands of the neighboring plaintiff. The lower court had awarded the plaintiff damages based on the city's underground "trespass" and the judg- ment was sustained on appeal, but the court had difficulty justifying the result in light of the earlier decisions. For the first time, the court alluded to reasonable use, saying that the city's massive pumping program was unreasonable, but the court also emphasized that the facts before it were most unusual, and that it was not departing from the absolute ownership rule when percolat- ing ground water was not tributary to a surface watercourse. With respect to the reasonableness of the city's pumping program, the court distinguished that type of operation from a reasonable use of per- colating waters by an overlying landowner: He [a landowner] may make the most of it [percolating ground water] that he reasonably can. It is not unreasonable, so far as it is now apparent to us, that he should dig wells and take therefrom all the water that he needs in order to obtain the fullest enjoyment and usefulness of his land as land, either for pur- poses of pleasure, abode, productiveness of soil, trade, manufacture, or for what- wForbell v. 'Oity of New York, 47 App. Div. 371, 164 N.Y. 522, 58 N.B. 644 (1900). |