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Show NEW YORK 561 protection under the common law rules laid down in the New York Gity case, discussed above. Eef erring to that case, the court said: That case for the first time in this State laid down the rule of reasonable use of percolating waters which I think is applicable to and controlling of the facts in this case.*" [Emphasis added.] The dissenting opinion thought the New York Gity case had done no such thing, arguing: At common law the owner of land is entitled to all of the solids that lie beneath the surface and all of the liquids, other than surface streams, including gas, that percolate or flow through the soil or rocks that he is able to reduce to possession, and to use the same for his own purposes, at his free will and pleasure; and if, in boring a well thereon, he intercepts an underground spring that destroys his neighbor's well no cause of action arises on the part of his neighbor.*1* With respect to the New York City case, the dissenting opinion said that: the facts of that case were so exceptional that they presented a situation not contemplated by the common law or the prior cases recognizing the rights of the landowner to make such use of the water under the soil of the land as he saw fit and that, consequently, the owner was entitled to damages; but in so holding the court was careful to limit the exception to the peculiar facts of that case and to reaffirm the common law rule as to other cases... .2ao The second mineral springs case was decided a few months later. The trial court had construed the mineral springs statute as a com- plete and absolute prohibition against any interference with mineral spring flows, which it thought to be a proper application of the statute since it had so recently been upheld in the first mineral springs case. On appeal,221 the court reversed, saying that the earlier decision had recognized reasonable use rights in percolating ground water, and that the statute could not deny such rights of use to over- lying landowners, whether the percolating waters were mineral or otherwise. While the New York Court of Appeals thus viewed the New York City case as the root of reasonable use of ground water in that State, it was only 2 years later that the U.S. Supreme Court issued an opinion sustaining the construction which the New York Court of Appeals had placed on the mineral springs statute, and in so doing states its version of New York ground water law stemming from the New York City case: The Court of Appeals of the State had the statute before it in [the two mineral springs cases], and the elaborate opinions then rendered disclose that the court, having regard to the title of the act and to the doctrine of corrective rights in percolating waters which prevails in that State, as recog- nized in [the New York Gity case], construed this provision [to prohibit with- drawals] only when the draft made on that source of supply is unreasonable or wasteful, considering that there is a coequal right in all the surface owners to draw upon it.222 [Emphasis added.] To summarize, at this juncture (1911) it seems that the majority of the New York Court of Appeals viewed the New York Gity case as standing for reasonable use principles; the dissenting minority of as id. at 336. *»Id. at 351. 220 Id. at 352-53. **¦ People v. N. Y. Carbonic Gas Acid Co., 196 N.Y. 421, 90 N.B. 441 (1909). *&IAnd8ley v. Natural Carbonic Gaa Co., 220 U.S. 61, 73 (1911). |
