OCR Text |
Show 558 NEW YORK of the soil in the early cases, and the English rule of absolute owner- ship was embraced for a short period, but the courts have since largely withdrawn from that position-apparently in favor of reasonable use restrictions. A chronological review of the major cases will best illustrate the evolution, applicability, and uncertainty of the present rules. An 1866 decision quite clearly stated the English rule of absolute ownership: An owner of the soil may divert percolating water, consume or cut It off, with impunity. It is the same as land, and cannot be distinguished in law from land. So, the owner of the land is the absolute owner of the soil and of percolating water, which is a part of, and not different from, the soil. No action lies against the owner, for interfering with or destroying percolating or circulating water, under the earth's surface.206 Just 5 years later, in 1871, the court considered whether it was permissible for a landowner to withdraw percolating water to the damage of springs on adjoining land, and concluded that, even though it would be illegal to draw water directly from a neighbor's spring, there was no prohibition against drying up the spring by intercepting percolating waters which constituted the source of supply.206 In 1890, 19 years later, the court made a major modification in the rule, explaining that while it was legal for a landowner to inter- cept percolating waters which were tributary to surface watercourses, it was not permissible to withdraw water from an aquifer if the aquifer in turn drew water from a surface watercourse-with the resultant effect that the supply of the surface watercourse was diminished.207 In that case the city of Brooklyn had acquired a strip of land along the bank of a creek and had drilled 100 wells to obtain a water supply for the city. The wells were from 200 to 700 feet from the stream, but they had the effect of reducing the flow of the stream so that it could no longer power the machinery for the plaintiff's grist mill. The issue was whether the wells intercepted percolating water before it reached the creek, in which the parties stipulated that there would be no liability, or whether they actually drew water from the creek: It was the claim of the plaintiff that these wells drained the water from the creek and arrested the same in running to the mill, thus diverting the living stream and impairing and injuring his water power; and there appears to have been a concession at the trial, and the same is made in this court, that if, in sinking the wells on its own land, the city did no more than inter- cept the percolation of underground currents, and thereby prevented such water from running through the soil and reaching the stream, the action would not lie. And such is the law applicable to the case.*08 The court concluded that the wells did draw from the surface stream, and Brooklyn lost the case. Nine years later, Brooklyn was back before the court in a similar case,209 but this time the city drilled wells and installed pipes and conduits which intercepted percolating water and dried up a small surface stream and pond on neighboring MPixley v. Clark, 35 N.Y. 520, 526 (1866). %* Village of Delhi v. Youmans, 45 N.Y. 362 (1871). ^ Van Wycklen v. C«i/ of Brooklyn, 118 N.Y. 424 (1890). 2°8Id. at 427-28. 200 Smith v. City of Brooklyn, 18 App. Div. 340, 160 N.Y. 357 (1899). |