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Show 560 NEW YORK ever else the land as land may serve. He may consume it, but must not dis- charge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, how- ever reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and the others whose lands are thus clandestinely sapped, and their value impaired.*" . . . We recognize the fact that the water supply of a great city is of vastly more importance than the clergy and water cresses of which the plaintiff's land was so productive, before the defendant encroached upon his water sup- ply. But the defendant can employ the right of eminent domain, and thus pro- vide its people with water without injustice to the plaintiff.218 Thus, in order to satisfy its view of justice, the court held the city liable, but in so doing admonished that the rule of absolute ownership was still to be adhered to when the percolating water did not supply surface watercourses. Speaking of the absolute ownership rule, the court said: So far as the extraction or diversion of underground water upon the land of one proprietor affects no surface stream or pond upon the neighboring land, but simply the underground water therein, the rule is still adhered to.214 (Em- phasis added.) Despite that assurance, and even though no surface stream or pond was involved, the court held the pumping to be illegal-apparently viewing the level of the ground water table as tantamount to surface water when it supplied natural subirrigation to surface crops. It should be noted that the court was influenced in large part by the fact that the city had designed and planned the pumping program for the very purpose of depleting the aquifer for municipal water supply,215 thinking that it would be immune from liability if the aquifer was not tributary to a surface watercourse. The court ad- mitted : We more readily conclude to affirm, because the immunity from liability which the defendant claims violates our sense of justice. It seems to pervert just rules to unjust purposes; it does wrong under the letter of the law in defiance of its spirit.*16 In 1909, two cases of note were decided, both relating to the mineral waters of Saratoga Springs. In the first case,217 the plaintiff operated a resort at Saratoga Springs and relied primarily on the flow of mineral waters from the springs to attract guests, and the defendant drilled wells on nearby land and withdrew percolating mineral waters for the purpose of extracting and selling carbonic gas. The effect was detrimental to the springs, and the plaintiff brought action under a State statute which prohibited anyone from accelerating or diminishing the flow of certain mineral springs and also under com- mon law ground water rules. The court sustained the constitutionality and applicability of the statute, but separately concluded that the plaintiff was entitled to 212 Id. at 526. 2*sid. at 527. 2i*Id. at 525. 216 Id. at 524. 218 Id. at 527. ™Hawthorn v. Natural Carbonic Gas Co., 194 N.Y. 326, 85 N.E. 504 (1909). |