Forbell v. City of New York

• Decision Date: 20 November 1900
• Citation: 58 N.E. 644,164 N.Y. 522
• Parties: FORBELL v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 522

58 N.E. 644

FORBELL

v.CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 20, 1900.

Appeal from supreme court, appellate division, Second department.

Action by Benjamin F. Forbell against the city of New York. From a judgment of the appellate division (61 N. Y. Supp. 1005), affirming judgment for plaintiff on decision of the court on a trial at special term (56 N. Y. Supp. 790) without a jury, defendant appeals. Affirmed.

The judgment grants a perpetual injunction restraining the city of New York from operating its engines, driven wells, and pumping stations known as the ‘Spring Creek Pumping Station,’ in the borough of Queens, city of New York, on the conduit line near the Kings county boundary line, and awards past damages to the plaintiff in the sum of $6,000, together with the costs of the action. The plaintiff was a lessee of certain farming lands situated near Spring creek, within the county of Kings. He used a portion of the lands in question for the purpose of growing celery and water cresses. The city of Brooklyn constructed a pumping station in the place in question early in 1885, and in 1894 sunk additional wells and made an additional pumping station. The effect of pumping at these stations was to lower the underground water table on this land, and thus made it unfit for the cultivation of celery or water cresses, and the crops failed for many years prior to the commencement of this action, in 1898.

SUBSURFACE WATER-RIGHT OF LANDOWNER-TRESPASS.

One who sinks wells and installs a pumping plant on his land, consisting of two acres, for drawing water therefrom, and sending it away for merchandise, knowing beforehand that the underground operation and habits of the water in its own and neighboring lands, embracing from five to eleven square miles, will be to enable it to capture the greater part of it, and who, by the operation thereof, lowers the underground water, so that owners of adjoining lands cannot grow thereon crops for which it is particularly adapted, or destroys them after they are partly grown, will be enjoined, as for a trespass.

John Whalen, Corp. Counsel (William J. Carr, of counsel), for appellant.

Charles Coleman Miller, for respondent.

LANDON, J. (after stating the facts).

The defendant makes merchandise of the large quantities of water which it draws from the wells that it has sunk upon its two acres of land. The plaintiff does not complain that any surface stream or pond or body of water upon his own land is thereby affected, but does complain, and the courts below have found, that the defendant exhausts his land of its accustomed and natural supply of underground or subsurface water, and thus prevents him from growing upon it the crops to which the land was and is peculiarly adapted, or destroys such crops after they are grown or partly grown. The defendant does not take from its own land simply its natural or accustomed supply or holding, but by means of its appliances and operations it takes and appropriates a large part of the natural and accustomed supply or holding of the plaintiff's land. The case is not one where, because the percolation and course of the subsurface waters are unobservable from the surface, they are unknown, and thus so far speculative and conjectural as to be incapable of proof or judicial ascertainment. Before the defendant constructed its wells and pumping stations it ascertained, at least to a business certainty, that such was the percolation and underground flow or situation of the water in its own and the plaintiff's land that it could by these wells and appliances cause or compel the water in the plaintiff's land to flow into its own wells, and thus could deprive the plaintiff of his natural supply of underground water. This it has accomplished just as it expected to do it; the evidence to that effect is about as satisfactory and convincing as if the case were one of surface waters. That the defendant has so used its own as to injure the plaintiff there is no question. The question is whether the plaintiff has or ought to have, in the just administration of the law, a remedy. In Smith v. City of Brooklyn, 160 N. Y. 357, 54 N. E. 787,45 L. R. A. 664, a case in which the defendant, by the use of the same act and appliances as it employed in this case, lowered the water in the plaintiff's surface stream and pond, this court, in holding the defendant liable for the damage thus caused, carefully refrained from considering the question whether the defendant would have been liable if it had simply lowered the subsurface level or body of underground water not contributing to the supply of plaintiff's surface stream or pond. It may be conceded that the letter of the law, as expounded in many cases in this state, denies liability. Ellis v. Duncan, 21 Barb. 230;Goodale v. Tuttle, 29 N. Y. 459;Pixley v. Clark, 35 N. Y. 520;Village of Delhi v. Youmans, 45 N. Y. 362;Phelps v. Nowlen, 72 N. Y. 40;Bloodgood v. Ayers, 108 N. Y. 400, 15 N. E. 433;Van Wycklen v. City of Brooklyn, 118 N. Y. 424, 24 N. E. 179. The earlier cases followed the law as...