Bloodgood v. Ayers

• Decision Date: 28 February 1888
• Citation: 108 N.Y. 400,15 N.E. 433
• Parties: BLOODGOOD v. AYERS.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 400

15 N.E. 433

BLOODGOOD

v.AYERS.¹

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, supreme court, Third department.

Action by Jason Bloodgood against Ann Ayers to restrain defendant from diverting a water-course. Judgment for defendant, and plaintiff appeals.

WATERS AND WATER-COURSES-SUBSURFACE CURRENTS-DIVERSION.

The waters from a spring, situated on defendant's land, about 120 feet from plaintiff's line, had been for many years conducted to a trough. It was shown by experiment that the waste water from the trough disappeared into the ground, but about 100 feet from the trough, and near plaintiff's line, appeared on the surface, sometimes seen to be in motion towards a sluice, under the fence dividing defendant's land from plaintiff's, where it again disappeared, and came again to the surface, about 20 feet on plaintiff's side of the line, forming a spring or reservoir. The defendant diverted the water from his spring for domestic purposes, and thus, as it was claimed, intercepted the supply of plaintiff's spring or reservoir. Held, that these were but subsurface currents of percolations, with no well-known channel, and that defendant was not liable for the diversion of the water of his spring.

Jas. B. Olney, for appellant.

Sidney Crowell, for respondent.

FINCH, J.

The general term reversed the decision of the trial court, mainly upon a single proposition, which was founded upon undisputed evidence. A spring, or at least a reservoir, of water existed upon plaintiff's land, disclosing itself at the surface about 20 feet from the dividing line between the parties. The water from that reservoir followed depressions in the land across plaintiff's meadow to the road. It ran in no defined channel having natural banks, but flowed over the sod almost wholly, without breaking it; following the lowest levels, and sometimes spreading out over an acre or more. Its route could be traced by the deeper green of the grass which it watered, but it proved no obstruction when that came to be cut; for the evidence is that the plaintiff mowed across it habitually as if it were not there. He himself said, in answer to the inquiry whether he could see the current, that in a wet time ‘you can see it a good ways,’ but in a dry time ‘you can see it, may be, two rods; but any one who did not know there was a spring there would not notice.’ When asked, on cross-examination, whether there were any banks to what he called the ‘stream,’ he could not say that there were; and at the inquiry if there was a channel was evidently puzzled; and sying there was no ditch cut, and then that he cut out a furrow, answered the question, four times repeated, by saying that he did not know how to answer it; and, the inquiry being pressed once more, replied: ‘Of course there is a channel where the water flows.’ When asked the width of the channel, he replied: ‘There are so many different channels, I don't know how to get at it. The water covers a couple of acres of my meadow.’ The next witness for plaintiff had seen the water run across the meadow during a freshet, but could not say as to any other time; while a third witness, pressed to describe an obvious channel, said only, ‘The course the water did take through you could see by the grass.’ The plaintiff's sons described this flow somewhat stronger, so far as the use of the words ‘bed’ and ‘stream’ were concerned, but without at all changing the facts. On the part of the defense, it was shown that, when water was visible on the meadow, it was in times of freshet, when the water-shed of 20 or 30 acres above poured rain or melting snows down the depression described. Very probably, some portion of the water crossing the meadow came by percolation through the earth from defendant's spring above; but, granting that, it seems to us difficult to say from the evidence that there was a water-course across the plaintiff's land, within the definition of that term which we have heretofore adopted. Barkley v. Wilcox, 86 N. Y. 147.

But the general term put their conclusion upon another ground, growing out of some further facts. Upon defendant's premises, and something over a hundred feet from plaintiff's line, there was a living spring, which came up out of the earth, and was carried by a short leader to a trough, which had long served as a watering-place for the stock of defendant and previous owners. At that trough, or within a few feet of it, all the waste or surplus water sank into the ground and disappeared. What became of it was in no manner obvious to the senses until by digging and experiment a probability was established. About a hundred feet from the spring, and within perhaps twenty feet of plaintiff's line, water appeared upon the surface, sometimes seen to be in motion towards a sluice under the fence arranged for the passage of surface water mainly, or in part at least. At that sluice the water, except in times of freshet, again disappeared, but came to the surface about 20 feet on plaintiff's side of the line, and at the point where his spring or reservoir...