Furner v. Seabury

• Decision Date: 04 October 1892
• Citation: 135 N.Y. 50,31 N.E. 1004
• Parties: FURNER v. SEABURY.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 50

31 N.E. 1004

FURNER

v.SEABURY.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from supreme court, general term, fourth department.

Action by Jabez Furner against Otis Seabury for damages and for an injunction to restrain defendant from interfering with plaintiff's right to take water from certain springs. From a judgment of the general term, (13 N. Y. Supp. 12,) reversing a judgment entered for defendant at special term, defendant appeals. Reversed.

WATER RIGHTS-GRANT OF EASEMENT-RIGHTS OF GRANTEE.

The grant of a right to lay pipe to a certain designated spring on the grantor's premises, and to convey all the water ‘of said spring’ which can be taken through the pipe, and declaring the grantee entitled to ‘all the water’ which can be taken through the pipe, does not carry with it the right to excavate, and so get water from neighboring springs to the full capacity of the pipe, but only the right to take such water as may flow from the spring designated. Manufacturing Co. v. Veghte, 69 N. Y. 16, distinguished. 13 N. Y. Supp. 12, reversed.

Mason & Cushman, (D. W. Cameron, of counsel,) for appellant.

L. P. Fuess, (John E. Smith, for counsel,) for respondent.

The other facts fully appear in the following statement by EARL, C. J.:

In August, 1852, the defendant and William Colson owned adjoining farms in Madison county. Upon the defendant's farm there was a spring of water in which Colson, for the benefit of his farm, desired to acquire an interest, and then they entered into a written agreement, which, after reciting the existence of the spring upon the defendant's farm, and its location, provided as follows: ‘That the party of the second part, for and in consideration and agreement on the part of the first party, that he, the party of the second part, hereby agrees to convey the water from said spring in three fourths inch lead pipe, which is to be laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes. The party of the second part is to carry said water, as above described, into the meadow of the party of the first part. In consideration of the foregoing agreement on the part of the party of the second part, the party of the first part has hereby granted, bargained, sold, released, and confirmed, and by these presents does grant, bargain, sell, release, and confirm, unto the said party of the second part, his heirs and assigns, all the water of said spring which can be conducted through one half inch lead pipe. The party of the second part has the right to all the water which can run through said one half inch pipe, said half inch pipe to be inserted at the termination of the three fourth inch pipe, as before described, to be constructed and kept in repair at the cost, charge, and expense of the party of the second part. To have and to hold, all and singular, the same easement and privilege, to the said party of the second part, his heirs and assigns, forever, as appurtenances belonging to his and their lands, as aforesaid.’

Colson's farm, and his rights in the spring under the agreement, came by successive conveyances to the plaintiff in 1867, and he has since owned the same. The lead pipes mentioned in the agreement were placed in the ground, and connected with the spring, and the water of the spring was thus used by the plaintiff and his predecessors, and by the defendant, harmoniously, as provided in the agreement, until a few years ago, when, the water of the spring being insufficient at times for both parties, defendant attempted to procure water from another spring, about 13 feet from the spring mentioned in the agreement; and, the plaintiff claiming that the defendant thus inter fered with the water of the latter spring, the parties got into a controversy over that spring, and finally the plaintiff commenced this action to recover damages, and to restrain the defendant from diverting or interfering with the water of the spring. The action was put at issue and brought to trial at a special term, and the facts found by the trial judge, so far as they are material for the present purpose, are as follows:

‘That in the month of September, 1852, or thereabouts, the said Colson cleaned out the said spring, and inserted in it a box sixteen inches deep upon the west side, and eighteen inches deep upon the other three sides, two feet three and a half inches long, and twenty-three inches wide inside, thereby inclosing in said box water from said spring, and attached and inserted through said box into said spring a three fourth inch lead pipe, and continued said pipe underground from said spring through the defendant's land to the meadow of the defendant, as provided in said instrument, and, at the termination of such three fourth inch pipe, attached to said pipe a half inch pipe, and continued the same through the land of the defendant, to and through the land of Colson, to the house of said Colson; that in the fall of 1854 the defendant, with the permission and acquiescence of said Colson, attached a one half inch lead pipe to the three fourth inch pipe of said Colson about twenty rods from said spring, and upon the land of the defendant, and continued said pipe from where it was thus attached through his land to the house of the said defendant, for the purpose of obtaining water from said spring for use at his house, and that said pipe remained thus attached to said three fourth inch pipe until the same was detached therefrom by the defendant in the fall of 1886; that for the period of twenty years prior to the defendant detaching his one half inch pipe from the three fourths inch pipe of the plaintiff, in the fall of 1886, as hereinbefore found, there had been a failure of water through the defendant's pipe, or an insufficient supply thereof to the defendant's house, so that the defendant at many times during said years was obliged to obtain water through said defendant's pipe to his house, sometimes for a period of two weeks, sometimes four weeks, and sometimes six weeks, according to the dryness of the season; that from 1876 until the defendant detached his pipe from the pipe of the plaintiff, in 1886, when it was dry, there was a failure of water through the defendant's said pipe; that in 1876, in 1879, and in 1882 the water entirely failed to run through the defendant's said pipe, for a period of six weeks or thereabouts, to the defendant's house, and the defendant, by reason thereof, was obliged to obtain water from his well; that at the time the defendant executed said instrument, dated August 20, 1852, granting to said Colson the privilege therein mentioned, to water from the spring therein described, he (the defendant) was the owner of another spring, located about thirteen feet southeast from the spring in question; that such spring has ever since existed there; that the water came up out of the ground at said spring, and flowed off from the spring down the hill into the ravine below, uniting in the ravine with the water from the spring in question; that said spring is designated in the testimony as ‘Spring C;’ that, since the execution of said instrument by the defendant to said Colson, there has been, and at the time of the execution thereof there was, another spring, owned by the defendant, located on his land about thirty-three feet southwest from the spring in question, and designated in the testimony as Spring B;” that in the fall of 1886, by reason of the repeated either entire failure of water through the defendant's pipe, or an insufficient supply thereof through said pipe thus attached to the plaintiff's said pipe, the defendant, for the purpose of obtaining a sufficient supply of water to his house for household purposes and for the use of his stock, dug out his springs designated as springs ‘C’ and ‘B,’ sank a barrel into spring C, and a hollow log into spring B, detached his one half inch pipe from the said pipe of the plaintiff, and connected a pipe with the pipe thus detached, continuing the same from the pipe thus detached to spring C, and inserted such pipe into that spring; that he inserted a pipe at the same time into his spring B, and connected that spring, by an underground pipe, with spring C; that the said defendant at once, after thus utilizing his said springs C and B, as hereinbefore found, obtained an abundant supply of water from these two springs through his pipe to his house, and which abundant supply continued until the plaintiff, in August, 1888, dug down the spring described in the instrument to Colson, when there was an entire failure of supply of water from the defendant's said springs to his house for several days, and that the supply of water therefrom continued to fail until late in the fall of said year, 1888, and that the failure of water from defendant's said springs, through his pipe to his house, was caused by the plaintiff digging down the spring described in the instrument to Colson, as hereinafter found; that, upon the west side of the spring mentioned in defendant's said instrument to Colson, there was at the time the same was executed, and still is, a solid rock which comes up to the surface of the ground; that fifteen inches below the top of that rock there was, and still is, an opening in the rock about the width of the box which has been inserted in the spring by Colson; that through this opening the water flowed, and that this aperture in the rock was the inlet to said spring, and that the source of said spring then was, and still is, the water which came out from under this rock fifteen inches below its top; that the box which was placed in said spring by Colson in 1852, and which box, or a similar one, remained there until taken out by the defendant in 1884, as hereinafter found, was two inches less in depth upon the west side, against the rock, than upon the other three sides; that the two inches upon the west side, or against the rock, was left off at the bottom of the...