Hathorn v. Natural Carbonic Gas Co.

• Decision Date: 23 February 1909
• Citation: 194 N.Y. 326,87 N.E. 504
• Parties: HATHORN et al. v. NATURAL CARBONIC GAS CO.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 326

87 N.E. 504

HATHORN et al.

v.NATURAL CARBONIC GAS CO.

Court of Appeals of New York.

Feb. 23, 1909.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Emily H. Hathorn and another against the Natural Carbonic Gas Company. From an order of the Appellate Division (128 App. Div. 33,112 N. Y. Supp. 374), modifying and affirming an order of the Special Term granting a preliminary injunction (113 N. Y. Supp. 458), defendant appeals, by permission, on certified questions. Affirmed.

This is an appeal, by permission, on certified questions from an order of the Appellate Division, Third Department, entered September 25, 1908, modifying, and as modified affirming, an order of the Special Term granting a preliminary injunction against the appellant during the pendency of this action. The action was brought by the respondents as owners of lands in the town of Saratoga Springs, N. Y., whereon were springs wherefrom naturally flowed waters holding in solution natural mineral salts and an excess of carbonic acid gas, to restrain appellant from accelerating and increasing, by means of pumps and other apparatus, the flow of similar water and gas from their deep wells in said town, and whereby, as claimed, the flow from the springs of the respondents and others was destroyed or diminished. A preliminary injunction was granted by the Special Term restraining appellant from performing the acts complained of, and this order after a modification not substantially affecting its results, was affirmed by the Appellate Division.

The appellant demurred to the complaint, and under these circumstances the Appellate Division granted leave to appeal, and certified to us the following questions:

(1) Is chapter 429, p. 1221, Laws 1908, a constitutional enactment?

(2) Does the complaint state a cause of action under St. 1908, p. 1221, c. 429?

(3) Does the complaint state a cause of action other than that under the statute hereinafter mentioned?

(4) Did the Supreme Court have power to grant the preliminary injunction?

The complaint, which is involved in these questions, contains but one count, and is claimed by its framers to set forth a cause of action both at common law and under the statute referred to. The substance of the material allegations purporting to set forth a cause of action at common law is as follows: Aside from formal matters, they assert the ownership by plaintiffs of certain premises in the village of Saratoga Springs, on which for about 40 years there has been a spring of mineral water, holding in solution natural mineral salts and an excess of carbonic acid possessing great medicinal virtue and of high value, and that during all this time, and until the commission by the defendant of the alleged wrongful acts complained of, said spring naturally and freely flowed to the surface in a continuous stream; that plaintiffs during many years have been engaged in bottling and marketing the products of said spring, incurring great expense therein, and deriving great profit therefrom; that said carbonic acid gas is, for various specified reasons, a necessary and valuable element in said waters; that prior to the commencement of this action the defendant, being the owner of a tract of land situate in said village nearly a mile distant from plaintiffs' premises, drilled thereon several deep wells into the rock beneath the surface of its lands, and by means of ‘powerful pumps, suctions, and other artificial contrivances' accelerated and increased the flow from said wells of mineral waters and carbonic acid gas similar to those produced at plaintiffs' spring, whereby they were enabled to, and did, draw and secure an unreasonable amount of water and gas; that in each case such waters and gas were drawn from a supply percolating through the rocks under the surface of the land, and that the waters and gas thus percolating under the respective tracts of the parties to this suit, as well as through a large additional area where other springs were located, were part of a single system, and constituted one common source of supply for all the wells and springs; that the effect of defendant's acts in accelerating and forcing the flow of water and gas from its wells by such artificial means has been to seriously affect and decrease the flow of water and gas at the springs of plaintiffs, and of other people throughout the town, and to depreciate the character and quality of the water produced thereat; that defendant has not utilized the water and gas thus drawn by it from its wells in connection with or in increasing the enjoyment of its land, or for any purpose connected therewith, but has extracted from the water the carbonic acid gas, which it has marketed generally throughout the country, turning the water containing the other minerals in great quantities to waste; that by reason of these various acts the plaintiffs have been greatly damaged.

In addition to these allegations there are various others, which in connection with them are claimed to set forth a cause of action, under chapter 429, p. 1221, Laws 1908. This act is entitled ‘An act for the protection of the natural mineral springs of the state and to prevent waste and impairment of its natural mineral waters.’ It contains, in substance, the following prohibitions: (1) Against pumping or by any artificial contrivance whatsoever in any manner accelerating the natural flow, or producing an unnatural flow of that class of mineral waters holding in solution natural mineral salts and an excess of carbonic acid gas from any well made by boring or drilling into the rock, or by any artificial contrivance whatsoever in any manner accelerating the natural flow, or producing an unnatural flow, of natural carbonic acid gas issuing from or contained in any well made by boring or drilling into the rock; (2) against performing the acts enumerated in the foregoing provision, when the effect will be to diminish, retard, impair, etc., ‘the natural flow from any mineral spring or any mineral well belonging to any other person or corporation,’ or ‘the quality of its waters * * * or the quantity of its carbonic acid gas or mineral ingredients'; (3) against performing the acts enumerated in the first provision for the purpose of extracting, collecting, compressing, liquefying, or vending the carbonic acid gas as a commodity otherwise than in connection with the mineral water; (4) against ‘the doing of any act or thing whatsoever, whereby the natural flow from any spring or well’ of the character described is diminished, retarded, etc.; said act further provides that any citizen of the state may maintain an action to restrain any person or corporation from committing any of the prohibited acts in any city or town in which said citizen is a taxpayer, etc. The substantial allegations, in addition to those already summarized, by which the plaintiffs seek to make out a cause of action under this statute, alege, in substance, their qualifications as taxpayers; a violation in terms by defendant of each of the prohibitions of the statute above quoted; that there is a special pressure of gas in the rock strata into which defendant's wells are bored, causing water and gas to flow to the surface, which is not exerted in the soil above the rocks, and that the withdrawal of gas from such strata tends to destroy the flow of the springs and impair the quality of the water; that in consequence of the mineral springs of plaintiffs and other person in said town a large amount of money has been invested in Saratoga Springs, in the way of hotels and boarding houses, hospitals, and sanitariums, for the accommodation of visitors seeking health from the use of said mineral waters, and employment has been given to a large number of people; that the people at large are interested in the maintenance and preservation of such springs; that by the unlawful acts of the defendant the flow of plaintiffs' spring and that of other springs throughout the town, has been injuriously affected and the quality and value of the waters flowing therefrom impaired and a large amount of water wasted; that by reason of these facts many persons have been injured, and will continue to be injured unless said unlawful acts are stopped.

Alton B. Parker and Edgar T. Brackett, for appellant.

Charles C. Lester, J. Newton Fiero, and Nash Rockwood, for respondents.

HISCOCK, J. (after stating the facts as above).

The object of this action is to restrain the appellant from using pumps and other apparatus for the purpose of accelerating and increasing the flow of subterranean percolating waters and gas through deep wells which it has sunk upon its premises in the town of Saratoga Springs. The respondents insist that their complaint, which has been summarized in the foregoing statement, sets forth a cause of action, both at common law and under the provisions of the statute entitled ‘An act for the protection of the natural mineral springs of the state and to prevent waste and impairment of its natural mineral waters,’ being chapter 429, p. 1221, Laws 1908. The appellant, on the other hand, by demurrer challenges it as not setting forth a cause of action on either theory. I shall endeavor, first, to apply to the pleading thus attacked the test of common-law principles, and the question whether, measured by them, it does set forth a cause of action may be stated in a more concrete form applicable to the specific facts involved in this action. Thus stated, it will be whether a landowner has the right, by the use of pumps and other apparatus, greatly to accelerate and increase the natural flow of subterranean percolating mineral waters and gas through deep wells, bored into a widely extended common supply of such substances, not for any purpose connected with the enjoyment of his lands, but for the purpose of procuring from the waters a supply of gas to be marketed throughout the country, and with the result of...