By the Court, B. Darwin Smith, J.
The legal maxim, “ sic utere tuo ut alienum non loedas,” which is but the gospel rule of morality, “ of doing to others as we would that they should do to ourselves,” lies at the basis of this action. The principle is a sound and beneficial one. The difficulty is with its application.
The principle implies what the law asserts, that equality is equity; that all men have equal rights before the law. Dominion over property, an equal right to its use and enjoyment, is common to all; and an action in respect to property will ■ only lie where one unjustly invades another-’s right. Up to [308]*308this point the power of every citizen to use and control hia own property is absolute and unqualified. The rule in respect to such use of property as our law allows, is well stated in Rad-cliff’s Ex’rs v. Mayor &c. of Brooklyn, (4 Comstock, 202,) by Judge Bronson, as follows: “ The law gives every man such title to his own land that he may use it for all the purposes to which such property is usually applied, without being answerable for consequences, provided he exercises proper care and skill to prevent any unnecessary injury to the adjoining land owners.” In the case of Hay v. The Cohoes Co. (2 Comstock, 162,) Judge Gardiner states the rule substantially to the same effect. He says, “ The defendants could not pollute the air upon the plaintiff’s premises, (Morley v. Pragnell, Cro. Car. 510,) nor abstract any portion of the soil, (Roll. Abr. 568, note, 12 Mass. R. 221,) nor cast any thing upon the land, (Lambert v. Berry, Sir T. Raym. 421,) by any act of their agent, neglect or otherwise; for this would violate the right of domain. Subject to this qualification the defendants were at liberty to use their land in a reasonable manner, according to their pleasure. If the exercise of such a right, upon their part, operated to restrict the plaintiff in some particular mode of enjoying his property, they would not be liable. It would be damnum absque injuria.’’ But the rule, as stated also by Judge Bronson and Judge Gardiner, requires one other qualification, which is made by Judge Woodworth in the case of Panton v. Holland, (17 John. 96.) It is, aside from the question of negligence or unskillfulness, that “ the act in question be not done maliciously.” Judge Woodworth well says: “ In the exercise of a lawful right a party may become liable to an action, when it appears that the act was done maliciously.” (Also see 18 Pick. 115.) The exercise of the right of domain, which the law protects, and in respect to which it applies the rule of damnum absque injuria to any resulting injury to others, must be a legitimate use or appropriation of the property in a reasonable and proper manner, according as such property is usually applied, and without any negligence, unstillfulness or malice. If this action is sustainable, it must [309]*309be upon principles which deprive the defendants of the benefit of this rule in respect to the rights of domain. The cases cited by the plaintiffs’ counsel in support of this demurrer and for the support of the action, it seems to me, are not precisely applicable. They are cases between riparian owners interested in the common use and enjoyment of the water of a stream running through or adjacent to their respective lands. The difficulty in the application of these cases, cited by the plaintiffs’ counsel, to the present case is, that the defendants, in the sense of these cases, is not a riparian proprietor on the Owasco river. In this case the defendants not only do not own the land upon the shore of the river, but do not make any use of the water of the river. The injury of which the plaintiffs complain is not caused by any direct agency of the defendants, by surface ■water cast upon or flowing from their land, or “ from any neglect, design or intent on the part of the defendants to corrupt the waters of said river, to the injury of the plaintiffs,” as stated in their answer.
The answer states, “that the ground where the works of the defendants are situated have been, ever since the defendants’ occupied said premises, and yet is, very incompact and pervious, and has been during said period, and yet is, percolated by the water of the said Owasco river, against the wishes or the interests of the said defendants, and without their procurement or agency; and if any offensive substances have flowed from the defendants’ works or lot, it has only been by reason of the percolation of the waters of the said Owasco river through the soil or grounds adjacent to the said river into the_ soil and grounds occupied by the defendants’ gas light works, and the reflux or return of said water unto said river from the said grounds.” The defendants are in the lawful occupation of their lot, pursuing a legitimate business, without doing any intentional injury to the plaintiffs, and yet from such occupation, and the prosecution of such business on said lot and premises, an injury does result to the plaintiffs. It is a case where the business of the plaintiffs and the business of the defendants, at their respective locations, and without fault on [310]*310either side, as now conducted, cannot go on together without loss and injury to the plaintiffs. The case, too, is unaffected by any question of grant, prescription or prior occupation on the part of the plaintiffs. If the action can be sustained, therefore, it must be upon the sole ground that the use of the premises of the defendants for a gas works is relatively unreasonable and injurious to the plaintiffs, to such an extent or degree as necessarily to create or become a private nuisance. At this point the rule above stated by Judges Bronson and Gardiner in respect to the private use of property terminates, and the principle of the maxim sic utere tuo, Spc. applies. Blackstone defines a private nuisance to be any thing done to the hurt or annoyance of the lands, tenements or hereditaments of another. (3 Black. 215.) Blackstone says, also, “If one erects a smelting house for lead, so near the land of another, that the vapor and smoke kill his corn and grain, and damages his cattle therein, they are held to be a nuisance,” [Cro. Car. 570;) and by consequence it follows, that if one does any other act in itself lawful, which yet being done in that place, necessarily tends to the damage of another’s property, it is a nuisance, for it is incumbent on him to find another place to do that act, where it will be ’less offensive; also, to corrupt or poison a water course by erecting a dye house or lime kiln, or' in short, to do any act in the stream that in consequence “ must necessarily tend to the prejudice of one’s neighbor.” The act of the defendants in this case, in manufacturing gas upon the lot contiguous to the shore, “ necessarily tends to the prejudice of the plaintiff,” and is hence in conflict with the maxim sic utere tuo, Spc. The answer admits this consequence, and claims exemption from damages and liability, on the ground that the water percolates through the soil without their fault, “intermixed or flooded with resinous, tarry or oily substances, as may have escaped from said works into the ground by accident, or in the ordinary course” of business. The counsel for the defendants insisted that the law applicable to the surface flow of water does not apply to water percolating in or through the soil, and cites Beach v. Driscoll, (20 Conn. R. [311]
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By the Court, B. Darwin Smith, J.
The legal maxim, “ sic utere tuo ut alienum non loedas,” which is but the gospel rule of morality, “ of doing to others as we would that they should do to ourselves,” lies at the basis of this action. The principle is a sound and beneficial one. The difficulty is with its application.
The principle implies what the law asserts, that equality is equity; that all men have equal rights before the law. Dominion over property, an equal right to its use and enjoyment, is common to all; and an action in respect to property will ■ only lie where one unjustly invades another-’s right. Up to [308]*308this point the power of every citizen to use and control hia own property is absolute and unqualified. The rule in respect to such use of property as our law allows, is well stated in Rad-cliff’s Ex’rs v. Mayor &c. of Brooklyn, (4 Comstock, 202,) by Judge Bronson, as follows: “ The law gives every man such title to his own land that he may use it for all the purposes to which such property is usually applied, without being answerable for consequences, provided he exercises proper care and skill to prevent any unnecessary injury to the adjoining land owners.” In the case of Hay v. The Cohoes Co. (2 Comstock, 162,) Judge Gardiner states the rule substantially to the same effect. He says, “ The defendants could not pollute the air upon the plaintiff’s premises, (Morley v. Pragnell, Cro. Car. 510,) nor abstract any portion of the soil, (Roll. Abr. 568, note, 12 Mass. R. 221,) nor cast any thing upon the land, (Lambert v. Berry, Sir T. Raym. 421,) by any act of their agent, neglect or otherwise; for this would violate the right of domain. Subject to this qualification the defendants were at liberty to use their land in a reasonable manner, according to their pleasure. If the exercise of such a right, upon their part, operated to restrict the plaintiff in some particular mode of enjoying his property, they would not be liable. It would be damnum absque injuria.’’ But the rule, as stated also by Judge Bronson and Judge Gardiner, requires one other qualification, which is made by Judge Woodworth in the case of Panton v. Holland, (17 John. 96.) It is, aside from the question of negligence or unskillfulness, that “ the act in question be not done maliciously.” Judge Woodworth well says: “ In the exercise of a lawful right a party may become liable to an action, when it appears that the act was done maliciously.” (Also see 18 Pick. 115.) The exercise of the right of domain, which the law protects, and in respect to which it applies the rule of damnum absque injuria to any resulting injury to others, must be a legitimate use or appropriation of the property in a reasonable and proper manner, according as such property is usually applied, and without any negligence, unstillfulness or malice. If this action is sustainable, it must [309]*309be upon principles which deprive the defendants of the benefit of this rule in respect to the rights of domain. The cases cited by the plaintiffs’ counsel in support of this demurrer and for the support of the action, it seems to me, are not precisely applicable. They are cases between riparian owners interested in the common use and enjoyment of the water of a stream running through or adjacent to their respective lands. The difficulty in the application of these cases, cited by the plaintiffs’ counsel, to the present case is, that the defendants, in the sense of these cases, is not a riparian proprietor on the Owasco river. In this case the defendants not only do not own the land upon the shore of the river, but do not make any use of the water of the river. The injury of which the plaintiffs complain is not caused by any direct agency of the defendants, by surface ■water cast upon or flowing from their land, or “ from any neglect, design or intent on the part of the defendants to corrupt the waters of said river, to the injury of the plaintiffs,” as stated in their answer.
The answer states, “that the ground where the works of the defendants are situated have been, ever since the defendants’ occupied said premises, and yet is, very incompact and pervious, and has been during said period, and yet is, percolated by the water of the said Owasco river, against the wishes or the interests of the said defendants, and without their procurement or agency; and if any offensive substances have flowed from the defendants’ works or lot, it has only been by reason of the percolation of the waters of the said Owasco river through the soil or grounds adjacent to the said river into the_ soil and grounds occupied by the defendants’ gas light works, and the reflux or return of said water unto said river from the said grounds.” The defendants are in the lawful occupation of their lot, pursuing a legitimate business, without doing any intentional injury to the plaintiffs, and yet from such occupation, and the prosecution of such business on said lot and premises, an injury does result to the plaintiffs. It is a case where the business of the plaintiffs and the business of the defendants, at their respective locations, and without fault on [310]*310either side, as now conducted, cannot go on together without loss and injury to the plaintiffs. The case, too, is unaffected by any question of grant, prescription or prior occupation on the part of the plaintiffs. If the action can be sustained, therefore, it must be upon the sole ground that the use of the premises of the defendants for a gas works is relatively unreasonable and injurious to the plaintiffs, to such an extent or degree as necessarily to create or become a private nuisance. At this point the rule above stated by Judges Bronson and Gardiner in respect to the private use of property terminates, and the principle of the maxim sic utere tuo, Spc. applies. Blackstone defines a private nuisance to be any thing done to the hurt or annoyance of the lands, tenements or hereditaments of another. (3 Black. 215.) Blackstone says, also, “If one erects a smelting house for lead, so near the land of another, that the vapor and smoke kill his corn and grain, and damages his cattle therein, they are held to be a nuisance,” [Cro. Car. 570;) and by consequence it follows, that if one does any other act in itself lawful, which yet being done in that place, necessarily tends to the damage of another’s property, it is a nuisance, for it is incumbent on him to find another place to do that act, where it will be ’less offensive; also, to corrupt or poison a water course by erecting a dye house or lime kiln, or' in short, to do any act in the stream that in consequence “ must necessarily tend to the prejudice of one’s neighbor.” The act of the defendants in this case, in manufacturing gas upon the lot contiguous to the shore, “ necessarily tends to the prejudice of the plaintiff,” and is hence in conflict with the maxim sic utere tuo, Spc. The answer admits this consequence, and claims exemption from damages and liability, on the ground that the water percolates through the soil without their fault, “intermixed or flooded with resinous, tarry or oily substances, as may have escaped from said works into the ground by accident, or in the ordinary course” of business. The counsel for the defendants insisted that the law applicable to the surface flow of water does not apply to water percolating in or through the soil, and cites Beach v. Driscoll, (20 Conn. R. [311]*311542.) That was a case where one man had dug a reservoir on his lot, by excavating the ground four feet below the surface, into which the water came by percolation through the earth, and there stood in sufficient quantity for the use of his cattle. At a short distance he made another excavation or well, in which the water stood somewhat higher, from which, by a syphon, he brought the water to a cistern, from which he used it. The defendant did the same thing on his land adjoining, for the same purpose, which caused the water to fall in the plaintiff’s reservoir, so that it did not supply the cistern; held that no action lay; and Greenleaf v. Francis (18 Pick. 117) was cited as a case like it. That was a case where the defendant dug a well on his own land, in consequence of which the water was diminished in the plaintiff’s well. In both cases it was held that the law recognizes no title to water in the earth, separate from the soil. This is the extent of those cases. (See also 12 Mees. & Welsby, 324; 5 Taunt. 99.) The case of Norton v. Scholefield, (9 Mees. & Welsby, 665,) is the most analogous to the present case of any one I have seen. In that case the declaration stated that the plaintiff had a certain well and pump, and that the defendant was possessed of adjoining premises, and that he, intending to injure the plaintiff, erected a cess-pool so near the well and pump that the water was contaminated and rendered useless, by the oozing out of the soil and filth from the cess-pool. The case was disposed of upon a question of pleading, which assumed that the erection of the cess-pool was a nuisance. In Tyler v. Wilkinson (4 Mason’s R. 400,) Judge Story defines the rights of riparian owners as follows: “ Prima facie every proprietor upon each bank of a river is entitled to the land covered with water in front of his bank, to the middle or thread of the stream, or as it is commonly expressed, usque filum aquae. In virtue of this ownership, he has the right to the use of the water flowing over it in its natural current, without diminution or abstraction, but strictly speaking he has no property in the water itself, but a simple use of it while it passes along. The consequence of this principle is, that no proprietor has a right to use the [312]*312water to the prejudice of another.” If one proprietor may not make any use of the water to the prejudice of the proprietors below him, certainly a person with no rights in respect to the water, or rights inferior to those of a riparian proprietor, cannot be allowed to do so. In Howell v. McCoy, (3 Rawle, 250,) it is said that “a person has a right to so much of the water of a stream running across his land as is needful and proper for the supply of his tan yard and mill, and is bound to return the water so diverted, and not necessarily used and consumed in his business, without unnecessary waste or diminution, into the natural channel below, and that he is bound to return it without polluting or poisoning it by admixture with unwholesome substances, to the injury of the owner below.” This is upon the principle that every person entitled to the use of the water of a stream is entitled to receive it pure ■ and uncontaminated. Like the air, it is common to all. and all who have occasion and a right to use it in any particular place, are entitled to receive it pure for use, as they have a right to require that the atmosphere they breathe shall be pure and free from artificial and noxious vapors. The maxim of the law is “ aqua currit el debet currere ut currere solebat;A to which should be added—if it be unlawful to add to, or coin a new maxim in latín—the words, “ pure and uncorruptible.” ■
It can make no difference with the principle, by whom the waters are corrupted. No one has the right to do so in respect to the waters of fresh water streams, so essential as they are to the health and comfort of man and beast, so indispensable to life, and for domestic, agricultural and manufacturing purposes. • Any person interested in the use and enjoyment of the water of a running stream must be entitled to maintain an action for any special injury he may sustain from the corruption of the water by any other person, directly or indirectly, whatever may be the cause, pretense or the occasion. This rule is essential to a proper regard for the public welfare and to the preservation of the public health, and to the due and complete enjoyment of private rights.
I think, also, that gas works are to be placed in the class of [313]*313erections which are not within the ordinary and usual purposes to which real estate is applied; and that whenever they create a special injury they are to be regarded as a private nuisance, for which an action will lie in respect to the special injury, like a swine stye, (9 Rep. 59,) a lime kiln, (2 Black. 141,) a dye house, (Hutt. 136,) a tallow chandler, a furnace, (Cm Car. 570,) a brewhouse, (R. Pal. 139, Hutt. 136,) a smelting house, (1 Roll. 89,) a smith forge, (Lut. 70,) a livery stable, (Coke v. Bergen, 2 Georgia R. 425,) or a tannery, (17 Barb. 654.)
[Monroe General Term,
September 1, 1866.
In this case the defendants could probably obviate all the damages complained of, by draining off the water of the Owasco creek from their lot. This I think they are bound to do, if they continue their works on their present lot. In the case of Stonehewer v. Farrar, (6 Adol. Ellis, N. S., 51 Eng. Com. Law R. 728,) which was an action for polluting water, it was held by one arbitrator, to whom the case was referred, that the defendants should take all proper and reasonable precaution to prevent the water from becoming unfit for the plaintiff’s use, and should use a process of filtering mentioned in the answer, to purify it, before returning it to the stream. If proper precaution in this case were taken to keep the water from percolating into or through the soil of the defendants’ lot, the injury complained of in this suit would be obviated. The defendants are bound to do this if they would continue the works where they are at present, within the maxim, sic utere tuo ut alienum non Icedas.
The judgment of the special term should be affirmed.
T. R. Strong, Welles and Smith, Justices.]