Ellis v. Duncan

21 Barb. 230, 11 How. Pr. 515, 1855 N.Y. App. Div. LEXIS 111

• Court: New York Supreme Court
• Decided: December 3, 1855
• Status: Published

Opinion

By the Court, S. B. Strong, J.

The question involved in this controversy is, whether the owner of a farm may dig a ditch to drain his land, or open and work a quarry upon it, when by so doing he intercepts one of the underground sources of a spring on his neighbor’s land, which supplies a small Stream of water flowing partly through the land of each, and , thereby diminish the natural supply of water, to the injury of the adjoining proprietor. There can be no doubt of the correctness of the injunction sic utere tuo ut alienum non Icedas : but I have frequently had occasion to remark that it refers to such injuries only, as the law will redress, and not to the large class which are usually denominated damnum absque injuria. Of the latter class are such as result immediately to one, by the lawful exercise of the rights of another. To award compensation for, or prevent the infliction of such injuries, would seriously arrest the march of improvement, and often so seriously impair the use of property as to render it of little or no value. The distinction between reasonable and unreasonable damages, in cases of this description, is not very definite or clear. In some particulars the rule has been solemnly settled by uniform decisions, while in others, and generally such as are very near the dividing line, the determinations have been conflicting, and in many there have been none at all. The distinction turns, generally, although not universally, upon the question whether the damages are direct or consequential. In the latter case, and especially where they result remotely from the exciting cause, they are not generally recoverable. In the interruption of a surface current, the injury from a diminution of the water would seem to be palpable, and so far direct that it would originate a valid cause of action. There, too, the owners have knowingly permitted the waters to flow in their natural course for the benefit of all those whose banks they pass, from time immemorial. They have acquired their title with a full knowledge of what is visible, and (presumptively) of the rights which result from it. ' But it is different when the principal stream is partially supplied by underground currents. The owners of the surface soil are not generally aware of their existence, and cannot be supposed to have voluntarily acquiesced in any appropriation of them. When they purchase they are ignorant o^ any obstacle to the free use of their property ab center ad’ ccelum ; and to arrest some valuable improvement, such as digging a well or cellar, draining the land, taking valuable ■ stones from a quarry, or leveling the ground for building or agricultural purposes, because it would cause some consequential, unforeseen, and possibly irremediable damage to another, would seem to be unreasonable and unjust. If the principle that the man who interrupts a sub-surface stream, to the prejudice of his neighbor, commits a wrong for which the law will give redress is sound, no one will be safe in purchasing land adjoining or Inear a private stream of water, as he may be restrained forever from making some valuable, and frequently, from the progressiveness of the age, necessary improvements. ,

[Kings General Term, December 3, 1855

/ It seems to me that the rule that a man has the right to the tree and absolute use of his property, so long as he does not directly invade that of his neighbor, or consequentially injure his perceptible and clearly defined rights, is applicable to the interruption of the sub-surface supplies of a stream, by the owner of the soil; and that the damage resulting from it is not the subject of legal redress. The case of Acton v. Blundell, (12 Mees. Wels. 324,) sustains that principle; and the case is cited with approbation by Oh. J. Bronson, in giving the unanimous opinion of the court of appeals, in Radcliff’s Ex’rs v. The Mayor, &c. of Brooklyn, (4 Comst. 200.) The injury of which Mr. Radcliff’s executors complained, in that case, was much greater than any which can result to the plaintiff in this action, from the supposed wrong committed by the defendants. And although the facts were somewhat dissimilar, yet the principle which I have been considering is alike applicable to both.

If the injury of which the plaintiff complains had been -actionable, I should much doubt the propriety of granting an injunction, unless it had been of a much more serious character than what appears from the papers presented to us. If an injunction should be proper it must be perpetual, or at any rate endure as long as the water continues to run. The plaintiff might, in order to prevent an immediate damage to himself, interrupt and prevent improvements of real importance to the defendants, or those who may succeed them. A recovery of damages in an ordinary action would be a much more reasonable remedy. And the plaintiff may resort to that, notwithstanding the decision of this appeal.

The order granting a preliminary injunction must be reversed, with $10 costs, and the injunction must be dissolved.

Brown, S. B, Strong and Rockwell, Justices.]