#### Benjamin F. Forbell, Plaintiff, *v.*The City of New York, Defendant.

(Supreme Court, Kings Special Term,

March, 1899.)

„ Municipal corporations — Liable for lowering the underground water level of the land of an adjacent owner.

A municipal corporation is liable in damages to a land owner where . the underground water level of his land is lowered several feet by the operation of a pumping station, connected with the city water works . j system, and which so dried up the land that the -owner could1 not . grow on it crops to which1 it was particularly adapted and from which he had previously made a large profit.' ■

Action for an injunction to restrain defendant from operating .its pumping station and driven wells at the ■ Spring Creek pumping, station of the defendant’s, water works in the borough of Queens, and for damages for loss of crops by reason of the drying up of plaintiff’s land.'

Charles Coleman Miller, for plaintiff.

R. Percy Chittenden, for defendant.

Wilmot M. Smith, J.

The .evidence in this case satisfies, me beyond a reasonable doubt that the operation of the pumping at the *13Spring Creek pumping station lowered the water level under the land occupied by the plaintiff several feet, and that the direct effect thereof was to prevent the plaintiff from growing upon his land the crops to which it was peculiarly adapted and from which he had previously made a large profit.

The substantial question to be decided is whether the defendant is legally responsible for the loss inflicted upon the plaintiff by the operation of these pumping stations. Previous to the decision of the Appellate Division of the Supreme Court in the second judicial department in the case of Smith v. City of Brooklyn, 18 App. Div. 340, the tendency of the decision of the courts of this state was against the contention of the plaintiff in this case and in favor of the proposition that an action would not lie against the owner of the land who intercepted or diverted underground currents of water to the injury of another. In the Smith case the operation of a pumping station lowered the spring level of the surrounding country and dried up a stream and pond belonging to the plaintiff. The court held the city liable for the damages. The court in its decision distinguished the case from other cases previously decided in this state on the ground that in the case at bar the cutting off of the source of supply of the plaintiff’s stream and pond, was not done in the exercise of the legal right of the defendant to improve its land or in connection with the enjoyment of the land itself, but for the sole purpose of gathering and conveying the water to a distant place for the use of the inhabitants of the city.

The reasoning of the court in the case so appeals to a sound judgment and keen moral sense as to be unanswerable.

The defendant seeks to distinguish this case from the Smith case, because in the Smith case a running stream and pond were dried up by the operation of the" pumping station, and in this case the underground water level was lowered upon the plaintiff’s land. In my judgment there is no difference in principle between the two cases. The underground water on plaintiff’s land was a part of his land. He had a property right in it. Its use Was indispensable to the enjoyment of his land, and he was deprived of the water as effectively by means of these pumps as he Would have been by a direct entrance upon the land itself. The property right in waters which flow upon the surface of the ground is no more sacred than the property, rights in waters which flow underground. There can be no escape from the conclusion that the acts of the defendant *14were injurious to the plaintiff, and that an action will lie for the damages he has sustained by reason thereof.

T think the plaintiff has made out a cause of action for the equitable relief demanded in his complaint. Upon the question of damages, after making such deductions from the plaintiff’s claim as may be properly attributable to other causes than the wrongful acts of the defendant, I assess his damages at the sum of $6,000 and I hereby direct judgment against defendant in favor of the plaintiff, enjoining the operation of the pumping stations, and' for the sum of $6,000 for his damages, with the costs of the action. Decision and judgment to be settled upon two days’ notice.

Ordered, accordingly.