#### Thomas Willis and Mary Willis, Plaintiffs, *v.*The City of New York, Defendant.

(Supreme Court, New York Special Term,

November, 1910.)

Waters and water-courses — Subterranean and percolating waters—■ Obstruction and diversion — Actions — Burden and sufficiency of proof.

Where a city for the purpose of obtaining a water supply acquires lands and sinks wells and pumps up the ground water percolating below the surface and thereby takes the water from contiguous lands of other owners to their damage, they may recover for the injuries done them and invoke the equitable powers of the court by way of injunctive relief.

In an action brought by sueli an owner to recover damages, the burden is upon the plaintiff to prove that his lands were so within the influence of the operations of the city that water in his land was taken from it or water which would naturally have come there was prevented from coming.

But where, in an action brought by such an owner, it does not appear but that the lowering of the ground water levels upon his property may be due to natural causes, and by reason of the distance of the city pumping stations it seems well-nigh impossible to find, in the operation of its pumps a cause of injury to his property, he has failed to sustain the burden resting upon him and bis complaint should be dismissed.

Action to recover damages for the diversion of percolating waters.

*511Epstein & Epstein (Jesse S. Epstein of counsel), for plaintiffs.

Archibald R. Watson (Edward S. Malone, of counsel), for defendant.

McCall, J.

The litigation presented to us for determination finds its origin in the efforts, originally made by the former city of Brooklyn, and continued by the greater city of New York, after amalgamation, to provide water for the uses and purposes of the inhabitants of what is now the borough of Brooklyn, in the enlarged city. To the end of accomplishing that purpose the officers of the municipal government planned to collect, house or reservoir the waters percolating the earth within given, fixed or definite areas in the territory known as lung Island, and their system contemplated the erection of reservoirs, pumping stations, driven wells and infiltration plants that have been minutely defined and explained in the testimony offered in the case at bar. Of course, the proof establishes the fact, and no dispute arises over the question, that the ultimate distribution of this water (so obtained and collected) to the inhabitants of the city, or a portion thereof, was not and is not gratuitously made, but is charged for by the municipal government on the basis of fixed and definite rates, determined by meters and assessment following the vogue governing such matters in all municipalities. It has been demonstrated and proven in the case at bar that the defendant has constructed and maintained and is now operating and using various plants on Long Island for the collecting, housing and storing of some of its subsurface waters, and that it disposes of same for price fixed and charge made as referred to above. If it be further established that in the working of these various processes, to wit, pumping stations or infiltration galleries, they have wrought damage to another owner’s land by taking it from such owner’s land and contiguous territory and leading it to their own for the purposes of marketing it and preventing its return, then they become responsible for the harm they have done, in money damages, limited to six years prior *512to the beginning of the action against them, and the plaintiffs are entitled to invoke the aid of the equity side of the court by way of injunctive relief against a continuance of the trespass. Reisert v. City of N. Y., 101 App. Div. 93; 174 N. Y. 196. It requires more proof in causes of this character, in my view of the situation, than the mere establishment of the fact that the city operates these plants and that there is a lowering or variation of the so-called “ water table ” of plaintiffs’ premises, even if that fact be established, to find a warrant or a basis for judgment. With the principle of law announced in the Reisert and similar cases there can be no quarrel, but to mulct the defendant the facts must be proven to make that principle applicable. And has that been done ? The plaintiffs are the owners of a tract or parcel of land, situate in Baldwin, in the county of Nassau, in this State, comprising about fifty acres. This land was purchased by them in 1896, and has been since that date in their possession. On the trial of the action, under the broad and general allegations of the complaint, it would have been exceedingly difficult to have circumscribed or to have limited the proof of the plaintiffs in reference to the number or location of the wells, stations or plants that they asserted wrought the damage they complained of, and considerable latitude was allowed them in their proof, in the view that after everything had been encompassed in the evidence, as to location and operation of those various plants, and the further proof of expert engineers, and the experience of tests had been adduced, a truer basis could be reached for a proper, reasonable and just conclusion as to influence and effect of each than to. arbitrarily hold to the opinion of one without the necessary expert status that such plants could not possibly affect and exclude the plaintiffs, if they were able, from establishing their record in the shape of a full and complete presentation. The following plants are conceded to have been operated by the city in this process of collecting and pumping these waters and with reference to which proof was taken: *first,*one called Agawam, located two miles east of plaintiffs’ farm; *second,*one called Merrick, located two and one-half miles east of plaintiffs’ farm; *third,,*one called *513Matowa, located three and one-half miles east of plaintiffs’ farm; fourth, one called Wantagh, located five miles east of plaintiffs’ farm. All of the above were completed in 1896, and each had fifty driven wells. Wantagh infiltration plant, pumping stations and galleries, the nearest point of which is three and one-half miles east of plaintiffs’ farm, was completed in 1906, and the Massapequa infiltration galleries, completed in 1909, are 8 miles east of plaintiffs’ farm. In addition thereto, and at a point lying south of plaintiffs’ farm, at a distance of about 4,000 feet, th'e defendant constructed the Milburn pumping station in the year 1891, and in 1905 an infiltration system was added as an additional device to collect the waters. All of these pumping stations, with the exception of the Milburn, which is a sort of equalization plant, comprise a system operating directly upon deep and shallow driven wells. The infiltration system collects waters which would normally waste into the ocean. From a careful reading and analysis of the proof it is clearly demonstrated that the elevations of ground water vary directly with the rainfall; that .is, on a yearly comparison, the high and low points would be dependent upon the distribution of the rainfall in that particular year and that, necessarily, there must ensue a fluctuation fittingly styled *“*normal,” and not at all to be attributed to mechanical influences. There has thus been established a natural cause, as a factor to be considered in any lowering of the so-called “ water table,” on plaintiffs’ premises. While the burden is rightfully upon the plaintiffs to prove that the operation of the various stations was to such an extent, either operating singly or simultaneously, as to bring the plaintiffs’ land within their influence, to the end of taking *from*their land or preventing the natural flow *to*their land of water that was there, or should naturally come thereto, they, in my judgment, have not sustained same, but, on the contrary, it has been established from the testimony of experienced engineers, and with the tables of their experience in their tests given, that the maximum, as marking the zone of influence of these galleries, was 3,500 feet from the gallery or station (evidence as to Wantagh). A fair and conservative acceptance of the *514zone of influence would fall far short of this when you, therefore, contemplate the facts and take into consideration the distances at which the various stations are located from plaintiffs’ land (set out above), and then couple with that the additional facts that on the territory from Watts Pond to Massapequa, inclusive, there are eight pumping stations, neither owned nor operated by the defendant, and that the nearest driven well station to plaintiffs’ farm is owned and operated by the village of Freeport, and that next in proximity to the farm is one operated at Rockville Centre, neither of which is in any way controlled or operated by the defendant, it becomes well-nigh impossible to find in the operation of defendant’s stations a cause of any injury to plaintiffs’ property. Ro occasion arises in this opinion for entering into any detailed analysis of this proof. It seems to he unanswerable and conclusive. It strikes me to say in passing that the question of capillary rise of water in Long Island soils and its relation to surface moisture, in the light of Mr. Whipple’s testimony in this case, is a very important factor to he considered in this and like cases, and with particular reference to his scientific opinion that a water table situated at five feet from the top soil is of no benefit whatever in the growth of crops. For the reasons advanced, which in my judgment show that the operation of these plants complained of could not possibly have been cause of injury to plaintiffs’ lands, judgment must be rendered dismissing the complaint.

Complaint dismissed.