#### ODELL v. NYACK WATERWORKS CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Trespass—Flooding Well.

The owner of a reservoir, who shuts up the overflow pipe, causing the water to overflow, and, by means of a subterranean channel, run into the well of another, is guilty of a trespass.

Appeal from special -term, Rockland county.

Action by Rachel E. Odell against the Nyack Waterworks Company to recover damages, and for an injunction. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Lexow & Wyre, for appellant.

A. S. Tompkins, for respondent.

DYKMAN, J.

This is an appeal by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the court. The facts in this case as found by the trial judge after the rendition of the verdict of the jury at the circuit in favor of the plaintiff for $1,346 are as follows: The defendant is a domestic corporation. On the 31st day of October, 1894, the plaintiff was the lessee and in possession of certain real property in the village of Nyack, upon which there was a well of water, about 32 feet deep. The defendant, on the 31st day of October, 1894, was the owner of certain real property adjoining the premises of the plaintiff in the village of Nyack, upon which premises there was a large reservoir of water, and also a well of water, which well is located between the plaintiff’s well and the defendant’s said reservoir. On the 31st day of October, 1894, and some time prior thereto, there was a natural subterranean channel or passage extending from the plaintiff’s well, through *207which there had been accustomed to flow in a northwesterly direction a natural stream of water. On the 31st day of October, 1894, the defendant closed and stopped up the overflow pipe on the north side of its reservoir, thereby preventing the water from flowing out of the reservoir in the usual and ordinary manner, and filled said reservoir beyond its usual quantity and condition, and caused the water from the reservoir to overflow its bank, at the southwest corner thereof, and thereby caused the waters to overflow the well upon the defendant’s premises, and in that manner unlawfully and wrongfully forcing waters from said reservoir through said subterranean water course into and upon the plaintiff’s premises in large quantities, and into the plaintiff’s said well, causing the wall and arch of the plaintiff’s well to loosen, cave in, and break, injuring the plaintiff’s premises. The defendant, by its acts, caused water from its reservoir to flow in large quantities through the seams in the rock, and through the subterranean course in a southwesterly direc1 tion, and in an unnatural and unusual manner, and from its said reservoir and well to and into the plaintiff’s well, causing the injuries aforesaid, and in the manner and to the extent found by the jury as aforesaid. That a continuance of the defendant’s acts, or repetition thereof; would interfere with the plaintiff’s use and enjoyment of her said premises, and cause irreparable damages to her. As a conclusion of law the. trial judge found that the acts of the defendant were wrongful and unlawful, and constituted a trespass. That the plaintiff was entitled to judgment against the defendant for the amount of the verdict of the jury, to wit, $1,346, and forever restraining and enjoining the defendant, its officers and servants, from causing or permitting the waters from its said reservoir to flow back or upon the plaintiff’s premises or into or against her said well, and from in any manner interfering with her use and enjoyment of her said premises, or any part thereof, together with the costs of the action and an allowance of five per cent, on the verdict. These findings, as well as the verdict of the jury, are well sustained by the evidence, and they must constitute the basis of our decision. They show the plaintiff in the lawful possession of a well of water supplied by subterranean sources, and her right to the same cannot be invaded with impunity. The case does not require the examination or determination of the rights of contiguous landowners in subterranean waters, for the wrong of the defendant consisted in destroying the well of water of the plaintiff, by overflowing it with water. The liabilities are imposed by the principles of law which require persons so to use their property as not necessarily to injure their neighbor. While the right of user of property is unlimited in point of duration, it is not so in point of enjoyment; on the contrary, the right of user is limited by the rights of all other persons. The maxim, “Sic utere tuo ut alienum non Isedas,” holds a prominent place in the law of property. While the defendant had the legal right to maintain a reservoir upon its premises, it was bound to so use and guard the same that it would not become a source of annoyance or damage to the plaintiff and others. The law of the case was correctly given to the jury by the trial judge, and the exceptions *208to the charge present no error. The same may be said respecting the findings of the trial judge subsequently to the rendition of the verdict.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

BROWN, P. J., concurs.

PRATT, J. (concurring).

This was an equity suit to enjoin the defendant from permitting certain waters from the reservoir owned by the defendant to overflow back upon or against the plaintiff’s premises, or into a well belonging to -the plaintiff, and from in any manner interfering with the plaintiff’s use and enjoyment of her premises, or any part thereof, and from continuing the stopping of the usual overflow from said reservoir in a northerly direction, and also for damages for injury caused by the overflow of the defendant’s reservoir upon the premises and into the well of the plaintiff. Certain questions of fact were submitted to a jury, and also the question of damages. The jury found a verdict for the plaintiff, and assessed the damages at the sum of $1,346. After the rendition of the verdict, the trial was continued and finished before the justice who tried the cause, and findings of fact and conclusions of law were made by him, and a judgment entered thereon. A motion was made for a new trial upon the minutes upon all the grounds mentioned in section 999 of the Code of Civil Procedure, which motion was denied. We were not favored in this case with any argument or brief by the appellant, but, notwithstanding that, we have examined the case, and are satisfied that the findings of fact made by the trial judge are supported by the evidence, and that the conclusions of law are justified by those findings. We have also examined the exceptions in the case, and find no error sufficient to reverse the judgment. We think the case was decided upon its merits, and that the judgment must be affirmed.