The sun. [volume] (New York [N.Y.]) 1833-1916, 1900-11-25
Two Notable Water Cases.

On Tuesday last the Court Of Appeals at
Albany handed down a decision affirming
the Judgment Of the Appellate Division
of the Supreme Court in the Second judicial
Department In the case Of BENJAMIN F.
FoRnEIL against the city OF New York.
This decision has excited unnecessary
anxiety, not to say alarm. among our good
neighbors in the borough Of Brooklyn.
Surely there is nothing startling, to
persons familiar with the principles OF
American Constitutional law. In the propo-
sition that even q great city may not take
away n mans private property without
paying for 1t.
FoRBFIL was the owner OF lands in Queens
county upon which ne raised valuable
crops. The city OF Brooklyn established,
and its successor. the city Of New York.
now maintains, a number Of driven wells
and n pumping station at Spring Creek,
near his property. by means OF which from
three to ten millions of gallons OF water
are obtained daily for the use Of the In
hahitants OF this municipality. The land
occupied by the city at this locality for its
driven wells and pumping station Ia only
two acres in extent; but. in order to procure
this enormous quantity OF water there
brought to the surface. its wells and pumps
draw to that station the percolating waters
under an area vartously estimated BY ex-
pert witnesses at from five to eleven square
miles. The effect upon FoBBELL's farm
was to lower the underground water level
on II from ten TO fifteen feet and prevent
him from raising those crops to which 1t
had previously been adapted and which
he found it very profitable to raise.
Upon proof Of these facts In a suit brought
by FoRBKLL against the city Of New York
for an injunction and damages for the loss
If crops occasioned by drying up his land.
Judge WILMoT NJ, SMITH Of the Supreme
Court In the Second District held that the
underground water on the plaintiffs prop
erty was a part OF his land which the city
had no right to take without paying for it,
and gave him judgment for damages in
the sun OF $4,000.
This Judgment was sustained on appeal
20 the Brooklyn Appellate Division, In a
clear. logical and able opinion by Judge
EDWARD W. HATCH 81 Buffalo. who has
recently been transferred by the Governor
70 the Appellate Division In the county OF
New York. Many of the question:. in
volved In the case had previously been
considered by him in writing for the same
court in a similar suit arising In Queens
county, entitled SMITH against the civ
NJ Brooklyn, which also went TO the Court
~ Appeals, where the judgment in favor
~ the plaintiff wa affirmed in October
~ last ear The difference be veen tbs
Smith case and the forbcll case was simpIv
this: the former related to the diversion
and diminution Of n stream flowing in a
well-def ed channel. while the latter "a.
lated to the abstraction Of peroolstino
waters from the plaintiffs land near the
pumping station Of the city.
In neither Of these cases do the cou,ts
deny to a landowner the right to the fullest
beneficial enjoyment OF his own land. even
II such Use OF II does divert or absorb thu
percolating waters under the land OF hi.
~neighbor. where the land u devoted 70
the ordinary purposes Of agricultural
mining. domestic use or Improvement.
either public or private II farmer.
for example. In digging a well on his farm
10 supply water for his stock. abstracts
.ubterranean percolating water from the
farm OF IN adjoining owner, the law gives
the latter no right 10 recover damages on