Butler citizen. [volume] (Butler, Pa.) 1877-1922, 1901-01-17
zEaKllesk
FlEERsAp IHRpEN
THE UNDERGROUND WATER.


1t Is the Landowners.
Referring TO the decision of the court
of appeals by which the city of Brook
lyn is restrained from the use of its
driven wells on the ground Of their
withdrawing water from the surround
Ing districts operated as market gar
dens, decision that will cause salts
faction to many whose interests as cul-
tiyators always have been in danger of
being jeopardized by the building up
of residential districts, American Gar
dening comments as follows:
The process referred to has been GO
Ing on for years in the neighborhood of
Brooklyn with perhaps greater intensity
than in any other city. The situation
of Long Island and its formation have
rendered 1t peculiarly susceptible. The
proximity to a large city has made it
an area OF dense population for peo-
pie who wish to retire after the days
work is accomplished, and the fertile
character Of its land, together with the
level surface, has made it a very con-
venient spot for the location of vege-
table growers and truckers who came
to supply the wants of the first named
class. The conditions for carse and
effect 10 be quickly operative were ex-
cellent.
A condition that has been known
and realized for years, so far as the
farmer class is concerned, came to such
n pass that action was brought in the
courts by Benjamin F. Forbell against
the city of New York, and a historic
rendering is the result. Judge Smith
in the original trial took the stand that
the act of pumping water from another
mans land, and which was the actual
foundation of his business and living,
was to be regarded as a trespass, and
the precedent now established by the
upholding of that decision on appeal by
Judge Landon strengthens the general
position of the agriculturist In a re-
markable degree. He Is no longer to
be the easy, impotent victim Of the sue
cess of other enterprises. The water
which flows under his soil cannot in
future be taken from him with i'm
punity. It Is Just as much his as the
crop which grows on the surface by
means of the water which 1t draws up.
The case in question awards the plain
tiff damages to the sum of $4,000, with
costs.
The case is briefly this: Forbell was
the lessee of certain farming lands near
Spring Greek and used portion Of his
lands for growing celery and water
cress for the New York market. This
part of his farm was on low lying land
near Jamaica bay. The growing of eel
cry requires an extraordinarily large
supply OF surface water, and on For
bells land the dip Of the underground
water shedding stratum was only
about foot below the surface. 1t was
the claim of the plaintiff that the effect
of the pumping at the Spring Creek
station was to lower the underground
water table on his land and to render it
useless for the growth Of celery.
The facts in the case were not long in
dispute, as Forbell was able to produce
numerous witnesses who upheld him In
his assertion In regard to the unfitness
OF his land. He likewise summoned the
engineers of the water department,
who testified that the pumping station
sucked its water from all the land
within a radius Of at least Eve miles.
The decision then practically rested on
the question of the right Of landown-
ers to the product of their land to the
center of the earth, well established
principle of the old English common
law which had never been gainsaid. AT
the original trial in the special term OF
the supreme court on March Q, 1899,
the plaintiffs attorney called attention
to a previous decision of Judge Hatch
In which a distinction was drawn be-
tween the right to intercept running or
percolating water on or below the sur
face and that to use artificial means to
draw by suction from beneath adjacent
land the water to which 1t was natu-
rally entitled. On this distinction the
presiding justice, Wilmot M. Smith,
awarded the decision to Forbell, grant
ing the injunction, to become operative
as soon as the case should be fully set
tied. The appellate division affirmed
the decision, and the court Of appeals
has now established distinction
which cannot fail to be Of the utmost
consequence In all future questions IN
yolying water rights.