Opinion
11-20-1885
OCEAN GROVE CAMP-MEETING ASS'N v. COMMISSIONERS OF ASBURY PARK.
R. Ten Broeck Stout, for complainant. D. Harvey, Jr., and F. Hawkins, for defendants.
Bill for injunction.
R. Ten Broeck Stout, for complainant.
D. Harvey, Jr., and F. Hawkins, for defendants.
BIRD, V. C. More than 15 years ago the complainant purchased a large tract of land fronting upon the ocean, chiefly for the purposes of a summer resort, to exercise the right of worship. The enterprise has sogrown that in winter it has a population of about 5,000, and in summer of 10,000 to 15,000. The authorities soon discovered that, to preserve the good health of the residents and visitors, it was absolutely necessary to improve their water supply and sewerage system. To do this they bored for water, and at the depth of about 408 feet struck water, which gave them a flow of 50 gallons per minute at an elevation above the surface of 28 feet. they carried into the city by means of pipes, and supplied therewith about 70 hotels and cottages. They also applied it to the improvement of their sewerage system. The volume of water thus produced continued to flow undiminished in quantity and with unabated force until the action of the defendants complained of, and to restrain which the bill in this cause was filed.
The commissioners of Asbury Park, a corporate body,, purchased a large tract of land immediately north and adjacent to the tract owned by Ocean Grove. Under their management, this, too, has become a famous seaside resort. Its population is equal to, if not greater, at all times than that of Ocean Grove. The authorities saw a like necessity for an increased supply of wholesome water. They entered into a contract with others, a portion of these defendants, to procure for them water by boring in the earth. These, their agents, sank several shafts to the depth of over 400 feet without satisfactory success. One shaft yielded about four gallons to the minute, and another, which yielded the highest, only nine. All of these wells were upon the land and premises of the Asbury Park Association. It became evident, and is manifest to the most casual observer, that these wells would not supply the volume of water needed. It was also manifest that the experiment to procure water by digging upon their own land was quite reasonably extended, although not so complete as to satisfy the mind that they cannot obtain water on their own premises as well as elsewhere, since it is in evidence that there are two wells on their premises, sunk by individuals, which produce 15 gallons each per minute, being as much in quantity as they procure from the well which is complained of. . Failing in their efforts upon their own premises, they went elsewhere, on the land owned by individuals, and, procuring a right from individual owners, sunk a shaft upon the public highway near to the land of the complainants, and within 500 feet of the complainant's well. This bore extended to the depth of 416 feet, within eight feet of the depth of complainant's well. At this depth they secured a flow of water at the rate of 30 gallons per minute, and the supply from the complainant's well was almost immediately decreased from 50 gallons to 30 per minute. The diminution in water was immediately felt by many of those who depended for a supply from this source in Ocean Grove. The Asbury Park authorities propose to sink other wells still nearer the well of complainant. This bill asks that they may be prohibited from so doing, and that they may be commanded to close the well already opened, which it is alleged is supplied from the same source that the complainant's well is supplied from.
The complainant is first in point of time. It is upon its own land and premises. It procures water from its own soil, to be used in connectionwith its said premises in the improvement and beneficial enjoyment of their occupation. In this it has exercised an indefeasible and unqualified right. It matters not whether the water which it obtains is from a pond or under-ground basin, or only the result of percolation or from a flowing stream. The defendants went from their own land upon the land of strangers, and obtained permission to bore for water, and there sank their shaft; procuring water from the same source that the complainant procured its water, and diverted it, and carried it to their premises, three-eighths of a mile, for use. Can they be restrained from doing this? A very careful consideration of a great many authorities leads me to the conclusion that they cannot, at the instance of the complainant. Ang. Water-courses, §§ 109-114, inclusive; Gould, Waters, § 280; Chasemore v. Richards, 7 H. L. Cas. 349; 5 Hurl. & N. 988; Acton v. Blundell, 12 Mees. & W. 324; Gfiase v. Silverstone, 62 Me. 175; Roath v. Driscoll, 20 Conn. 533; Delhi v. Youmans, 45 N. Y. 362; Goodale v. Tattle, 29 N. Y. 466; Wheatley v. Bough, 25 Pa. St. 528.
The courts all proceed upon the ground that waters thus used and diverted are waters which percolate through the earth, and are not distinguished by any certain and well-defined stream, and consequently are the absolute property of the owner of the fee, as completely as are the ground, stones, minerals, or other matter, to any depth whatever, beneath the surface. The one is just as much the subject of use, sale, or diversion as the other. The owner of a mine encounters innumerable drops of water escaping from every crevice and fissure. These, when collected, interfere with his progress; and he may remove them, although the spring or well of the land-owner below be diminished or destroyed. So, the owner or owners of a bog, marsh, or meadow may sink wells therein, and carry off the water collected in them, to the use or enjoyment of a distant village or town, although the waters of a large stream upon the surface be thereby so diminished as to injure a mill-owner who had enjoyed the use of the waters of the river for many years. Upon these principles, there can be no doubt but that every lot-owner in Ocean Grove or Asbury Park could sink a well on his lot to any depth, and in case one should deprive his neighbor of a portion or all of his supposed treasure, no action would lie. A moment's reflection will enable every one to perceive that such conditions or contingencies are necessarily incident to the ownership of the land.
In the case before me there is no proof that the waters in question are taken from a stream, and I have no right to presume that they are. The presumption is the other way. It seems to be my very plain duty to discharge the order to show cause, with costs.
NOTE.
It was held in Burroughs v. Saterlee, (Iowa,) 25 N. W. Rep. 808, that where an under-ground stream or vein of water, containing medicinal properties, flows under the land of adjoining owners, they should each use the water from wells sunk on their respective lands so as not to injure the other, upon the same principle that the owner of land over which a stream of water has its course, may have a reasonable or proper use of the water as it flows, but may not wholly divert it from the adjoining proprietor.
A. purchased a piece of land, subject to the reservation of the right in B. to conductwater from a spring thereon to his adjoining land. A., in good faith, dug a well on his own land, some 40 feet from the spring, and the subterranean supply of the spring was thereby cut off. The court held that A. should not be restrained. Lybe's Appeal, 106 Pa. St. 626.