Opinion
Argued October 18, 1909
Decided November 23, 1909
Edgar T. Brackett for appellant in first three actions. Alton B. Parker and Guthrie B. Plante for appellant in fourth action. Edward R. O'Malley, Attorney-General ( D.E. Brong, Charles C. Lester and Nash Rockwood of counsel), for respondent.
It is difficult to understand upon what ground the evidence offered by these defendants was excluded; unless it be the interpretation given to our decision of the case of Hathorn v. Natural Carbonic Gas Co., ( 194 N.Y. 326). No opinion appears to have been expressed below and I think we must presume it to have been considered that the statute, which authorized the plaintiff to maintain the actions, (Laws of 1908, chap. 429), as construed by this court, absolutely prohibited the pumping of the mineral waters in question, as practiced by the defendants in the conduct of their particular business. The decision of the trial court, as it is formulated in the judgment roll, finds that the acts of the defendants in pumping from their wells mineral waters, for the purpose of extracting and vending the carbonic acid gas, separately, as a commodity, were contrary to the provisions of the act and are "injurious to the People of the State of New York and tend to the waste and impairment of the natural mineral waters of said State." That is to say, if the judgments in these actions are sustained, the legislative enactment of 1908 operated to prohibit, as unlawful, all pumping from wells, bored into the rock, of mineral waters, holding in solution mineral salts and an excess of carbonic acid gas, for the purpose of extracting, liquefying, or vending, separately, such gas, as an article of commerce, and the prohibition is to be enforced irrespective of whether the use by the defendants of their properties was a reasonable one, or not, relatively to the legal rights of other landowners. That this view of the arbitrary action of the statute must have obtained below seems evidenced by the finding, which I have just quoted from, as to the effect of the acts complained of.
I think that the opinion of this court in the Hathorn Case, ( supra), must have been greatly misapprehended, both as to the basis upon which it was rested and as to the principles sought to be established thereby. In that case, it was, certainly, intended to determine the constitutionality of the act of 1908 and that an action brought by taxpayers, (who were, also, spring owners), upon a complaint making like charges against one of these defendants, might be maintained under the provisions of the act, as well as at common law; but it is to be, particularly, observed that, in that case, we had before us in the record the admission by demurrer of the material facts pleaded in the complaint. A careful reading of the opinion will, in repeated instances, show that in reaching conclusions attention was called to the effect upon construction of the admission of the state of facts exhibited by the pleading The complaint in the Hathorn action did not differ, in its allegations, materially, from the present complaint and the demand for relief was for an injunction against the use by the defendant of pumps for the purpose of accelerating the flow of subterranean waters and gas through deep wells. Naturally, the demurrer to the complaint presented the question whether, by force of the provisions of the act of 1908, or at common law, such an action was maintainable and the equitable relief warranted. Reasoning upon the principles of the common law, as applicable to the subject of rights in sub-surface and percolating waters, it was considered that the doctrine, varying from that of the early English and American cases, which followed Acton v. Blundell, (12 M. W. 324), and gave to a landowner an absolute right to all that lay below the surface of his lands, to the later restriction imposed upon that right, when its exercise was unreasonable, because not relating to the use, or enjoyment, of the land itself, became, finally, settled by the decision in the case of Forbell v. City of New York, ( 164 N.Y. 522). That case laid down the rule of the reasonable use of percolating waters. It was held that "whatever it is reasonable for the owner to do with his sub-surface water, regard being had to the definite rights of others, he may do." It was held not to be unreasonable that he should take, through wells, all the water he needs for "the fullest enjoyment and usefulness of his land as land"; but that it was unreasonable for the landowner "to tap the water stored in the plaintiff's land, and in all the region there-about, and lead it to his own land, and, by merchandizing it, prevent its return." (P. 526.) The adoption of this doctrine of a reasonable use of one's property in subterranean percolating waters, to be measured by the rights and necessities of others, as a modification of the earlier rule, obviously, resulted from a consideration of the differing conditions of the age and of the possibilities of an unlimited and destructive use from modern engineering methods. The doctrine of Forbell's case was held by us to be applicable in the decision of the Hathorn case; inasmuch as the situation was "relatively, of the same general character." The defendant in the Hathorn case, upon admitted facts, "by artificial and unusual methods had so increased the flow of percolating waters and gas upon its lands, that it was obtaining a greatly increased proportion of a common supply at the expense of its neighbors * * * in order to supply a public market for a portion of these products while the others are wasted." It was said "if these facts, resting now merely on the allegations of a pleading, shall be established by evidence," the conclusion will be authorized that they disclose a case of "unreasonable and improper conduct * * * and make out * * * a sufficient cause for appeal to, and relief by, a court of equity." That application was made of the common-law rule of the reasonable use of sub-surface waters, as settled, is, further, made clear by the holding that "no distinction in this case can be predicated upon the peculiar character and quantity of the salts and gases which happen to be in solution." (P. 338.) Having considered the plaintiff's right to relief upon common-law principles, the effect of the act of 1908, (L. 1908, Chap. 429), was next discussed, and the objections urged to the validity of the legislation were overruled. The prohibition of the act was held to be effective to restrain the defendant from the commission of the acts alleged and to prevent the destruction, or diminution, of the flow of waters under the lands of others, for the purpose of diverting them to some use entirely disconnected with the improvement and enjoyment of the defendant's land. As such results were alleged by the complaint to have been occasioned by the defendant's acts and were to be regarded as admitted by the demurrer, it, necessarily, followed that a cause of action was stated under the statute. I do not think any particular discussion of the provisions of the act to be called for, other than to mention what was decided in the Hathorn case and what application was there made of the statutory prohibition. The act of 1908 contained four prohibitory clauses, more or less, directed to the purpose as declared in the title, namely: "the protection of the natural mineral springs of the State and to prevent waste and impairment of its natural mineral waters." Of these four clauses, three were condemned, because too broad and unqualified, when tested by the common-law rule governing the landowner's property rights. The third clause was upheld. That contained a provision prohibiting pumping, or otherwise drawing by artificial appliance, from any well, bored into the rock, that class of mineral waters holding in solution natural mineral salts and an excess of carbonic acid gas; or pumping, or by any artificial contrivance whatsoever, in any manner, producing an unnatural flow of carbonic acid gas, issuing from, or contained in, any such well, "for the purpose of extracting, collecting, compressing, liquefying or vending such gas as a commodity otherwise than in connection with the mineral water." This provision was upheld, distinctly, upon the ground that it would be enforceable within the operation of the settled common-law rule, which forbids an unreasonable use of sub-surface waters to the injury of another's rights. "It was entirely proper", it was said, "for the legislature to adopt the provision in question defining and regulating the rights of persons desiring to use mineral waters like those of Saratoga Springs and to prevent such use thereof as would either result in waste of the natural resources of the land to the injury of general and public interests, or in the unreasonable impairment of the rights of others entitled to draw from a common source." (p. 343.) As these results flowed from the defendant's use of its wells, under the allegations of the complaint, the statutory prohibition was held to apply and to be available in protection of the plaintiff's rights. It is, or should be, clear from the opinion that the act was construed in the light of the common-law rule and, so far as it did not contravene that rule, its prohibition was valid, when invoked for the protection of those, who were suffering injury to their legal rights from the unreasonable use made by another of his property, in a region covered by the terms of the act. What we intended to hold, and, as I think, did hold, was that, while a landowner was entitled to make every use of the waters flowing under the surface of his land, which might be for the legitimate improvement, or enjoyment, of his lands, however it interfered with others as a natural consequence, if his use was unreasonable, in the sense that he was attempting to increase the flow of the waters upon his lands, for a purpose not connected with such improvement, or enjoyment, and to the destruction, or dimination, of the flow under the adjacent lands of others, he was committing an unlawful act. The waste committed by an owner in his use of his property, if complained of, must appear to be such as affected the rights of other landowners to the appropriation of the sub-surface waters, existing as a common source of supply and within the area subject to the influence of the mechanical contrivances for their increased flow.
Our decision in the Hathorn case affirmed the constitutionality of the act of 1908, in question, and its applicability to the case of the plaintiffs was upheld upon the facts as they stood admitted by the defendant's demurrer. It is, of course, not proper that some isolated expression in the opinion of Judge HISCOCK should be selected, in order to give color to the argument for a broader and more unqualified application of the statute; but it should be read in connection with the context and in the light of the very careful reasoning, by which the conclusions as to the applicability of the act are guarded.
But the situation of these parties in the trial court, from which this judgment comes, was altogether different from what it was in the Hathorn action. All the allegations of this complaint were denied, which had relation to the acts of the defendants, in their effect upon the adjacent lands of other owners and upon the rights of others to the common enjoyment of the subterranean mineral waters, and, generally, to acts alleged as constituting an unreasonable use by the defendants of their properties. It was averred, in defense, that it was necessary to make use of wells and of pumps in the prosecution of the defendant's business and, further, that the mineral waters and gas were found both in wells extending into the rock and in those reaching into the soil, and that no reasonable basis existed for discriminating against the former as a use of one's property. There resulted, therefore, issues which had to be determined upon evidence, before a judgment could, properly, deprive the defendants of their right to prosecute a business, which, in itself, was lawful. The legislature could not enact arbitrarily upon the subject and we should not so read the act, in question. We must read into it the intent to regulate the conflicting rights of landowners, who derive enjoyment, or profit, from the use of these waters within the earth and of their constituent ingredients and gases. In that aspect, the enactment was a proper exercise of the police power, which the government possesses and by which, among other objects of governmental solicitude, it regulates the intercourse of citizens and insures "to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others." ( People ex rel. N.Y. Electric Lines Co. v. Squire, 107 N.Y. 593, 605; Cooley's Constit'l Limitations *572.) It is for the interest of the state that no one should use his own property improperly; but the state could not, under the plea of protecting its natural resources, arbitrarily, arrest the work of the defendants and deprive them of the right to prosecute a lawful business, whatever its effect upon the subterranean mineral waters and gases. Such an exercise of the police power would be highly unreasonable and irreconcilable with the rules of law, under which rights in property have been held and recognized. To prohibit the defendants from conducting a lawful business, in the manner they had established, is to destroy a right, which they possessed, and, it may be, to annihilate the business; but, whatever the degree, it is a taking of property within the constitutional provision. ( Wynehamer v. People, 13 N.Y. 378; In re Jacobs, 98 ib. 98.) It does not appear that the state has any property in mineral springs to protect. The land affected is held in private ownership and if the rights of an owner to its full use and enjoyment, in lawful ways, are destroyed, or impaired, property is taken and that the Constitution of the state forbids; unless, when taken for public uses, just compensation be made. Authority to acquire any interest, or easement, in mineral spring properties, in, or near, Saratoga Springs, appears to have been, already, conferred by an act passed by the legislature in its last session, which contains provisions for compensation to those affected by the taking. (Laws of 1909, chap. 569). The act and the authority to enforce it by an action in the name of the People are to be construed, not as intending to exercise governmental power arbitrarily, but as promulgating a rule, with authority to a taxpayer, or to the law officer of the state, to enforce obedience to it by an action, which should regulate the appropriation and use of this common natural supply by owners of lands coming within the provisions of the statute. It is quite within a reasonable exercise of the police power to regulate such rights; for all property is held subject to the power of the state to regulate, or control, its use, in order to secure the general safety, or the general welfare. ( Bertholf v. O'Reilly, 74 N.Y. 509, 521.) "Every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community." (Per SHAW, C.J., in Commonwealth v. Alger, 7 Cush. 84.) Under our system of government, the power to bind all by reasonable measures, looking to the regulation and security of those rights, must reside with the legislature. Its exercise of power, in such respects, is subject to the supervision of the courts and where it can be seen that the legislation is sane and reasonably necessary, neither arbitrary, nor unduly oppressive, it will be upheld.
The objection to the right of the People to bring such an action, that it relates to private interests, is without force, as we held in the Hathorn case; inasmuch as the public interests are concerned in the enforcement of the statute. But whatever the argument, the language of the act investing the attorney-general with power to bring an action is explicit and that is enough. ( People v. Ballard, 134 N.Y. 269.) If reason is sought for authorizing such an action, it is readily found in the extensive nature of the industries connected with the sub-surface mineral waters and gases of such a locality as Saratoga Springs. The territory affected includes a large area of land in the town of that name; the interests in the development and use of these natural products are large and many, and the pernicious effects of an unreasonable and unlawful use by any one might be widespread. The right of the People to demand that wasting of the product be restrained must rest upon the ground that it is destructive of the rights of landowners to an equal appropriation and enjoyment of a natural product. In Ohio Oil Co. v. Indiana, ( 177 U.S. 190, 210), the statute assailed made it unlawful for the owner of a gas, or oil, well to permit the flow of either product, except under certain restrictions, intended to prevent the depletion of the general supply. The state brought an action against the oil company, pursuant to the statute. The legislation was upheld and the exercise of legislative power justified, because of "the peculiar nature of the right and the objects upon which it is to be exerted." "The power can be manifested," it was said, "for the purpose of protecting all the collective owners, by securing a just distribution, to arise from the enjoyment by them, of their privilege to reduce to possession, and to reach the like end by preventing waste." I entertain no doubt that the power could be properly lodged with the attorney-general, to be exercised in his discretion, to maintain an action for the purpose of restraining acts of landowners, when in violation of the provisions of the act.
But, inasmuch as the proper reading of the third provision of the act forbids a construction that it is unqualifiedly prohibitory of the pumping of the mineral waters, for the purpose of separating and vending the gas as a commodity, without reference to the reasonableness of such a use of the property, relatively to the rights of others, the importance and materiality of evidence, offered by a defendant to show that his wells, with their pumping appliances, caused no unnatural flow and had no effect upon the properties of others, entitled to draw from a common source of supply, become apparent. The right to equitable relief depends upon whether that which is demanded appears to be proper upon an investigation of the facts. That the statute is not applicable to their case, the defendants should have been permitted to show by any competent evidence. They were entitled to show the situation of their wells, the necessity of the pumping appliances used and that no acts of theirs, in that respect, affected any other spring, or well, or resulted in injury to any other person. Evidence to show the comparative effects upon the sources of supply of the mineral waters and gas of pumping from wells, which are bored into the rock, and from those which are driven into the soil, was, also, fairly within the issues. Of course, the purpose of such evidence was to show that the act of 1908 violates that provision of the Federal Constitution, which prohibits a state from denying "to any person, within its jurisdiction, the equal protection of the laws," in that an arbitrary classification was made of wells bored, or drilled, into the rock. That point was considered in our opinion in the Hathorn Case, ( supra); where it was held that the classification was valid, if "based on some sufficient reason and not on mere caprice or arbitrary election. * * * Under the admitted allegations of the complaint * * * a proper basis existed for the classification made by the Legislature." From those allegations it appeared that differing conditions prevailed in the two classes of wells and that pumping from those bored into the rock was much more exhaustive and destructive of the common rights. There, as here, the complaint showed that the excess of gas existing in the cavities of the rocks exerted a great pressure, which tends to expel the waters and gas and to cause them to flow naturally to the surface, and that the mineral springs were dependent for their existence upon such pressure. But, in the present case, these allegations were put in issue. It was claimed, in the answers, as a ground for assailing the constitutionality of the act, that the acceleration of the flow by pumping from wells, whether extending into the rock, or into the soil, and the effect upon the gas and the water charged therewith, in either case, were, in all respects, the same. I think that the defendants were entitled to give any competent evidence that they had, in support of their defense to the validity of the act, that, as its provision rested upon no real basis, in discriminating against wells bored into the rock, the prohibition was an unreasonable exercise of power. Such proof would not be objectionable, because going to show the statute to be on its face invalid; it would bear upon the reasonableness of its classification and go to show whether its provisions, in attempting a regulation of the conflicting rights of all to a common, natural, supply, operated unequally upon the rights of a class of property owners. On its face the third prohibitory provision of the act appears to be valid, as we have held in the Hathorn case. The legislature assumed the existence of a fact, so notorious in external nature as to be a matter of common teaching and knowledge, that gas, as an elastic aeri-form fluid, when confined, exerts pressure; that the natural tendency will be to expel the waters, which hold them in solution, when generated, through any vent, or opening, in the rocks, where confined, and that the boring of wells into such rocks would diminish the pressure and thereby destroy, or seriously impair, the force, which was necessary to the natural flow observed in the mineral springs. If the defendants were able to show that this scientific fact in the natural world had no application to their situation and that there was no difference, in the effect upon the general source of supply, between pumping from wells bored in the rock or from those driven in the soil, or in the effect upon the springs of other landowners, I think they were entitled to present that evidence for the consideration of the court in determining the reasonableness and validity of the legislative measure.
As to the burden of proof I think it rested upon the defendants. There was enough admitted as to the situation, the character of the waters and the nature of the work conducted by the defendants, to bring them, prima facie, within the operation of the act. The People were entitled to rest upon the presumption of the validity of its provision and upon the support to their case in the admissions made and in the inferences of facts from the operation of natural laws, until the evidence of the defendants established, or tended to establish, their defenses that the statutory provisions were inapplicable to their case; that such regulations were unjustly discriminative; or that they were not chargeable with making a use of their property, which was unreasonable because injurious to the rights of others.
For these reasons, I advise that the judgments in these four actions be reversed and that new trials be ordered; with costs to abide the event.
I concur in the opinion of GRAY, J., for reversal of the judgments appealed from in these cases, but desire to add a word in answer to one argument pressed on us by the learned attorney-general. It is urged that the public have such an interest in the mineral waters of Saratoga, because of their great curative and health giving properties, that the legislature may interpose for their protection under the right of the state in the exercise of its police power "to protect and develop its natural resources", even though the waters themselves are the property of private persons. I deny that the police power vests in the legislature any such right. "The police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil law maxim, sic utere tuo, ut alienum non lœdas" (Tiedeman's Limitations of Police Power, p. 4), that is to say, one cannot use his own property so as to injure the rights of others, nor can he use it in such a manner as to offend against public morality, health or peace and good order. In the exercise of this power, doubtless, the legislature may not only prohibit acts of commission on the part of the owner, but acts of omission, provided the result of such omission is to invade the rights of others or those of the public. But under that power the legislature cannot require an owner to use his property for the advantage and benefit of others or of the public, or even for his own benefit, nor restrain him from devoting it to such purpose as he sees fit, or even from wasting it, provided such use does not conflict with the rights of others or the public. ( Matter of Ryers, 72 N.Y. 1. ) A man owning a coal mine may mine the coal and waste it, regardless of the interest of the present generation or of succeeding ones. It is not that such conduct would not be an evil, but because the people who framed our system of government taught by experience deemed it wiser to trust the use of property to the dictates of the intelligent self-interest of the owner, rather than to subject it to governmental interference.
That the right to appropriate springs and subterranean waters is an incident of the ownership of the land is settled by a long line of authorities, to one of which only it is necessary to refer. ( Bloodgood v. Ayers, 108 N.Y. 400, 405.) There Judge FINCH, writing for the court, said: "No stream or water-course ran from the spring. The source from which it came and the flow of its waste or surplus were alike under ground, concealed, and matters of speculation and uncertainty. Such a spring belongs to the owner of the land. It is as much his as the earth or minerals beneath the surface; and none of the rules relating to water-courses and their diversion apply." That doctrine has been limited by the case of Forbell v. City of New York ( 164 N.Y. 522), because, as pointed out in the opinion of Judge GRAY, modern engineering has created conditions unknown at the time of the old authorities. The modification, however, is only this: that the absolute right of appropriation as against other landowners who may be injured thereby extends only to a reasonable use of the water. The reasonableness of the use, however, is a question between the several landowners, not between the landowner and the public unless an actual stream or watercourse is affected. If the appropriation does not affect other landowners the right to appropriate underground waters is unqualified.
I concurred in the affirmance of the judgment in the Hathorn case because, on the facts alleged in the complaint in that case, I thought the defendant's use of the water unreasonable within the doctrine of the Forbell case, and I concurred in upholding the statute because I deemed it an adjustment of conflicting private rights and the apportionment of a common property right among several owners. That is a recognized branch of the police power. ( Dorrity v. Rapp, 72 N.Y. 307; Ohio Oil Co. v. Indiana, 177 U.S. 190.) If, however, the fact is that the source of supply from which the defendant draws water is not a common one, but exclusively on its own land, or if its appropriation of the water in no way affects the supply of water on other lands, then the statute has no application.
HAIGHT and WILLARD BARTLETT, JJ. We concur in the result reached in the opinion of GRAY, J., and concur in the opinion of the chief judge in so far as he discusses the right of the state, in the exercise of its police power, to interfere with the production of mineral water by private persons upon their own land.
EDWARD T. BARTLETT, WERNER and HISCOCK, JJ., concur with GRAY, J., and CULLEN, Ch. J.; HAIGHT and WILLARD BARTLETT, JJ., concur in result in memorandum.
Judgments reversed, etc.