In the first place we have shown the fact that this pure, clear water ran to this parcel of land in full and constant supply. This condition of things was open and visible. The presumption arises at once that a person of even ordinary judgment in quest of a farm must perceive this advantage and be influenced by a consideration of its value. Then there is express testimony that the plaintiff's grantor, the grantee of Newbold, had been before the conveyance to him, the agent of Newbold and familiar with the premises, and that he knew that Newbold was used to pasture cattle in part on this parcel of land, and that they found their supply of water in the stream and in the cove. The testimony also tends to show that the lands are peculiarly advantageous for the pasturage of cattle in the summer and of keeping them through the winter, with the ultimate purpose of marketing them as fat cattle; and that the supply of this water through this ditch was useful and necessary therefor. And the proof is ample that the water was of use to the land and of great value, and there is testimony tending to show that it is highly necessary to its full enjoyment.
147 N. Y 3. - ED.
We think that with instructions from the court to the jury in accordance with the rules announced in 21 N. Y. supra, it should have been submitted to them to say whether the grantee of New-bold of the parcel of land now owned by the plaintiff, contracted for it in reference to its condition in respect to this ditch and its water at the time of the sale, and whether to be deprived of it is to lose something of value and of necessity.
Nor would an affirmative answer to it and a judgment in accordance therewith impose upon the defendants, as is argued, the necessity of keeping up a swamp on his land. The benefits and burdens of this ditch are reciprocal, to be enjoyed and borne by all the lands. As the ditch was to the observation as much an aqueduct from one parcel as an aqueduct to another, so it must continue to be. And the defendant has as good right that it should lead away all the surface water and all that Indian Creek brought down, as the plaintiff has that it should be led. So that, as the defendant may not obstruct the ditch to divert the water, the plaintiff may not obstruct it to prevent its flow. And as the plaintiff claims that the defendant may not ditch on his own land and drain away this water in another direction, he must permit him to keep open the ditch on the plaintiff's land, so that it be effectual for the defendant's benefit.
It is also urged that the act of the defendant complained of by the plaintiff violated no right of his, for that the ditch, the capacity of which he increased, was upon the land of the defendant's grantor when Newbold sold to the plaintiff's grantor. The act which the plaintiff complains of is the diversion of water which, when his grantor bought of Newbold, was flowing to the land purchased. It matters not how this diversion is effected, whether by digging a new ditch or deepening an old one. The reciprocal rights of the parties (a certain state of facts existing) are to have the status of the tract maintained as it was when Newbold sold. If water then ran through the ditch which Ayrault has deepened, he may keep a stream there of the same volume it then had, but may not increase its volume by a diversion of the water which then flowed to the plaintiff's land.
And we remark here, that we do not mean to conflict with cases cited by the respondent, such as Arkivright v. Gill, 5 Me. & Welsby, 203. We think that they will be found to be cases in which the owner of land, having for a time drained the surface water from it in a certain direction, while still the owner of the same tract, and the owner of the whole of it, sees fit to change the direction of the drainage. Though he may have yielded in the first place a benefit to other land by his method, he was not precluded from abandoning it and adopting another, for he had sold none of the land benefited to one who had contracted for it in reference to its condition of benefit. It was doing with his own as he had a right, the right of no one else having intervened by his act. It was a dominant tenement foregoing the enjoyment of an easement upon a servient one. In the case in hand both tenements, by the acts of the former owner of both as a whole, have become each dominant and each servient to the other, as their respective needs require. Had there been no drain until the severance of the great tract into parcels, and then the defendant on his parcel had made drains leading to the plaintiff's parcel, which stopping afterwards, he had made others elsewhere, and of this the plaintiff had complained, the cases cited would have been in point.
The point is not taken in this court by the respondent that the complaint of the plaintiff does not put his right of action upon this ground. Nor does it appear to have been taken below. Doubtless, if it had been, the ample power of the court to allow amendments would have obviated the objection without injury to either party.
The judgment of the court below should be reversed, a new trial ordered, with costs to abide the event.
4. Property in Underground Waters.
40 New Jersey Equity, 447. - 1885.
Bird, V. C. - More than fifteen years ago the complainants pur-chased a large tract of land fronting upon the ocean, chiefly for the purpose of a summer resort, to exercise the right of worship. The enterprise has so grown that in winter it has a population of about five thousand, and in summer of ten thousand or fifteen thousand. 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 over four hundred feet struck water which gave them a flow of fifty gallons per minute at an elevation above the surface of twenty-eight feet. This they carried into the city by means of pipes, and supplied therewith about seventy 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 quantitly and with unabated force until the action of the defendants now complained of, and to restrain which the bill in this cause was filed.