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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 59 As the order of reversal in this case does not appear to have been based upon any question of fact, we must assume that the judgment was reversed for some supposed error of law. (Code Civ. Pro. § 1338.) No complaint is made of the rulings of the trial judge upon the trial, and, therefore, if the findings of facts justify the conclusions of law the judgment of the Special Term should stand, unless some material finding *Page 61 of fact is without any evidence to sustain it, or unless the trial judge refused, upon request of the plaintiff, to find some material fact sustained by uncontradicted evidence.
It is clear that the parties to the original agreement about the spring were dealing with some particular spring, and that the defendant did not intend absolutely to grant water which would fill or flow through a one-half inch pipe, and thus make his whole farm servient for that quantity of water. The language of the agreement clearly shows this. The particular spring is referred to and located. The evidence shows very clearly where the spring is and what its water was and where it came from. The water did not bubble up out of the ground, but flowed laterally out of a crevice in a rock, which was on the westerly side of the place dug out for the spring, about fifteen inches below the surface of the ground. There was solid rock at the bottom of the spring and water could not come up through that, and could come into the excavation made by the plaintiff only laterally. The finding of the trial judge, supported at least by some evidence, is "that the said spring is composed of the water which flowed out from the hillsides from the said aperture in said rock, and that the water thus flowing from the opening in the rock constituted said spring;" and there is no evidence that at the date of the agreement the spring was composed of any water but that coming from the crevice in the rock.
What is a spring? Properly, it is the water issuing by natural forces out of the earth at a particular place. It is not a mere place or hole in the ground, nor is it all the water that can be gathered or caused to flow at a particular place. A well is not necessarily a spring, nor is water which, by the expenditure of labor, can be gathered into a reservoir. The plaintiff had no right to dig into the earth and thus get water from other springs in which he had no right, although he took such water to the place where he had the right to get his water. His water came from the crevice in the rock where it had flowed for ages, and where it would continue to flow but for some change in the surrounding circumstances — change incident *Page 62 to some disturbance of the earth's surface, or the denudation of forests.
At the time of the agreement about the spring in 1852, there was another spring called spring "C," upon defendant's farm about thirteen feet distant from the former spring. That spring owned by the defendant, he had the right to utilize, and the plaintiff had no right to take or draw the water therefrom. The evidence shows and the finding is that in 1852, and ever afterward, the water issued out of the earth at that place, and flowed away upon the surface of the ground. There is no conclusive or uncontradicted evidence that in digging out the earth for that spring, the defendant diverted or interfered with what, for brevity, we may call plaintiff's spring. On the contrary, the defendant testified: "The putting a barrel into that spring (`C') did not have anything to do with the Furner spring. It did not lessen the water in the pipe at that spring. * * * The effect of Mr. Furner's lowering his spring was to cut off the water from my spring. The effect of digging my spring was not to draw the water from his spring into it. The water that comes into his spring is right out from under a rock. It is a kind of surface spring in his spring, and the vein of water that feeds my spring runs lower in the ground, boils right up from the bottom of the spring, and where he dug down he struck that vein and cut it off and then put in his box and packed clay around it and held it there." There were some circumstances which confirmed this evidence, and the trial judge had the right to believe it.
There is a reasonable and probable explanation for the diminished quantity of water in plaintiff's spring in the gradual denudation of the forests surrounding the spring and thus letting in the rays of the sun to dissipate the sources of the supply.
The principles of law applicable to this case are not obscure or difficult. The defendant had no right to interfere with the plaintiff's spring to his detriment, no right to deprive him of the water granted in the agreement of 1852, and this upon the facts found and the evidence appearing in the case he did not *Page 63 do. The plaintiff had no right to dig down into the earth and drain the water from spring "C." He had no right to dig lower than was necessary to conveniently take the water from his spring, to wit: the water flowing from the crevice in the rock. In digging lower in the defendant's soil, he became a trespasser and the defendant had the right to fill in the excavation thus made.
The facts not only are against the plaintiff, but the authorities cited by his learned counsel do not aid him. He seems to place much reliance on these: Johnstown Cheese ManufacturingCo. v. Veghte (69 N.Y. 16) and Huntington v. Asher (96 id. 604). In the former case the defendant conveyed by warranty deed to plaintiff certain premises upon which was situated a cheese factory, "during the time it shall be used * * * for manufacturing cheese therein," also the use of the water for the purpose of such manufacture, as then conducted from springs on other lands of defendant not conveyed, with the right to enter thereon to construct and repair the pipes for conducting the water, and the right, in case the water from the springs should prove insufficient for the business at the factory, to go upon such lands to dig other springs and conduct other water courses to the factory. Defendant reserved the right to use water in a specified way and for a specified purpose, but it was provided that he should not use it so as to unnecessarily interfere with the use of the water at the factory. After the conveyance defendant unnecessarily made excavations and constructions upon his lands which had the effect to materially diminish the supply of water from the spring and to interrupt the business of the factory, which acts were persisted in after their effect had become apparent. The action was to recover damages and to restrain defendant from diverting the water, and it was held that defendant's acts were in derogation of his grant; that he was precluded thereby from doing any act on his land which should divert or diminish the supply of water flowing at the time of the grant from the spring to the factory, and that it was immaterial whether the supply was diminished by interference with *Page 64 known water courses or by excavations which withdrew water from the spring by perculation or prevented its reaching the spring. There the whole of the land retained by the grantor was made servient to the grantee's water supply. Here a right in a particular spring only was granted. There the acts of the grantor were in derogation of this grant, interfered with the very right granted. Here the grantor disclaims any right or intent to interfere with the right grantde, and the findings and the evidence show that he did not interfere with it, and that his acts were not in derogation of his grant. The two cases are radically different.
In the case of Huntington v. Asher the familiar principle of law that the grant of an easement carries with it whatever is essential to its enjoyment was applied to the facts of that case. Here the plaintiff had the right to enter upon the defendant's land and repair his pipe, and to dig out and keep in repair his spring so that he could conveniently and usefully take the water therefrom. But he had no right to dig more than was necessary for that purpose, and certainly not for the purpose of taking water not belonging to the spring granted.
An authority more nearly touching this case is Bliss v.Grecley (45 N.Y. 671), where it was held that a limited and specific grant of the right to dig and stone up a certain spring and conduct the water therefrom through the grantor's land by a specified pipe to the grantee's house, with covenants of warranty, did not render the entire premises servient to the easement, and that the grantor might in such a case lawfully sink another spring but twenty-seven feet distant, although the effect was to render the first one useless.
Further discussion is not necessary. The facts, as we are bound to take them, are adverse to the plaintiff, and the law applied to those facts justify the judgment rendered at the Special Term.
The order of the General Term should, therefore, be reversed and the judgment of the Special Term affirmed, with costs.
All concur, except MAYNARD, J., not voting.
Order reversed and judgment affirmed. *Page 65