Concededly the case was difficult and extraordinary and, considering the history of the case, the allowance is very *429moderate. The findings show that the interests represented by the plaintiffs owned certain lands in Saratoga Springs, N. Y., upon which is the famous Hathorn spring, a valuable mineral spring having certain medicinal properties, and that a large business had been established in supplying waters to the public at the spring and in bottling, preparing for market and selling said water, and the owners had erected, at considerable expense, large and costly buildings, and had installed therein machinery and apparatus for use in said business. The defendant owns certain real estate near by, and is engaged day and night in pumping mineral water with deep well pumps from its spring and extracting carbonic acid gas therefrom, the water going to waste. The findings show that such action was in violation of the plaintiffs’ rights and the statutes of the State, and “ the spring upon plaintiffs’ lands was depleted and destroyed and the plaintiffs were deprived of the uses and benefits thereof, and were at the time of the commencement of this action suffering great and irreparable injury, for which they had no adequate remedy at law, and to prevent the continuance of which they were entitled to a permanent injunction forbidding, enjoining and restraining the aforesaid acts of the defendant.”
The springs were so related to each other, and to the other mineral springs in the vicinity, that the effect of pumping out defendant’s springs was disastrous to the plaintiffs’ spring and the other springs. The relief sought by the plaintiffs was to enjoin the defendant from carrying on the pumping operations on its premises. Apparently the injury to the plaintiffs’ spring depended upon the amount and manner of pumping at defendant’s springs, and we may fairly assume from the findings and the record that any such illegal pumping at the defendant’s springs affected more or less the plaintiffs’ spring. The subject-matter of the action, therefore, was the right of the defendant to carry on its operations upon its premises — the right to pump its springs. The object of the action was to condemn the defendant’s business as illegal and to destroy it, and the value of that business formed a proper basis for an allowance. The business and its value was the value of the subject-matter involved. Conaughty v. Saratoga County Bank (92 N. Y. 401) fully sustains the plaintiffs’ *430position. There it was sought to restrain a corporation from exercising its corporate franchise and the corporation succeeded. An additional allowance was based upon the value of the corporate property. The Court of Appeals held that an improper basis, for the reason that, if the corporation was dissolved, the corporate property still remained to the parties who owned the corporation, and that the result of a permanent injunction would only be to destroy the use of the franchise, and that the value of the subject of the action was the value of the corporate franchise and not the value of the corporate property, the court saying: “ The retention of the corporate franchise simply continued the right to carry on its corporate business. This right might or might not have been valuable. There is no evidence on the subject. We are not aware of any rule of presumption as to the value of a corporate franchise. It is a thing capable of appraisal, and ascertainable by evidence, and is frequently made the subject of taxation by the sovereign power. It is a right separate and distinct from the capital and moneyed assets of a corporation, and as to the value of which they furnish no evidence. It was this franchise alone which was the subject-matter involved in this litigation, and which was thereby determined, and whose value can be used in determining the amount of an allowance of costs.”
If, however, it should be considered that the value of the plaintiffs’ spring and plant represents the value of the subject-matter involved, the allowance may be sustained. The judge making it had tried the case and was familiar with the facts.
To quite an extent the granting of these allowances, and the manner of their computation, rest in the sound discretion of the court, and an exact determination of facts is not required. The requirement is that substantial justice shall be done and that there shall be some reasonable basis upon which the percentage may be computed. The character of the litigation was such that the allowance is extremely moderate, and the court should not be solicitous to find a reason for vacating it. It should be sustained unless there is an absolute want of any proper basis for computation.
The Saratoga springs have a national reputation, and the court may take judicial notice of that fact and that such *431waters have valuable medicinal qualities and that the Hathorn spring is a celebrated and valuable spring, and that the destruction of the spring must bring to its proprietors and the public a great loss. The court has affirmatively found that the loss would be irreparable. The general knowledge which we are assumed to have of these springs and of this spring would not permit a court to say that if the only question involved was the value of the spring that a valuation of $20,000 could be said to be without foundation. I favor an affirmance.
Lyon, J., concurred.
Order reversed, without costs, and motion denied, without costs.