Stannards Water Co. v. Rogers , 259 A.D. 1062 ( 1940 )

Judgment so far as appealed from reversed on the law and facts, without costs of this appeal to any party, and defendants’ counterclaim dismissed, without costs. Memorandum: The defendant Bessie Rogers conveyed to plaintiff all of defendant’s interest in and to a flowing water well situated upon defendant’s land, subject to the following reservation: “ The party of the first part reserves to herself, her heirs and assigns, forever, the right to lay a pipe from the well or line to the house of the first party, at her own expense, and to use as much of said water as is necessary for domestic purposes, without charge.” We interpret this reservation as reserving only a quantity of water to be delivered at the well or pipe line — we do not interpret it as reserving both the water and the natural pressure which causes the water to rise above the surface of the ground. The evidence fails to support the findings of the learned official referee that the parties intended that plaintiff should not reduce, lower or lessen the natural pressure or flow of water from the well below the point at which such natural pressure or flow will- cause the water to flow from the faucets or outlets in her house in such quantities as are necessary for her domestic purposes. (See United Paper Board Co. v. Iroquois Pulp & Paper Co., 226 N. Y. 38, 47, and Palmer v. Angel, 69 Hun, 471.) Such finding is, therefore, disapproved and reversed. All concur. (The portion of the judgment appealed from determines that defendants’ right to take water from a well sufficient for domestic purposes is paramount to the plaintiff’s right and restrains plaintiff from taking water in such quantities as to interfere with defendants’, use of same.) Present — Crosby, P. J., Cunningham, Taylor, Harris and McCurn, JJ.