People v. . N.Y. Carbonic Acid Gas Co. , 196 N.Y. 421 ( 1909 )

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.