Lowndes v. Huntington Waterworks Co.

About 180 feet to the south of the nearest of these ponds, and in an upstream direction therefrom, defendant operated its pumping plant. It began with two driven wells in 1893. In 1904 it sank two more, adding one yearly in 1905, 1906 and 1907, making seven wells. They are ranged about 10 or 15 feet apart, in a row, extending across this valley. The suctions from the pumping are operated from them all, taking in water about 50 feet below the surface through perforations at the lowest 12 feet of these driven wells.

The requirements of the increasing population of Huntington have taken more water each year. The average daily consumption of about 42,000 gallons in 1896 had risen in 1905 to about 100,000 gallons. The increase since that time appears from the following figures of daily averages:

190G .................................. 108,923 gallons

1907 ......................................................119,815

1908 ......................................................1.31,613

1909 .......................................................151.853 "

1910 ......................................................187,804 "

These averages extend through the year, although the consumption is greater in the summer. In these five years the plaintiff’s ponds have diminished. Mr. Williams, who had lived near by, testified that before 1906 he had never seen any of these ponds empty. Before 1906 the ponds had steadily overflowed. After the dams and sluiceways had been raised in 1906, and the ponds deepened 10 inches or a foot, the water continued to overflow as before. In 1907 this overflow had about stopped as early as Decoration Day, and later that year the water in the ponds gradually sank for about a foot or 10 inches. This reduction was greater the following year (1908), so as to uncover the bottoms of some of.the ponds. In 1909 they dried up still more. In 1910 this shrinkage showed by June 1st, which increased during that season, exposing much of the bottoms of the ponds, as is made clear by photographs.

On July 18, 1910, the present suit was begun to restrain defendant from this withdrawal of subterranean water. The proximity of defendant’s pumping station, and the admitted volume of water taken, naturally suggest an effect upon these neighboring ponds. Defendant, however, says that its withdrawals are from a lower water stratum, far under the level of these ponds, and that therefore its pumps do not affect the percolating water near the surface, whence the ponds are supplied.

The under soil of Long Island for the most part is permeable by water. The extent of a great water-bearing stratum of wet gravels, or a “water table,” is the source of the present water supply of the borough of Brooklyn. The porous sand and gravels readily allow the flow of underground waters. But water does not penetrate clay beds. Occasionally an extensive lateral clay or hardpan deposit is found in

The defendant contends that the water supplying defendant’s ponds, which are shallow, comes from such a perched water table, and not from the main water table out of which defendant draws its supplies. But no such perched water table was found. No such hardpan, or clay deposit, was shown to exist.

In November, 1910, test wells sunk near these ponds were regularly sounded, and a connection established between the well levels and defendant’s pumping. On November 21st, preparatory to cleaning out ■its reservoir, defendant pumped but three hours, and had not pumped at all the night before. This cessation was followed by a reappearance of water in plaintiff’s pond No. 1. Light pumping ensued, and water then remained in the ponds. On November 23d regular pumping was resumed. On the morning of the 24th no water appeared in the plaintiff’s ponds. This was in the midst of a long drought, and seems to show a causal connection between the defendant’s pumping and the drying of the defendant’s ponds. The water levels in the test wells also established that the heig'ht of water declined as the line of test wells approached defendant’s pumping station—showing a slope or line of depression as they come nearer to defendant’s wells—a recognized mark of the effect of deep pumping upon the surrounding zone of saturation. This proof, being uncontradicted, does establish that the .effect of defendant’s pumping affects the water levels under and about defendant’s ponds.

. Defendant, however, points out that in these years when plaintiff’s ponds have lost volume the rainfall has diminished, which may be a competent cause. See Strang v. City of New York (Sup.) 127 N. Y. Supp. 231 . But the falling off in the ponds is manifested early each year in May, before the periods of summer drought. No doubt the low precipitation of 1908 and 1909 had its effect; but if the plaintiff’s pumping, when stopped two days, is followed in the midst of summer drought, by the waters reappearing in the ponds, such pumping, rather than failure of rain, must be regarded, as found by the Special Term, to be the primary and direct cause. Defendant’s suggestions that the ponds let the water out through increased seepage after they had been cleaned out, and a loss of water by that taken up by the increased vegetation after the grounds had been cultivated, do not overcome plaintiff’s proofs.

When defendant stopped its pumps, water appeared in the ponds. When pumping was resumed, the pond again was dry; and, as the pumping went on, the water levels in the surrounding test wells sank, and these levels were found to be lower as the wells were located nearer to the pumping plant. This puts the effect of defendant’s pumping put of the field of speculation.

. The court at Special Term committed no error, and I advise that the judgment be affirmed, with costs. All concur.