Johnstown Cheese Manufacturing Co. v. Veghte

Rapallo, J. The defendant, in his deed of conveyance to the plaintiff of the cheese factory situated on his farm, granted to it the use of the water which was then conducted to the factory from the springs on defendant's lands not included in the conveyance, and of the pipes, etc., used in condiK ting such water, and he covenanted to warrant and defend the granted premises against himself and all other persons. This deed shows upon its face that the factory was conveyed for the purpose of enabling the plaintiff to manufacture cheese therein, and that the use of the water was essential for that purpose, and that it was the intent of the grant to secure to the plaintiff the necessary supply of water, and to render the whole of the land retained by the defendant ser *22 vient to that end; for it confers upon the plaintiff the right to enter upon such lands of the defendant, and construct and keep in repair all proper pipes, water courses and apparatus for conducting the water from the springs to the factory; it limits the use of the water by the defendant, and provides that he shall not use it so as to unnecessarily interfere with the use of the water for the factory, and further provides that if said springs and streams shall at any time prove insufficient for the manufacture of cheese .at the factory, the plaintiff may go upon the lands of the defendant and dig other springs and construct other water courses on paying the damages done to the lands and crops. The intent of the grant therefore was to secure to the plaintiff all the water then conducted from the existing springs, with the right in case those should prove insufficient to construct others on payment of damages, etc. This grant in our judgment precluded the defendant from doing any act on his own land, which should either divert or diminish the supply of water which at the time of the grant flowed from the springs in question to the factory ; and we think it immaterial whether this diminution of supply was occasioned by interference with known water courses, or by excavations which withdrew the water from the springs by percolation, or prevented its reaching them. When there is no grant or covenant, the law is well settled that one who by excavations on his own land, not interfering with any ■known water course, withdraws water from his neighbor’s well or spring by percolation, is not liable for the injury. (Trustees of Delhi v. Youmans, 45 N. Y., 362; Bliss v. Greeley, 45 N. Y., 671.) But where the question arises between grantor and grantee, or covenantor and covenantee, it depends upon the intent of the grant, and is whether the acts complained of are in derogation of the grant or in violation of the covenant. (Whitehead v. Parks, 2 Hurl. & Nor., 870.) It was proved in the present case that after the conveyance to the plaintiffs, the defendant made excavations and con *23 structions from time to time on his remaining lands, which had the effect of materially diminishing the supply of water from the springs and of depriving the cheese factory of the quantity of water which was conducted to it from the springs at. the time of the grant, and that these acts were persisted in by the defendant after their effect had become apparent. It is found by the referee that these acts of the defendant were unnecessarily done by him, and were of no use to him for any purpose. That the effect of such acts was to draw the water from the main spring from which the factory derived its supply, to such an extent that, at times, the plaintiffs had not sufficient water to operate the factory, and the plaintiff was thereby deprived of the use of such water and had sustained damages in consequence thereof. We are of opinion that these acts of the defendant were in derogation of his grant and in violation of his covenant, and that the judgment of the court below was justified by the facts. The case of Bliss v. Greeley (45 N. Y., 671) is cited on the part of the defendant as in conflict with this judgment; but the facts of that case were very different. In that case there was simply a grant of a right to dig and stone up a certain spring and to conduct the water therefrom through the grantor’s land, with a covenant of warranty; and the court held that this did not preclude the grantor from sinking another spring on his land at some distance from the one granted, although the effect of it was to render the latter useless, provided such act was not done unnecessarily or maliciously. In that case the parties were regarded m the same light as adjacent owners, and the rule was applied that the defendant might lawfully dig on her own land, though the effect was to cut off the water from the plaintiff’s spring by percolation. But there was no grant in that case of any particular supply of water from the spring, or from the defendant’s lands. The grant was merely of the right to the spring, and secured the plaintiff no greater rights than such as he would have had if he had owned the land on which it was situated. *24 In this case the grant was of the use of the water which, at the time of the grant, was being conducted from the spring, and the intent was to secure the continuance of that supply of water, it being essential to the operation of the cheese factory conveyed. We have examined the other points made by the appellant, but do not find in them any sufficient ground for reversing the judgment. The judgment should be affirmed, with costs. All concur. Judgment affirmed.