Phelps v. . Nowlen
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of defendant, entered upon a decision of the court at Special Term. This action was brought to recover damages for the alleged malicious acts of the defendant in drawing off water from plaintiff’s well, and to enjoin the commission of further similar acts.
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Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of defendant, entered upon a decision of the court at Special Term. This action was brought to recover damages for the alleged malicious acts of the defendant in drawing off water from plaintiff’s well, and to enjoin the commission of further similar acts. The court found substantially the following facts : The parties were the owners of adjoining premises in the village of Avon. Upon defendant’s land was a mineral spring, around which an embankment had been formed,…
1Opinion of the CourtMiller, J.
The act of the defendant in digging a ditch through the mound which had been formed around the spring on his land, and which had raised the surface of the water therein, was prima facie lawful, and a proper exercise of his right, as the owner of the land, to the enjoyment of the subterranean waters which flowed under the same. The effect of the embankment was to raise the water in the well, which had been constructed upon the laud of the jflaintiff, higher than it naturally would have been, and the plaintiff had no right, by prescription or otherwise] to have it maintained by the defendant at…
2Cases cited9 opinions
- Mumford v. WhitneyNew York Supreme Court · 1836
- Chatfield v. WilsonSupreme Court of Vermont · 1855
- Roath v. DriscollSupreme Court of Connecticut · 1850
- Mahan v. BrownNew York Supreme Court · 1835
- Clinton v. . MyersNew York Court of Appeals · 1871
4 more not listed; retrieve them via the Exa API.
3Cited by59 opinions
- Camfield v. United StatesSupreme Court of the United States · 1897
- Farmers' Loan & Trust Co. v. New York & Northern Railway Co.New York Court of Appeals · 1896
- Beardsley v. . KilmerNew York Court of Appeals · 1923
- Barkley v. . WilcoxNew York Court of Appeals · 1881
- Bohn Manufacturing Co. v. HollisSupreme Court of Minnesota · 1893
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