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N. Y. Rep.]

Opinion of the Court, per WERNER, J.

ground that, under this will, the executorial and trust duties were so blended as to bring the case within the rule laid down in McAlpine v. Potter (supra), where it was held that the personal representatives of the decedent were only entitled to single commissions. The order of the Appellate Division modified the surrogate's decree by directing a recomputation of the commissions upon that basis by the parties if they were able to agree, and, in case of their failure to do so, that the matter be remitted to the Surrogate's Court for further procedure in conformity with the opinion. The parties did not agree upon the recomputation. Thereupon the matter was taken back to the Surrogate's Court, where the figures were recomputed in accordance with the opinion of the Appellate Division. From the decision of the Surrogate's Court then made the executors and trustees took an appeal to the Appellate Division, where there was an unanimous affirmance, and the executors and trustees have now appealed to this court. In the light of these facts, the two questions which we are. called upon to decide may very briefly be stated and disposed of.

1. We agree with the learned Appellate Division in the construction to be placed on the will herein, and also in the conclusion that under ordinary circumstances each of the execntors and trustees herein would only be entitled to one full commission as executors upon the corpus of the estate collected and paid out. We think, however, that the six beneficiaries who expressly consented in writing to the informal accounting in 1901, and who acquiesced in the original decree, are bound by their acts. (Hurlburt v. Durant, 88 N. Y. 121; Hancox v. Meeker, 95 N. Y. 528.) That decree granted to each of the executors and trustees full commissions in each capacity. Six of the beneficiaries filed no objections thereto and took no appeal therefrom. Under these circumstances they must abide by the original decree. A different situation exists as to the respondent Robinson who refused to consent to the commissions claimed by the execntors, and later took an appeal from the surrogate's decree

Opinion of the Court, per WERNER, J.

[Vol. 196.

allowing them. She is entitled to have the appellants' commissions upon her share of principal of the estate fixed according to the decree of the surrogate which was made in obedience to the directions of the Appellate Division upon the former appeal. (St. John v. Andrews Institute, 192 N. Y. 382.) In other words, as against her share, only one full commission should be awarded upon the gross amount of principal and income to each of the appellants; and the commissions on her share of the income should be computed upon the basis hereinafter indicated.

The appellants' commissions on the two separate trust funds provided for by the will, viz., one of $50,000 and the other consisting of a one-seventh part of the residuary estate, seem to have been fixed by the original decree, and no question in regard thereto is before us on this appeal. As to such commissions, of course, there is no occasion for change in the decree of the courts below.

2. The second question is as to the method of computing commissions on income received and paid out by the appel. lants as trustees after the informal accounting in 1901. It appears that they collected the income and made annual payments thereof to the parties entitled thereto, but did not render an account of such collections and payments to the Surrogate's Court. Under the last decree of the surrogate made pursuant to the direction of the Appellate Division, the commission on income thus collected and paid out was based upon the total of income, rather than upon each year's income stated separately. We think that the appellants are entitled to have their commissions upon the income paid out as trustees, after the informal accounting of 1901, computed on the basis of annual rests as against all the beneficiaries, including the respondent Robinson. (Hancox v. Meeker, supra ; Matter of Mason, 98 N. Y. 527, 535; Olcott v. Baldwin, supra.)

The order of the Appellate Division should, therefore, be modified in accordance with the foregoing views, and as modified affirmed, without costs to either party. If, however, the parties cannot agree upon a recomputation of the figures

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within twenty days after the date of this decision, the decree of the surrogate and the order of the Appellate Division. should be reversed and the proceedings remitted to the Surrogate's Court for such further proceedings as may be neces sary to carry this decision into effect.

CULLEN, Ch. J., HAIGHT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.

Ordered accordingly.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.
THE NEW YORK CARBONIC ACID GAS COMPANY, Appellant.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.
THE GEYSERS NATURAL GAS COMPANY, Appellant.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.
THE LINCOLN SPRING COMPANY, Appellant.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.
THE NATURAL CARBONIC GAS COMPANY, Appellant.

Waters and watercourses - mineral springs — construction and application of chapter 429 of Laws of 1908 prohibiting the pumping of subterranean mineral waters - action thereunder to restrain pumping at Saratoga Springs - evidence - what defendants may show - presumption of validity of the statute -right of the people of the state to bring an action under the statute,

The adoption of the doctrine of a reasonable use of one's property in subterranean percolating waters, to be measured by the rights and necessities of others, is a modification of the earlier rule, obviously resulting from a consideration of the differing conditions of the age and of the possibilities of an unlimited and destructive use from modern engineering methods.

Chapter 429 of the Laws of 1908 does not operate to prohibit, as unlawful, all pumping from wells bored into the rock, of mineral waters holding in solution mineral salts and an excess of carbonic acid gas, for the purpose of extracting, liquefying or vending, separately, such gas as an article of commerce, and the prohibition is not to be enforced irrespective of whether the use by the defendants of their properties is a reasonable one or not, relatively to the legal rights of other landowners. The third clause of the statute was upheld in Hathorn v. Natural Carbonic Acid

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Gas Co. (194 N. Y. 326), distinctly upon the ground that it would be enforceable within the operation of the settled common-law rule, which forbids an unreasonable use of sub surface waters to the injury of another's rights.

While a landowner is entitled to make every use of the waters flowing under the surface of his land, which might be for the legitimate improvement or enjoyment of his lands, however it interferes with others as a natural consequence, if his use is unreasonable, in the sense that he is attempting to increase the flow of the waters upon his lands for a purpose not connected with such improvements or enjoyment, and to the destruction or diminution of the flow under the adjacent lands of others, he is committing an unlawful act. The waste committed by an owner in his use of his property, which may be restrained, must appear to be such as affects the rights of other landowners to the appropriation of the subsurface waters, existing as a common source of supply and within the area subject to the influence of the mechanical contrivances for their increased flow.

The act and the authority to enforce it by an action in the name of the People are to be construed, not as intending to exercise governmental power arbitrarily, but as promulgating a rule, with authority to a taxpayer, or to the law officer of the state, to enforce obedience to it by an action which should regulate the appropriation and use of the common natural supply by owners of lands coming within the provisions of the statute. It is quite within a reasonable exercise of the police power to regulate such rights.

In an action to enforce the provisions of the statute and to restrain defendants from an alleged unreasonable use of the subterranean waters at Saratoga Springs, defendants are entitled to show the situation of their wells, the necessity of the pumping appliances used, that no acts of theirs, in that respect, affected any other spring, or well, or resulted in injury to any other person, and also to give evidence to show the comparative effects upon the sources of supply of the mineral waters and gas, of pumping from wells which are bored into the rock, and from those which are driven into the soil.

Defendants are entitled to give any competent evidence that they have, in support of their defense to the validity of the act, that, as its provisions rested upon no real basis in discriminating against wells bored into the rock, the prohibition was an unreasonable exercise of power. Such proof is not objectionable, because going to show the statute to be on its face invalid; it bears upon the reasonableness of its classification and goes to show whether its provisions, in attempting a regulation of the conflicting rights of all to a common, natural supply, operated equally upon the rights of a class of property owners.

The People are entitled to rest upon the presumption of the validity of the provisions of the act in question and upon the support to their case

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in the admissions made and in the inferences of facts from the operation of natural laws, until the evidence of the defendants establishes, or tends to establish, their defenses that the statutory provisions are inapplicable to their case; that such regulations are unjustly discriminative; or that they are not chargeable with making a use of their property, which is unreasonable because injurious to the rights of others.

Inasmuch as the public interests are concerned in the enforcement of the statute, the objection to the right of the People to bring the action is without force; moreover the language of the act explicitly invests the attorney-general with that power.

In the above-entitled actions the judgment of the Supreme Court was affirmed in the Appellate Division pro forma. Hence the cases are not reported in the Appellate Division Reports.

(Argued October 18, 1909; decided November 23, 1909.)

APPEAL in each of the first three above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 28, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Terin.

Appeal in the fourth above-entitled action from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 6, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

These actions were brought to have the defendant in each restrained from the further commission of certain acts alleged to be wrongful. The complaint in each action, so far as material to be stated, in substance, alleges the existence in the rocks, which underlie the town and village of Saratoga Springs, of a supply of carbonic acid gas and of natural mineral waters, holding in solution natural mineral salts and an excess of carbonic acid gas; that the pressure exerted by the confined gas tends to expel the waters through the natural vents, or openings, in the rocks and to cause them to issue naturally from the surface of the ground, at different places, as natural mineral springs; that these springs are widely known and resorted to for their therapeutic value as remedial agents and their waters are bottled and sold throughout this country and else

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