where; that large sums of money have been invested by the owners of the springs, in their development, and by the inhabitants of the town in the construction of buildings for the entertainment of visitors and to meet their needs and necessities; that the springs are dependent upon the existence of the pressure exerted by the carbonic acid gas confined in the rocks; that the defendant, as the owner of neighboring lands, beneath whose surface percolate large quantities of such mineral waters, flowing from the same general source as the natural mineral springs aforesaid and connected therewith, as part of the same system, maintains an establishment, with machinery and apparatus, for the purpose of extracting from these waters the excess of natural carbonic acid gas and of compressing it into liquid form for commercial purposes; that, through wells bored into the rocks beneath the surface and with powerful pumps, the defendant has produced an accelerated, or unnatural, flow of the waters, by reason whereof the natural flow from the mineral springs in the town is impeded, diverted and endangered, and the quantity of the natural carbonic acid gas diminished; that the acts of the defendant do not subserve any use connected with the enjoyment and usefulness of the land as land and, by affecting the natural flow from the mineral springs, have caused irreparable damage to the people of the state, to the owners of the mineral springs and to other persons, who have invested moneys in buildings for the recep tion and care of health-seeking visitors; that the defendant, in prosecuting its business, commits a waste of the mineral waters and its acts constitute an unreasonable use of its property and a wrongful diversion of, and interference with, the said waters and gases, and that carbonic acid gas could as economically be produced with the same machinery by artificial means. It is, further, alleged that the defendant's aforesaid acts are in violation of chapter 429 of the Laws of 1908, entitled "An act for the protection of the natural mineral springs of the State and to prevent waste and impairment of its natural mineral waters."

The answers of the defendants in these actions, in sub

stance, admit that, underlying the surface of the ground in the town and village of Saratoga Springs, there exist carbonic acid gas and mineral waters, holding in solution mineral salts and an excess of carbonic acid gas, which are of therapeutic value; that they were maintaining and operating upon their lands, near the village, establishments for the purpose of extracting from such waters the excess of natural carbonic acid gas; that they compress, liquefy and sell the same; that for their purposes they have bored wells into the rocks beneath and that by the aid of pumps they were drawing waters therefrom. They deny that there is any connection between the springs, or wells, on their premises and other mineral springs in the town; or that the wells are dependent upon the same source of supply; or that they have, by pumping, produced an unnatural flow of waters, or of gas, from their wells; or that they have impaired, diverted, or endangered the natural flow from any other mineral spring in the town; or that the plaintiffs, or the other persons referred to in the complaint, have been injured by reason of any of their acts; or that their acts constitute an unreasonable use of the said mineral water, or gas, or an interference with the same. to the plaintiffs' damage, or that of any one else; or that carbonic acid gas can be artificially produced for commercial purposes as economically as from the mineral waters upon their premises. All allegations of damage to the other springs, or to the property rights of others, are particularly denied by the answers. The defendants then set forth, at some length, and justify, the nature of the business in which they have been engaged and in which large sums of money have been invested. They allege the necessity of sinking wells into the rock, in order to reach the waters, and of the use of pumps, in order to raise them to the surface; that such pumps do not attract the waters from the adjoining lands; that, by their use, the natural flow of water and gas upon their prem

ises is not exceeded and that there has been but a reasonable use of their property. The defendants, also, allege that chapter 429 of the Laws of 1908 is unconstitutional and void, in

that it attempts to create an unreasonable and arbitrary classification of wells.

Upon the trial of these actions, at the Special Term, motions to dismiss the complaints, upon the ground that no cause of action had been stated and of the unconstitutionality of the act, were denied and the rulings were excepted to. The defendants offered evidence to show the effects of pumping from wells, and of pumping, generally, and that no injury was caused by their acts to any other spring, or well; but the evidence was excluded and exceptions were taken. Judgments were ordered for the plaintiffs, restraining the defendants from pumping from any well, made by boring into the rock, that class of mineral water holding in solution natural mineral salts and an excess of natural carbonic acid. gas, for the purpose of extracting and vending such gas as a commodity, otherwise than in connection with the mineral water and other mineral ingredients with which associated.

These judgments were affirmed by the Appellate Division, in the third department, and the defendants have further appealed to this court.

Edgar T. Brackett for appellant in first three actions. The act under which the action is brought, chapter 429 of the Laws of 1908, prohibits pumping of the mineral water in question, even where the purpose is to extract, collect, compress, liquefy and vend such gas as a commodity otherwise. than in connection with the mineral water and the other mineral ingredients with which it was associated only where such pumping accelerates or increases the flow or produces an unnatural flow of the water or natural carbonic acid gas from wells bored into the rock. (Hathorn v. Nat. Carbonic Gas Co., 194 N. Y. 326.) If by the act in question it was not intended to affix the element of acceleration or increase of flow to the prohibition against pumping but was intended to prohibit pumping absolutely, then such prohibition is unreasonable and void. (Freund's Police Power, 58; Marburg v. Madison, 1 Cranch, 137; Plessy v. Ferguson, 163 U. S.

537; Reagan v. F. L. & T. Co., 154 U. S. 362; W. R. R. Co. v. Jacobson, 179 U. S. 287; Covington v. Sandford, 164 U. S. 578; L. S. & M. S. R. R. Co v. Smith, 173 U. S. 684; Ritchie v. People, 155 Ill. 98; Ruhstrat v. People, 185 Ill. 133; Matter of Jacobs, 98 N. Y. 98; Wright v. Hart, 182 N. Y. 330.) The construction that the act absolutely prohibits pumping where the purpose is to extract the gas and sell it separately from the water, whether it injures any other person or well, renders the provision of the act void for the reason that it, thus construed, takes the appellant's property without compensation. (Forster v. Scott, 136 N. Y. 577; Matter of Jacobs, 98 N. Y. 98; People v. Otis, 90 N. Y. 48; Wynehamer v. People, 13 N. Y, 378.) The act is void as creating an arbitrary classification between the springs that go into the rock and those that do not go into the rock. (Matter of Potter, 161 N. Y. 84; Missouri v. Lewis, 101 U. S. 22; Barbier v. Connolly, 113 U. S. 27; Yick Wo v. Hopkins, 118 U. S. 356; Hayes v. Missouri, 120 U. S. 68; Ritchie v. People, 155 Ill. 98; State v. Loomis, 115 Mo. 307; Van Zandt v. Waddel, 2 Yerg. 260; Dibrell v. Morris, 15 S. W. Rep. 87; People v. Van de Carr, 91 App. Div. 20.)

Alton B. Parker and Guthrie B. Plante for appellant in fourth action. The plaintiff failed to make out a cause of action under chapter 429 of the Laws of 1909. (Hathorn v. Nat. Carbonic Gas Co., 194 N. Y. 326; 0. 0. Co. v. Indiana, 177 U. S. 190; W. N. G. Co. v. De Witt, 130 Penn. St. 235; Brown v. Spilman, 155 U. S. 665; Routh v. Driscoll, 20 Conn. 533; Fraser v. Brown, 12 Ohio St. 294; S. P. R. R. Co. v. Dufour, 95 Cal. 615; Huber v. Merkle, 117 Wis. 535.) The exclusion by the trial court of evidence offered to establish as a matter of fact that the provisions of the statute are unconstitutional and void constitutes reversible error. (People ex rel. M. S. Ry. Co. v. Tax Comrs., 174 N. Y. 417; Sweet v. City of Syracuse, 129 N. Y. 316; S. V. Water Works v. City of San Francisco, 124 Fed. Rep. 574; C. G. Co. v. City of New York, 157 Fed. Rep. 849; Mugler v.

Kansas, 123 U. S. 623; Fisher v. Woods, 187 N. Y. 90; Lindsley v. N. C. G. Co., 162 Fed. Rep. 954; People v. Gillson, 109 N. Y. 389; Townsend v. State, 47 N. E. Rep. 49; Cotting v. Kansas, 183 U. S. 79.) The burden of establishing their cause of action was upon the plaintiffs. This burden did not shift. (Heineman v. Heard, 62 N. Y. 488; City of Cohoes v. D. & II. C. Co., 134 N. Y. 397; Miller v. Roessler, 4 E. D. Smith, 234; Grant v. Riley, 15 App. Div. 190; Wilcox v. Wilcox, 46 Hun, 32; M. Y. & B. F. Co. v. Moore, 18 Abb. [N. C.] 106.)

Edward R. O'Malley, Attorney-General (D. E. Brong, Charles C. Lester and Nash Rockwood of counsel), for respondent. Acceleration of flow need not be shown in an action to enforce the third prohibition of the statute. (Jackson v. Lewis, 17 Johns. 477; W. & W. T. Co. v. People, 9 Barb. 170; Newell v. People, 7 N. Y. 97; McClusky v. Cromwell, 11 N. Y. 600; Thornley v. U. S., 113 U. S. 313.) The act is to be presumed constitutional until the contrary is shown. (Munn v. Illinois, 94 U. S. 113; P. S. Co. v. West Virginia, 36 W. Va. 302; Beecher v. Allen, 5 Barb. 169; People ex rel. City of Rochester v. Briggs, 50 N. Y. 533 ; People v. Draper, 15 N. Y. 532; People ex rel. Carter v. Rice, 135 N. Y. 437; People ex rel. Sturgis v. Fallon, 152 N. Y. 1; Cronin v. People, 82 N. Y. 318; Granger v. D. P. J. Club, 148 Fed. Rep. 513; McLean v. Arkansas, 211 U. S. 547.) Chapter 429 of the Laws of 1908 does not invade any property rights of the defendants. (Hathorn v. Nat. C. G. Co., 194 N. Y. 326; Forbell v. City of New York, 164 N. Y. 522; Smith v. City of Brooklyn, 18 App. Div. 340; M. W. Co. v. City of Brooklyn, 32 App. Div. 454; Westphal v. City of New York, 75 App. Div. 562; 177 N. Y. 140; State v. 0. O. W. Co., 150 Ind. 21; 47 L. R. A. 632; W. & C. Nat. G. Co. v. De Witt, 130 Penn. St. 235; Jones v. Forest Oil Co., 44 Atl. Rep. 1074; Brown v. Vandergrift, 80 Penn. St. 142.) The act in question is a valid exercise of the police power vested in the legislature of the state of New York.