N. Y. Rep.] Opinion of the Court, per GRAY, J. (Cooley on Const. Lim. 572; People v. Squires, 107 N. Y. 605; Comm. v. Alger, 7 Cush. 85; Meffert v. Packer, 66 Kan. 710; 195 U. S. 625; People v. King, 110 N. Y. 418; Barbier v. Connelly, 113 U. S. 31; C., B. & Q. Ry. Co. v. Comm., 200 U. S. 592.) The third prohibition of the act is not unreasonable in its character or extent. (Hathorn v. N. C. G. Co., 194 N. Y. 326; Booth v. Illinois, 184 U. S. 425; Welch v. Swasey, 214 U. S. 91; Powell v. Pennsylvania, 127 U. S. 678; Mugler v. Kansas, 123 U. S. 623; C. B. & R. I. R. R. Co. v. Chicago, 166 U. S. 226; C., B. & Q. R. R. Co. v. Drainage Comrs., 200 U. S. 561; W. C. R. R. Co. v. Chicago, 201 U. S. 506.) The act does not violate section 1 of the fourteenth amendment of the Federal Constitution in denying to persons the equal protection of the laws. (Barbier v. Connelly, 113 U. S. 27; Yick Wov. Hopkins, 118 U. S. 356; State v. Hogan, 63 Ohio St. 202; Dent v. West Virginia, 129 U. S. 114; Jones v. Brine, 165 U. S. 184; Minn v. Beckwith, 129 U. S. 29; Soon Iling v. Crowley, 113 U. S. 705; Louisiana v. Schlemmer, 42 La. Ann. 1166; City of Des Moines v. Keller, 116 Iowa, 648; Sutton v. State, 96 Tenn. 696.) The court committed no error in excluding extraneous testimony offered to impeach the constitutionality of the statute. (People v. Cipperly, 37 Hun, 318; Matter of N. Y. El. Co., 70 N. Y. 327; W. M. M. Co. v. Shanahan, 128 N. Y. 358; Mugler v. Kansas, 123 U. S. 623; Powell v. Pennsylvania, 127 U. S. 678; Cantwell v. City of Missouri, 170 Mo. 245; 199 U. S. 602; Jacobson v. Mass, 196 U. S. 30; Peck v. C. R. R. Co., 94 Fed. Rep. 164.) GRAY, J. It is difficult to understand upon what ground the evidence offered by these defendants was excluded; unless it be the interpretation given to our decision of the case of Hathorn v. Natural Carbonic Gas Co., (194 N. Y. 326). No opinion appears to have been expressed below and I think we must presume it to have been considered that the statute, which authorized the plaintiff to maintain the actions, (Laws of 1908, chap. 429), as construed by this court, abso Opinion of the Court, per GRAY, J. [Vol. 196. lutely prohibited the pumping of the mineral waters in question, as practiced by the defendants in the conduct of their particular business. The decision of the trial court, as it is formulated in the judgment roll, finds that the acts of the defendants in pumping from their wells mineral waters, for the purpose of extracting and vending the carbonic acid gas, separately, as a commodity, were contrary to the provisions of the act and are "injurious to the People of the State of New York and tend to the waste and impairment of the natural mineral waters of said State." That is to say, if the judg ments in these actions are sustained, the legislative enactment of 1908 operated 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 to be enforced irrespective of whether the use by the defendants of their properties was a reasonable one, or not, relatively to the legal rights of other landowners. That this view of the arbitrary action of the statute must have obtained below seems evidenced by the finding, which I have just quoted from, as to the effect of the acts complained of. I think that the opinion of this court in the Hathorn Case, (supra), must have been greatly misapprehended, both as to the basis upon which it was rested and as to the principles sought to be established thereby. In that case, it was, certainly, intended to determine the constitutionality of the act of 1908 and that an action brought by taxpayers, (who were, also, spring owners), upon a complaint making like charges against one of these defendants, might be maintained under the provisions of the act, as well as at common law; but it is to be, particularly, observed that, in that case, we had before us in the record the admission by demurrer of the material facts pleaded in the complaint. A careful reading of the opinion will, in repeated instances, show that in reaching conclusions attention was called to the effect upon construction of the admission of the state of facts exhibited by the plead N. Y. Rep.} Opinion of the Court, per GRAY, J. ing. The complaint in the Hathorn action did not differ, in its allegations, materially, from the present complaint and the demand for relief was for an injunction against the use by the defendant of pumps for the purpose of accelerating the flow of subterranean waters and gas through deep wells. Naturally, the demurrer to the complaint presented the question whether, by force of the provisions of the act of 1908, or at common law, such an action was maintainable and the equitable relief warranted. Reasoning upon the principles of the common law, as applicable to the subject of rights in subsurface and percolating waters, it was considered that the doctrine, varying from that of the early English and American cases, which followed Acton v. Blundell, (12 M. & W. 324), and gave to a landowner an absolute right to all that lay below the surface of his lands, to the later restriction imposed upon that right, when its exercise was unreasonable, because not relating to the use, or enjoyment, of the land itself, became, finally, settled by the decision in the case of Forbell v. City of New York, (164 N. Y. 522). That case laid down. the rule of the reasonable use of percolating waters. It was held that "whatever it is reasonable for the owner to do with his sub-surface water, regard being had to the definite rights of others, he may do." It was held not to be unreasonable that he should take, through wells, all the water he needs for "the fullest enjoyment and usefulness of his land as land"; but that it was unreasonable for the landowner "to tap the water stored in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and, by merchandizing it, prevent its return." (P. 526.) The adoption of this doctrine of a reasonable use of one's property in subterranean percolating waters, to be measured by the rights and necessities of others, as a modification of the earlier rule, obviously, resulted from a consideration of the differing conditions of the age and of the possibilities of an unlimited and destructive use from modern engineering methods. The doctrine of Forbell's case was held by us to be applicable in the decision of the Hathorn case; inasmuch as the situation was "relatively, of the same * Opinion of the Court, per GRAY, J. [Vol. 196. * * general character." The defendant in the Hathorn case, upon admitted facts, "by artificial and unusual methods had so increased the flow of percolating waters and gas upon its lands, that it was obtaining a greatly increased proportion of a common supply at the expense of its neighbors * in order to supply a public market for a portion of these products while the others are wasted." It was said "if these facts, resting now merely on the allegations of a pleading, shall be established by evidence," the conclusion will be authorized that they disclose a case of "unreasonable and improper conduct * * and make out * * * a sufficient cause for appeal to, and relief by, a court of equity." That application was made of the common-law rule of the reasonable use of sub-surface waters, as settled, is, further, made clear by the holding that "no distinction in this case can be predicated upon the peculiar character and quantity of the salts and gases which happen to be in solution." (P. 338.) Having considered the plaintiff's right to relief upon common-law principles, the effect of the act of 1908, (L. 1908, Chap. 429), was next discussed, and the objections urged to the validity of the legislation were overruled. The prohibition of the act was held to be effective to restrain the defendant from the commission of the acts alleged and to prevent the destruction, or diminution, of the flow of waters under the lands of others, for the purpose of diverting them to some use entirely disconnected with the improvement and enjoyment of the defend ant's land. As such results were alleged by the complaint to have been occasioned by the defendant's acts and were to be regarded as admitted by the demurrer, it, necessarily, followed that a cause of action was stated under the statute. I do not think any particular discussion of the provisions of the act to be called for, other than to mention what was decided in the Hathorn case and what application was there made of the statutory prohibition. The act of 1908 contained four prohibitory clauses, more or less, directed to the purpose as declared in the title, namely: "the protection of the natural mineral springs of the State and to prevent waste and impairment of N. Y. Rep.] Opinion of the Court, per GRAY, J. This its natural mineral waters." Of these four clauses, three were condemned, because too broad and unqualified, when tested by the common-law rule governing the landowner's property rights. The third clause was upheld. That contained a provision prohibiting pumping, or otherwise drawing by artificial appliance, from any well, bored into the rock, that class of mineral waters holding in solution natural mineral salts and an excess of carbonic acid gas; or pumping, or by any artificial contrivance whatsoever, in any manner, producing an unnatural flow of carbonic acid gas, issuing from, or contained in, any such well," for the purpose of extracting, collecting, compressing, liquefying or vending such gas as a commodity otherwise than in connection with the mineral water." provision was upheld, 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. "It was entirely proper", it was said, " for the legislature to adopt the provision in question defining and regulating the rights of persons desiring to use mineral waters like those of Saratoga Springs and to prevent such use thereof as would either result in waste of the natural resources of the land to the injury of general and public interests, or in the unreasonable impairment of the rights of others entitled to draw from a common source.” (p. 343.) As these results flowed from the defendant's use of its wells, under the allegations of the complaint, the statutory prohibition was held to apply and to be available in protection of the plaintiff's rights. It is, or should be, clear from the opinion that the act was construed in the light of the common-law rule and, so far as it did not contravene that rule, its prohibition was valid, when invoked for the protection of those, who were suffering injury to their legal rights from the unreasonable use made by another of his property, in a region covered by the terms of the act. What we intended to hold, and, as I think, did hold, was that, while a landowner was entitled to make every use of the waters flowing under the surface of his land, which might be for the |