N. Y. Rep.] Opinion of the Court, per GRAY, J. the effect upon the gas and the water charged therewith, in either case, were, in all respects, the same. I think that the defendants were entitled to give any competent evidence that they had, in support of their defense to the validity of the act, that, as its provision rested upon no real basis, in discriminating against wells bored into the rock, the prohibition was an unreasonable exercise of power. Such proof would not be objectionable, because going to show the statute to be on its face invalid; it would bear upon the reasonableness of its classification and go to show whether its provisions, in attempting a regulation of the conflicting rights of all to a common, natural, supply, operated unequally upon the rights of a class of property owners. On its face the third prohibitory provision of the act appears to be valid, as we have held in the Hathorn case. The legislature assumed the existence of a fact, so notorious in external nature as to be a matter of common teaching and knowledge, that gas, as an elastic aeriform fluid, when confined, exerts pressure; that the natural tendency will be to expel the waters, which hold them in solution, when generated, through any vent, or opening, in the rocks, where confined, and that the boring of wells into such rocks would diminish the pressure and thereby destroy, or seriously impair, the force, which was necessary to the natural flow observed in the mineral springs. If the defendants were able to show that this scientific fact in the natural world had no application to their situation and that there was no difference, in the effect upon the general source of supply, between pumping from wells bored in the rock or from those driven in the soil, or in the effect upon the springs of other landowners, I think they were entitled to present that evidence for the consideration of the court in determining the reasonableness and validity of the legislative measure. As to the burden of proof I think it rested upon the defendants. There was enough admitted as to the situation, the character of the waters and the nature of the work conducted by the defendants, to bring them, prima facie, within the operation of the act. The People were entitled to rest upon Opinion, per CULLEN, Ch. J. [Vol. 196. the presumption of the validity of its provision and upon the support to their case in the admissions made and in the inferences of facts from the operation of natural laws, until the evidence of the defendants established, or tended to establish, their defenses that the statutory provisions were inappli cable to their case; that such regulations were unjustly discriminative; or that they were not chargeable with making a use of their property, which was unreasonable because injurious to the rights of others. For these reasons, I advise that the judgments in these four actions be reversed and that new trials be ordered; with costs to abide the event. CULLEN, Ch. J. I concur in the opinion of GRAy, J., for reversal of the judgments appealed from in these cases, but desire to add a word in answer to one argument pressed on us by the learned attorney-general. It is urged that the public have such an interest in the mineral waters of Saratoga, because of their great curative and health giving properties, that the legislature may interpose for their protection under the right of the state in the exercise of its police power "to protect and develop its natural resources", even though the waters themselves are the property of private persons. I deny that the police power vests in the legislature any such right. "The police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil law maxim, sic utere tuo, ut alienum non lædus" (Tiedeman's Limitations of Police Power, p. 4), that is to say, one cannot use his own property so as to injure the rights of others, nor can he use it in such a manner as to offend against public morality, health or peace and good order. In the exercise of this power, doubtless, the legislature may not only prohibit acts of commission on the part of the owner, but acts of omission, provided the result of such omission is to invade the rights of others or those of the public. But under that power the leg N. Y. Rep.] Opinion, per CULLEN, Ch. J. islature cannot require an owner to use his property for the advantage and benefit of others or of the public, or even for his own benefit, nor restrain him from devoting it to such purpose as he sees fit, or even from wasting it, provided such use does not conflict with the rights of others or the public. (Matter of Ryers, 72 N. Y. 1.) A man owning a coal mine may mine the coal and waste it, regardless of the interest of the present generation or of succeeding ones. It is not that such conduct would not be an evil, but because the people who framed our system of government taught by experience deemed it wiser to trust the use of property to the dictates of the intelligent self-interest of the owner, rather than to subject it to governmental interference. That the right to appropriate springs and subterranean waters is an incident of the ownership of the land is settled by a long line of authorities, to one of which only it is necessary to refer. (Bloodgood v. Ayers, 108 N. Y. 400, 405.) There Judge FINCH, writing for the court, said: "No stream or water-course ran from the spring. The source from which it came and the flow of its waste or surplus were alike under ground, concealed, and matters of speculation and uncertainty. Such a spring belongs to the owner of the land. It is as much his as the earth or minerals beneath the surface; and none of the rules relating to water-courses and their diversion apply." That doctrine has been limited by the case of Forbell v. City of New York (164 N. Y. 522), because, as pointed out in the opinion of Judge GRAY, modern engineering has created conditions unknown at the time of the old authorities. The modification, however, is only this: that the absolute right of appropriation as against other landowners who may be injured thereby extends only to a reasonable use of the water. The reasonableness of the use, however, is a question between the several landowners, not between the landowner and the public unless an actual stream or watercourse is affected. If the appropriation does not affect other landowners the right to appropriate underground waters is unqualified. I concurred in the affirmance of the judgment in the Hathorn case because, on the facts alleged in the complaint in that case, I thought the defendant's use of the water unreasonable within the doctrine of the Forbell case, and I concurred in upholding the statute because I deemed it an adjustment of conflicting private rights and the apportionment of a common property right among several owners. That is a recognized branch of the police power. (Dorrity v. Rapp, 72 N. Y. 307; Ohio Oil Co. v. Indiana, 177 U. S. 190.) If, however, the fact is that the source of supply from which the defendant draws water is not a common one, but exclusively on its own land, or if its appropriation of the water in no way affects the supply of water on other lands, then the statute has no application. HAIGHT and WILLARD BARTLETT, JJ. We concur in the result reached in the opinion of GRAY, J., and concur in the opinion of the chief judge in so far as he discusses the right of the state, in the exercise of its police power, to interfere with the production of mineral water by private persons upon their own land. EDWARD T. BARTLETT, WERNER and HISCOCK, JJ., concur with GRAY, J., and CULLEN, Ch. J.; HAIGHT and WILLARD BARTLETT, JJ., concur in result in memorandum. Judgments reversed, etc. MARK N. CORMACK, Respondent, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant. Carriers definition of the terms "act of God" and "inevitable accident," which will relieve common carrier from liability for delay in transportation of passengers - neglect of railroad company to mitigate conditions caused by snow storm- question of fact. Definitions of the terms " act of God" and "inevitable accident "collated and discussed, with relation to the liability of common carriers of goods and passengers. A common carrier is not an insurer as to the time when passengers will reach their destination, in the absence of an express contract on the subject. If a railroad company negligently fails to keep the time it promises it will be liable in damages for injury thereby accruing to a passenger. But to entitle the plaintiff to recover there must be proof of negligence. Neither time table nor advertisement is a warranty of punctuality. A snow storm of such severity as that it delays a train, although the railroad company made strenuous efforts to clear the track, must be classed as an act of God, and proof of its occurrence and effect constitute a complete defense to the claim of a passenger for damages by reason of being delayed thereby. Where, however, a passenger was delayed by a snow storm and complained of the dark, cold and uncomfortable condition of the car in which he claims to have been compelled to spend the night, and the failure of the railroad company to mitigate such condition, as to the truth of which allegations there is a conflict of evidence, he is entitled to go to the jury on that issue. Cormack v. N. Y., N. H. & II. R. R. Co., 126 App. Div. 909, reversed. (Argued October 15, 1909; decided November 23, 1909.) APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1908, which affirmed a determination of the Appellate Term affirming a judgment of the City Court of New York in favor of plaintiff entered upon 2 verdict. The action was brought to recover damages for the negli gent failure of the defendant promptly to transport the plaintiff as a passenger upon one of its trains from the city of Quincy to the city of Boston in the state of Massachusetts on January 2d, 1904. The complaint alleged that the plaintiff purchased a ticket for such transportation and was received at Quincy as a passenger in a train leaving there at 8:40 P. M. and due in Boston about 8:55 o'clock on the same evening; that the defendant carried the plaintiff to a point within six hundred or seven hundred feet of its terminal station in Boston when it refused to proceed further with the train although the station was within easy reach; and that it willfully, wantonly and negligently refused to provide any means whereby plaintiff could be carried to said terminal station although trains were running upon the adjoining track or tracks, and |