Charles Sutter, Appellant, v. The City of New York, Respondent

Charles Sutter, Appellant, v. The City of New York, Respondent. Action for damage to land caused hy driven wells — discovery and inspection of the land hy the defendant —when not authorized hy Code of Civil Procedure, section 1683 — ignorance hy the-defendant of the information sought for must he shown — conditions which the plaintiff may reasonably impose. In an action brought against the city of New York to recover damages for a trespass upon the plaintiff’s realty, committed by establishing, driven wells and pumping stations near the plaintiff’s premises, thus lowering the level of the waters underlying the plaintiff’s land', the defendant obtained an order requiring the plaintiff to permit the defendant to enter upon his real property for the purpose of making a survey of the surface of his premises, boring beneath the surface to ascertain the underground water level and permitting it to carry away samples of the soil. The moving affidavit was made by an assistant corporation counsel of the defendant who had charge of the action. He alleged that from his preparation of the case and by inquiry of and Consultation with the defendant’s officers he was informed and believed that the defendant and its officers had no knowledge by actual experiment or test of the height of the water level prior to or since the construction of the defendant’s pumps and wells. Held, that section 1683 of the Oode of Civil Procedure, which provides a remedy in the nature of discovery or inspection, was not applicable to the case; That, assuming that that section was applicable, the moving affidavit was insufficient, as matter of law, to bring the case within the rule that a party who seeks the benefit of the remedy of a discovery or inspection must show positively that he has no knowledge of the facts proposed to be discovered and has no copies of the papers proposed to be inspected.. It further appeared that the attorney for the plaintiff, long prior to the application for the order, offered to allow' the officers of the defendant to bore holes upon the plaintiff’s land so long as they did not interfere with his crops or business and so long as they should be properly protected by the defendant, and to permit it to take measurements of the water in such holes once a day during the prescribed tests and to allow the defendant to take samples from the soil in the plaintiff’s land, the plaintiff, however, imposing the condition that he be furnished with a topographical map which the defendant was about to make, a verified record of the quantity of water pumped on each day for a number of days past and of the number of days that the pumping station was working; that the plaintiff be permitted to go upon the lands of the defendant during the test and inspect the operation of the driven wells and pumping . station, pnd that the defendant cease, for a period of one week, operating a pumping station which was claimed to be the one which interfered principally with the water level of the plaintiff’s property. It was not shown that the conditions imposed by the plaintiff'were unreasonable or were not imposed in good faith. Held, that the order in question should not be granted until it was shown that it was impracticable or unreasonable to require the defendant to comply with the conditions imposed by the plaintiff. Appeal by the plaintiff, Charles Sutter, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 22d day of September, 1903. Charles Coleman Miller, for the appellant. George E. Blackwell [James McKeen, with him on the brief], for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: This is an appeal from an order requiring the plaintiff to permit the defendant to enter upon his real property for the purpose of making a survey of the surface, boring beneath the surface to ascertain underground water levels, and permitting it to take and carry away samples of the soil. The action is brought to recover damage's alleged to have been suffered by the plaintiff by reason of the defendant’s alleged trespass upon the plaintiff’s realty, committed by means of the establishment of pumping stations and wells near his premises, whose operations have resulted in draining the plaintiff’s property of underground water, thereby reducing the underground water level, and consequently rendering it less productive and less fit for cultivation. The affidavit read in support of ithe motion and upon which the order was granted, was sworn to by an assistant corporation counsel of the defendant, the city of New York, who says that he has charge of the action and that from his preparation of the case, and by inquiry of and consultation with defendant’s officers he is informed and believes that the defendant and its officers have no knowledge by actual experience or test of the height of the water level prior to or since the construction of defendant’s pumps and wells, and plaintiff urges upon this appeal that the affidavit is insufficient. The order appears to have been granted under the provisions of section 1682 of the Code of Civil Procedure, and the remedy under that section appears to be in the nature of discovery or inspection. We think it will be admitted that the rules governing the allowance of other remedies of similar nature, in so far as the character of the affidavit upon which such orders are based is concerned, should be held applicable here. We do not think the section of the Code is applicable at all to this case, but assuming that it is applicable, the rule has long been to the effect that a party who seeks the benefit of the remedy of discovery or inspection must show positively that he has no knowledge of the facts proposed to be discovered, and has not copies of papers proposed to be inspected. The rule stands on reason, for it is considered idle and unfair to require a party to submit to what is in the nature of an incursion into the fundamental right of private security, unless the privilege will result in substantial, advantage to the moving party. (McAllister v. Pond, 15 How. Pr. 299 ; Fromme v. Lisner, 63 Hun, 290 ; Goodyear's Rubber Glove Co. v. Gorham, 83 id. 342 ; Matter of Bronson, 78 id. 351.) We think that the affidavit relied upon to support the order in this case is insufficient; as matter of law, to establish the fact that the city, through its proper officers, agents or servants, is not possessed in some manner of the facts which it seems to be the purpose of the survey and boring to disclose. We believe that there is an additional reason why this order should • have been denied. It is equally clear that where it is within the easy reach of á party who seeks discovery or inspection to procure knowledge of the facts with which he wishes to acquaint himself, especially when that access is offered by the adverse party whose rights of personal security are to be abridged if the order is made, he should exhaust all reasonable efforts to obtain such knowledge before resorting to the remedy under the Code. It appears, in this case that the attorney for the plaintiff, long prior to the application, offered to allow the defendant to bore holes upon plaintiff’s land, so-long as they did not interfere with his crops or business, and so long as they should be properly protected by the defendant, and to permit it to take measurements of the water in such holes once. a day during a prescribed test, and to allow -defendant to take samples of the soil from plaintiff’s land, imposing, however, the condition for this permission that the plaintiff be furnished with a topographical map, which it seems the defendant was about to make in any event; a verified record of the quantity of water pumped for a number of years past on each day, and the number of days the pumping station was working; to permit the plaintiff to go upon the lands of the defendant during the test and inspect the operations of the driven wells and pumping station, and on the further condition that the defendant cease the operation of one of its Spring Creek pumping stations for the period of one week, it being understood from the papers that the Spring Creek pumping station was the one which was claimed to interfere principally with the water levels and conditions of the plaintiff’s property. It is not established in the record that these stipulations or requirements of the plaintiff before permitting the defendant to make its borings and take its measurements and samples were unreasonable, and no word appears attacking the good faith of such requirements and stipulations, or suggesting that such a method of procedure would not clearly establish once and for all questions of fact, whose determination without some such procedure has been upon former trials between other plaintiffs and this defendant, and must continue to be, involved in grave doubt and uncertainty. Until it appears impracticable or unreasonable to require the defendant to comply with the terms of such a stipulation on its part to be performed, it was not entitled to the order it sought. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. ■Bartlett, Woodward, Hirschberg and Jerks, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.