Co. v. Dickson, 9 Abb. Pr. 61, 64. No way is provided in the Code by which any person can be brought into court in any action until summons has been served upon him, either personally or by some mode of substituted service. Nothing of this kind was ever attempted to be done by Arsino Warner, as far as George was concerned. As to him, the action simply stood, and he was in the situation of having his right to transfer his property tied up for 60 days from the 31st of March, by the filing of the notice of pendency, without being able, in any way, to have any steps taken to prevent it. No action can be said to be pending against a man, when he has not been served with process, or in any way brought into the case, or put in such a situation that he can take any action to defend his rights therein. While he knew that the notice of pendency and complaint was filed, he did not know that any defendant had been served with summons; and he had no reason to suppose, after the 60 days had expired, that any step was taken by Arsino Warner to continue the action which he had sought to begin. I do not regard this as very material to the decision of this case; because the knowledge of George Warner is not important, in my judgment, in deciding this question. But whether it be important or not, if it should be held that the mere filing of the complaint and, lis pendens, with the service upon one defendant, was sufficient to give the court jurisdiction as to every other defendant, and to make the action. pending as to him, whether he were served or not, it would not be difficult for any party who desired to prevent the partition of lands to postpone it indefinitely. The intent of the law, clearly, is that, when one has commenced an action for partition of real property, he shall complete his service with all possible speed. He is permitted 60 days within which to do it, during which the lien acquired by the filing of his notice is kept effective by the law. The purpose of that, as is apparent, is to enable him to make the necessary inquiries as to the residence of the defendants, and to complete service by publication in such cases as it shall be necessary; and the keeping good of the lien during that time implies the intent on the part of the lawmakers that the service should be completed by the time it expires. Various inconveniences are suggested by the counsel for the defendant as likely to arise, if it were held that the action was not made pending by the filing of the notice of pendency. All these are more specious than real. If each tenant in common should commence an action, the court would have no difficulty, upon motion, in consolidating the actions, or in making such direction as would assure an orderly procedure in them. But the argument ab inconvenienti is not of very much force in these cases. The question must always turn upon the construction of the statute, and in this case I think it is a necessary construction of section 416 of the Code of Civil Procedure that the action was not commenced, as to any defendant, until service of summons had been made upon him. The result is that, so far as George Warner was concerned, there was no action pending at the time the summons was served upon him in this case. The remedy of Arsino Warner was, I think, either to appear in this action, and seek to enforce his rights here, or to move

that the two actions might be consolidated, which I have no doubt the court would have the power to do, in such a case as this.

Upon the question raised here, the judgment of the court must be for the plaintiff; but as, outside the issue of another action pending, there has practically been a default on the part of Arsino Warner, as well as the other defendants, the usual order of reference should be made, that the court, upon the coming in of the report of the referee, may order such a judgment as is proper. Judgment accordingly.

(6 Misc. Rep. 516.)

KELLEY V. MAYOR, ETC., OF CITY OF NEW YORK et al.

(Supreme Court, Special Term, Putnam County. January, 1894.)

1. NUISANCE-POLLUTION OF STREAM SUPPLYING WATER TO CITY.

The pollution of a stream supplying water to a city is a public nuisance, and therefore the right to empty a sewer into such stream cannot be acquired by prescription.

2. CONSTITUTIONAL LAW-TAKING PRIVATE PROPERTY FOR PUBLIC USE.

Laws 1893, c. 189, (the Watershed Act,) authorizes the commissioner of public works to do all things necessary to preserve from pollution any of the sources of the water supply of New York city, and provides for the payment of all damages to property occasioned by any act in enforcing such statute. It also provides that the money for such payments shall be raised by the issuance of bonds, and that the bonds shall be provided for from time to time by taxation. Held, that the statute provides a certain, definite, and adequate mode of payment, such as answers the provision of the constitution that private property shall not be taken for public use without just compensation.

Action by Roxanna Kelley against the mayor, aldermen and commonalty of the city of New York and the commissioner of public works of that city to restrain them from entering on and interfering with the premises of plaintiff in Putnam county, in this state, through which premises runs a stream, about 35 feet in width, known as the "Middle Branch of the Croton River," through which stream the waters stored in the Middle Branch reservoir are conducted into the Croton river, and thence by the Croton lake and the aqueducts into the city of New York, where the water forms part of that used for drinking and domestic purposes. Complaint dismissed.

In April, 1893, the commissioner of public works of this city entered on the premises of plaintiff, claiming that her use of the same resulted in the befouling of the waters of the Middle Branch, built a cesspool upon plaintiff's premises, and turned into that cesspool a drain pipe, which, up to that time, had conducted fecal matter, waste water, slops, etc., from the water closets, etc., of the dwelling house of plaintiff to the Middle Branch of Croton river. The commissioner of public works also notified plaintiff that he would, unless she did so, move back from the banks of the Middle Branch her barns, stable, and pigsty, which he also claimed, especially in respect to an uncemented privy on the banks of the stream, constituted a source of pollution of the stream. Plaintiff then procured a temporary injunction restraining the further interference by the commissioner with her property, and her complaint demanded that this injunction be made permanent. The powers exercised by the commissioner in regard to what he had already done, and what he proposed to do on the premises of plaintiff, were by him claimed to be by virtue of his powers under what is known as the "Watershed Act," (chapter

189 of the Laws of 1893.) The theory of the action of plaintiff was based on the alleged unconstitutionality of that act, and especially of the feature of the act which allows the taking of the property before the actual payment of compensation.

Benner & Benner, (Augustus S. Hutchins and Charles Benner, of counsel,) for plaintiff.

William H. Clark, Corp. Counsel, (Theodore Connoly, of counsel,) for defendants.

DYKMAN, J. The water supply of the city of New York is derived entirely from the valley of the Croton river. The watershed embraces an area of about 300 square miles in extent, and is drained by the three branches of the Croton, designated as the "Eastern," "Middle," and "Western." These branches unite in the upper part of Westchester county, and the river runs on for several miles, until it receives the Muscoot river, which brings the water from Lake Mahopac, and then it flows into Croton lake. When it had been determined that the valley of the Croton should be utilized for the procurement of water for the municipality, the legislature passed a law authorizing the city to acquire title to land by right of eminent domain for the construction of a dam and reservoir at the southerly end of the shed, for the impounding of the water, and an aqueduct to convey the water to the city. Under that legislative authority, the dam, aqueduct, and reservoir were constructed, and the title to the land covered by water was acquired. The reservoir is known as "Croton Lake." It is a narrow, crooked body of water, about four miles in length. The different branches of the Croton are augmented by numerous smaller streams; and upon their banks, and along the sides of the three branches, are barnyards, privies, pigsties, and other places where filth is collected and washed into the streams. These places for the collection and deposition of filth and putrefaction became so numerous and so extensive, and so polluted the water, as to cause great alarm and anxiety among the inhabitants of the city. Scientific and medical skill united in declaring the danger to health and life very great and very imminent, and, in answer to the demand for the adoption of some measure which might avert the peril by the removal of the cause, the legislature of the state, in March, 1893, passed an act entitled "An act to provide for the sanitary protection of the sources of the water supply of the city of New York." Chapter 189, Laws 1893. By section 1 of that act it was made lawful for the commissioner of public works of the city of New York to acquire or take in the manner thereinafter set forth, title to all real estate, and acquire or extinguish any interest therein of which the acquisition, taking, or extinguishment may be necessary for the sanitary protection of all rivers and other water courses, lakes, ponds, and reservoirs in the counties of Westchester, Putnam. and Dutchess, so far as they then were or thereafter might be used for the supply of water for the city of New York. The mode of acquiring titles and the extinguishment of interests is prescribed in the law from section 2 to section 26, inclusive, and they are the

usual constitutional methods. By section 27 of the act the commissioner of public works is authorized to take such measures as may be necessary to preserve from pollution and defilement all the sources of the water supply in the three counties already mentioned, and to enter upon all lands near, adjacent, or contiguous to any of the sources of water supply, and to abate and remove the cause of any such pollution or defilement. All damage and injuries to property occasioned by any act under that section were to be ascertained and paid in accordance with the provision of the previous section of the act.

The plaintiff in this action owns about 100 acres of land in the town of Carmel, and the Middle Branch of the Croton runs through the westerly portion of her farm from north to south. Her barn and horse stables are on the east side of the stream, in close proximity to the bank, and her mansion is on the west side of the stream, a short distance from it. The drainage of her dwelling house, including that of the water closet, is let into the stream by a soil pipe, and is emptied there, and has been for many years. Upon the ascertainment of such facts, the commissioner of public works directed the removal of the barnyard, stables, pigsties, and outside privies upon the premises of the plaintiff, and caused a cesspool to be constructed upon her land, and the soil pipe to be conducted into the cesspool, so that the drainage from the house would run into it, and not into the stream of water. Thereupon the plaintiff commenced this action for the purpose of restraining the defendant and its officers from further interference with her property.

The action is based upon the theory of the unconstitutionality of the act of 1893, already mentioned. It will be profitable to ascertain the rights of these parties prior to that statute. It is the legal right of every riparian proprietor to have a stream of water which passes through his land flow in its natural condition, with its channel unchanged and its purity unimpaired. Such a right was vested in and pertained to the defendant as the owner of the bed of Croton lake, and the banks by which it was environed. That lake is, in fact, a running stream, through which 100,000,000 of gallons of water run daily in its onward progress to the city. The pollution of the water by the sewage from the plaintiff's house and the wash from the outbuildings was an invasion of the rights of the defendant, and also constituted a nuisance. Nuisances are of three kinds,-public, private, and mixed. They are public when they violate public rights, and produce a common injury; when they injure or annoy that portion of the public which necessarily comes in contact with it. They are private when the injury resulting from them violates only private rights, and produces damage to a few persons only. Mixed nuisances are those which are both public and private in their effects,-public, because they injure many persons, or all the community; and private, in that they also produce special injury to private rights. Wood, Nuis. p. 22. It is not always easy to determine the class to which any given injury is to be designated. In this case it is plain that the injury is not a mere private nuisance. Its injurious effects and fatal conse

quences fall upon all who use the polluted water; and that may include not only the million and a half of inhabitants of the city, but also all who visit there. The nuisance created and continued by the plaintiff is either public or mixed, and, in my judgment, it is public, because it corrupts and poisons water which all have a right to use. It is, in its nature and consequences, an injury to all who come within the sphere of its operation; and that may be millions of human beings. The question is only important in reference to the right of the plaintiff to prescribe for the nuisance, for in this state no person can obtain a prescriptive right to maintain a public nuisance. Wood, Nuis. p. 743. It is presumed the same rule applies to a mixed nuisance, as that is in one sense public. I think, therefore, that the plaintiff cannot acquire a right by prescription to drain into this stream. But, even if she can, she has not introduced proof sufficient to establish the same. To do that,

it was necessary for her to show that her use of the stream has actually invaded the rights of the defendant, and that the use and invasion of the right have produced an injury equal to and of the character complained of. Id. p. 726. The fact that a noxious trade or a harmful use has been continued for 20 years does not estab lish a prescriptive right to its exercise. It must be shown further, by the party asserting the right, that for the entire period the pollution has been as vile and extensive as that complained of, and, further, that the user, at the time of the action, is not substantially in excess of that exercised during the period requisite to acquire such right. Id.; also, page 728. In no view, therefore, has the plaintiff established any prescriptive right to defile the water in question. This plaintiff holds her property in subordination to the rule of law which requires her so to use it as not to interfere with the rights of her neighbor. That rule is the foundation of the police power of the state, which authorizes the legislature to pass laws for the protection of the health and safety of the public,—a power sufficient to warrant the destruction of property for the protection of the public health, without compensation. Van Wormer v. Albany, 15 Wend. 262; Meeker v. Van Rensselaer, Id. 398. Prior to the interference of the municipal authorities, the house sewage from the residence of the plaintiff, including human excrement, was drained into the middle branch of the Croton river. These discharges from the human system are very poisonous, and the sewage is poisonous if taken into the stomach. According to the testimony in this case, it is a germ carrier,- that is, it carries disease germs from the human system to the water; that these germs have the power of multiplying in the water, and a small number of them added to a large quantity of water will serve to infect the entire large body of water. It is therefore one of the most dangerous sources of pollution.

The plaintiff insists that the commissioner of public works has no power to interfere with the plaintiff, a citizen of Putnam county, in the enjoyment of her right to drain her premises into the running stream; but that contention is faulty-First, because the plaintiff never had the absolute right, free from all restriction, to drain