Daily Development for
Monday, January 10, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
WATERS AND WATER RIGHTS;
RULE OF CAPTURE: Texas upholds its longstanding rule of capture in determining groundwater
rights, against the current judicial movement towards the rule of reasonable
use of groundwater.
Sipriano v. Great Spring
Waters of America, Inc., 1 S.W.3d 75 (Tex. 1999).
The plaintiff property owners sued a neighboring spring water
bottling company for draining the groundwater underlying their property and emptying
their water wells. The Texas Supreme Court, while seemingly sympathetic to
plaintiff property owners' plight and acknowledging the growing need for water
preservation in dicta, rejected their claims for a judicial change to the rule
of reasonable use of groundwater. Instead, the court held that it would
continue to support the Texas 'rule of capture', promulgated in that state in
1904, which permits a landowner to capture and drain as much groundwater as it
desires without liability, reasoning that the combination of the 1917 state
constitutional amendment which provided for legislative, rather than judicial,
control over groundwater regulation, together with the 1993 formation of the
Edwards Aquifer Authority and the 1997 Texas Senate Bill 1 (a
"comprehensive water management bill") have made water use,
preservation and regulation strictly a legislative function.
Comment 1: Here is another
case in which the court rejects the gambit to change the common law because it
has determined that the legislature has become interested enough in the issue
to withdraw the matter from the oversight of the court system. In property law,
such judicial conservatism often is a good thing, because stability of property
rights leads to a healthy market system. But how should we feel about the
application of conservatism in this case?
Water rights are a many
faceted concept, and some legislative activity in the area does not necessarily
indicate that the legislature "has control" of all of the issues.
On the other hand, it may
be that the rule of capture is the best rule to apply in the absence of
legislative involvement. "Reasonable rights" determinations may well
put a court on a slippery slope of comparing the social value of competing
uses. Most "reasonable rights" balancing tests include such values as
a part of the mix. Further, hydrological data is not the kind of information
that is well suited to judicial analysis in a contested case. This kind of
information often requires independent analysis by trained professionals of a
sort who may well be out of reach of the parties to the dispute. In short, the
court may make law that will have an impact of future rights of parties not
before it, and may be doing it on the basis of inadequate information.
Is it better to leave the
determination of a "reasonable" balance of water rights to the
province of professional engineers applying standards established by elected
public officials? The Texas Court seems to think so.
Comment 2: Note that the
issue of water extraction is already somewhat muddy in Texas. Other Texas
decisions have recognized that excessive pumping of water may constitute an
actionable nuisance if neighbors are deprived unreasonably of subjacent support
provided by underground water tables. Friendswood Dev. Co. v. Smith Southwest
Industries, 576 S.W.2d 21 (Tex. 1978).
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
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