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Higday v. Nickolaus

    Brief Fact Summary.

    Landowners who owned farmland overlying a water basin brought suit against the City of Columbia seeking to enjoin the City from extracting water from the basin and a declaration from the court against the City. The City asserted it had the authority to extract an unlimited amount of water from the water basin under the common law rule of absolute ownership of percolating waters and motioned to dismiss the case. The trial court granted the City’s motion to dismiss. Landowners appealed.

    Synopsis of Rule of Law.

    A party who owns land above ground water cannot extract an unlimited amount of water if the extraction is not for the beneficial enjoyment of the land and the extraction would divert all the water from the neighboring lands.

    Facts.

    Several landowners owned farmland that overlies a water basin, which provided water for the landowners’ agricultural and personal uses. The City of Columbia (the City) was enduring a water shortage. Thus, it acquired the land overlying the water basin to extract and transport 11.5 million gallons of water daily to sell to the City’s residents. Daily, the basin would generate 10.5 million gallons. The landowners brought suit against the City seeking the court to declare that the City did not have a right to extract the water for any use that was not related to the beneficial ownership or enjoyment of the land, such as sale away from the land. Also, the landowners are requesting an injunction to prevent the city from extracting more water. The City asserts that the English common law rule of absolute ownership of percolating waters provided it the authority to withdraw an unlimited amount of groundwater, despite the fact that drainage would result from all groundwater from neighboring lands. The City motioned to dismiss the case, and the trial court granted the motion. The landowners appealed.

    Issue.

    Whether a party who owns land above ground water can extract an unlimited amount of water if the extraction is not for the beneficial enjoyment of the land and the extraction would divert all the water from the neighboring lands.

    Held.

    No, party who owns land above ground water cannot extract an unlimited amount of water if the extraction is not for the beneficial enjoyment of the land and the extraction would divert all the water from the neighboring lands.

    Discussion.

    A party who owns land above ground water cannot extract an unlimited amount of water if the extraction is not for the beneficial enjoyment of the land and the extraction would divert all the water from the neighboring lands.Further, for on to obtain an injunction against another party, the landowners must have a property right to the water. The existence of a property right depends upon which rule applies to the water. Subterranean waters are deemed to be either underground streams or percolating waters. Unlike percolating waters, underground streams run through a definite or reasonably ascertainable underground channel. The court presumes that all subterranean waters are percolating. Per the English common law rule of absolute ownership of percolating water, a landowner may withdraw an unlimited amount of water for any purpose, even if the extraction will result in a drain of all water from neighboring lands. Moreover, American courts have begun to go away from that rule, and instead, began to apply the reasonable-use doctrine. Reasonable use applies to subterranean streams, and it should also apply to percolating waters. In this case, the City’s off-site water needs cannot be satisfied by draining the landowner’s water basin. The City may avoid drainage by limiting its withdrawals to an amount that is less than the daily recharge rate of 10.5 million gallons. The City is liable for damages to the landowners from the mining of over 1 million gallons per day. Likewise, the City may assert to use its eminent-domain powers to purchase the landowners’ groundwater rights. Thus, the trial court’s judgment is reversed and remanded.


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