Brief Fact Summary.
The State sued on behalf od residents who experienced drying of their wells and subsidence of the soil near their homes after Defendant’s water pumping caused the ground water table to lower considerably.
Synopsis of Rule of Law.
A landowner enjoys the freedom to use underground water for any purpose as long as the use is reasonable.
In 1972, Metropolitan Sewerage Commission of Milwaukee County grantedMichels Pipeline Construction, Inc. (Defendant) an easement to construct a sewerage in Greenfield, Wisconsin. In September 1972, Defendant began pumping water from Greenfield wells, causing the ground water table to lower considerably. As a result, nearby residents who drew the same water from private wells experienced the drying of their wells and subsidence of the soil near their homes. Defendant demurred on the grounds that Huber v. Merkel, 117 Wis. 355 (1903) ruled that a cause of action does not accrue for interference with ground water. The trial court sustained Michel’s demurrer.
Whether a landowner enjoys the freedom to use underground water for any purpose as long as the use is reasonable.
Yes. The trial court’s ruling is reversed and the case is remanded for further proceedings. A landowner enjoys the freedom to use underground water for any purpose as long as the use is reasonable.
In Huber, a landowner sought an injunction to keep his neighbor from wasting and unreasonably using underground water. The court held that underground waters belong to the owner of the overlying land, and that the neighbor in that case had the unqualified right to use the water as he deemed fit. Under Huber, an owner is not liable for damage imposed on neighboring landowners, even where the owner uses the water with malicious intent. Huber was based on the idea that the behavior of underground water was too mysterious to regulate in a fair manner. Since then, however, scientific advancements provide accurate assessments of underground water, allowing people to ascertain water table levels as well as the effect of one person’s water use on water table levels. As a result, liability can now be fairly assessed. In light of these developments, it is undesirable to subject the use of underground water to a different standard than that applied to surface waters. In Menne v. Fond du Lac, 273 Wis. 341 (1956), this court noted that the Huber case had undergone extreme criticism, but refrained from adopting a new rule because of the principle of stare decisis. Stare decisis, however, is not an absolute barrier to the adoption of new rules; it merely requires caution in adopting new rules that would affect property rights. As such, this court overrules the decision in Huber and adopts a new rule to govern the use of underground water. Currently, there are three established doctrines applicable to the use of underground waters. The first is the English or common-law rule, which allows a landowner to use underground water as he wishes without liability, unless he uses the water maliciously or wastefully. The second is the reasonable use rule, which limits a landowner’s use of underground water to useful or beneficial purposes in connection with the land. A landowner is liable under this rule for harm inflicted on adjoining landowners if the water is used elsewhere. The third doctrine is the correlative rights rule, which holds that all owners of land over underground waters have equal rights and each may only extract his equal share if extracting more would cause injury to another owner, regardless of whether the water is used in connection with the land. The correlative rights rule is appropriate where water is a limited resource. However, there is no evidence that water is limited in this jurisdiction. Therefore, it is unnecessary to adopt the correlative rights doctrine. In fact, this court declines to adopt any of the three rules discussed and instead adopts the rule developed in Tentative Draft No. 17 of the Restatement of the Law Second, Torts, which broadens the protection of the reasonable use rule. This version of the reasonable use rule allows a landowner the unrestricted freedom to use underground water for any purpose as long as it is reasonable.