Citation. 22 Ill.1 S.W.3d 75 (Tex. 1999)
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The Plaintiffs sued the Great Spring Waters of America, Inc. (Defendant), a water bottling company, for depleting the ground waters and drying up the Plaintiffs’ wells.
Synopsis of Rule of Law.
Under the capture rule, a landowner may pump as much groundwater as he chooses without liability to neighbors for drying up their wells.
Facts.
The lower court granted summary judgment in favor of the Defendant on the basis of a 90-year-old rule of law, the capture rule. Under the capture rule, a landowner may pump as much groundwater as he chooses without liability to neighbors for drying up their wells. The Plaintiffs appealed to try and get the higher court to adopt a rule of reasonable use.
Issue.
Should the court adopt the reasonable use rule and overturn the long-standing capture rule?
Held.
No. Affirmed. The court saw no reason to make sweeping changes to the Texas groundwater rules.
Concurrence. The concurrence has three main points:
The legislature was given the power and duty to pass laws relating to groundwater conservation. The only recognized method of groundwater conservation is by conservation district, and only forty-two such districts have been created. Thus, not much conservation has been occurring.
The capture rule was adopted at a time when many jurisdictions had adopted the rule. However, at this time, only Texas still enforces the capture rule. The decision to adopt the capture rule listed two reasons for adopting the rule, and neither of the two is still valid. One, the movement of groundwater is secret. Two, the recognition in correlative rights to groundwater would interfere with drainage and agriculture.
The concurrence notes with approval the beneficial purpose doctrine in Restatement (Second) of Torts Section: 858, which states that a proprietor or landowner who uses the groundwater for a beneficial purpose is not subject to liability unless the withdrawal unreasonably causes harm to a neighbor, or exceeds the proprietor’s reasonable share of groundwater, or the withdrawal has a direct and substantial effect on a watercourse or lake and causes harm to a person entitled to the use of such watercourse or lake.
However, the concurrence believes that the legislature might soon change the law regarding groundwater, and thus, votes to leave the capture doctrine in place for the time being.
Discussion.
Under the capture rule, a landowner may pump as much groundwater as he chooses without liability to neighbors for drying up their wells. Although the court noted that most states no longer follow the capture rule, the court was reluctant to change the law in Texas.
