Brief Fact Summary. The defendant extracted a large amount of water from wells. Nearby landowners claimed these withdrawals caused their land to subside.
Synopsis of Rule of Law. A landowner has an absolute interest in whatever water he can draw to the surface from his own property, even if the subsurface water is on someone else’s property and it damages other property.
It is not ordinarily contemplated, however, that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired.View Full Point of Law
Issue. Are landowners who withdraw underground water from wells located on their own land liable for damages that result on another’s land?
Texas follows the English rule of absolute ownership which states that a landowner has an absolute right to draw whatever water he can from the ground, even if neighboring land is damaged. The only limitation is that the withdrawal cannot be malicious or wasteful.
In future cases, if the landowner’s manner of withdrawing ground water from his land is negligent, willfully wasteful, or malicious and such conduct is a proximate cause of the damage to land of another, he will be liable for his conduct. This rule does not apply to the present case because the defendant reasonably relied on current property law regarding water rights at the time of his actions.
Dissent. The power to pump water is not the power to destroy the surface of surrounding landowners. The defendants have abused their right to withdraw water to the point that property rights of others are ignored and destroyed. An owner of land should be able to assert an action against one who destroys the lateral or subjacent support to his land in its natural state when either: (1) he engages in conduct knowing that it will cause damage to another’s land by loss or destruction of the subjacent support, (2) the plaintiff proves negligence, or (3) the plaintiff proves a nuisance.
Discussion. Under the English rule, as long as there is no malice, a landowner can remove so much water that another’s land falls, floods or erodes.