CITY OF CORPUS CHRISTI V. CITY OF PLEASANTON ET AL
No. A-4543
Supreme Court of Texas
Decided March 9, 1955
Rehearing denied April 13, 1955
276 S.W. 2d Series 799
The Court of Civil Appeals erred in holding that the acts of the defendants in transmitting waters from said well through the channels of the named rivers constitutes waste and that such waste was damaging to the plaintiffs. Also in failing to hold that the State Board of Water Engineers was a necessary party to the suit and was the proper authority to bring a suit for alleged waste of said water. United North and South Oil Co. v. Meredith, 258 S.W. 550; Jone v. Highland Memorial Park, 242 S.W. 2d 250; Texas Co. v. Burkett, 296 S.W. 273.
Bobbitt, Brite & Bobbitt, of San Antonio and Frank N. Steinle, of Jourdanton, for respondents.
On the theory that the acts of defendants constituted waste and plaintiffs were entitled to injunctive relief cited Cantwell v. Zinser, 208 S.W. 2d 577; Houston and Texas Central Ry. Co. v. East, 98 Texas 146, 81 S.W. 279; Brazos River Con. & Rec. Dist. v. Allen, 116 S.W. 2d 1171.
MR. JUSTICE CALVERT delivered the opinion of the Court.
Our main question here is whether it is waste to transport water produced from artesian wells by flowing it down a natural stream bed and through lakes with consequent loss of water by evaporation, transpiration, and seepage. For a detailed statement of the facts, reference is made to the opinions of the Court of Civil Appeals on the plea of privilege in Lower Nueces River Water Supply Dist. v. City of Pleasanton, at 251 S.W. 2d 777, and on the main case, 263 S.W. 2d 797, affirming a trial court judgment against petitioners enjoining them from flowing their wells into the river but staying the injunction for a period of five years or until the City of Corpus Christi completed a certain dam and filled the reservoir, whichever occurrence came first in point of time.
One of the defendants in the trial court, Lower Nueces River Supply District, is a municipal corporation creatеd under Chapter 159, Acts 1949, 51st Legislature. It has four large water wells drilled upon land it owns. It has contracted to furnish water to the petitioner City of Corpus Christi. For that purpose, it flows its wells into the Nueces River which in turn flows into Lake Corpus Christi. From there water is conducted by natural channel to a settling basin at Calallen. Calallen is
There are numerous questions presented by the application for writ of error, but in view of the disposition we make of the main question stated in the beginning of this opinion we need not consider the others.
Respondents’ suit was founded, in large part, on the provisions of
“Waste is defined for the purposes of this Act, in relation to artesian wells to be the causing, suffering or permitting the waters of an artesian well to run into any river, creek or оther natural water course or drain, superficial or underground channel, bayou, or into any sewer, street, road, highway, or upon the land of any other person than that of the owner of such well, or upon the public lands or to run or percolate through the strata above that in which the water is found, unless it be used for the purposes and in the manner in which it may be lawfully used on the premises of the owner of such well. Id. p. 233, Sec. 92.”
The trial court concluded that the discharging of the water into the river and the transporting of it down natural stream beds, by reason of the amount of water lost in the process, constituted “waste in violation of the statutes and the conversation laws of the State of Texas.” The Court of Civil Appeals restеd its judgment of affirmance on public policy rather than on an interpretation of the statutes. It is our opinion that a decision of the question here presented must be controlled by the statutes.
It should be remembered that
The rights of the landowner in percolating water beneath his land were adjudicated in England just over 100 years ago. In Action v. Blundell, 12 Mees. & W. 324 (1843), it was said: “That the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure; and that if, in the exercise of suсh right, he intrecepts or drains off the water collected from the underground springs in his neighbor‘s well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot become the ground of an action.” In the course of time this became known as the “common-law” or “English” rule and it remains the rule in England and in a great many of the states of this Union today. Under this rule percolating waters are regarded as the property of the owner of the surface who may, “in the absence of malice, intercept, impede, and appropriate such waters while they are upon his premises, and make whatever use of them he pleases, regardless of the fact that his use cuts off the flow of such waters to adjoining land, and deprives the adjoining owner of their use.” 55 A.L.R. 1390. In the course of time, also, another rule, known variously as the “American,” “reasonable use,” and “correlative rights” rule grew up in some of the American jurisdictions. It had its origin in the New
With both rules before it, this Court, in 1904, adopted, unequivocally, the “English” or “Common Law” rule. Houston & T. C. Ry Co. v. East, 98 Texas 146, 81 S.W. 279, 280, 107 Am. St. Rep. 620, 66 L.R.A. 738. The opinion in the case shows quite clearly that the court weighed the merits of the two rules—“The practical reasons upon which the courts base their conclusion (applying the ‘English’ rule) fully meet the more theoretical view of the New Hampshire Court (applying the ‘American’ rule) and satisfy us of the necessity of the doctrine“—and, whether wisely or unwisely, made a deliberate choice. That the choice was considered and deliberate is made doubly clear when it is considered that the Court of Civil Appeals had made the opposite choice in the same case (77 S.W. 646, 647), choosing to follow the reasoning of Bassett v. Salisbury Mfg. Co. rather than that of Action v. Blundell. It may be noted that the Court of Civil Appeals gave its approval to the holding of the Vermont Court that the right to take percolating water was “limited to the amount necessary for the reasonable use оf the land, as land,” suggested that to apply the ‘English’ rule to the facts of the case “would shock our sense of justice,” and spoke of the rights of adjoining owners as “correlative.” In differing with the Court of Civil Appeals this Court approved the language of the Supreme Court of Ohio in Frazier v. Brown, 12 Ohio St. 294, where it said: ” ‘In the absence of express contract and a positive authorized legislation, as between proprietors of adjoining land, the law recognizes no correlative rights in respect to underground waters percolating, oozing, or filtrating through the earth * * *’ ”
The precise question this Court had before it in the East case was whether the Railway Company was liable in damages to East on a state of facts showing that by the use of a steam pump, installed in a well on its city lots, the Company had bеen capturing over 25,000 gallons of percolating water per day for use in locomotives and machine shops off of the premises where the well was located, and had thereby completely cut off the supply of water which had been entering East‘s well on his property. Thus it may be said that by its decision the court, in adopting the “English” rule established at least this much: that an owner of land had a legal right to take all the water he could capture under his land that was needed by him for his use, even though the use had no connection with the use of the land as land and required the removal of the water from the premises where the well was located. The court had no occasion, of course, to actually decide аny other question.
Having adopted the “English” rule it may be assumed that the Court adopted it with only such limitations as existed in the common law. What were these limitations? About the only limitations applied by those jurisdictions retaining the “English” rule are that the owner may not maliciously take water for the sole purpose of injuring his neighbor, 55 A.L.R. 1395-1398; 67 C.J., sec. 257, p. 840; or wantonly and wilfully waste it. 56 Am. Jur., sec. 119, p. 602; Stillwater Co. v. Farmer, 89 Minn. 58, 93 N.W. 907, 60 L.R.A. 875. There certainly was no limitation that prohibited the use of the water off of the premises where it was captured. Neither was there any restriction of its use to a particular area. “Under the so-called ‘common-law’ or ‘English’ rule, which prevails in some jurisdictions, the right to extract artesian water for use outside the basin or district in which it is found would seem to bе unrestricted.” 56 Am. Jur., Sec. 118, p. 601. Moreover, by its holding in Texas Co. v. Burkett, 117 Texas 16, 296 S.W. 273, 54 A.L.R. 1397, decided some ten years after the adoption of the Conservation Amendment to the Constitution (
1 It thus appears that under the common-law rule adopted in this state an owner of land could use all of the percolating water he could capture from wells on his land for whatever beneficial purposes he needed it, on or off of the land, and could likewise sell it to others for use off of the land and outside of the basin where produced, just as he could sell any other species of property. We know of no common-law limitation of the means of transporting the water to the place of use. Neither do we know of any judicial modification in this state of the rule of the East case. There is an inference by the Austin Court of Civil Appeals in Cantwell v. Zinser, 208 S.W. 2d 577, that the common-law rule would be modified in this state to protect a landowner against waste of percolating water by his neighbor in permitting escape thereof from an earthen tank, but that case has no writ history and there is no basis for such a modification in either the East case or the cases cited therein as the Austin Court infers.
2 It was in this common-law setting that
3
The Legislature is now in session. It will have this opinion before it before adjournment. It will recognize the problem. If it wishes to declare that the transportation of water in coduits which permit the escape of a large perctntage is wasteful and unlawful it will have ample time in which to do it.
We are thus brought to the conclusion that the question posed by the statutes is nоt a fact question at all but a law question. That law question is this: Is the water being transported to Corpus Christi to “be used for the purposes and in the manner in which it may be lawfully used on the premises of the owner” of the wells?
While, as has been stated, respondents’ right to relief was founded, in large part, on the statutes we have discussed, they neither pleaded nor do they claim that the water being transported to the City of Corpus Christi and other purchasers is being used for purposes and in a manner which would not be lawful on the premises of the owner of the well. The five respondent municipalities are themselves using water obtained from the same sands “for domestic, municipal, and industrial purposes.”
Respondents’ pleading does not inform us of thе nature of the uses to which the water is put by the purchasers from Lower Nueces River Supply District, nor by their prayer do they seek to enjoin any particular use of the water by the purchasers. Their case is predicated on the theory that the defendants are wasting the water by flowing it down natural river courses and stream beds, in violation of the statutes, with consequent evaporation, transpiration and seepage, making it necessary that they take excessive amounts of water from the common reservoir to the deteriment of the respondents who have equal or “correlative” rights in the water supply. They prayed only that the defendants be enjoined from flowing the water into natural water courses and from withdrawing from the reservoir such quantities of water as would draw down and effect the water level in respondents’ wells. This pleading afforded no basis for injunctive relief, either under the statutes or the rules of common law prevaling in this state.
The trial court found that the respondents were entitled to an injunction because of the loss occasioned by the means used for transporting the water “even though the amount not lost is put to a beneficial
The judgments of both courts below are reversed and judgment is here rendered dissolving the injunction.
Opinion delivered March 9, 1955.
MR. JUSTICE GRIFFIN dissenting.
The majority opinion determines the question of whether or not “waste” is present in this case by considering only the amount of water that reaches its destination, rather than by considering the total amount of water produced at the mouth of the well. This is clearly error, and to so consider the question of waste, is to wholly ignore the expressed purpose of the conservation amendment. If no consideration is to be given the amount of water that is dissipated between the time of its production and time of use, then we can never have waste.
The fallacy of the majority opinion is easily demonstrated. It argues that the wrong which the statute seeks to prevent is not the “flowing of the water into a particular type of conduit from which a large percentage of water might evaporate, but the flowing of it into any type of conduit for the purpose of removing it from the premises where produced if it was to be used for an unlawful purpose.” This reasoning entirely overlooks the very purpose for which the conservation amendment and the statutes were passed, and by judicial construction makes the gravemen the use of only so much of the water as finally reaches its destination. The Legislature, in passing the statute, was not attempting to prevent the use of water, but it was seeking to prevent the waste of water—our greatest natural resource. To more clearly illustrate the point—under the proof in this case some 10,000,000 gallons of water are withdrawn daily from the reservoir when the wells are operated, only 2 1/2 million gallons finally reach their destination for use by the city; this use is a lawful use; therefore, argues the majority, no waste occurs. The same reasoning would hold no waste occurs if only ten gallons reach their destination if this ten gallons is used lawfully. To so construe the statute is, in my opinion, to hold that the Legislature did a vain and useless thing which accomplishes no purpose in conserving our natural resources—in this case underground water—but, on the contrary, will permit the depletion of a reservoir so long as one gаllon is used lawfully, regardless of what happens to the 9,999,999 gallons dissipated daily, and put to no lawful use. I say such a construction makes the statutes in question void and in direct opposition to the conservation amendment. You must consider whether the 9,999,999 gallons dissipated plus the one gallon used are put to a lawful use; you must consider the use to which the total production is put.
It is a fundamental rule of statutory construction that when courts have a choice to construe statutes so that one construction gives the statute a valid, legal and reasonable construction which will effect the intent and purpose of the Legislature in the passing of a law, or a construction which gives a statute no meaning to accomрlish the purpose for which it was passed and makes the statute void, meaningless and of no force and effect, and holds that the Legislature accomplished nothing and only used a jumbled jargon of ineffective words to bring about a negative result; then, the courts must give a statute the former construction. This the majority refuses to do, but under the guise of preserving the legislative branch of the government (and it should be preserved), adopts the latter and wholly meaningless construction. According to the majority opinion “waste” is only present when the residue water is run into “the sea or sinkhole” or other like use. I do not believe that an owner of the well would be lawfully using the water
For these reasons, and many, many others which readily suggest themselves to me, if we are to conserve our natural resources, I must join in the dissent in this cause. I think the judgment of the Court of Civil Appeals should be affirmed.
Opinion delivered March 9, 1955.
MR. JUSTICE WILSON, joined by JUSTICE CULVER, dissenting.
I respectfully dissent.
This is an outpost skirmish over the waters of the Carrizo sand. Here we hold that a distant city, after purchasing a few acres of land upon which it drills four big artesian wells, can flow ten million gallons of water a day into a stream from which (under the evidence and the finding of the trial court) it recovers only about twenty five per cent of the artesian water. In doing this it can disregard any injury to or effect upon the wells of other prоperty owners drawing water from a common reservoir to irrigate local farms and to supply local communities. To me this seems obviously unjust and a bad situation. The majority feel compelled to this result by the belief that the problem is primarily legislative. It is indeed commendable for a court to impose upon itself a rigid self control in refusing to trespass upon the legislative function, but I do not believe the courts to be impotent in preventing such a waste and especially so when existing legislation properly construed against the common-law background would prevent it.
Just as a court could not command one end of a seesaw not to move when the other end moves, it cannot be fiat make uncorrelative that which in physical nature is in fact correlative. The result actually reached by the court is to give to one person the unrestrained right to injure his neighbor. I have this to say about reaffirming the rationale of the East case, Frazier v. Brown, and Acton v. Blundell. These cases were decided (1843-1904) before the development of most of our present knowledge of geology and hydrology and there has been a great advance in knowledge since these decisions. In the East case the court takes its rationale from Frazier v. Brown which is, essentially, that, (one) the movement of underground waters “are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would, therefore, be practically impossible,” and (two) ” ’ * * * Because any such recognition of correlative rights would interfere, to the material detriment of the commonwealth, with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building, and the general progress of improvement in works of embellishment and utility.’ ”
This dire prediction — like much prophecy — overlooked the possibility of advance in knowledge and technique. It is understandable that this rationale should appeal to this court in 1904 but I regret to see us reaffirm it now, as the majority does, in 1955 — especially in view of the development since 1904 of our comprehensive knowledge and experience in oil and gas regulation.
I am convinced that the rationale of Frazier v. Brown has been rebutted and answered by the course of our history and the entire trend of our jurisprudence since that decision and since the East case. Although this court can close its eyes to the advancement of scientific and legal knowledge and governmental techniques by reaffirming this rationale as the majority do here, I do not believe that this court will always do so, and for that reason the substance of this dissent seems worth filing.
Prior to the passage of
Therefore, it seems fundamental that once plaintiffs estab-lish waste and consequent injury to themselves, they would have had an action without the Constitutional Amendment adopted in 1917 and without regard to
I grant that it is within the province of the Legislature to define or redefine waste. I grant that common-law waste which might have been prevented by injunction prior to the adoption of
The movement of water from the ocean through clouds to fall on land as rain and its trip back to the ocean is called the hydrological cycle. It is not within the power of man to destroy water in any appreciable quantities but only to divert and control water as it flows toward the ocean. Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 17 Pac. 2d 1074, 89 A.L.R. 200. For this reason, the legal term waste does not mean the destruction of water but rather its escape from beneficial use.
Here the trial court has found that undеr the facts of this case the transportation of water flowing it down a stream bed is wasteful. The proof established that the purpose of pumping the wells is to obtain water for use in the City of Corpus Christi. It is released into the stream only for the purpose of transportation. Obviously, that portion of the water lost enroute is not being put to a use which would be “lawful on the premises of the owner of such well” if this amounts in law to waste.
By
The city contends that even so it costs less money to flow water down this stream bed than it would to construct a conduit, and, in effect, its method of transportation is the most economical. But
Defendants contend that since the District‘s production methods are not attacked as wasteful and since it owns the water, the use after production cannot be regulated by
The defendant district was itself created to carry out the State‘s conservation policy. The Act crеating the defendant district states that it is created “Under and pursuant to the provisions of
Plaintiffs and defendant district each have substantially the same property interest in the water under their land. The proof supports a finding of fact that their lands overlie a common reservoir and that the quantities of water drawn out by the defendants have materially and adversely affected neighboring wells. Defendants contend that the water taken from the reservoir through the four wells has not decreased the quantity of water taken from other wells in the same reservoir, and this seems to be true. However, there is proof that the flowing of the defendants’ wells causes an inverse pressure cone which in turn results in lowering the level at which water stands in the other wells, with a consequent increase in the cost of lifting the water and other operating cost.
Although the East case was decided in 1904 before the adoption in 1917 of
” * * * The defendant here is making a reasonable and legitimate use of the water which it takes from its own land, which use is not, in quality, differеnt from, or in its consequences to plaintiff more injurious than, many upheld in the decisions. There is no claim of malice or wanton conduct of any character, and the effect to be given to such a fact when it exists is beside the present inquiry. * * *”
It is now long settled that under the power to conserve its natural resources, a state may prevent waste of a natural resource contained in a common reservoir where the reservoir is split into different ownership segments. Also, one such owner may prevent another from wastefully destroying or damaging his property. Bandini Pet. Co. v. Superior Court, 284 U.S. 8, 76 L. Ed. 136, 52 Sup. Ct. 103, 78 A.L.R. 826; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 81 L. Ed. 510; Brown v. Humble Oil & Ref. Co., 126 Texas 296, 83 S.W. 2d 935, 87 S.W. 2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393; Corzelius v. Harrell, 143 Texas 509, 186 S.W. 2d 961; Elliff v. Texon Drilling Co., 146 Texas 575, 210 S.W. 2d 558; Stillwater Water Co. v. Farmer (1903) 89 Minn. 58, 60 L.R.A. 875, 93 N.W. 907; Barclay v. Abraham (1903) 121 Iowa 619, 64 L.R.A. 255, 96 N.W. 1080. For due process of law requires that property be protected against destruction or damage. The general prohibition contained in
In the field of water law, there is no consolation to be found in the law of capture. Of what value would it be to the plaintiffs to offset defendants’ wells and produce an enormous amount of water for which they have no use? This would further deplete the reservoir, reduce the pressure, and lower the standing level with consequent increase of pumping expense. Why further injure their own wells? To refer them to the law of capture in this situation is simply to say that one who has been injured may go and inflict a like injury upon his neighbor. If the law of capture has any true application to underground water, it is an extremely limited one. No one can live in a vacuum. Therefore all property rights are, to a certain extent, correlative. For this reason, I do not feel that there is any true distinction between an “absolute” and a “correlative” theory of property in artesian water. The theory, discussed in some cases and mentioned by the majority that artesian water can be used only upon the land from which it is produced has no application at all to the problem at bar. It is not the contention of plaintiffs that artesian water can
Opinion delivered March 9, 1955.
Rehearing overruled April 13, 1955.