Texas Landowners Council

Groundwater

Texas Supreme Court Cases

Rule of Capture

Houston & T.C. Railway Co. v. East (1904)

The rule of capture originated in Roman law, was adopted into English common law, and was adopted by the Republic of Texas in 1840. In 1904, the Court affirmed the rule of capture, meaning there is no liability for withdrawing groundwater to the extent that others’ wells are depleted.

Sipriano v. Great Spring Waters of America, Inc. Case 98-0247 (1999)

The Court stated: “We see no reason ... for the Legislature to feel constrained from taking appropriate steps to protect groundwater.” Justice Nathan L. Hecht explained that “ for now--but I think only for now--East should not be overruled.” This is interpreted to mean that the Court will modify the rule of capture if the Legislature does not.

Change of Use

Guitar Holding Company, L.P. v. Hudspeth County Underground Water Conservation District No. 1, et al. (2008)

Justice David Medina stated: “The court of appeals upheld the District’s permitting scheme, concluding, in effect, that the District’s authority to preserve the ‘historic or existing use’ of groundwater pertained only to the amount of water used in the past and not its purpose. We conclude, however, that the amount of groundwater used and its beneficial purpose are components of ‘historic and existing use’ and that the District thus exceeded its rule-making authority in grandfathering existing wells without regard for both.” The District must rewrite its rules to comply with this decision.

Guitar family attorney Russ Johnson of McGinnis, Lochridge & Kilgore, L.L.P. explained: “What the state is saying with this ruling is that landowners are not going to be punished in terms of access for conserving the water resource by not using it. Now all landowners’ rights are on equal footing when it comes to any kind of new use, and if there is a revenue to be generated from this resource through a water marketing scheme, then all landowners potentially have a right to share in that scheme.” This decision recognizes true vested rights to groundwater and affirms that there cannot be a vested right to a new use.

Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel (pending)

Texas Landowners Council Amicus Curiae by Marvin W. Jones, February 12, 2010

“Commissioner Staples Makes Formal Request to Texas Supreme Court on Case Involving Private Groundwater Rights”

Texas Department of Agriculture Press Release February 12, 2010

“Who owns groundwater in the aquifer?”

By Colin McDonald, San Antonio Express-News February 18, 2010

“Who owns the water beneath your property?”

By Cynthia Cox Payne, Bandera County Courier Headline News February 25, 2010

8th Court of Appeals (El Paso County) Case: Rule of Capture

Pecos County Water Control and Improvement District No. 1 v. Williams (1954)

After pumping caused Comanche Springs to stop flowing, the El Paso Court of Appeals affirmed the rule of capture but noted that, “It may be that the answer to this unhappy situation is legislative.”