City of Corpus Christi v. City of Pleasanton

• Decision Date: 09 March 1955
• Docket Number: No. A-4543,A-4543
• Citation: 154 Tex. 289,276 S.W.2d 798
• Parties: CITY OF CORPUS CHRISTI, Petitioners, v. CITY OF PLEASANTON et al., Respondents.
• Court: Texas Supreme Court

Page 798

276 S.W.2d 798

154 Tex. 289

CITY OF CORPUS CHRISTI, Petitioners, v. CITY OF PLEASANTON et al., Respondents.

No. A-4543.

Supreme Court of Texas.

March 9, 1955.

Rehearing Denied April 13, 1955.

I. M. Singer, City Atty., and Hodge Thompson, Asst. City Atty., Corpus Christi, for petitioners.

Bobbitt, Brite & Bobbitt, San Antonio, Frank W. Steinle, Jourdanton, for respondents.

Graves, Dougherty & Greenhill, Austin, Arthur Duggan, Jr., Littlefield, J. H. Starley, Pecos, John Ben Shepperd, Atty. Gen., J. Arthur Sandlin, Asst. Atty. Gen., Joe Carter, Austin, amici curiae, for State Board Water Engineers.

CALVERT, Justice.

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 at Lower Nueces River Water Supply Dist. v. City of Pleasanton, 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 created 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 a total distance of one hundred and eighteen miles from the wells. When the wells are fully opened, they discharge water into the river at the rate of ten million gallons of water per day. It was estimated that there are two hundred wells producing from the Carrizo sand in the vicinity of the wells among which are wells owned by respondents. (Five municipalities and twelve individual land owners.) There was evidence that at times as much as 63 to 74% of the water discharged into the river escaped through evaporation, transpiration and seepage and never reached its destination to be put to a beneficial use.

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 Article 7602, Revised Civil Statutes, 1925, and Article 846 of the Penal Code. Article 7602 of the Civil Statutes defines waste of artesian water and Article 846 of the Penal Statutes declares such waste to be a penal offense. They are in substantially the same language. Article 7602 reads as follows:

'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 other 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 conservation laws of the State of Texas.' The Court of Civil Appeals rested 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 Articles 846 of the Penal Code and 7602 of the Civil Statutes were not the origin in this state of the right to use percolating water off of the premises of the owner or of the right to use the various means of transporting it mentioned in those statutes; those rights existed in the common law as a brief examination will establish.

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 such right, he intercepts 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 has its origin in the New Hampshire case of Bassett v Salisbury Mfg. Co., 43 N.H. 569, 82 Am.Dec. 179. As the titles imply, this rule recognizes that the right of the surface owner of land to take water from a common reservoir is a limited right. To exactly what extent it is limited is not here pertinent. The modern tendency is toward this latter rule. For the general history, limits and application of the two rules, see 56 Am.Jur., Waters, Secs. 111-121, pp. 593-604; 55 A.L.R. 1385-1408; 109 A.L.R. 395-403; 67 C.J., Waters, Secs. 254-258, pp. 837-841.

With both rules before it, this Court, in 1904, adopted, unequivocally, the 'English' or 'Common Law' rule. Houston & T. C. R. Co. v. East, 98 Tex. 146, 81 S.W. 279, 280, 66 L.R.A. 738, 107 Am.St.Rep. 620. 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 conclusions (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 Acton 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 of 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 been 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 removeal of the water from the premises where the well was located. The court had no occasion, of course, to actually decide any 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 willfully waste it. 56 Am.Jur., sec. 119, p. 602; Stillwater Water Co. v. Farmer, 89 Minn. 58, 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...