Friendswood Development Co. v. Smith-Southwest Industries, Inc.

• Decision Date: 29 November 1978
• Docket Number: SMITH-SOUTHWEST,No. B-6682,B-6682
• Citation: 576 S.W.2d 21
• Parties: , 9 Envtl. L. Rep. 20,452 FRIENDSWOOD DEVELOPMENT COMPANY et al., Petitioners, v.INDUSTRIES, INC., et al., Respondents.
• Court: Texas Supreme Court

Page 21

576 S.W.2d 21

5 A.L.R.4th 591, 9 Envtl. L. Rep. 20,452

FRIENDSWOOD DEVELOPMENT COMPANY et al., Petitioners, v. SMITH-SOUTHWEST INDUSTRIES, INC., et al., Respondents.

No. B-6682.

Supreme Court of Texas.

Nov. 29, 1978.

Rehearing Denied Dec. 20, 1978.

Fulbright & Jaworski, Kraft W. Eidman, David J. Beck and Simeon T. Lake, III, Robert D. McGee, Houston, McGinnis, Lochridge & Kilgore, Robert C. McGinnis and Peter M. Lowry, Austin, Childs, Fortenbach, Beck & Guyton, Stephen R. Kirklin and Ray T. Fortenbach, Cox, Parkenham & Roady, Joyce Cox, Otis H. King, Houston, for petitioners.

Jamail & Gano, Joseph D. Jamail, S. Gus Kolius and Robert F. Stein, Houston, for respondents.

DANIEL, Justice.

The question in this case is whether landowners who withdrew percolating ground waters from wells located on their own land are liable for subsidence which resulted on lands of others in the same general area.

Smith-Southwest Industries and other landowners located in the Seabrook and Clear Lake area of Harris County brought this class action in 1973 against Friendswood Development Company and its corporate parent, Exxon Corporation, alleging that severe subsidence of their lands was caused by the defendants' past and continuing withdrawals of vast quantities of underground water from wells on defendants' nearby lands. Friendswood, alleged to be the operator of the wells, joined as third party defendants numerous parties alleged to be withdrawing ground water in the same general area. Friendswood and Exxon moved for a summary judgment against the plaintiffs, and it was granted by the trial court along with denial of relief in the third party actions.

The trial court followed a long-established common law rule that, in the absence of willful waste or malicious injury, a landowner has the right to withdraw ground waters from wells located on his own land without liability for resulting damage to his neighbor's land. The Court of Civil Appeals reversed and remanded, holding that plaintiffs' petition stated a cause of action in nuisance and negligence and that the summary judgment record raises genuine issues of material fact with regard thereto. 546 S.W.2d 890. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Our decision results from what we conceive to be our duty to apply a rule of property law as it existed during the time of the actions complained of in this suit, even though we disagree with certain aspects of the existing rule. As to future subsidence caused by wells hereinafter drilled or produced, this Court, in the manner hereinafter set forth, will recognize and apply the law of negligence along with willful waste and malicious injury as limitations on the present rule applicable to subsidence resulting from withdrawal of underground waters.

Allegations and Summary Judgment Proof

The petition of Smith-Southwest, the name by which all of the plaintiffs will be identified, recites that plaintiffs are landowners in the area of Seabrook and Clear Lake, and as a class include all owners of fee simple and leasehold estates along the west bank of Galveston Bay from the north dike of the Houston Yacht Club, following the shore line south to the mouth of Clear Creek and inclusive of the entire shore line of Clear Lake, Armand's Bayou, and Taylor Bayou from the shore line to a contour line with elevation 15 feet above the shore line, except the land owned by the defendants.

The trial court had before it depositions, interrogatories, affidavits and exhibits which showed rather clearly that Friendswood had pumped large amounts of subsurface waters from its own property for sale primarily to industrial users in the Bayport industrial area developed by Friendswood and Exxon. These wells were drilled from 1964 through 1971, even though previous engineering reports to defendants showed that production therefrom would result in a certain amount of land subsidence in the area. Plaintiffs alleged that the wells were negligently spaced too close together, too near the common boundary of lands owned by plaintiffs and defendants, and that excessive quantities were produced with knowledge that this would cause subsidence and flooding of plaintiffs' lands. Plaintiffs alleged that this extensive withdrawal of ground water proximately caused the sinking and loss of elevation above mean sea level of their property and the property of others similarly situated along the shores of Galveston Bay and Clear Lake, resulting in the erosion and flooding of their lands and damage to their residences, businesses and improvements. Plaintiffs further allege that the manner in which Friendswood Development Company continues to use its property for the withdrawal and sale of large amounts of fresh water to commercial users on other lands constitutes a continuing nuisance and permanent loss and damage to their property.

The defendants, Friendswood Development Company and its parent company, Exxon, are sought to be held jointly liable for the damages alleged in this case on the theory that they jointly planned and pursued the operations complained of. Among other defenses, Friendswood and Exxon contend that subsidence was a problem in the area before their operations began and that owners of other water wells throughout Harris and Galveston Counties caused or contributed to the subsidence. Friendswood's third party action for contribution and indemnity was filed against twenty-two companies and municipalities in Harris and Galveston Counties, alleging that they contributed to any existing subsidence by pumping large quantities of ground water from the common aquifers underlying the lands in question. Plaintiffs concede that subsidence in the area complained of was known to be a "potential problem" before defendants' operations began, but they allege that Friendswood and Exxon knew that the problem "would be severely aggravated" by the withdrawals which the companies contemplated. There was summary judgment proof of such knowledge and aggravation.

Reports in the record and publications of official agencies reflect that land subsidence in Harris County is not peculiar to or confined within the Galveston Bay and Clear Creek areas described in plaintiffs' petition. Rather it is a problem which has existed for many years in Harris and Galveston Counties. Harris County alone had 2,635 ground water wells in the inventory compiled by the U.S. Geological Survey in cooperation with the Texas Water Development Board in 1972. ¹ The Chicot and Evangeline aquifers underlie the Houston-Galveston region, which includes all of Harris and Galveston Counties and parts of adjacent counties. These two aquifers furnish all of the ground water pumped in the Houston-Galveston region, according to the U.S. Geological Report prepared by R. K. Gabrysch and C. W. Bonnet in 1974. ² This report states that water level declines of as much as 200 feet have resulted in wells completed in the Chicot aquifer and as much as 325 feet in the Evangeline aquifer during 1943-73, and "the declines in artesian pressures have resulted in a pronounced regional subsidence of the land surface." ³ It states that the area in which there has been subsidence of one foot or more has increased from 350 square miles in 1954 to about 2,500 square miles in 1973. The contour lines of this area encompass practically all of Harris and Galveston Counties and include all of the principal areas of ground water withdrawals. ⁴ Maps in the report indicate that the land and wells involved in this suit are in or near the "Johnson Space Center Area," where the land surface subsided about 2.12 feet between 1964 and 1973. ⁵

The general and widespread problem of subsidence in Harris and Galveston Counties has been considered in numerous other writings, ⁶ and more notably by action of the Legislature, which created the Harris-Galveston Coastal Subsidence District in 1975. ⁷ This is a comprehensive measure "to provide for the regulation of the withdrawal of ground water within the boundaries of the district for the purpose of ending subsidence which contributes to or precipitates flooding, inundation, or overflow of any area within the district . . . ." It includes all of Harris and Galveston Counties and provides for a board of fifteen members with the power to grant or decline permits for new wells, regulate spacing and production, require metering devices, and adopt any rules necessary to prevent further subsidence. ⁸

The magnitude of the problem has been reviewed in depth because it is relevant to our determination of whether existing rules of law are applicable and appropriate, or whether new rules should be adopted by this Court or recommended for consideration by the Legislature.

Nature of Plaintiffs' Action

Plaintiffs have alleged an action in tort based upon the general rule that a landowner has a duty not to use his property so as to injure others Sic utere tuo ut alienum non laedas. Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950); Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936); Gulf, C. & S.F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999 (1900). The Court of Civil Appeals cited the above cases and this general rule of tort law in holding that plaintiffs were entitled to a trial on the allegations of nuisance and negligence. The problem is that those cases, none of which related to ground water withdrawals, involved liability for the Unreasonable use of correlative property rights or the balancing of legal and equitable rights between property owners. This is a concept which was deliberately rejected with respect to withdrawals of underground water when this Court adopted the common law rule that such rights are not correlative, but are absolute, and thus are not subject to the conflicting "reasonable use" rule. Houston & T. C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904).

Plaintiffs insist that...