Smith-Southwest Industries v. Friendswood Development Co.
| Decision Date | 27 January 1977 |
| Docket Number | No. 16794,SMITH-SOUTHWEST,16794 |
| Citation | 546 S.W.2d 890 |
| Parties | 7 Envtl. L. Rep. 20,343 INDUSTRIES et al., Appellants, v. FRIENDSWOOD DEVELOPMENT CO. et al., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Joseph D. Jamail, S. Gus Kolius, Robert F. Stein, Houston, for appellants.
Fulbright & Jaworski, Kraft W. Eidman, David J. Beck, Sim T. Lake, III., Robert D. McGee, Houston, for appellee Friendswood Development Co.
McGinnis, Lochridge & Kilgore, Robert C. McGinnis, Peter M. Lowry, Austin, for appellee Exxon Corp.
Childs, Fortenbach, Beck & Guyton, Michael R. Waller, Houston, for Atlantic Richfield Co., Arco Chemical Corp. and Arco Chemical Co., a Division of Atlantic Richfield Co.
Baker & Botts, Finis E. Cowan, Houston, for Tenneco Chemicals, Inc.
Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Houston, for E. I. DuPont de Nemours & Co.
Crain, Winters, Houser & Deaton, Newton M. Crain, Jr., Houston, for Rohm & Haas Texas, Inc.
Andrews, Kurth, Campbell & Jones, Bass C. Wallace, Houston, for Diamond Shamrock Corp. Cox, Packenham & Roady, Joyce Cox, Houston, for Shell Oil Co.
Otis King, City Atty., James K. Gardner, Sr. Asst., for City of Houston.
Saccomanno, Clegg, Martin & Kipple, Burke Martin, Houston, for City of Seabrook.
Vinson, Elkins, Searls, Connally & Smith, Dave McNeill, Jr., Houston, for Champion International Corp.
Sewell, Junell & Riggs, William E. Matthews, Houston, for Crown Central Petroleum Co.
Robert V. Shattuck, Jr., Galveston, for City of Galveston.
Knox W. Askins, LaPorte, for City of LaPorte.
Charles A. Easterling, Houston, for City of Pasadena.
Kiibler & Kiibler, Dick H. Gregg, Jr., LaPorte, for Harris County Water Control & Improvement District # 83 and City of Nassau Bay.
D. Neel Richardson, Baytown, for City of Baytown.
This is an appeal from the granting of a summary judgment against the plaintiffs, Smith-Southwest Industries and other landowners similarly situated, who brought this class action against Friendswood Development Company and its corporate parent, Exxon Corporation, alleging that the severe subsidence of their lands was caused by the defendants' withdrawal of vast quantities of percolating underground water from wells located on defendants' land in the immediate vicinity of the plaintiffs' land.
The plaintiffs' petition alleged four theories of recovery: (1) nuisance, (2) negligence, (3) intentional interference with appellants' property by way of the diversion of water onto and across their property and (4) wrongful and unconstitutional taking of property without just compensation and conversion of such property for private use. Friendswood and Exxon each filed a general denial, and Friendswood joined a number of parties as third-party defendants, alleging negligence and intentional unreasonable conduct and seeking contribution or indemnity.
The trial court had before it depositions, interrogatories and answers, affidavits, and exhibits but concluded, as a matter of law, that the plaintiffs had failed to state a cause of action against the defendants. The third party actions were also denied. A motion for summary judgment on the pleadings can be sustained in very limited situations, such as those in which the facts alleged by the plaintiff establish the absence of a right of action or an insuperable barrier to a right of recovery. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972).
The appellants' petition recites that they 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 include 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, excluding whatever land the appellees own. Some of the landowners use their property as residences, others for business purposes. The appellees own property inland from that owned by appellants and pump massive amounts of subsurface fresh water from their property to sell to industrial purchasers.
The appellants contend this extensive withdrawal of fresh water has 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 which has resulted in the destruction of the land and improvements by flooding. The appellants say that this is not a water rights case and that neither the trial court nor this court is called upon to decide any competing claims by property owners to any water rights. They contend that this case concerns damage to land and that their petition presents four individual causes of action upon which relief can and should be granted.
The appellees' position is that whether the damage results from the lowering of the water table, from destruction of wells, or from subsidence, the damage is damage to land resulting from the exercise of a neighboring owner's right to the unlimited withdrawal of water beneath his land. They say that in Texas there is no right to recover for damages resulting from withdrawal of underground water or to enjoin withdrawal, regardless of the fact that neighboring lands sustain damage.
The appellants' eight points of error are that their petition: (1) states a cause of action in nuisance and (2) raises genuine issues of material fact as to the maintenance of a nuisance in fact by appellees Friendswood and Exxon; (3) states a cause of action in negligence and (4) raises genuine issues of material fact of the negligence of appellees Friendswood and Exxon; (5) states a cause of action for the intentional interference with appellants' property by way of the diversion of the waters of Galveston Bay and Clear Lake onto and across the property of the appellants and (6) raises genuine issues of material fact for the intentional interference with appellants' property by way of such diversion; (7) states a cause of action for the wrongful and unconstitutional taking of property without just compensation and conversion of such property for private use, and (8) raises genuine issues of material fact for such taking and conversion for private use.
In support of their first four points of error the appellants argue that the appellees' motions for summary judgment are based on only one proposition: that since appellees' water wells were situated on their own land, the withdrawal of water therefrom is lawful and not actionable by appellants under any circumstances, even when such activity causes damage to the appellants' land. The appellants state that since they do not even allege the appellees' activity to be a nuisance per se, an unlawful activity in and of itself, the extent of appellees' ownership right to the ground water extracted is not relevant to the issue at hand. They allege that the type of nuisance here involved is a nuisance in fact, which consists of an activity or condition that, while lawful, becomes a nuisance by reason of the circumstances and surroundings. Further, that the doctrine of liability predicated upon the maintenance of a nuisance represents the recognition that all landowners, including appellants, have a basic right to the peaceful use and enjoyment of their own property and that such right must be viewed in context with the rights of the surrounding landowners; therefore, the asserted right to all the ground water they can extract must be compared to the rights of the appellant landowners, not to the water itself, but to the reasonable use and enjoyment of their surface estates.
The rules in the courts of the United States with respect to the right of a landowner to the abstraction and use of percolating water beneath his land are the "common law" or "English" rule and the "American" or "reasonable use" rule, which is also referred to as the doctrine of "correlative rights." 78 Am.Jur.2d 607, Water Sec. 158. The American or reasonable use rule is that "the rights of each owner being similar and their enjoyment dependent on the action of other landowners, their rights must be correlative and subject to the maxim that 'one must so use his own as not to injure another,' so that each landowner is restricted to a reasonable exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others." 78 Am.Jur.2d 607, Waters, Sec. 158. The English rule of absolute ownership stems from Acton v. Blundell, 12 Meeson & Welsby, 324, 152 English Reprint 1223 (1843), in which the court 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 damna absque injuria, which cannot become the ground of action."
As to their negligence cause of action, the appellants say that this court is bound by the extensive Texas case law that a property owner must use his own property so as not to injure that of another and that land ownership itself creates a duty to use reasonable care in the exercise of property rights incident to such ownership. They state they have raised fact issues as to appellees' negligence in that they alleged in their petition and showed by summary judgment evidence, among other things, that: (1) appellees proceeded to withdraw massive amounts of ground water with knowledge that it would cause damage to appellant landowners, (2) appellees negligently spaced their wells in too tight a pattern and...
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Friendswood Development Co. v. Smith-Southwest Industries, Inc.
...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 Our decision results from what we conceive to be o......