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[ 179 APPENDIX 1 SIGNIFICANT COURT CASES CONCERNING TEXAS WATER RIGHTS The following sample of significant cases concerning water rights in Texas is not intended to represent all the court rulings that impacted our current water rights policies or to provide the reader with a legal opinion at all. However, the cases are not only interesting themselves but also indicative , when taken as a whole, of the efforts the courts have made to find the fairness and justice built into our system of government. Texas’ adoption of English common law in 1840, which in essence allows laws to be modified by judicial action and interpretation, keeps our law young and alive to meet the challenges of each generation. The history of some of the key cases puts the issue of water rights into context. TEXAS COMPANY V. BURKETT The Texas Company became the international oil company Texaco. This landmark case was decided in 1927. These were the key rulings: • Absence of evidence to the contrary, underground water is presumed to be percolating groundwater, therefore owned by the surface owner. • A landowner need not use groundwater on the premises of his or her property and has the right to sell the groundwater captured under his or her land for off-site use by a third party. • Spring water that was not surface water running in a streambed or water from an underground stream with defined channels was the exclusive property of the surface owner. While ancient Spanish law did not use the word percolating, ownership of underground water by the surface owner and sale of water rights can be traced back in Texas history to the earliest days of Villa San Fernando (San Antonio) and are precedents to the first two conclusions of Burkett . Spanish law also considered springs and their underground water to be owned by the surface estate holder, another precedent for Burkett . The Spanish support is not mentioned in the ruling but could have Appendix 1 180 ] been used to further strengthen the ruling since the State of Texas did, in 1927, honor Spanish land and water grants, as it had done since 1840 and still does today. CORPUS CHRISTI V. PLEASANTON This case was decided by the Texas Supreme Court in 1955. Since the East case in 1904, waste of groundwater had been recognized as an exception to the rule of capture. The Corpus Christi v. Pleasanton case focused on waste of groundwater. In 1927, the ruling in Texas Company v. Burkett confirmed that a landowner need not use groundwater on the premises of his or her property but under common law could sell the groundwater captured under his or her land for off-site use by a third party. There was no dispute that Corpus Christi, located in Nueces County, could purchase water from the Lower Nueces River Supply Company, which produced water from the Carrizo groundwater sand at various locations in Atascosa County. Corpus Christi made an agreement with the river company to acquire a portion of this groundwater, which was then dumped into the Nueces River and transported 118 miles to the city. The City of Pleasanton, located in Atascosa County, thought its water supply was threatened by this agreement and filed the lawsuit to stop the transport because the loss of water to seepage and evaporation in transit to Corpus Christi constituted waste. Pleasanton presented evidence that up to 75 percent of the groundwater was lost to evaporation and seepage before it reached Corpus Christi. The trial court ruled “by reason of the amount of water lost in the process, [the transport] constituted waste in violation of the statutes and the conservation laws of the State of Texas.” The Court of Civil Appeals confirmed the trial court ruling. The Texas Supreme Court ruled, however, that it was not waste to transport water down a natural streambed even if water was lost to evaporation and seepage: “About the only limitations applied by these jurisdictions retaining the English rule [the rule of capture] are that the owner may not maliciously take water for the sole purpose of injuring his neighbor, or wantonly and willfully waste it,” said the court. Additionally , the court confirmed, “It thus appears that under the commonlaw rule adopted in this state an owner of land can use all of the percolating water he could capture from wells on his land for whatever beneficial purpose he needed it, on or off the land, and could likewise sell it to others for use off...

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