- Railroads, Water Rights and the Long Reach of Houston and Texas Central Railroad Company v. W. A. East (1904)
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In June 2011, the Texas State Legislature passed and Governor Rick Perry signed the historic Senate Bill (S.B.) 332, an act recognizing "that the landowner owns the groundwater below the surface of the landowner's land as real property." Eight months later, in early 2012, in the long awaited decision in Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, the Texas Supreme Court confirmed the same groundwater right, called the law or rule of capture, for Texas groundwater.
In much of the discussion surrounding the legislative journey of S.B. 332 and the two-year deliberation in Edwards, Texans learned a great deal about the nature of groundwater law in their state. Conversations often alluded to the 1904 Texas Supreme Court case Houston and Texas Central Railroad v. W. A. East.1 This landmark ruling set the parameters for groundwater rights in the state of Texas, determining that it would follow the system referred to as absolute ownership, or the rule of capture, or "the law of the biggest pump."2 [End Page 261]
Under the system of capture, the landowner holds an absolute property right to the underground water as part of the land that he owns. He might drill a well and pump an unlimited quantity of subsurface water without incurring any liability for its impact on neighbors, on regional aquifers, or on generations to come. Because it seems to encourage those who own land over aquifers to consume water before their neighbors can rather than to conserve it, the rule of capture has also been called "the race to the bottom." In Texas, this property right has been determined not to be a relative one; it comes with no legal obligation, no corollary right of other water users, no equitable distribution, and no restrictions regarding reasonable use like most other states have adopted. Until S.B. 332, the rule of capture has been left largely intact by the legislature, under whose jurisdiction water law constitutionally fell. The East decision itself has been reconsidered by the courts, but it has never been overturned, and most recently in Day, it was confirmed. The East case then was arguably the most important legal precedent in Texas environmental history.
Scores of law review articles have scrutinized the historic legal precedents and offspring of East, and some very learned attorneys have traced its legal and philosophical origins back to Roman legal jurists, but, remarkably, few have broadened their examination to scrutinize the historic context of the decision itself.3 The year 1904 fell in an era with many [End Page 262] interwoven threads of interest, and those threads are remarkably visible as East progressed through the courts. Examining the cultural breadth rather the legal depth of East may well help us understand why the rule of capture or absolute ownership took firm root in Texas, even as it was being replaced by more sustainable regulatory schemes in most other states in the Union. In examining the 1904 East decision, this essay explores three themes. The first is the importance of immediate circumstances in creating legal change. What legal, political, and economic forces nudged the law of Texas toward absolute ownership of underground water, and why did those cultural forces then make a comfortable fit? The second theme is the overarching instrumentalism of nineteenth-century law; that is, the courts bent toward endorsing market driven interests over more historic natural rights. In this case, the railroad's need for water and a business-friendly view of liability triumphed over the loss of an individual property owner. The third theme involves the denial of equitable apportionment in the water laws...