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Show 650 GROUND WATER RIGHTS right to use, rather than a classic property ownership, and that such rights could be taken without compensation when necessary for the public welfare. It held that South Dakota's semi-arid conditions required the maximum protection and utilization of its water supply and that the act was constitutional. Texas The English rule of absolute ownership probably is followed as closely in Texas as in any other American jurisdiction. By statute, the owner of land is recognized as owning ground waters found therein.161 Prior to enactment of the statute, case law had firmly established this doctrine. In Houston & Texas Central Railroad v. East162 the court held that the English rule prevailed and that any injury suffered by the complaining party was damnum absque injuria. This was held despite an express finding of fact by the lower court that the use made of the waters by the defendant was unreasonable. This basic rule was upheld in Pecos County Water Control & Improvement District v. Williams,163 wherein the El Paso Court of Civil Appeals specifically rejected the concepts of appropriative and correlative rights. The theory of correlative rights as urged by the district was analogous to correlative production in oil and gas law and was not the California doctrine of correlative rights. The court also approved the general rule that ground waters are presumed to be percolating. While the English rule was developing with great strength in Texas, the courts were also injecting the principle that percolating waters could not be wasted. In 1948, the Austin Court of Civil Appeals noted that in the East case the Texas Supreme Court had not passed on the right to waste percolating waters164 and observed that such right did not exist.165 Six years later, the El Paso Court of Civil Appeals agreed with this contention.166 In the following year, the questions of absolute ownership and wastage of water reached the Supreme Court of Texas.167 The supreme court reaffirmed the rule of absolute ownership. In considering wastage, the court concluded that the English rule had been adopted subject only to such limitations as existed at common law. These limitations were primarily prohibitions against malicious taking of water and against willful and wanton wastage. The court went on to hold that transporting ground water through natural surface 161 Tex. Rev. Civ. Stat. Ann. art. 7880-3c(D) (1954). '"Houston & T.C.R.R. v. East, 98 Tex. 146, 81 S.W. 279 (1904), reversing 77 S.W. 646 (Tex. Civ. App. 1903). 163Pecos County W.C. &I. Dist. v. Williams, 271 S.W. (2d) 503 (Tex. Civ. App. 1954). 164Houston T.C.R.R. v. East, 98 Tex. 146, 149, 150-151, 81 S.W. 279 (1904). 16SCantwell v. Zinser, 208 S.W. (2d) 577, 579 (Tex. Civ. App. 1948). 166Pecos County W.C. & I. Dist. v. Williams, 271 S.W. (2d) 503 (Tex. Civ. App. 1954). 161 Corpus Christi v. Pleasanton, 154 Tex. 289, 276 S.W. (2d) 798 (1955). |
