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Show TEXAS 745 or common law rule with respect to rights in percolating water, instead of any modification thereof or departure therefrom in favor of reasonable use or correlative rights on the part of owners of land overlying the same physically common supply of ground water.376 By adopting the English rule in the East case, the court, " [E] stablished at least this much: that an owner of land had a legal right to take all the water he could capture under his land that was needed by him for his use, even though the use had no connection with the use of land as land and required the removal of the water from the premises where the well was located."377 In the Corpus Christi case, the supreme court held that under the common law rule, percolating waters are regarded as the property of the owner of the surface. Thus a landowner could use all the percolating water he could capture from wells on his land for beneficial purposes either on or off the land. Like- wise, the overlying owner could sell the water to others for beneficial purposes either on or off the land and outside the basin where produced, just as he could sell any other species of property. The supreme court disclaimed the possibility of any common law limitation of the means of transporting the water to the place of use. Furthermore, the statutes that prohibit waste of artesian water make use of any means of transportation therein enumerated both a civil and a penal wrong only if the water is to be put to an unlawful use, as distinguished from a lawful use.378 The Question of Waste In Cantwell v. Zinser, the court observed that in the East case the supreme court did not pass upon the right of a person to intercept and waste percolating water to the detriment of an adjoining owner, such facts not being before the court in that case.379 In its opinion in the Cantwell case, the Austin court expressed agreement with the authorities cited in the East case to the effect that the right to waste water did not exist. The court stated that waste was against the public policy of the State as expressed in the conservation statutes. This effort on the part of the Austin court to engraft a prohibition against waste in the Texas law of percolating water rights was rejected in 1955 by the Texas Supreme Court in the Corpus Christi case, although in the meantime it had received the approval of the San Antonio and El Paso courts.380 376154 Tex. at 292-293. 377154 Tex. at 293. 378Tex. Rev. Civ. Stat. Ann. art. 7602 (1954), Penal Code Ann. ait. 846 (1961). 379 Cantwell v. Zinser, 208 S.W. (2d) 577, 579 (Tex. Civ. App. 1948). 3MCorpus Christi v. Pleasanton, 154 Tex. 289, 293-294, 276 S.W. (2d) 798 (1955); Pleasanton v. Lower Nueces River Supply Dist., 263 S.W. (2d) 797, 799-800 (Tex. Civ. App. 1953); Pecos County W.C.& I. Dist. No. 1 v. Williams, 111 S.W. (2d) 503, 505 (Tex. Civ. App. 1954, enor refused n.r.e.). |
