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Show 746 GROUND WATER RIGHTS IN SELECTED STATES In adopting the English rule in the East case, it may be assumed that the supreme court adopted it only with such limitations as existed at common law. These limitations ordinarily are that the owner may not maliciously take water for the sole purpose of injuring his neighbor, nor wantonly and willfully waste it. There are no limitations that prohibit the use of water off the premises on which it is captured or that restrict its use to a particular area. In Texas Company v. Burkett, the supreme court had established that under the com- mon law rule there was no restriction against the sale of percolating waters for industrial uses off the land.381 Concluding on the matter, the supreme court said, in the Corpus Christi case:382 It thus appears that under the common-law rule adopted in this state an owner of land could use all of the percolating water he could capture from wells on his land for whatever beneficial pur- poses he needed it, on or off of the land, and could likewise sell it to others for use off of the land and outside of the basin where produced, just as he could sell any other species of property. We know of no common-law limitation of the means of transporting the water to the place of use. Neither do we know of any judicial modification in this state of the rule of the East case. The main question presented to the Texas Supreme Court in the Corpus Christi case was whether the transportation of water from artesian wells down a natural streambed and through lakes with consequent natural losses in transit constitutes waste. Evidence in the case showed that losses in transit were very large. The court denied that owners of land situated over a common supply of percolating water have correlative rights therein. In construing the statutes that forbid waste of artesian waters,383 the court held that a wrong consists only of putting the water to an unlawful as distinguished from a lawful use. The percentage of loss in conveyance is not a criterion of waste.384 The supreme court stated that the legislature could validly declare that the transportation of percolating or artesian water in conduits which permitted escape of a large percentage of water is wasteful and unlawful, but emphasized that it had not seen fit to do so. The Landowner's Right as Property Ground waters, which in the absence of evidence to the contrary are pre- sumed to be ordinary percolating waters, are the exclusive property of the owner of the land in which they occur and are subject to the same disposition as any other species of land.385 381 Texas Co. v. Burkett, 117 Tex. 16, 28-29, 296 S.W. 273 (1927). 382Corpus Christi v. Pleasanton, 154 Tex. 289, 294, 276 S.W. (2d) 798 (1955). 383Tex. Rev. Civ. Stat. Ann. art. 7602 (1954), Penal Code Ann. art. 846 (1961). 384Corpus Christi v. Pleasanton, 154 Tex. 289, 294-295, 276 S.W. (2d) 798 (1955). 385 Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273 (1927). |