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Show 712 TEXAS surface waters may be impounded without regard to downstream users and without obtaining a permit. In problems involving the disposal or diversion of diffused surface waters, the Texas Supreme Court originally followed the common enemy doctrine, which allowed a landowner to dispose of surface waters in any manner, even though it may injure an adjacent land- owner. This doctrine has since been overturned and the civil law rule has been adopted by both a Texas Supreme Court decision 73 and a statute.74 The present rule is that the upper proprietor has the right to have diffused surface waters flow naturally from his land onto the land of a lower riparian, and the lower riparian owner has no right to obstruct the flow and cast the water back upon the land above. But unnatural flow, or a flow which has been artificially changed by the hand of man so as to accelerate it or concentrate it in a particular place, does not have to be received by a lower propri- etor and may be repelled by him. 4. Ground Water It seems firmly established in Texas that ground water (which is presumed to be "percolating water") is privately owned by the landowner.75 Under the rule of capture, the landowner may take all the percolating water he can use for a beneficial purpose, and may use it on or off the land from which it is withdrawn. He may seil it to others, and it is immaterial whether the water is taken outside the basin where it is produced. In City of Altus v. Oarr76 an Oklahoma municipality purchased ground water supplies from the owners of a large tract of Texas land and prepared to develop and transport the water to Oklahoma. In 1965, the Texas Legislature intervened and passed a statute which prohibited the transportation of Texas ground water outside the boundaries of the State. A three-judge Federal court held the statute unconstitutional on the ground that it laid hold of the water after it became personal property, and that such a prohibition on transfer unduly interfered with and burdened interstate commerce. The deci- sion was affirmed in a per curiam opinion by the Supreme Court of the United States.77 Publications Available Institution for water resource research: Water Resources Institute, Texas A&M University, College Station, Tex. 77843 713-845-1851 Publications Hutchins, The Texas Law of Water Rights (1961). Dobkins, The Spanish Element in Texas Water Law (1959). 73 Miller v. Letzerich, Note 69. w Vernon's Texas Civil Statutes, Art. 7589a. 75 See particularly City of Corpus Christi v. City of Pleamnton, 154 Texas 289, 276 S.W. 2d 798 (1955) ; Pecos County Water Control & Imp. Diet. No. 1 v. Williams, 271 S.W. 2d 503 (Texas Civ. app. 1954) E/R, n.r.e. See also Proceedings, Water Law Conference, Univ. of Texas, 1956, 121-190 for a collection of comments. 7«255 F. Supp. 828 (W.D. Texas 1966). 77 385 U.S. 35 (1966). The decision may overrule Hudson County Water Co. v. McCarter, 209 U.S. 349 (1008). |
