Rights Incidental to Ownership of Land

Question 1

Groundwater - Absolute Ownership Doctrine

Answer 1

Although Tx follows the English CL rule that groundwater is subject to the control of the owner of the land under which it flows or is located (rule of capture), Tx courts have recognized three limits to this rule

A landowner cannot:

(1) Pump or use groundwater in a wasteful manner
(2) Pump maliciously w/ the intent to cause harm to a neighbor
(3) Cause a neighbor’s land to subside by his negligent or malicious pumping

The legislature has drastically changed the rule of capture in areas of Tx located w/in groundwater districts. These districts are given the right to regulate water in many ways that abrogate the rights a landowner would have under the rule of capture

Question 2

Surface Waters

Answer 2

Water Rights Adjudication Act = state implemented a system of permits for the appropriation of water.

Act did not invalidate all riparian rights and other non-statutory rights in existence before the Act; however, claims for such prior rights w/ respect to uses of water for other than domestic and livestock purposes had to be filed with the proper regulatory authority before 9/1961.

Act also permitted continuance of appropriative rights issued under certified filings that were registered w/ the state.

The basic “first in time, first in right” approach of the prior appropriations doctrine remains in effect although it is subject to exceptions and limitations

Question 3

Natural Flow Theory

Answer 3

In Tx, a property owner cannot divert or impound the natural flow of surface water in a manner that damages another’s property