McNamara v. City of Rittman , 107 Ohio St. 3d 243 ( 2005 )

Moyer, C.J.,

concurring in judgment only.

{¶ 35} I concur in the response of the majority to the extent that it holds that an Ohio landowner has a constitutionally protected property interest in groundwater that regularly occupies an aquifer underlying his land. The majority concludes that a property interest in groundwater originates from the reasonable-use component set forth in 4 Restatement of the Law 2d, Torts (1979), Section

858, specifically, subsection (l)(a). Though I agree with the determination that a property interest exists, I write separately because I do not believe that it originates from the reasonable-use rule. Instead, I believe that a property interest in groundwater originates from the correlative-rights component of Section 858 found in subsection (l)(b). Section 858(l)(b) provides that a landowner whose withdrawal of groundwater interferes with the use of water by another is not subject to liability unless the withdrawal “exceeds the proprietor’s reasonable share of the annual supply or total store of ground water.” It was the recognition of correlative rights in respect to groundwater that created a property interest in groundwater.

Steve J. Edwards, for petitioners. Baker, Dublikar, Beck, Wiley & Mathews, Jack R. Baker, and Mel L. Lute Jr., for respondent city of Rittman. Richard C. Pfeifer Jr., Columbus City Attorney, Daniel W. Drake, Chief Counsel, and Patricia A. Delaney, Assistant City Attorney, for respondent city of Columbus. Reminger & Reminger and Kevin Foley, for respondent Kokosing Construction Co., Inc. in case No. 2004-0363. Harris, Turano & Mazzo and Kenneth E. Harris, for respondent Tata Excavating in case No. 2004-0363. Freund, Freeze & Arnold and Carl A. Anthony, for respondent Contract Dewatering Services, Inc. in case No. 2004-0363. Brooks & Logan Co., L.P.A., and J. Anthony Logan, in support of petitioners, for amicus curiae Farmer’s Educational & Cooperative Union of America, Ohio Division. Barry M. Byron, Stephen L. Byron, and John Gotherman, in support of respondents, for amicus curiae Ohio Municipal League. Lundberg Stratton, J., concurs in the foregoing opinion.