City of Corpus Christi v. City of Pleasanton , 276 S.W.2d 798 ( 1955 )

CALVERT, Justice.

Our main question here is whether it is waste to transport water produced from artesian wells by flowing it down a natural stream bed and through lakes with consequent loss of water by evaporation, transpiration, and seepage. For a detailed statement of the facts, reference is made to the opinions of the Court of Civil Appeals on the plea of privilege at Lower Nueces River Water Supply Dist. v. City of Pleasanton, 251 S.W.2d 777, and on the main case, 263 S.W.2d 797, affirming a trial court judgment against petitioners enjoining them from flowing their wells into the river but staying the injunction for a period of five years or until the City of Corpus Christi completed a certain dam and filled the reservoir, whichever occurrence came first in point of time.

One of the defendants in the trial court, Lower Nueces River Supply District, is a municipal corporation created under Chapter 159, Acts 1949, 51st Legislature. It has four large water wells drilled upon land it owns. It has contracted to furnish water to the petitioner City of Corpus Christi. For that purpose, it flows its wells into the Nueces River which in turn flows into Lake Corpus Christi. From there water is conducted by natural channel to a settling basin at Calallen. Calallen is a total distance of one hundred and eighteen miles from the wells. When the wells are fully opened, they discharge water into the river at the rate of ten million gallons of water per day. It was estimated that there are two hundred wells producing from the Carrizo sand in the vicinity of the wells among which are wells owned by respondents. (Five municipalities and twelve individual land owners.) There was ■evidence that at times as much as 63 to 74% of the water discharged into the river escaped through evaporation, transpiration •and seepage and never reached its destination to be put to a beneficial use.

There are numerous questions presented by the application for writ of error, but in view of the disposition we make of the main question stated in the beginning of this opinion we need not consider the others.

Respondents’ suit was founded, in large part, on the provisions of Article 7602, Revised Civil Statutes, 1925, and Article 846 of the Penal Code. Article 7602 of the Civil Statutes defines waste of artesian water and Article 846 of the Penal Statutes declares such waste to be a penal offense. They are in substantially the same language. Article 7602 reads as follows:

“Waste is defined for the purposes of this Act, in relation to artesian wells to be the causing, suffering or permitting the waters of an artesian well to run into any river, creek or other natural water course or drain, ■superficial or underground channel, bayou, or into any sewer, street, road, highway, or upon the land of any other person than that of the owner of such well, or upon the public lands or to run or percolate through the strata ■above that in which the water is found, unless it be used for the purposes and in the manner in which it may be lawfully used on the premises of the owner of such well. Id. p. 233, sec. 92.”

The trial court concluded that the discharging of the water into the river and the transporting of it down natural stream beds, by reason of the amount of water lost in the process, constituted “waste in violation of the statutes and the conservation laws of the State of Texas.” The Court of Civil Appeals rested its judgment of affirmance on public policy rather than on an interpretation of the statutes. It is our opinion that a decision of the question here presented must be controlled by the statutes.

It should be remembered that Articles 846 of the Penal Code and 7602 of the Civil Statutes were not the origin in this state of the right to use percolating water off of the premises of the owner or of the right to use the various means of transporting it mentioned in those statutes; those rights existed in the common law as a brief examination will establish.

The rights of the landowner in percolating water beneath his land were adjudicated in England just over 100 years ago. In Acton v. Blundell, 12 Mees. & W. 324 (1843), it was said: “That the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from the underground springs in his neighbor’s well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot 'become the ground of an action.” In the course of time this became known as the “common-law” or “English” rule and it remains the rule in England and in a great many of the states of this Union today. Under this rule percolating waters are regarded as the property of the owner of the surface who may, “in the absence of malice, intercept, impede, and appropriate such waters while they are upon his premises, and make whatever use of them he pleases, regardless of the fact that his use cuts off the flow of such waters to adjoining land, and deprives the adjoining owner of their use.” 55 A.L.R. 1390. In the course of time, also, another rule, known variously as the “American”, “reasonable use”, and “correlative rights” rule grew up in some of the American jurisdictions. It has its origin in the New Hampshire case of Bassett v. Salisbury Mfg. Co., 43 N.H. 569, 82 Am.Dec. 179. As the titles imply, this rule recognizes that the right of the surface owner of land to take water from a common reservoir is a limited right. To exactly what extent it is limited is not here pertinent. The modem tendency is toward this latter rule. For the general history, limits and application of the two rules, see 56 Am.Jur., Waters, Secs. 111-121, pp. 593-604; 55 A.L.R. 1385-1408; 109 A.L.R. 395-403; 67 C.J., Waters, Secs. 254-258, pp. 837-841.

With both rules before it, this Court, in 1904, adopted, unequivocally, the “English” or “Common Law” rule. Houston & T. C. R. Co. v. East, 98 Tex. 146, 81 S.W. 279, 280, 66 L.R.A. 738, 107 Am.St.Rep. 620. The opinion in the case shows quite clearly that the court weighed the merits of the two rules — “The practical reasons upon which the courts base their conclusions [applying the ‘English’ rule] fully meet the more theoretical view of the New Hampshire Court [applying the ‘American’ rule] and satisfy us of the necessity of the doctrine” — and, whether wisely or unwisely, made a deliberate choice. That the choice was considered and deliberate is made doubly clear when it is considered that the Court of Civil Appeals had made the opposite choice in the same case, 77 S.W. 646, 647, choosing to follow the reasoning of Bassett v. Salisbury Mfg. Co. rather than that of Acton v. Blundell. It may be noted that the Court of Civil Appeals gave its approval to the holding of the Vermont Court that the right to take percolating water was “limited to the amount necessary for the reasonable use of the land, as land”, suggested that to apply the ‘English’ rule to the facts of the case “would shock our sense of justice”, and spoke of the rights of adjoining owners as “correlative”. In differing with the Court of Civil Appeals this Court approved the language of the Supreme Court of Ohio in Frazier v. Brown, 12 Ohio St. 294, where it said: “ ‘In the absence of express contract and a positive authorized legislation, as 'between proprietors of adjoining land, the law recognizes no correlative rights in respect to underground waters percolating, oozing, or filtrating through the earth * * *.’ ”

The precise question this Court had before it in the East case was whether the Railway Company was liable in damages to East on a state of facts showing that by the use of a steam pump, installed in a well on its city lots, the Company had been capturing over 25,000 gallons of percolating water per day for use in locomotives and machine shops off of the premises where the well was located, and had thereby completely cut off the supply of water which had been entering East’s well on his property. Thus it may be said that by its decision the court, in adopting the “English” rule established 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 the land as land and required the removal of the water from the premises where the well was located. The court had no occasion, of course, to actually decide any other question.

Having adopted the “English” rule it may be assumed that the Court adopted it with only such limitations as existed in the common law. What were these limitations? About the only limitations applied by those jurisdictions retaining the “English” rule are that the owner may not maliciously take water for the sole purpose of injuring his neighbor, 55 A.L.R. 1395— 1398; 67 C.J., sec. 257, p. 840; or wantonly and willfully waste it. 56 Am.Jur., sec. 119, p. 602; Stillwater Water Co. v. Farmer, 89 Minn. 58, N.W. 907, 60 L.R.A. 875. There certainly was no limitation that prohibited the use of the water off of the premises where it was captured. Neither was there any restriction of its use to a particular area. “Under the so-called ‘common-law’ or ‘English’ rule, which prevails in some jurisdictions, the right to extract artesian water for use outside the basin or district in which it is found would seem to be unrestricted.” 56 Am.Jur., Sec. 118, p. 601 Moreover, by its holding in Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273, 278, 54 A.L.R. 1397, decided some ten years after the adoption of the Conservation Amendment to the Constitution, Article XVT, § 59, Vernon’s Ann.St., and the enactment of Articles 7602, V.A.C.S. and 846, Penal Code, this Court established that under the common-law rule there was no restriction against the sale of percolating waters for industrial uses off of the land. The Court said the waters “were the exclusive property of Burkett [the owner of the land on which the water was captured], who had all the rights incident to them that one might have as to any other species of property.”

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 purposes 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, j.ust 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. There is an inference by the Austin Court of Civil Appeals in Cantwell v. Zinser, 208 S.W.2d 577, that the common-law rule would be modified in this state to protect a landowner against waste of percolating water by his neighbor in permitting escape thereof from an earthen tank, but that case has no writ history and there is no basis for such a modification in either the East case or the cases cited therein as the Austin Court infers.

It was in this common-law setting that Articles 7602 of the Civil Statutes and 846 of the Penal Code were enacted. The statutes, by their very terms, recognized the right to use artesian water off of the premises of the owner of a well and recognized also the right of the owner or user of the water to transport it by any of the means enumerated to the place of use.- They did not purport to make such use unlawful nor to declare that water could not be transported from land where captured to a place of use by river, creek, or other natural water courses or drains. The purpose of the two statutes was to make the use of any of the means of transportation therein enumerated— “ * * * river, creek or other natural water course or drain, superficial or underground channel, bayou, * * * sewer, street, road, highway * * * ” —both a civil and penal wrong only if the water was to be put to an unlawful as distinguished from a lawful use. Quite obviously the gravamen of the wrong was not the flowing of the water into a particular type of conduit from which a large percentage of the water might evaporate (there could hardly be much evaporation from an underground channel or a sewer) but the flowing of it into any type of conduit for the purpose of removing it from the premises where produced if it was to be used for an unlawful purpose. The statutes did not declare what uses would be lawful and what unlawful, but they prescribed a test for determining that matter. The use would be lawful if for the purposes and in the manner in which the water could lawfully be used on the premises of the owner, and in this event transporting the water by the means mentioned in the statutes would not be a civil wrong or “waste”; otherwise, the use would be unlawful and the transportation would be a civil wrong and “waste”. This, it seems to us, is a reasonable construction of the statutes. It leaves no room for the different test adopted by the minority opinion. Whether the use to which the water is put is lawful or unlawful cannot reasonably turn on whether some of the water put in the conduit escapes during transportation. The Legislature well knew that if transported by “river, creek or other natural water course[s] or drain[s]” some of the water would escape. Having approved the transportation of artesian - water by the means enumerated in the statutes where the water was to be put to a lawful use, with knowledge that some of it would escape during transportation, the Legislature could hardly have intended that what it had approved as legal should become illegal if some of it did escape. Moreover, if the escape of the water is an unlawful “use” within the meaning of the statutes, then the percentage of the escape through evaporation, seepage, etc. is wholly immaterial; the use to which the water is put cannot be a “little bit” unlawful on one occasion and a “whole lot” unlawful on another.

Articles 7602 of the Civil Statutes and 846 of the Penal Statutes became effective in June, 1917. In August of the same year the people adopted the Conservation Amendment, Article XVI, § 59, to the Constitution declaring the conservation of the state’s natural resources, including jvater, to be a public right and duty. But the Amendment was not self-enacting. By the very terms of the Amendment the duty was enjoined upon the Legislature to implement the public policy found therein. It was said: “ * * * and the Legislature shall pass all such laws as may be appropriate thereto.” No such duty was or could have been delegated to the courts. It belongs exclusively to the legislative branch of the government. Undoubtedly the Legislature could prohibit the use of any means of transportation of percolating or artesian water which permitted the escape of excessive amounts, but it has not seen fit to do so. The power certainly does not lie with the courts to usurp the legislative function and say what types of conduits and reservoirs may be used for the transportation and storage of water, lawfully obtained and lawfully used. Particularly may they not declare the use of certain types of conduits and reservoirs to be unlawful when the Legislature itself, by necessary implication, has declared them to be lawful.

The Legislature is now in session. It will have this opinion before it before adjournment. It will recognize the problem. If it wishes to declare that the transportation of water in conduits which permit the escape of a large percentage is wasteful and unlawful it will have ample time in which to do it.

We are thus brought to the conclusion that the question posed by the statutes is not a fact question at all but a law question. That law question is this: Is the water being transported to Corpus Christi to “be used for the purposes and in the manner in which it may be lawfully used on the premises of the owner” of the wells ?

While, as has been stated, respondents’ right to relief was founded, in large part, on the statutes we have discussed, they neither pleaded nor do they claim that the water being transported to the City of Corpus Christi and other purchasers is being used for purposes and in a manner which would not be lawful on the premises of the owner of the well. The five respondent municipalities are themselves using water obtained from the same sands “for domestic, municipal, and industrial purposes.”

Respondents’ pleading does not inform us of the nature of the uses to which the water is put ¡by the purchasers from Lower Nueces River Supply District, nor by their prayer do they seek to enjoin any particular use of the water by the purchasers. Their case is predicated on the theory that the defendants are wasting the water by flowing it down natural river courses and stream beds, in violation of the statutes, with consequent evaporation, transpiration and seepage, making it necessary that they take excessive amounts of water from the common reservoir to the detriment of the respondents who have equal or “correlative” rights in the water supply. They prayed only that the defendants be enjoined from flowing the water into natural water courses and from withdrawing from the reservoir such quantities of water as would draw down and affect the water level in respondents’ wells. This pleading afforded no basis for injunctive relief, either under the statutes or the rules of common law prevailing in this state.

The trial court found that the respondents were entitled to an injunction because of the loss occasioned by the means used for transporting the water “even though the amount not lost is put to a beneficial use”, and accordingly its writ ran only against discharging the water into and transporting it through natural stream beds —not against any use made of the water after it reached its destination. The injunction granted finds no support, in law, in the statutes as we have interpreted them, in the Conservation Amendment to the Constitution, or in the public policy of this state.

The judgments of 'both courts below are reversed and judgment is here rendered dissolving the injunction.