Untitled Texas Attorney General Opinion ( 1963 )

THEATTORNEY GENERAL
OF TEXAS
Honorable Joe D. Carter Opinion No. C-199
Chairman
Texas Water Commission Re: Whether the transporting
P. 0. BOX 2311 and sale of ground water
Austin 11, Texas from Texas to another
state by the means and
for the purpose stated
can be lawfully prohlbit-
Dear Mr. Carter: ed and related questions.
Your request for an opinion states that an Oklahoma
citizen who owns a tract of land bordering on the Red River
adjacent to the City of Vernon's ground water well field
from which It supplies its present municipal water requlre-
ments is planning to lay a pipe line from wells supplied
by fresh percolating ground water underlying his ground in
Texas and transport such water through the proposed pipe
line across his private property and deliver and sell such
water to the City of Altus, Oklahoma for supplying Its
municipal needs.
Based upon the above facts you have requested that the
Attorney General render an opinion as to the following in-
quiries:
"1. Within the framework of existing laws of
the State of Texas regarding the power of the State
or any of Its agencies or political subdivisions
to control the use of such ground water reserves,
is there any basis or means to prevent or prohibit
such taking, transporting, or sale of such water
outside of the boundaries of the State of Texas
by the means and for the purpose proposed?
"2 . If the above question is answered in the
affirmative, is the Texas Water Commission the
State Agency which should Institute or request
the lnstltution of such proceedings as would be
necessary to halt or prevent the taking, trans-
porting or sale of any such ground water outside
of the State of Texas?
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Honorable Joe D. Carter, page 2 (C-199)
“3. If the above question is answered negatively
what State Agency or arm of the State Government
would be the appropriate State Agency to Institute
or request the institution of such action?"
It is clear under the authorities that the owner of
land is the absolute owner of the soil and of the percolat-
ing ground water thereunder. The first case in Texas which
recognized this concept was Houston and T. C. Ry. Co. v.
East, 98 Tex. 146, 151, 81 S.W. 279 (1904)
( 4) The Supreme
Court ln
in the East case unequivocally adopted
East~case~unequlvoc``?y i9dzptedthe "English"
or "Common La-stateded in Acton v. Blundell, 12 Mees. &
w. 324, as follows:
"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 inter-
cepts or drains off the water collected from the
underground springs in his neighbors well, this
inconvenience to his neighbor falls within the
description of damnum absque lnjurla, which can-
not become the ground of an action."
In its latest decision, the Supreme Court in the case
of Corpus Christi v. Pleasanton, 154 Tex. 289, 276 S.W.2d
798, 782 (1955), stated that under the Common Law, adopted
in the East case, underground waters which are captured by
the owner of the land from wells on his land may be used
for any reasonable and beneficial purposes elther on the
land or off the land and the owner "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."
We find no constitutional or statutory provision llm-
itlng the use of ground water produced in Texas to the
territorial limits of the State.
Under the cited authorities it is apparent that the
point of ultimate consumption of use of the water Is im-
material as long as it is put to a beneficial use. There-
fore, the answer to your first and third inquiries must be
in the negative. Since your first question is answered in
the negative, your other questions need not be answered.
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Honorable Joe D. Carter, page 3 (C-199)
SUMMARY
Since the owner of the land is the absolute
owner of the percolating waters thereunder and may
make any beneficial use of such waters he desires,
the transporting, and sale of ground water from
Texas to another state Is not prohibited under the
present law.
Very truly yours,
WAGGONER CARR
Attorney General of Texas
cl--
Joseph Trlmble
Assistant Attorney General
JT:sc
APPROVED:
OPINION COMMITTE.3
W. V. Geppert, Chairman
F. R. Booth
Jack Norwood
James Strock
V. F. Taylor
APPROVED FOR THE ATTORNEY GENERAL
BY: H. Grady Chandler
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