Law of the Biggest Pump (Posted By Gary Cutrer)

waterside_windmillIn Texas water law, the state owns your surface water, as a general rule, and you must get permission to use that water. The landowner owns water found below the earth’s surface in the crevices of soil and rocks–percolating water. Texas groundwater law is judge-made law, derived from the English common law rule of “absolute ownership.” Texas courts have adopted, and the legislature has not modified, the common law rule that a landowner has a right to take for use or sale all the water that he can capture from below his land.

Because of the seemingly absolute nature of this right to all water beneath your land, Texas water law has often been called the “law of the biggest pump.” Regardless of how it affects your neighbor’s well, you can pump all the water you wish from your wells. However, the case of a subterranean river is different. As landowner, you are presumed to own underground water until it is conclusively shown that the the source of supply is a subterranean river. Both stream underflow and subterranean rivers have been expressly excluded from the definition of underground water in Section 52.001 of the Texas Water Code.

All this information in easy to understand language is available at this Texas A&M and AgriLife Extension website. More:

The practical effect of Texas groundwater law is that one landowner can dry up an adjoining landowner’s well and the landowner with the dry well is without a legal remedy. Texas courts have refused to adopt the American rule of “reasonable use” with respect to groundwater.

Exceptions to Absolute Owner Rule. There are five situations in which a Texas landowner can take legal action for interference with his groundwater rights:

  • If an adjoining neighbor trespasses on the land to remove water either by drilling a well directly on the landowner’s property or by drilling a “slant” well on adjoining property so that it crosses the subterranean property line, the injured landowner can sue for trespass.
  • There is malicious or wanton conduct in pumping water for the sole purpose of injuring an adjoining landowner.
  • Landowners waste artesian well water by allowing it to run off their land or to percolate back into the water table.
  • There is contamination of water in a landowner’s well. No one is allowed to unlawfully pollute groundwater.
  • Land subsidence and surface injury result from negligent overpumping from adjoining lands.

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