The Cross Section, Volume 23, Number 11, November 1977 Page: 1
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AGRICULTURAL
INDUSTRIAL
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. ......"". .a.". ..r wiwMr .w... .. -w ww ...,. _ n."ww ...w. .... .. ...+.- r+"".h. Mrw. w..rwr rt rri ww . . ,ww . ......Published monthly by High Plains Underground Water Conservation District No. 1, 2930 Av
Volume 23-No. 11 Publication number 564920, Second Class Postage paid at Lubbock,Board Authorizes Filing Of Amicus Curiae Br
_ UNCIA
LL LLL
-- -LL~
TtLoenue Q, Lubbock, Texas 79405
Texas November, 1977ief
The Board of Directors of the High
Plains Underground Water Conserva-
tion District No. 1, in session on
November 8th, authorized the filing of
an amicus curiae (friend of the Court)
brief in the case of Smith-Southwest
Industries et al vs. Friendswood Devel-
opment Company et al.
This is the case where Houston area
landowners with subsidence problems
have sued neighboring landowners who
pumped underground water and alleg-
edly, thereby, caused the subsidence.
The trial court held that there was no
cause for action because under the
Texas Rule of Private Ownership of
Groundwater, the landowner is entitled
to construct wells and withdraw any
water available for capture so long as
the water is applied for beneficial
purposes.
Upon appeal, the Court of Civil
Appeals' written opinion appears to
question the Texas Rule of Private
Ownership of Groundwater. It cites
the Restatement of the Law of Torts,
as proposed on April 26, 1971, for
adoption by the American Law Insti-
tute. Apparently endorsing the philos-
ophy expressed in that Restatement,
the Court proceeded to rule:
(1) Because of a landowner's abso-
lute right to take all of the
water which he can produce
from his land, the fact that this
taking causes the land of others
to subside will not, standing
alone, give rise to a cause of
action.(2) However, if the landowner is
negligent in the manner by
which he produces the water
and the negligence is a proxi-
mate cause of the subsidence of
another's land, the fact that he
owns the water produced will
not insulate him from the con-
sequences of his negligent con-
duct.
Other language in the opinion indi-
cates that there may be a cause of
action by a landowner whose water has
been drained from beneath his land by
an adjoining landowner, if the pumping
constituted negligence or nuisance in
fact.
In the applications for writ of error,
it is pointed out that the Texas Rule
follows the English Rule of absolute
ownership of groundwater with no
restrictions upon withdrawal other than
that it shall not be withdrawn for the
specific purpose of waste or willful
damage to the neighbor. The Texas
Rule has traditionally rejected the
Correlative Right Theory and the Rea-
sonable Use Doctrine as a basis for
action.
The original defendants point out
that any negligence case involves the
breach of a legal duty and the violation
of a legal right, neither of which is
present in the Friendswood case. Ad-
ditionally, they point out that the
Doctrine of Nuisance, where that Doc-
trine has been appplied, is based upon
the idea that one must use his own
property so as to not unreasonablyinjure the right or property of others.
The plaintiffs, on the other hand,
stress that their case is not a water
rights case, but rather a property rights
case wherein the plaintiffs are attempt-
ing to prevent the use of adjoining
property in a manner which will result
in damage to the property of the plain-
tiffs. They have characterized their
case as one wherein their neighbors
may be engaged in a lawful activity
which has become a nuisance by reason
of the circumstances and surrounding
facts.
The plaintiffs contend they have a
basic right to the peaceful use and en-
joyment of their own property and that
such right must be viewed in context
with the rights of the surrounding land-
owners. The plaintiffs charge the
groundwater withdrawals constitute
negligence by concentration of wells,
by rate of water withdrawals and by
well siting patterns. In their reply to
the applications for writ of error, the
plaintiffs submit a strong argument to
the effect that the groundwater pump-
ers have done so in a negligent fashion
and under facts and circumstances
which create a nuisance and therefore
the defendants should be held liable.
continued on page 4... BRIEFAGRICULTURAL PRODUCTIVITY REPORT RELEASED FOR 1976
The Texas Crop and Livestock Reporting Service recently released a
report detailing agricultural productivity in the State of Texas for 1976.
It is gratifying and important to note that the Southern High Plains
counties again dominate Texas statistics with seven counties ranked in the
top ten farm counties of the State.
The accompanying chart shows receipts from crops, livestock and
government payments as provided by the 1973 Farm Act disaster
provisions.
1976 CASH RECEIPTS FROM FARM PRODUCTION
($1,000 Dollars)svWc P,
Guide To Tailwater
Recovery Published
The District is pleased to announce
publication of a 78-page handbook
"Guide to Irrigation Tailwater Re-
covery"
Although loss of tailwater should
not be a necessary part of irrigation
farming, some irrigators in the Texas
High Plains still have a tailwater prob-
lem. This is especially true in those
areas which still have large capacity
wells combined with irrigating "hard-
land" soils. Tailwater leaving an irri-
gator's farm is considered wasted under
Texas Law and subjects the landowner
to legal action. The High Plains Un-
derground Water Conservation District
No. 1 has chosen in the past to follow
an "educational" approach in abating
irrigation tailwater waste rather than
resort to court action. The vast major-
ity of irrigators currently operating in
the District are controlling their irriga-
tion tailwater. It is hoped that those
who are not currently in compliance
with the waste rules of the District will
come into compliance at an early date;
thereby, not forcing the District to
resort to legal action to bring them intoHARVEY D. DAVIS
Davis Named Executive
Director Of TDWR
The Chairman of the Texas Water
Development Board, Mr. A. L. Black
of Friona, recently announced that Mr.
Harvey D. Davis of Temple, had been
named Executive Director of the Texas
Department of Water Resources. This
appointment became effective as of
November 1.
The six-member Board of Directors
met in Austin in a special session and
unanimously selected Davis to head the
agency. On September 1, legislation
consolidated the staffs of the Texas
Water Development Board, the Texas
Water Quality Board and the Texas
Water Rights Commission into the
single agency.
Charles E. Nemir, former Assistant
Executive Director of the Water Devel-
opment Board, has served as Acting
Executive Director of the new agency
since September 1.
Davis, 50, has been Executive
Director of the Texas Soil and Water
Conservation Board for the past 16
years and has been with the agency for
23 years.
He is a native of Thrall and attended
public school in Taylor. He holds
bachelor's and master's degrees in busi-
ness administration from the University
of Houston. Prior to his state service,
Davis taught business administration
for five years at Blinn Junior College.compliance.
An irrigation tailwater return system
not only has the advantage of con-
trolling tailwater, but also conserves
the underground water supply and
saves money in pumping and operating
continued on page 4... TAILWATERCounty
Deaf Smith
Parmer
Castro
Hale
Lubbock
Lamb
Floyd
Lynn
Crosby
Hockley
BaileyCrops
$ 66,554
99,462
78,635
103,434
78,613
78,090
64,037
67,099
55,325
39,573
27,946Livestock
$102,317
54,868
66,310
28,752
26,233
20,962
11,058
2,528
3,841
5,672
10,664Payments
$2,303
862
1,023
1,000
2,706
2,521
1,173
1,903
338
3,950
2,974
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High Plains Underground Water Conservation District No. 1 (Tex.). The Cross Section, Volume 23, Number 11, November 1977, periodical, November 1977; Lubbock, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1533032/m1/1/?q=%22~1%22~1: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.