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Smith-Southwest Indus. v. Friendswood Dev. Co.

Citation: 7 ELR 20343
No. No. 16794, 546 S.W.2d 890/(Tex. Civ. App., 01/27/1977)

In a case of first impression in Texas dealing directly with land subsidence caused by withdrawal of groundwater, the court holds that if a landowner negligently withdraws water from his property so that the withdrawal is the proximate cause of subsidence of another's land, the fact that he owns the water produced will not insulate him from liability. Appellant landowners alleged that severe subsidence of their land was caused by appellees' withdrawal for industrial purposes of vast quantities of percolating underground water from wells on appellees' land near appellants' land. Appellants alleged that appellees' activity is a nuisance in fact and that the asserted right to groundwater must be compared to the rights of appellants to the reasonable use and enjoyment of their surface estates and urged a negligence standard similar to the "American" rule with respect to the right of a landowner to the abstraction and use of percolating water beneath his land. Appellees argued that there is no right in Texas to recover for damages from exercise of a neighboring owner's right to the unlimited withdrawal of water beneath his land. Contrasting the American rule of "reasonable use," sometimes called the doctrine of "correlative rights," to the "English" rule of absolute ownership, the court reviews Texas cases in other areas of law that indicate, in this instance, a conflict between the English rule and the well-settled Texas principle that imposes a duty of due care in use of property to avoid injury to others. The court concludes that a cause of action would not lie for an owner's exercise of the right to take all the water he can produce from his land, thus causing a subsidence of neighboring land. If, however, the landowner is negligent in producing the water and the negligence is a proximate cause of subsidence of a neighbor's land, a cause of action may lie. The court thus reverses the grant of summary judgment against appellants based on the theories of negligence and nuisance in fact and remands the case to the trial court.

Counsel for Appellants
Joseph D. Jamail, S. Gus Kolius, Robert F. Stein
Jamail & Gano
3300 One Allen Center, Smith at Dallas Sts., Houston TX 77002
(713) 227-4132

Counsel for Appellees
Kraft W. Eidman, David J. Beck, Sim T. Lake, III
Fulbright & Jaworski
Bank of Southwest Bldg., Houston TX 77002
(713) 651-5151

Robert C. McGinnis, Peter M. Lowry
McGinnis, Lochridge & Kilgore
Fifth floor, Texas State Bank Bldg., 900 Congress Ave., Austin TX 78701
(512) 476-6982