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Edwards Aquifer Authority v. Day

ELR Citation: 42 ELR 20052
Nos. 08-0964, (Tex,, 02/17/2012)

The Texas Supreme Court held that landowners have an ownership interest in the water beneath their property that cannot be taken for public use without adequate compensation under the Texas Constitution. The Texas courts have long held that landowners have ownership in oil and gas beneath their property, and the court found no reason to treat groundwater differently. Accordingly, under Texas law, landowners are regarded as having absolute title in severalty to the groundwater in place beneath their land. The only qualification of that rule of ownership is that it must be considered in connection with the law of capture. Thus, a landowner has a right to exclude others from groundwater beneath his or her property, but one that cannot be used to prevent ordinary drainage. Moreover, landowners have a constitutionally compensable interest in groundwater. On remand, the lower court must determine whether an agency's denial of a landowner's application for a drilling permit constitutes a taking under the facts of this case.