Thursday, March 7, 2013

The Law of the Biggest Pump

I don't know of an ungated version of this article, but I didn't want it to go unnoticed by legal historians and fellow traveling property scholars.  It is Megan Benson, Railroads, Water Rights and the Long Reach of Houston and Texas Central Railroad Company v. W. A. East (1904), Southwestern Historical Quarterly 116 (Jan. 2013), 261-84.  It commences:
In June 2011, the Texas State Legislature passed and Governor Rick Perry signed the historic Senate Bill (S.B.) 332, an act recognizing "that the landowner owns the groundwater below the surface of the landowner's land as real property."  Eight months later, in early 2012, in the long awaited decision in Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, the Texas Supreme Court confirmed the same groundwater right, called the law or rule of capture, for Texas groundwater.

In much of the discussion surrounding the legislative journey of S.B. 332 and the two-year deliberation in Edwards, Texans learned a great deal about the nature of groundwater law in their state. Conversations often alluded to the 1904 Texas Supreme Court case Houston and Texas Central Railroad v. W. A. East. This landmark ruling set the parameters for groundwater rights in the state of Texas, determining that it would follow the system referred to as absolute ownership, or the rule of capture, or "the law of the biggest pump."