Ridenbaugh Press/Water Rights

Texas State Senator Troy Fraser, R-Horseshoe Bay, offered legislation (Senate Bill 332) on January 12 to clarify groundwater ownership, saying landowners have a vested ownership interest in the groundwater beneath their property.

The legislation has been filed because some entities are challenging the Rule of Capture in court. The Rule of Capture was established in 1904 by the Texas Supreme Court. The court ruled that groundwater was the private property of a landowner and that a landowner could not be held liable for harming a neighbor’s well by exercising their right to capture the groundwater.

Water management in Texas gradually and in various places has been moving away from capture – a riparian approach – toward a more regulatory appropriation system.

“For over 100 years, landowners have believed that the Rule of Capture gives them a vested private property right in the groundwater beneath their land,” said Fraser. “And, that the property right gives the ability to drill a well and produce groundwater for their use.”

The legislation is intended to work in conjunction with local groundwater conservation district regulation. Under the legislation, groundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced. However, the legislation would prevent a district from “taking” a landowner’s right to capture the water beneath the land.

“Landowners recognize that locally elected groundwater conservation districts play an important role in helping manage water to ensure it is available for future generations,” said Fraser. “But there is a big difference between managing how much water is pumped and denying property owners the right to access the water beneath their land.”

A vested ownership interest is a property right that a landowner can legally protect. The right to produce groundwater is a property right that is exclusively the landowner’s. No one else can come onto private property, drill a well, and start pumping groundwater. If someone were to attempt it, the landowner could legally stop them.

“As Chairman of the Senate Committee on Natural Resources, I believe the issue of groundwater rights needs to be debated by the Legislature.” Fraser said. “The management of this important asset is key to developing the State Water Plan and ensuring that water is available for the future.”

In its March 17 decision on Jerry Bass et al v. Jeffrey Salyer et al, the Indiana Court of Appeals put a finer point on aspects of riparian land ownership in Indiana.

Much of the decision concerned ownership claims on other parts of the property, but it bled over into issues about riparian rights.

The case grew out of the subdivision of property in Kosciusko County on the shore of Yellow Creek Lake. Neighbor disputes developed over access to a driveway and over a pier at the property. The Salyer family owned the main property and for years had used the driveway and pier. In 2008 neighbors removed the pier, saying that was in compliance with local ordinances and the law. The Salyers sued, and were upheld at trial court.

The appeals court noted that

. . . a claimant must have a property interest in the land
appurtenant to the water before he can acquire rights to use the water. Although riparian rights arise from ownership of the land appurtenant to the water, we have also held that one may acquire a prescriptive easement in riparian rights.

In Bromelmeier v. Brookhart (1991), we held that the dominant estate holder of a prescriptive easement may use the riparian rights of the
servient tenant. In Bromelmeier, a couple owned property across the road from lots that abutted a lake. A ten-foot-wide “strip” ran between two of the lake lots. For more than twenty years, the couple used that strip to access the lake. They also installed a pier where the strip met the water. Subsequently, the lakeside lot owners on either side of the strip purchased the ten-foot-wide strip and erected a barrier across it. The couple filed suit claiming that they had established a prescriptive easement in both the ten-foot-wide strip and the lot owners? riparian rights in the lake. The trial court agreed that the couple had acquired a prescriptive easement for access to the lake, but the court found riparian rights were “unavailable to those merely holding an easement.” On appeal, the parties did not dispute the establishment of a prescriptive easement in the ten-foot-wide strip, but the couple challenged the court?s determination that an easement cannot be established in riparian rights.

We held that resolution of the issue turned on the intent of the parties when they created the easement.

. . . Having already determined that the Salyers have not established a prescriptive easement in the Drive, we must next determine whether they have established a prescriptive easement in the riparian rights to the lake.

The Court of Appeals found that they had not.

The court also noted definitionally, “Riparian rights have been traditionally associated with owners of land abutting a river or stream, while those with shoreline on a lake or pond acquired littoral rights. But the term “riparian” is now widely used to refer to both classes of ownership, id., and we use that term here.”

[see decision at the decision on line.]

Reflecting on the Georgia-Alabama-Florida water dispute, the Columbus (GA) Ledger-Examiner offered this in an editorial:

Not too many years ago, a group of developers bought parcels of land on both sides of the Chattooga, the northeast Georgia/South Carolina border river beloved of rafters and kayakers the world over, and made famous in the movie “Deliverance.” Because they owned acreage on both sides of the wild and scenic river, they took the logical leap that they controlled that section of the stream as well, and put up signs warning that anyone passing through was trespassing.

The idea is absurd on its face: If you own a riverfront acre in Memphis and another in West Memphis, Ark., you don’t “own” the waters of the Mississippi that flow between them. But it goes to show some of the bizarre claims that can arise when rights and access to water are at stake.