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14

In the court of appeals, the City made two arguments: first, it argued that the accommodation

doctrine does not apply to the relationship between the owner of the surface and the owner of

groundwater. Canyon Lake Ranch, relying on the language in

Day

that drew an analogy between oil

and gas ownership and groundwater ownership, argued that “the accommodation doctrine should

govern the relationship between owners of the severed groundwater estate and the surface estate

in much the same way that it governs the relationship between the mineral estate owner and the

surface estate owner.”

23

The court of appeals agreed with the City and held the accommodation

doctrine does not apply to limit the rights of holders of severed groundwater rights.

The court held that the analogy between oil and gas ownership in place and groundwater ownership

in place in the

Day

case was not sufficient to indicate that the Texas Supreme Court intended to

apply other oil and gas doctrines to groundwater rights: “Nowhere in

Day

… does the court speak

to the implied rights of a severed groundwater estate owner to use the surface in production of

groundwater. Nor does it define and delineate the rights and duties as between owners of the

severed groundwater estate and the surface estate.”

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The court stated that: “If

Day

is to be read

to support such an extension of its analogy between groundwater and oil and gas, then this Court

respectfully defers to the Texas Supreme Court to recognize and pronounce such an extension,

especially in light of the dramatic implications it could have in the area of water law in Texas.”

25

In its second argument, the City argued that the express language in the water rights deed would

prevail over general accommodation doctrine principles. The opinion does not address that argument.

Severance of groundwater from the surface estate is not as common in Texas as severances of

minerals. But it has taken place in the Panhandle and in other areas of Texas.

26

And with increased

demands for and value of groundwater, such severances will become more common, and other

conflicts between the surface owner and the owner of groundwater will likely arise.

Groundwater Planning and Permitting – GMAs, DFCs, and MAGs

[Editor’s Note: This section has been omitted. Please contact

courtneyg@yourhonor.com

if you would

like full article]