Aquifer by themselves or a predecessor-in-interest during the historical period—June
1, 1972 through May 31, 1993; and (2) the maximum amount of water pumped and
used without waste during any one year of the historical period. The farmers applied
to the Authority for an initial regular permit authorizing them to pump 700 acre-feet
of water per year for irrigation.
At a contested case hearing, the farmers presented the testimony of two
witnesses who described two methods of irrigation used during the historical
period. In one method, water from an artesian well flowed through a ditch to a 50 acre-
foot reservoir, then was pumped from the reservoir to a mobile sprinkler system. In the
second method, the ditch was dammed and 5 to 7 acres were irrigated by flooding.
One witness testified that the reservoir was on
Post Oak Creek. The Authority ruled that the
reservoir was on a natural watercourse and the
groundwater became state water when it entered
the reservoir, so that state water
rather than private groundwater,
was being used for irrigation
under the first method. The
Authority issued an
initial regular permit
authorizing the use
of 14 acre-feet of
groundwater, 2 acre-
feet for each of the 7
acres irrigated by flooding.
The farmers appealed. Among
other things, they argued that
Authority’s final order resulted in a
taking of their groundwater rights, in
violation of the Texas Constitution.
The trial court dismissed the
farmer’s taking claim on
summary judgment on the
ground that the farmers had
no vested right in groundwater, so no vested right couldhave been taken.
The San Antonio court of appeals reversed. It held that: “landowners have some ownership rights
in the groundwater beneath their property. Because Applicants have some ownership rights in the
groundwater, they have a vested right therein.”
The court of appeals remanded for a trial of the
farmers’ taking claim.
In its briefing in the Supreme Court, the Authority argued that landowners cannot
have a vested right to the groundwater beneath their property because the rule of capture allows
the groundwater to be produced by others. The Court rejected this argument, relying on earlier
decisions on the relationship between the rule of capture and the ownership of oil and gas in
place. The Court quotes a portion of its opinion in
Elliff v. Texon Drilling Co.
that “restated the
law regarding ownership of oil and gas in place:”
In our state the landowner is regarded as having absolute title in severalty
to the oil and gas in place beneath his land. The only qualification of
that rule of ownership is that it must be considered in connection
with the law of capture and is subject to police regulations. The oil
and gas beneath the soil are considered a part of the realty. Each