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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