In Weighty Water Ruling, Texas' High Court Backs Landowner

The Texas Supreme Court has strengthened protections for landowners who don’t have rights to the water underneath their property. 

In a ruling Friday, the state’s highest civil court said Texas' “accommodation doctrine” should also apply to groundwater, in addition to oil and gas.

The decades-old doctrine requires mineral owners — considered the dominant estate — to accommodate the surface owner’s existing use of the land if at all possible. While it doesn’t always stop drilling or pumping operations, the doctrine gives surface landowners some say regarding the circumstances.

But the ruling also establishes that the rights of groundwater owners are dominant over those of surface owners.

The decision favors a South Plains ranch, Coyote Lake, which sued the city of Lubbock in 2012 for trying to expand an existing water well field on the 26,600-acre property.

A Bailey County district court sided with the ranch in late 2013, invoking the accommodation doctrine in granting a temporary injunction against the city, which had mowed a path to reach the well field without permission from the ranch. The Amarillo-based 7th Court of Appeals overturned that decision last summer but said the Legislature or state Supreme Court was free to extend the doctrine if it so pleased.

The state Supreme Court heard oral arguments in the case in October. 

"The accommodation doctrine, based on the principle that conflicting estates should act with due regard for each other’s rights, has provided a sound and workable basis for resolving conflicts between ownership interests," according to Friday's ruling, penned by Chief Justice Nathan Hecht. "The paucity of reported cases applying the doctrine suggests that it is well-understood and not often disputed. We have applied the doctrine only when mineral interests are involved. But similarities between mineral and groundwater estates, as well as in their conflicts with surface estates, persuade us to extend the accommodation doctrine to groundwater interests."

A concurring opinion penned by Justice Jeff Boyd, and backed by Justices Don Willett and Debra Lehrmann, agreed the accommodation doctrine should be applied to groundwater estates but said it should not apply in this case because the city's deed adequately addresses its use of the land.

" ... The accommodation doctrine only applies to groundwater rights—just as it only applies to mineral rights—when the parties’ dispute is 'not governed by the express terms of the parties’ agreement,'" Boyd wrote. "In the court’s view, 'the deed leaves unclear whether the city can do everything necessary or incidental to drilling anywhere, as it claims, or only what is necessary or incidental to fully access the groundwater, as the ranch argues.' ... I disagree." 

Agriculture groups urged the nine justices to side with the ranch and extend the accommodation doctrine while a Panhandle-based municipal water authority argued against it would be "unnecessary and inappropriate." The Canadian River Municipal Water Authority told the court in an amicus brief "there is no legal authority, historical precedent, or need."

Richard Thorpe, president of the Texas and Southwestern Cattle Raisers Association, hailed the ruling as "a major victory for landowners across Texas" in a statement Friday. 

But Fort Worth water lawyer Jim Bradbury said the "accommodation doctrine often sounds more protective than it is in practice." The ruling also establishes that groundwater rights are dominant to surface rights, he noted. 

"Now the holder of those (groundwater) rights has a very strong right to come onto the surface and do a lot of onerous activities," he wrote in an email. "We don't have a great track record in Texas (of mineral) owners having largely unfettered right to use surface."

Disclosure: The Texas and Southwestern Cattle Raisers Association has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.