Land Owner May Bring Action for Pollution of Water by Neighbor

Water Pollution Lawyer Austin Texas

Nov 24, 2012 — by Jeff Mundy
Tags: Land Use

"The Texas Supreme Court has, by implication, recognized that the law of trespass applies to invasions occurring on adjacent property but at a level beneath the surface....(holding that trial court had jurisdiction to hear landowner's suit seeking to enjoin the defendant from creating subsurface fractures that would extend below the property lines of the surface owned by the landowner); ...(upholding injunction against production from well that bottomed on lands owned by the Texas Company).

Texas law recognizes the surface owners' property interest in the water in place that is found beneath the property's surface.... In Day, the Texas Supreme Court observed that an owner has the usual remedies against trespassers who appropriate such groundwater or destroy its market value. 

The Legislature has also recognized the ownership interest of the surface owner to the water below the surface of his or her tract. 

The definition of the term "groundwater" do[es] not distinguish between water below the surface that is fresh water and water below the surface that is saltwater; nor did these versions distinguish between percolating water found below the ground and water found flowing in subterranean streams. Instead, the term "groundwater" is defined in the Water Code to mean "water percolating below the surface of the earth." 1995 Tex. Gen. Laws at 4679; Tex. Water Code Ann. § 36.001.

Acquiring a permit from the State is not sufficient to relieve a tortfeasor from his potential liability to a private property's owner. 

FPL Farming v. Environmental Processing Systems LC (Tex. App. - Beaumont, 2012).




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