In Texas, water rights depend on whether the water is groundwater or surface water.
Generally, Texas groundwater belongs to the landowner. Groundwater is governed by the rule of capture, which grants landowners the right to capture the water beneath their property. The landowners do not own the water but have a right only to pump and capture whatever water is available, regardless of the effects of that pumping on neighboring wells.
Surface water, on the other hand, belongs to the state of Texas. It can be used by a landowner only with the state’s permission.
Water found below the earth’s surface in the crevices of soil and rocks is called percolating water, or more commonly groundwater. Texas groundwater law is judge-made law, derived from the English common law rule of “absolute ownership.” Groundwater belongs to the owners of the land above it and may be used or sold as private property. Texas courts have adopted, and the legislature has not modified, the common law rule that a landowner has a right to take for use or sale all the water that he can capture from below his land.
Because of the seemingly absolute nature of this right, Texas water law has often been called the “law of the biggest pump.” Texas courts have consistently ruled that a landowner has a right to pump all the water that he can from beneath his land regardless of the effect on wells of adjacent owners. The legal presumption in Texas is that all sources of groundwater are percolating waters as opposed to subterranean rivers. Consequently, the landowner is presumed to own underground water until it is conclusively shown that the the source of supply is a subterranean river.
The state of the law with respect to ownership of subterranean rivers is not settled in Texas. Both stream underflow and subterranean rivers have been expressly excluded from the definition of underground water in Section 52.001 of the Texas Water Code.
The practical effect of Texas groundwater law is that one landowner can dry up an adjoining landowner’s well and the landowner with the dry well is without a legal remedy. Texas courts have refused to adopt the American rule of “reasonable use” with respect to groundwater.
Exceptions to Absolute Owner Rule. There are five situations in which a Texas landowner can take legal action for interference with his groundwater rights:
If an adjoining neighbor trespasses on the land to remove water either by drilling a well directly on the landowner’s property or by drilling a “slant” well on adjoining property so that it crosses the subterranean property line, the injured landowner can sue for trespass.
There is malicious or wanton conduct in pumping water for the sole purpose of injuring an adjoining landowner.
Landowners waste artesian well water by allowing it to run off their land or to percolate back into the water table.
There is contamination of water in a landowner’s well. No one is allowed to unlawfully pollute groundwater.
Land subsidence and surface injury result from negligent overpumping from adjoining lands.