Thoughts on groundwater law (Part 1)

February 2005 » Columns » PERSPECTIVE
As a practicing hydraulic engineer and hydrologist, I have strong opinions about surface water law, and almost as strong thoughts on groundwater law.
Alfred R. Pagan, P.E., P.L.S.

As a practicing hydraulic engineer and hydrologist, I have strong opinions about surface water law, and almost as strong thoughts on groundwater law. My primary obsession for a number of years has been stormwater management, but I also have written about groundwater matters.

For a better perspective on groundwater management, it is useful to consider some court cases that shed light on what can, and cannot, be done when putting this very fragile resource to use. The following case law descriptions—from the mid-1830s to the early part of the 20th century—are the best that are available to me. Even though the decisions were handed down many years ago, it is clear to me that groundwater law has not changed much during the intervening years. This is in spite of changes energized primarily by the environmental movement.

In 1836, in Greenleaf v. Francis, the Massachusetts Supreme Court said: "... in the absence of rights acquired by grant of adverse user, a landowner may dig a well on any part of his land, notwithstanding that he thereby diminishes the water in his neighbor's well, unless in so doing he is activated by a mere malicious intent to deprive his neighbor of water." That closing comment appears repeatedly throughout the literature, not only on groundwater litigation, but also in cases involving surface water problems. Feuding neighbors sometimes take actions which, in other circumstances, might be considered suitable behavior. But when animosity is shown, and the intent is to do mischief, the courts generally made decisions against the perpetrators. Actions taken for a useful purpose are more acceptable than any conceived with the intention of doing harm.

Many U.S. decisions are based on earlier European case law, especially the "Code Napoleon." The Code Napoleon. is the basis for the civil (not criminal) law of France. Napoleon Bonapart established a commission to combine all laws into one code, which went into effect in 1804. It's official name is Code Civil. The Code effected a compromise between the laws of northern and southern France and also combined some of the ideas of the French revolution and of earlier laws involving the fallen monarchy. The Code, especially in Louisiana, has influenced civil law in the United States and in the province of Quebec in Canada. It's influence, however, has waned and been altered by new laws and by later court decisions.

In England in 1843, the court held in Acton v. Blondell that "a landowner has ... no right ... in a subterranean water course as to enable him to maintain an action against a landowner who, in carrying on mining operations upon his own land in the usual manner, drains away the water from the land ... and lays his well dry." This is an affirmation of the so-called "English Rule." That rule simply states that any owner can sink a well to any depth, even if it deprives his neighbor of water, and that no recourse, through legal action, can be applied.

In 1853, again in England, in Dickinson v. Grand Junction Canal Co., "... the defendant sunk a well upon its own land and placed over it a pump and steam engine whereby it pumped it into its summit level a quantity of underground water, a part of which would have otherwise have reached a certain natural stream. ... The plaintiffs, who were mill owners further down the stream, were in consequence of defendant's operations prevented from working their mills. ... The Court of the Exchequer held that at common law the company was liable to an action for abstracting the water which actually had formed a part of the stream." I question whether groundwater technology in the middle of the 19th century was advanced enough that an expert witness (if one was used) could aver that the removal of groundwater seriously affected a stream some distance downstream, but we are so far removed from the case that the details are lost among the fog and cobwebs of time.

The rest of the cases listed in this and the next column occurred in the United States.

Groundwater legal beagles were active even as the United States was in the midst of civil war. In 1862, the New Hampshire Supreme Court challenged the "absolute ownership concept" in a decision that essentially said: "Each landowner is restricted to a reasonable [that word pops up repeatedly in surface and groundwater law] exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others." The Reasonable Use rule means exactly what it says and is the rule which applies in most jurisdictions in the United States.

In 1881, the Kansas case, Soden v. City of Emporia, addressed problems in groundwater law that, not surprisingly, are not confined only to the more or less humid East: "The plaintiff [Soden] had erected and for many years maintained and operated mills upon the bank of a river, the power being furnished by a dam built by him. The defendant city then erected water works for municipal purposes and supplied them from this pond [which had been created by the dam], drawing part of the water directly through pipes which led into the pond and part indirectly by percolation into a well adjacent to the pond. The plaintiff obtained an injunction ... restraining the city from taking water either from the pond or from the well without compensation to the plaintiff. Upon appeal, the state's Supreme Court sustained the injunction."

Part II of this short series on groundwater law will feature two New Jersey cases that are of great interest and relevance, as well as one each from New York, California, and Iowa. They also are quite old, but legal precedents concerning groundwater law are older, I believe, than those involving surface water law, and the law has not changed significantly in the recent past.

Alfred R. Pagan, P.E., P.L.S., is a consulting engineer in Hackensack, N.J. He can be reached at 1-201-441-9719; or e-mail him at pagan@cenews.com.


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