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Higday v. Nickolaus

Kansas City Court of Appeals, Missouri
469 S.W.2d 859 (1971)
ELI5:

Rule of Law:

A landowner's right to percolating groundwater is governed by the rule of reasonable use, which restricts the use of water to purposes incident to the beneficial enjoyment of the land from which it is taken. Withdrawing percolating water for sale or transport away from the land is an unreasonable use if it impairs the supply of an adjoining landowner to their injury.


Facts:

  • Plaintiffs are farmers who own approximately 6000 acres of fertile farmland overlying the McBaine Bottom, an alluvial water basin.
  • The farmers attribute their land's fertility to the high subterranean water table, which they use for crop moisture, livestock, and personal consumption.
  • The City of Columbia, facing a water shortage, developed a plan to withdraw water from the McBaine Bottom aquifer.
  • The City's plan involved extracting water via shallow wells and transporting it twelve miles away for sale to customers.
  • Scientific analysis determined the water table averaged ten feet below the surface and the basin recharged at a rate of 10.5 million gallons daily.
  • The City of Columbia acquired five well sites totaling 17.25 acres within the McBaine Bottom, adjacent to the farmers' lands.
  • The City announced its intention to extract 11.5 million gallons of water daily, a rate projected to lower the water table to an average of twenty feet below the surface.
  • The farmers alleged this reduction would deprive them of water for their land's beneficial use and eventually render their land arid and sterile.

Procedural Posture:

  • The plaintiffs (farmers) sued the City of Columbia in a Missouri trial court (court of first instance).
  • The petition sought a Declaratory Judgment to define their water rights and an Injunction to stop the City's project.
  • The City of Columbia filed a Motion to Dismiss, arguing the petition failed to state a justiciable controversy or a claim upon which relief could be granted.
  • The trial court granted the City's Motion to Dismiss.
  • The plaintiffs (appellants) appealed the trial court's dismissal to the Missouri Court of Appeals.
  • The City of Columbia is the appellee in the appeal.

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Issue:

Does a landowner, including a municipality, have the right to withdraw percolating groundwater for sale or use away from the land if doing so impairs the water supply and causes injury to an adjoining landowner?


Opinions:

Majority - Shangler, Presiding Judge.

No. A landowner's right to percolating groundwater is limited by the rule of reasonable use, meaning the water must be used for purposes incident to the beneficial enjoyment of the land from which it is taken. The English common law rule of absolute ownership, which allows a landowner to withdraw any quantity of water for any purpose without liability, is rejected as unpersuasive and based on unsound scientific premises disproven by modern hydrology. The court adopts the American rule of reasonable use, under which an overlying owner may not withdraw percolating water and transport it for sale or other use away from the land if it injures an adjoining landowner. A municipality is treated as a private landowner and is subject to the same restrictions. Therefore, the City of Columbia's plan to withdraw groundwater for off-site sale, to the detriment of the farmers, constitutes an unreasonable use and an actionable wrong.



Analysis:

This decision officially adopts the American rule of 'reasonable use' for percolating groundwater in Missouri, rejecting the long-assumed English rule of 'absolute ownership.' This aligns Missouri law with the modern trend recognizing the scientific reality of interconnected groundwater resources and the correlative rights of adjoining landowners. The ruling establishes that municipalities and other large-scale water extractors cannot acquire a small parcel of land and drain an entire aquifer for off-site commercial use without being liable for damages. This precedent significantly impacts water rights litigation, potentially requiring such entities to use eminent domain to acquire water rights rather than just land, thereby ensuring compensation for injured neighbors.

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