Higday v. Nickolaus

Missouri Court of Appeals, Kansas City District · 1971 · Property

PropertyGroundwaterDeclaratory JudgmentInjunctionpercolating watersgroundwaterreasonable useusufructuary right

Facts

Plaintiffs owned about 6,000 acres of farm land overlying the McBaine Bottom alluvial basin in Boone County, where percolating groundwater maintained a high water table that supported crops, livestock, and domestic use. The City of Columbia planned to develop shallow wells on five acquired sites in the basin and to pump about 11.5 million gallons of water daily to the city, twelve miles away, for municipal sale and use. Plaintiffs alleged this pumping would lower the basin water table from about ten feet below the surface to about twenty feet below the surface and would deprive them of groundwater needed for the beneficial use of their lands. They sought a declaration that the City could not lawfully extract and export the water for off-land sale when that would deprive adjacent owners of reasonable use, and they sought an injunction against the project.

Issue

Did plaintiffs' petition allege a sufficiently ripe and justiciable controversy to support declaratory relief concerning rights in percolating groundwater? If so, did the petition also state a claim for injunctive relief by alleging that the City's planned off-tract withdrawal and sale of groundwater would wrongfully invade plaintiffs' property rights under Missouri law?

Rule

Missouri applies the rule of reasonable use to subterranean percolating waters. Under that rule, an overlying owner has a proprietary but usufructuary interest in the groundwater beneath his land and may use it freely only for purposes incident to the beneficial enjoyment of the overlying land; an overlying owner, including a municipality, may not withdraw percolating water and transport it away for sale or other off-land use if doing so impairs an adjoining landowner's supply to his injury. A petition for declaratory judgment is sufficient if it alleges an actual, existing, ripe controversy affecting legal interests and admitting conclusive relief, and a petition for injunction is sufficient if it alleges a threatened wrongful invasion of a substantial legal right, subject to equitable balancing and public interest considerations.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Red Clay Beverage Group buys a 6-acre parcel outside Springfield, Missouri, above a percolating aquifer. It plans to pump large quantities of groundwater, bottle it in Arkansas, and sell it regionally; neighboring farmers allege the pumping will materially lower the water table and leave them without enough groundwater for livestock and crop irrigation on their adjoining land.

If the neighboring farmers sue, which result is most consistent with the governing rule?

Explanation. The majority adopted the reasonable use rule for percolating groundwater. Under that rule, the overlying owner's interest is usufructuary, and water may be used freely only for purposes incident to the beneficial enjoyment of the overlying land. Withdrawal and transport away from the tract for sale is unreasonable if it impairs an adjoining landowner's supply to his injury. Malice is not required, and Missouri does not follow absolute ownership.