“Our Crowd” and the Rule of Capture

“Our Crowd” and the Rule of Capture

[West Texas Weekly continues to bring you insight into local politics. Mark Glover, Contributing Editor Alpine, explains the legal logic behind riparian rights.]

Alpine – While the West Texas water export plans of Clayton Williams hang in a Federal Court in Midland, Dr Megan Benson presented an historical overview of the evolution of Texas groundwater law at the Sul Ross campus last Friday night, hosted by the Center for Big Bend Studies.

“In Texas, because of the Rule of Capture, one landowner or corporation can mine and market a disproportionate amount of water for immediate gain seriously impacting or depleting resources without liability to his neighbors,” said Benson, a recipient of the 2009 Fellowship for Excellence in West Texas History.

Texas, the only western state that practices the Rule of Capture, aka the Law of the Biggest Pump, gained its head of steam in a 1904 court case known as W.A. East vs. Houston & Texas Central Railroad Inc.

“It was not a water case but a railroad case. It fits perfectly with railroad litigation of the time, but it inadvertently became a water case,” Belton explained. “No law has impacted Texas environmental politics more.”
The Right of Capture is an ancient English Common Law concept that originated in conflicts between landowners and hunters. Specifically it asked at what moment the animal becomes the private property of the hunter,” Benson said.

Later in an 1843 English courtroom, this concept was applied by the court to settle a case involving a drained well. By implementing the Rule of Capture, courts ruled against neighbors trying to collect damages from those who out-pumped them.

Standing at the podium with black framed glasses and a leather jacket, Benson, whose SRSU funded research fellowship allowed her to study the subject for one year, unveiled the back story that led to the landmark decision of 1904.

Edward House, son of a wealthy Texas banker, pursued a course of multiplying his father’s substantial holdings by engaging in transportation. Eminent in the dredging of the Houston ship channel in the 1890’s, House was also engaged in the railroad business at a time when common carrier law was being crafted by the Texas legislature.

“Weak in appearance, with no discernable public speaking skills, House was a behind the scenes man,” Benson said.
House befriended William Hogg who went on to become Texas governor in 1891, as well as a series of governors through 1907 including Charles Allen Culberson, Joseph Draper Sayers and Samuel Willis Tucker Lanham part of “our crowd” a term used by House to define his political posse.

This series of governors oversaw the sale of Texas public lands that financed Texas schools. They also crafted early common carrier laws that, according to Benson, “chipped away the liability by common carriers for negligence.”

“If a train killed a horse at a railroad crossing – no negligence. If a man was unloading a boxcar and hurt himself – no negligence. If a bridge failed – no liability,” Benson said.

Trains needed water for their locomotive steam plants and what W.A. East didn’t realize when the Houston and TC Railroad built a well across the street from his, in what is now downtown Denison, was that a 50,000 gallon a day well was going to suck his well dry.

He took them to court in Denison and lost. He appealed at the “Old Red” court house in Dallas where Judge John Bookhout of the Fifth Circuit Court of Civil Appeals overturned the case.

“It shocks our sense of justice… that the appellee claims immunity from liability,” said the former New Yorker turned Texan said.

The judge ordered the railroad to pay $ 210 to Mr. East.

But the railroad appealed to the Texas Supreme Court.

Frank Alvan Williams, presided over the case. A friend of Edward House, and a member of “our crowd,” Williams was appointed to the 1st District Court of Appeals in Houston by Governor Hogg in 1892 and went on to the Texas Supreme Court in 1899.

The court’s decision of 1904 includes the now sacred if not infamous wording, “Because the existence, origin, movement and course of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would therefore be practically impossible.”

The court’s finding not only used ephemeral wording to explain the “occult” like nature of water to establish the non-liability of the railroad for sucking their neighbor’s well dry, but also exercised selective precedence mining these words from an Ohio court’s decision rendered fifty years earlier.

The Oil Industry in Texas also works under the Rule of Capture and the law was summarily explained by Irish actor Daniel Day Lewis in the Marfa filmed movie “There Will Be Blood” –

“If you have a milkshake and I have a milkshake and I have a straw and my straw reaches across the room and starts to drink your milkshake: I drink your milkshake! I drink it up!”

Thirty miles east of that movie set, Benson, who earned her PHD in American History from the University of Oklahoma, delivered the final touches of her lecture.

“The Texas Supreme Court found no validity in Judge Bookhouts opinion,” Benson said. “It simply served the intent of the railroad.”

Benson reported House was later quoted as saying in reference to “our crowd” – “we got just about everything we wanted, including the East Decision.”

Benson went on to point out some exceptions to the Rule of Capture:
1917, Article 16 – known as the conservation amendment, legislated against wasting water.

1949, Texas legislature authorized the creation of Underground Water Conservation Districts, most of them starting in the panhandle to protect the Ogallala Aquifer.

1993, State Bill 1477 created the Edwards Aquifer Authority which replaced the Edwards Underground Water Conservation District, an entity that Benson suggested was “more powerful” than a regular district and that “challenged the Rule of Capture.”

1997, SB 1 and 2001, SB2 extended the regulating authority of water districts.

Today the 50/50 Rule is making its way into many regional Texas jurisdictions, a rule that limits depletions of aquifers to no more than 50 per cent in a fifty year period. Some districts are limiting pumping to the size of the land owned and still others permit pumping based on historical usage. Challenges to these new water distribution limits consistently find their way to the courtroom where ultimately the Rule of Capture prevails.

Brewster County Judge Val Beard has stated in the past that she believes the law and the conservation districts should be abolished, clearing the way for TORT law to adjudicate liability issues. Hawaii eliminates the problem altogether by claiming all underground water as property of the state, as do most countries in the world.

Likely most rural west Texans will not be sitting back and enjoying their underground water being pumped to urban centers like Midland-Odessa as Clayton Williams plans. Fort Stockton Holdings Inc., a Williams’ family owned operation with farming roots in Belton, seeks damages in a federal suit against the Middle Pecos Groundwater Conservation District for denying their water export permit. FSH is not challenging the Rule of Capture, but rather claims their constitutional rights under Articles 5, 13, and 14 in the US Constitution were breached in the water district’s decision.

In the meantime the hairy hunted animal of the Rule of Capture continues un-caught and legally safe in the occult wanderings of the Texas legal system.

“The Rule of Capture, established in the 1904 East case, and based on 1843 English precedent, allows for enormous private wealth to be gained yet depletes our most valuable resource. By selectively using precedent and undisputable sacred text, the question is, ‘Is the Rule of Capture a good resource management plan?” Belton asked. “’And was it ever?’”