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Law School Case Brief

Higday v. Nickolaus - 469 S.W.2d 859 (Mo. Ct. App. 1971)

Rule:

Under the rule of reasonable use, an overlying owner, including a municipality, may not withdraw percolating water and transport it for sale or other use away from the land from which it was taken if the result is to impair the supply of an adjoining landowner to his injury. Such a use is unreasonable because non-beneficial and is not for a lawful purpose within the general rule concerning percolating waters, but constitutes an actionable wrong for which damages are recoverable.

Facts:

The respondent City of Columbia sought to extract groundwater from wells to supply its growing population. The landowners, a group of farmers, filed a petition for declaratory judgment and injunction, requesting the trial court to declare their rights with respect to the percolating groundwater and to prevent the city from infringing on their rights. The City anchored their defense on the theory that the common law rule of absolute ownership of percolating waters has governed its relationship with landowners, and therefore, any damage to them could not be a legal injury. The trial court dismissed the petition without hearing. The landowners appealed.

Issue:

Was it error for the trial court to dismiss the landowners’ petition without any hearing?

Answer:

Yes.

Conclusion:

The Court reversed the trial court’s decision and remanded the case, holding that the landowners stated a real controversy and that a declaratory judgment action was the proper method of obtaining relief in a suit to quiet title to water rights. The Court noted that under the rule of reasonable use, an overlying owner such as the city could not withdraw percolating water and transport it for sale or other use away from the land from which it was taken if the result was to impair the supply of the adjoining landowners to their injury. The fundamental measure of the overlying owner's right to use groundwater was whether it was for purposes incident to the beneficial enjoyment of the land from which it was taken. According to the Court, the landowners' petition showed that the landowners were threatened with wrongful invasion of their water rights by the city and that the injury was irreparable.

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