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Law School Case Brief

Higday v. Nickolaus - 469 S.W.2d 859


Generally, a basis is made out of equity's interference by injunction to prevent the wrongful diversion of percolating waters by a pleading that establishes the plaintiff's right to the use of the water, that he has suffered or will suffer, legal injury, that the acts of the defendant are the cause of the plaintiff's injury, that the injury, present or threatened, is irreparable, and that no adequate redress can be obtained in an action at law. And a petition that pleads an appropriation of private property for a public purpose without authority or without compliance with the constitutional or statutory conditions on which the right to make the appropriation is given describes such an invasion of private rights as may be assumed to be irremediable. Such a wrong will be enjoined without the customary requirements of equitable jurisdiction, and more particularly, without regard to the questions of irreparable damage or the existence of a legal remedy which may afford a money compensation.


Respondent city sought to extract groundwater from wells to supply its growing population. Appellant landowners, a group of farmers, filed a petition for declaratory judgment and injunction, requesting a judicial declaration of their rights to percolating waters under their lands and seeking an injunction to prevent the city from infringing on those rights. The trial court dismissed the petition.


Did the pleaded averments of plaintiffs' petition raise in plaintiffs a property right to the reasonable use of the percolating waters underlying their lands? If so, was defendant city’s threatened use of the percolating waters an infringement of those rights as would be enjoined by equity?


Yes and yes.


The court reversed the trial court's judgment that dismissed the landowners' petition for declaratory relief and injunction against the city and remanded the cause for further proceedings. The court held 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. 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. 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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