Under the English rule of absolute ownership, in the absence of willful waste or malicious injury, a landowner has the right to withdraw ground waters from wells located on his own land without liability for resulting damage to his neighbor's land.
Plaintiffs, landowners, brought suit alleging that defendants' withdrawal of underground waters from wells on defendants' lands caused severe subsidence of plaintiffs' lands. The trial court granted summary judgment for defendants. The appeals court reversed, holding that plaintiffs stated a cause of action in nuisance and negligence. The court reversed appellate court and affirmed judgment of trial court. The court rejected American rule of reasonable use, under which the right of a landowner to withdraw underground water from his land was limited to amount necessary for reasonable use of his land. The court applied English rule of absolute ownership, under which a landowner had right to withdraw waters from his land without liability for damage to neighbor's land in the absence of waste or malice.
Are landowners who withdrew percolating ground waters from wells located on their own land liable for subsidence, which resulted on lands of others in the same general area?
As far as we can determine, there is no other use of private real property, which enjoys such an immunity from liability under the law of negligence. This ownership of underground water comes with ownership of the surface; it is part of the soil. Yet, the use of one's ground-level surface and other elements of the soil is without such insulation from tort liability. Our consideration of this case convinces us that there is no valid reason to continue this special immunity insofar as it relates to future subsidence proximately caused by negligence in the manner which wells are drilled or produced in the future. It appears that the ownership and rights of all landowners will be better protected against subsidence if each has the duty to produce water from his land in a manner that will not negligently damage or destroy the lands of others.
Therefore, if the landowner's manner of withdrawing ground water from his land is negligent, willfully wasteful, or for the purpose of malicious injury, and such conduct is a proximate cause of the subsidence of the land of others, he will be liable for the consequences of his conduct. The addition of negligence as a ground of recovery shall apply only to future subsidence proximately caused by future withdrawals of ground water from wells which are either produced or drilled in a negligent manner after the date this opinion becomes final.