The rule of capture provides that, absent malice or willful waste, landowners have the right to take all the water they can capture under their land and do with it what they please, and they will not be liable to neighbors even if in so doing they deprive their neighbors of the water's use.
Defendant pumped a large amount of groundwater every day, severely depleting plaintiff's wells. Plaintiff sued to enjoin defendant from taking so much water and to recover for nuisance and negligence. Defendant moved for summary judgment on plaintiff's claims. In granting defendant's motion, the trial court and appellate court both relied on the rule of capture to hold that defendant was entitled to take as much water as it wanted. Plaintiff appealed from the ruling.
May a landowner take all the water under that individual's land without liability to their neighbors absent malice or waste?
In upholding the lower court's grant of summary judgment, the Court held that petitioners presented compelling reasons for groundwater use to be regulated. However, the common law would have to be guided and constrained by constitutional and statutory considerations. It was found that the legislature was addressing the question of the regulation of groundwater, and the court was not persuaded that it was appropriate to insert itself into the regulatory mix by substituting the rule of reasonable use for the current rule of capture. The court affirmed the judgment of the court of appeals.