Academic journal article Houston Journal of International Law

Thou Shall Not Covet Thy Neighbor's Water: A Look at the Journey Both Texas and the Middle East Must Embark upon to Solve the Kinks in Their Water Regulation

Academic journal article Houston Journal of International Law

Thou Shall Not Covet Thy Neighbor's Water: A Look at the Journey Both Texas and the Middle East Must Embark upon to Solve the Kinks in Their Water Regulation

Article excerpt

  I. INTRODUCTION

 II. BACKGROUND

     A. Texas Background

        1. Original Adoption
        2. From Tort Doctrine to Vested Property Right
        3. Defining Absolute Ownership
        4. Now Enter Senate Bill 1
        5. Present Day Ownership
        6. Persistence of the Rule of Capture

     B. Middle East Background

        1. Setting the Stage for Conflict
        2. Turkey--Syria Iraq
        3. Jordan Palestine--Israel
        4. Saudi Arabia

III. PROSCRIPTIVE MEASURES FOR BOTH TEXAS AND THE
MIDDLE EAST

     A. Reasonable Use Standard

     B. Desalination

 IV. CONCLUSION

I. INTRODUCTION

When you think Texas, you likely picture the current President of the United States of America, George W. Bush. And, when you think President Bush, you likely think of the war in the Middle East. Regardless of political views on the matter, this serves as a connection between Texas and the Middle East. Yet, there is another, less obvious, connection that exists between these two areas: both face the challenge of how to structure their water regulation systems in order to preserve water for future generations. (1) After looking at the insufficient water regulations of Texas and countries in the Middle East, it becomes clear that both areas will need to undergo a massive overhaul in water regulations to ensure they preserve access to water. Each area will present two separate problems with regard to water regulations, but both may benefit from the same proscriptive measures in attempting to solve their water regulation problems.

II. BACKGROUND

A. Texas Background

1. Original Adoption

The English rule of capture (2) was adopted in the 1904 Texas case of Houston & Texas Central Railway Co. v. East. (3) In East, the plaintiff brought suit against the defendant railroad company for damages caused by digging a well that made the plaintiffs well run dry. (4) The Texas Supreme Court relied on the principles set forth in the English case of Acton v. Bundell to determine that one had a right to dig a well and, if that digging resulted in the drying of a neighbor's well, it would be deemed unactionable. (5) The East court necessitated the rule of capture doctrine by looking toward the principles set forth in Frazier v. Brown. (6) In Frazier, the Ohio Supreme Court found that no correlative rights with regard to underground percolating waters were recognized by law. (7) In justifying its decision, the Ohio court focused partly on policy considerations:

1. 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 be, therefore, practically impossible. 2. Because any such recognition of correlative rights, would interfere, to the material detriment of the common wealth, with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building and the general progress of improvement in works of embellishment and utility. (8)

During this time, courts treated the rule of capture as a tort doctrine with regard to neighbors and the pumping of water. (9)

2. From Tort Doctrine to Vested Property Right

In Texas Co. v. Burkett, (10) the Texas Supreme Court fortified the rule of capture by interpreting it to be a vested property right and no longer a tort doctrine. In Burkett, the plaintiff sought to enact a contractual agreement with the defendant. (11) The defendant argued that the plaintiff did not own water and that the water actually belonged to the state; therefore, the plaintiff did not have a right to sell. (12) The court disagreed with the defendant and ruled that the plaintiff "plainly had the right to grant access to [streams] and the use of their waters for any purpose. …

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