Higday v. Nickolaus

469 S.W.2d 859 (1971)

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Nature of the Case

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Facts

Ps are the several owners of some 6,000 acres of farmland overlying an alluvial water basin known as the McBaine Bottom. Underlying this entire plain are strata of porous rock, gravel, and soil through which water, without apparent or definite channel, filtrates, oozes and percolates as it falls. This water (much of which has originated far upstream within the Missouri River Valley) has been trapped by an underlying stratum of impervious limestone so that the saturated soil has become a huge aquifer or underground reservoir. Ps are farmers and also use the underground water for personal consumption, for their livestock, and in the near future will require it for the surface irrigation of their crops. D, City of Columbia, needs water and settled on a plan for the withdrawal of water by shallow wells from beneath the McBaine Bottom where Ps' farms are located. D will transport the water to the City some twelve miles away for sale to customers within and without the City. The underground percolating water table, when undisturbed, displaces 10.5 million gallons of water daily. D bullied and threatened condemnation and got into the aquifer. D now threatens to extract the groundwater at the rate of 11.5 million gallons daily. Ps complain that this reduction of the water table will eventually turn their land into an arid and sterile surface. P sought (1) a judicial declaration that defendant D is without right to extract the percolating waters for sale away from the premises or for other use not related with any beneficial ownership or enjoyment of the land from which they are taken when to do so will deprive them, the owners of the adjacent land, of the reasonable use of the underground water for the beneficial use of their own land, and (2) that D be enjoined from undertaking to do so. D countered with the English common law rule wherein absolute ownership of percolating waters gave it the right to withdraw an unlimited amount of groundwater despite harm to neighbors. D moved to dismiss, and their motion was granted. P appealed.