High court agrees to hear Ozarka case
By PEGGY FIKAC Associated Press Writer
AUSTIN (AP) - A battle between rural East Texas landowners and a bottled-water company they contend is draining their wells through a spring pumping operation will be considered by the state Supreme Court.
The court, which scheduled arguments for Nov. 19, is being asked by the landowners to decide whether the concept of "absolute ownership" of water should be changed.
The absolute ownership rule states that all "percolating" ground water, such as the spring, belongs to the owners of the land where it is found, Ozarka Natural Spring Water Co. said in court documents. It said the owner "may use the water for whatever purpose he desires."
The Legislature "has joined with this court in recognizing the absolute ownership rule," said documents filed by the company. It said lawmakers haven't changed the rule, and the court previously has recognized any change should come from the Legislature.
"Regardless of the absolute ownership rule, it would be counterproductive to our business, not to mention our industry, to dry up a spring or a neighbor's water supply," added Lauren Cargill, a company spokeswoman.
"Ozarka has gone above and beyond the standard of the law by voluntarily implementing a state-of-the-art, 24-hour, seven-day-a-week monitoring system to ensure that water collection would have no negative impact on the spring or on our neighbors - all this before startup operations began," she said.
"Ozarka has pledged and continues to pledge that operations would be reassessed if scientific evidence showed anything to the contrary."
The landowners - Bart Sipriano and Harold and Doris Fain - said in court documents that the rule is being used by Ozarka, "as a weapon against small neighboring landowners who are powerless to stop the drainage of their wells, and can no longer sustain themselves on their land, even as this powerful corporate enterprise pulls over 90,000 gallons daily from beneath their land."
The water on the Ozarka-leased land is produced from an aquifer beneath the Fain and Sipriano land, according to court documents.
The landowners said the court should review whether there should be an exception to the rule to allow lawsuits against someone who withdraws groundwater in a negligent manner that injures a neighbor's property, or whether the rule should be abolished.
The law is "a time bomb for Texas land owners who rely on the longevity of aquifers to water their livestock and irrigate their land," the landowners said.
Ozarka, which sells water bottles for coolers and in smaller sizes for personal consumption, began pumping from Roher Spring in Henderson County in March 1996.
Documents filed by the landowners said four days after pumping started, the Sipriano family's well was dry "as a direct result of the defendant's pumping operation." They said the Fain well's water level has dropped substantially, requiring them to restrict their water use.
The landowners filed a lawsuit against the company seeking damages and an injunction. A district judge and appeals court have ruled in favor of Ozarka without a trial, leading to the Supreme Court appeal.