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Barrister News School of Law Publications

Fall 1966

Barrister News, volume 14, issue 2

St. Mary's University School of Law

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This Newsletter is brought to you for free and open access by the School of Law Publications at Digital Commons at St. Mary's University. It has been accepted for inclusion in Barrister News by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected], [email protected]. VOL. XIV-NO. 2 FALL 1966 SAN ANTONIO, TEXAS

NEW LAW SCHOOL CONTRACT SIGNED GROUNDBREAKING ON NOVEMBER 22 L Barrister News

"A Professional Legal Publication" Edited and Published by the Barristers E.DITOR'S DESK Student Bar Association, St. Mary's University School of Law

Affiliated with American Law Student Association This issue heralds a new level of achievement that has been long awaited with regard to the phy­ sical plant of the law school. The announcement in this issue of the contract for the new law school VOL. XIV FALL 1966 NUMBER 2 marks a step that few now fully comprehend and only the future will reveal. Its impact will undoubt­ ably magnify the already substantial contribution to St. Mary: s to the legal profession, but in a greater sense it will embody the spirit of the school in an emphatic structure thematically bonded to South­ western culture. The school is now ·embodied in dis­ Editor in Chief tinguished alumni, members of the Bench and Bar,

I· Jim lytton who have kept alive and current the contribution of the law school: but the greater school plant now under construction will complete the measure of the worth of St. Mary's School of .Law.

Associate Editors The Editor

John Courtney Gilbert Carreon Marcel Notzon

Executive Secretary

Elaine Schultz

IN THIS ISSUE Editorial Staff Law Center Contract ______p. 3 Jim Folsom Karl Rubenstein Frank Herrera Jack McGinnis Phi Delta Phi News ------P· 4 Lee H. Lytton, Ill New Faculty Member ______p. 5 Water Law Review ______-P· 6

Business Manager Delta Theta Phi News ------P· 11

Marion Carson Dean's List and Groundbreaking for New Law Center ______p. 12

The Barrister News is published four ( 4) times each year by the Student Bar Association, St. Mary's University School THE COVER of law, San Antonio, Texas. Address all correspondence, subscriptions, or changes of address to Barrister News, Edi­ (L to R) Louis Guido, Sr., Very Reverend torial and Executive Office, 112 College Street, San Antonio, Louis J. Blume, S.M., and Cosmo Guido are Texas. Reproduction in any manner, in whole o r in part, in English or other languages, is expressly prohibited with­ shown at the signing of the Law Center out written permission from the Barrister News, St. Mary's contract. School of law, San Antonio, Texas.

2 (L to R) Dean Ernest Raba, Father Blume, President of St. Mary's, and Brooks Martin, Architect, look over the sketches of the Law Center soon to take form on the Woodlawn Campus. '$1,709,000 CONTRACT SIGNED FOR NEW LAW CENTER St. Mary's University has signed a contract Science Building, the Richter Family Mathematics for the construction of a new law center to be built & Engineering Center, a teacher-student dormitory, on its Woodlawn campus as part of the university's cafeteria, and central power station. current ten-year $25 million expansion program. The university's "Education 6000" program will The contract was awarded by Very Rev. Louis provide facilities and faculties for an expected en­ J. Blume, SM, president, to Guido Brothers Con­ rollment of 6,000 students by 1975. struction Company of San Antonio on a low bid of St. Mary's current enrollment of 3,500 makes it $1,709,000. the largest university in San Antonio and fourth largest private university in Texas, after TCU, SMU, The three-building center will include a class­ and Baylor. room building, faculty office building, and law The new law center will provide facilities for library. The design is Texas colonial. Architect is double the current law school enrollment of 368, said Brooks Martin, AlA, San Antonio. Dean Ernest A. Raba. Construction will start immediately with com­ The St. Mary's law school is an -outgrowth of pletion scheduled for fall, 1967, when the St. Mary's the San Antonio school of law established in 1927 law school will move from its downtown location to by the San Antonio Bar Association and taken over the main campus. by St. Mary's in September, 1934. Six other buildings already are under construc­ It has been housed in a 100-year-old building on tion on the St. Mary's campus, Fr. Blume said. They the original site of the university in downtown San are a new main library, the W. L. Moody Jr. Life Antonio. 3 Newly-elected officers of Phi Delta-Phi Alumni Inn . l to R Justice Charles W. Barrow, Secretary­ Treasurer; J udge Archie Brown, Presid ent, and l. Bruce Fryburger, Vice-President. Phi Delta Phi Michael T. Moriarty, Magister of Tarlton Inn, Cadena, Associate Justice, Fourth Court of Civil Phi Delta Phi International Legal Fraternity an­ Appeals; Dean Ernest Raba, Dean of St. Mary's nounced the election of officers of the re-activated School of Law, and the Honorable Archie S. Brown, Barrister Inn of Phi Delta Phi Alumni. Elected to Judge of the 144th District Court. the post of President was Judge Archie S. Brown, Judge Archie S. Brown, introduced Justice 144th District Court. L. Bruce Fryburger was Norvell for the evening's address. Justice Norvell elected Vice-President, and Justice Charles W. spoke about the anomalous person in law called "The Barrow, Associate Justice of the Fourth Court of Reasonable Prudent Man.'' Civil Appeals was elected Secretary-Treasurer. Father Louis J . Blume, President of the Uni­ The election was conducted by mail and some versity, announced at the Cocktail-Dinner the sign­ 400 Phi Delta Phi alumni participated in the voting. ing of the Law School Contract as a part of the With the beginning of new officerships, new activi­ Educat'ion 6,00 0 program of development. This an­ ties are being formulated which involve Alumni and nouncement was the first public release of this Students as one membership, and other activities major step toward a continuing betterment of legal are being planned for the practicing bar and bench education. of Phi Delta Phi alumni which will honor the alumni group as an ·entity. PLEDGE CLASS On Sunday, October 23, 1966, Tarlton Inn held Magister Moriarty announced the fall pledge its Fall Cocktail-Dinner Rush Party at the Petro­ class to be composed of the following students: leum Club located in the Alamo National Bank Phillip Benson Richard Conner Building. Edward Costello Art Estefan The Honorable James R. Norvell, Associate Carson Fussell Frazier Gorel Justice of the Supreme Court of Texas was the dis­ John Harris Steve Harris tinguished guest speaker of the evening. Bill Hyder Fred Manning Among guests present were: Father Louis J. Charles McConachie Jack McGinnis Blume, S.M., President of St. Mary's University; Robert Mueller Charles Muller Justice Char 1 e s W. Barrow, Associate Justice, Vick Putman Karl Rubenstein Fourth Court of Civil Appeals; Justice Carlos Lewis Vandiver 4 PAUL FERGUSON APPOINTED TO LAW FACULTY

St. Mary's University School of Law has re­ cently added a new staff member. Mr. Paul Fergu­ son is the new Law Librarian. Mr. Ferguson was born February 16, 1925, in Danvers, Massachusetts. He got his BA degree from Harvard College and his LLB degree from Boston University School of Law. While attending Boston University, he was on the editorial staff of the Boston University Law Review. During 1943-1946, he served as a Lieutenant in the United States a text on the subject. The tools of legal research Marine Corps Reserve. A member of the Massachu­ setts Bar for thirteen years, he s·erved as Law Libra­ must actually be us·ed by the student in solving rian of the Essex County Law Library in Salem, problems or writing legal memorandum. Massachusetts. Q. Besides the snow, is there any thing in Boston He is married to the former Mary Caulfield and in particular that you now miss? they have four children: Paul Jr., Peter, Anne, and A. Although at times I sense that there is a minor Mark. In addition to his duties as Law Librarian, language barrier, and I have not lost my "Boston Mr. Ferguson will teach Legal Bibliography, Dam­ Accent," we are able to communicate with our fel­ ages and Leg-al Research and Writing. low San Antonians. The children will undoubtedly Q. In your former employment, what type of work miss the snow, and New England in the fall and did you mostly perform? spring of the year is truly beautiful. A. I was engaged in the general practiee of law Q. On the positive side, what has appealed to you in Massachusetts and specialized in appellate proce­ most about Texas and San Antonio? dure and legal research for other attorneys on a A. I am enjoying San Antonio and Texas generally. referal basis. The people are most friendly and are more out­ Q. In view of your legal research experience, do going than the typical New Englander. The geo­ you think that law graduates have an adequate graphy of the area offers many interesting con­ research background? trasts, and my family and I are looking forward to A. As Law Librarian of a court library and as an ·exploring the Southwest. My children are actually attorney handling appellate cases, I found that law becoming accustomed to having enchiladas on the school graduates for the most part indicated a need school lunch menu on Wednesdays instead of corn for more training in the use of legal research ma­ beef and cabbage. terial and in the field of legal writing generally. In When I am asked, however, how I like San An­ the latter instance, the deficiency may be caused tonio and Texas, I am reminded of the story of the by some omission on the college and secondary two dowager sisters from Boston who inherited school level rather than in the law school curriculum. a beautiful estate in California overlooking the Q. Could a s t u d e n t interested in learning the Pacific. After they had lived in their new home methods of legal research learn them by reading a for several months, one sister asked the other how legal research book? she liked living in California and the other replied, A. It is difficult, if not impossible, for one to be­ "It's all very lovely, but I deplore being three thou­ come proficient in legal research by merely reading sand miles from the ocean." 5 L About the Author a member of the Lambda Chi Alpha social fratern­ Richard J. Clarkson did his undergraduate work ity, serving as a representative to the interfrater­ at the University of Florida at Gainesville, Florida; nity council. St. John Vianney Seminary, Miami, Florida, and completed his work for an undergraduate degree in H·e worked on the preparation of the New philosophy and classical languages at St. Vincent de Catholic Encyclopedia at the Catholic University of Paul Seminary, Boynton Beach, Florida in 1964. In America, Washington, D.C. He is currently serving 1965 he completed a year of graduate studies in as a Law Clerk to Professor James Castleberry in Theology at St. Vincent de Paul Seminary in the preparation of Professor Castleberry's contri­ Boynton Beach. bution to a text on water law in the U.S. While at the University of Florida, Mr. Clark­ Mr. Clarkson has pledged Delta Theta Phi legal son was the president of the Freshman Council and fraternity. He expects to graduate in 1968. The Texas Law On Underground Water by RICHARD J. CLARKSON With each succeeding year, the use of under­ balance with recharge. The economic effects on ground water in Texas continues to grow. In 1958, water users are painful, to say the least. As water 26 per eent of the acre-feet used for irrigation came lP.vels recede, large investments are required to from: surface sources, but this dropped to 18 per chase the supply downward. For example, wells cent by 1'964. It is estimated that Texas farmers may be deepened, pump bowls lowered, and power used 10 million acre-feet of underground irrigation plants enlarged. And the cost of all these must come water last year. An acre-foot is 326,851 gallons. 10 out of the income produeed by the use of the water5• million acre-feet of underground water are equal Now, having provided the reader with a few to the combined capacities of Lakes Texoma and prefatory remarks on the increasing importance of Rayburn.1 As for municipal and industrial require­ underground water, and some of the consequent ments of underground water, Texas used 994,400 problems in the life of Texas, we must proceed to acre-feet in 1959; by 1980, the requirem·ents are the major problems involved in any treatment of expected to reach approximately 1,300,400 acre­ the subject of underground water in Texas: the feet.2 problem of ownership and "waste." As a result of this greatly increased use of The Texas Supreme Court in 1955 reaffirmed underground water, a number of areas in the state in the Corpus Christi V. Pleasanton Case6 the fact have seen a significant drop in water levels. One that Texas follows the "English" rule as regards example involves the Carrizo-Wilcox aquifer (an the ownership of underground water. The Court's aquifer is a geologic formation which yields water appeal to authority rested in the main upon three in sufficient quantities to constitute a usable sup­ case: Acton v. BlundelF, Frazier v. Browns, and ply), and where it has been developed and pumpage the East ·Case.9 These cases, sadly enough were increased, the water levels have declined. Thus, decided before (1843-1904) the developm~nt of a general decline in water levels has occured most of our present knowledge of geology and in the Nacogdoches-Angelina County area hydrology. during the past twenty years due to periodic The "English'' rule as found in the Acton v. increas·es in pumpage. In 1940, the Carrizo­ Blundell Case is stated thusly: Wilcox levels in southern Nacogdoches and The owner of land through which water northern Angelina counties stood very near flows in a subterranean course, has no right the surface and several flowing wells were or interest in it which will enable him to reported. At present, nearly all wells pene­ maintain an action against a landowner, who, trating the aquifer have ceased to flow.3 in carrying on mining operations in his own A report prepared for the Texas Water Commission lands in the usual manner, drains away the on the ground-water resources of the Nueces River water from the land of the first-mentioned Basin stated that owner. and lays his well dry.to the most serious problem associated with the This case falls within the principle which gives to development of water from the Carrizo Sand the owner of the soil all that lies beneath his sur­ and Wilcox group, undifferentiated, in the face; that the land imm·ediately below is his prop­ Nueces River Basin ... (is that) ... con­ erty, whether it is porous rock or solid ground, or tinuing declines in some areas have resulted venous earth, or part soil, part water; that the in lower yields and increased pumping costs.4 person who owns the surface may dig therein, and Many areas of Texas as we have seen above apply all that is there found to his own purposes are depending more and more on underground at his free will and pleasure; and that if, in the sources for their water. The resulting overdraft of exercise of such right, he intercepts or drains off ground water which has occured frequently can the water collected from underground springs in end in complete depletion of the saturated zone in his neighbor's well, this inconvenience to his neigh­ shallow basins or, more commonly, in the lowering bor falls within the description of damnum absque of water levels to a depth at which further pumping injuria, which cannot become the ground for action. becomes prohibitively expensive and ·enough land In the Dickinson v. Gr.and J unction Canal Co. goes out of irrigation to bring the withdrawals into Case11 the Court said that the right to water is not 6 by a presumed grant from long acquiescence, but 'reasonable' by the Court.16 if it exists at all it is jure naturae, and that the We think the answer to Mr. Duggan's query was rules of law that regulate the rights of parties to found in Corpus Christi v. Pleasanton where the the use of water are hardly, or rather not at all, Court stated that even though 63 to 74 per cent of applicable in the case of waters percolating under­ the water withdrawn from artesian wells and dis­ ground. charged into the river escaped through evapora­ However. Chasemore v. Richards12 does a bet­ tion, transpiration and seepage and never reached ter job of stating the English viewpoint than the its destination to be put to a beneficial use that Acton v. Blundell Case : this was not an unlawful use of the water. Now The right to running water has always been if the word "reasonable" has any meaning at all, properly described as a natural right just it would s·eem that the Court was here saying that like the right to the air we breathe ; they the City of Corpus Christi could not be enjoined are gifts of nature, and no one has the right from using the water unreasonably. In fact, the to appropriate them. There is no difficulty Court seems to say that the only way that a land­ in enforcing that right, because running owner can be enjoined from the use of under­ water is something visible and no one can ground water taken from his own land is if the interfere without knowing whether he does water has been "wasted." The Court says that the not do injury to those whose are above or water is "wasted" only if it is put to an unlawful below him; but if the doctrine could be ap­ use at its destination. The gravamen of the wrong plied to merely percolating water, as if it is is made the fact that it is used for an unlawful flowing through the soil and eventually purpose and not the flowing of water into a con­ reaching the same stream, it would always duit from which an unreasonable amount might be a matter that would require the evidence evaporate. The Court by judicial construction says of scientific men to state whether or not that the landowner cannot "waste" the water he there had been an injury. It is a process of extracts from under his land, but so defines the nature, not apparent, and therefore such word that no consideration can be given to the percolating water has not received the pro­ amount of water dissipated between the time of its tection which running water in a natural production and time of use. Thus, the Court has channel on the surface has always received. construed itself out of the possibility of ever hav­ The English courts set a definite precedent ing "waste." One is perhaps reminded of a quote for the decision reached in the Corpus Christi v. from Lewis Carroll: "When I use a word," Humpty­ Pleasanton Case when they said that one might Dumpty said, "it means just what I choose it to purchase land in order to secure the percolating mean-neither more nor less.'' With the ever in­ water for the purpose of furnishing a municipal creasing use of ground water in Texas, the implica­ water supply and not be liable to the owner of the tions of this are rather frightening. In light of adjoining land, although the wells thereon be this, strong exception should be taken to the Court's destroyed.13 insistence on maintaining the "English" rule as Many American jurisdictions adopted the the law of Texas, and the basis on which it saw fit "English" rule and we find, perhaps, the best ex­ to construe the statutes defining "waste" of artesian pression of its raison d'etre in the case of Frazier well water.17 V. Brown where the Court states that the move­ Mr. W. L. Matthews, Esq., perhaps states best ment of underground waters "are so secret, occult, the inequity of the Texas law of underground water and concealed that an attempt to administer any as presently construed by the courts: set of legal rules in respect to them would be in­ In the recent cas·es the Texas courts say volved in hopeless uncertainty, and would, there­ that the decision in the East Case bars the fore, be practically impossible.'.14 For further Amer­ recognition of "correlative rights." Since the ican cases applying the "English" rule, s·ee: Green­ Supreme Court in the East Case, as well as leaf v. Francis 18 Pick. 117; Chatfield v. Wilson 28 the subsequent cases, recognizes that each VT. 49; Westmoreland Nat. ~ Gas Co. v. Dewitt 130 owner of overlying land has an equal right Pa.235; Saddler v. Lee, 66 Ga. 45, 42 Am. Rep. 62; to take and exploit the underground water Wardner v. Springfield, 90 Ohio Dec. (reprint) 855. from the common source, there is no ques­ The landmark case in Texas determining the tion that their rights are correctly described ownership of underground water was Houston & by the word "correlative." Texas Central Ry. Co. v. East,15 and it took its W.hat the Court really means is that they rationale from the Frazier v. Brown 'Case which will put no restraint on an owner's activities was mentioned above. The East Case determines even though such activities destroy or nullify that percolating waters may be impounded to any the identical and equal rights of neighbors. extent, regardless of the effect on the water supply In other words, the courts refuse to grant a of the adjoining owners. rem·edy for what ordinarily would be called Although Mr. Arthur P. Duggan, Esq., said a wrong. Surely the landowner who desires hopefully in 1952 that: although it has been to take clearly excessive amounts of water widely assumed that Texas is irrevocably has no vested right to have this "no remedy" committed to the absolute ownership theory rule applied against other landowners hav­ in the strictest sense, the Texas Supreme ing equal rights in a common underground Court in the H.&T.C. V. East case did not source.1s express itself as to what the decision would In the following pages we hope to show the have been had the use not been considered inequities and anachronisms of Texas' following the 7 "English" rule, and the Court's refusal to apply correlative rights.22 But can we take this venerable reason in its construction of the meaning of "waste" common law and just throw it in the junk pile? This as defined in article 7602,R.C.S. 1925. Finally, we author not only thinks we can, but that we should. shall make some proposals of our own. The "English'' rule was developed in a time of In the Corpus Christi v. Pleasant'on Case, the water surplus and is suitable, perhaps, to the humid court in affirming the "English" rule appealed to regions of the Eastern United States.23 Texas, how­ the East Case which followed the old English case ever ,is semi-arid and we find the common law of Acton v. Blundell. The rationale behind this in this instance harsh. The reason for a water law's English case, and in the cases following it, is that existence should not be its antiquity but because it the origin, quantity, movement and course of under­ has sound support in the hydrology of the region in ground water was "so secret, occult and concealed." which the law is to have effect.24 The classic state­ Thus, the denial of the applicability to underground ment in defense of this view is found in the waters of the general principles of law that obtain Crookston Case; the Court said with respect to waters upon the surface of the earth In this country the English rule is not bind­ is in part placed upon the mere difficulty of proving ing upon the American Courts. It does not the facts respecting water that is concealed from create rights and duties which American view. But at this time such reasons are not valid Courts must recognize, as they would be com­ as our geologists now know how to trace under­ pelled to recognize rights and duties created ground waters and can determine their source. In by that common law which is a part of the the words of W. L. Broadhurst, district geologist, law of the land; like the law, for example, ground water branch, U.S. Geological Survey. of trespass to persons or property. The Amer­ The amount of water that can be obtained ican Courts are confronted with varying and, from an underground reservoir depends on in many cases, utterly different geological several factors which include permeability, conditions and problems of water supply. It quantity of water in storage, rate of recharge, is evident on its face that rules which might and movement of water through the forma­ work well in an island like England might tion. Within reasonable limits, the modern operate disastrously if indiscriminately ap­ hydrologist can determine these factors and plied to so diversified a continent as this, thereby estimate the quantity of water that with its overlying mountainous regions, its may be pumped, ·either within a short time well watered plains, its stretches of arid land or throughout a long period.t9 onee known as the 'Great American Desert; Our Texas Board of Water Engineers has conducted and its different lake regions. Nothing is state-wide reconnaissance studies determining the better settled than that the fundamental amount and location of groundwater supplies.20 principles of right and justice, on which the Thus, when the origin, movement, quantity, etc., of common law is founded and which its admin­ underground water is known, the reason for the istration is intended to promote, require that "English'' rule at once vanishes. a different rule should be adopted whenever It has always been held to be the law, both in it is found that, owing to the physical fea­ England and Am·erica, that underground flowing tures and character of a state and the pecul­ streams can no more be interfered with than sur­ iarities of its climate, soil, products and face streams. Bearing this in mind, we fail to under­ water supply, the application of a common stand why a different rule should be applied to law rule tends constantly to cause injustice underground (percolating) water when our geolo­ and wrong rather than the administration of gists and hydrologists know as much about it as justice and right. Water, although in a large they do our surface water. For as J. B. Clayberg measure a commodity of commerce, is essen­ says: tial to the natural use of land for agricul­ The only difference between flowing streams ture and other purposes, and to the support and diffuse percolating water is their free­ of human life, itself.25 ness and rapidity of movement. All water, Professor Ira P. Hildebrand of the University no matter how infinitesimal the particles or of Texas Law School as far back as 1927 said: J how large the volume may be, are governed The California rule should certainly be fol­ by the same law. In flowing waters there are lowed in those parts of the state where the no sufficient natural impediments to prevent soil is underlaid with enormous basins of rapidity of m o t ion , while in percolating percolating waters. In such cases the owner waters nature has placed many impediments of a small tract of land should not be per­ and their motion is much retarded. When a mitted to build a deep pit on his land and raindrop falls on a mountainside and sinks impound all of the percolating water from into the earth, unless it is destroyed or used the adjoining tracts, but the waters should up, it will eventually reach a flowing stream be equitably distributed among the owners if there is any possible outlet thereto. There­ of the soil above the water-bearing sand.26 fore, all drops of water should be consid­ Indeed, it is to California, in the main, that we ered as tributary to a flowing stream, al­ must look to find underground water laws that could though the process and period of reaching be adopted by the Texas courts. the stream may be entirely different.2t In the California case of Katz v. Walkinshaw,27 Since w·e can now apply the same rules to the Court refused to be bound by the "English" rule underground waters as we do to surface waters, the relative to the ownership of percolating waters. In­ rule that replaces the "English" rule will be one of stead, the Court looked to the landmark case of 8 Bassett v. Salisbury Mfg. Co.,2s and upon the doc­ Case had been decided by the reasonable use rule. trine of "reasonable use" enunciated therein. "The Thus it was held that the property right of land­ doctrine of reasonable use on the other hand affords owners conferred by statute in water flowing under some measure of protection to property now exist­ the surface of the land but not in a definite stream ing and greater justification for the attempt to is subj·ect to the rule of reasonable beneficial use. make new developments.'' The Court applies the old The doctrine of reasonable use limits the right of rule of non alienum laedas and practically holds the landowner to use such amount of percolating that the maxim cujus est solum does not apply. waters under this land as may be necessary for some The rule here announced is in effect that rights useful purpose connected with the land. Where sub­ to percolating water are correlative and that no terranean percolating waters constitute a common landowner absolutely owns the percolating water source of supply, one landowner may not extract and beneath the surface of his land; that the same convey such waters from his land to the impair­ right is held by each and all owners of land under ment or injury of prior reasonable beneficial use by which percolating waters of any catchment basin another landowner; and offending landowners, in­ exist. cluding municipalities, are liable in damages. Judge Temple in his opinion in the Katz v. For a case closer to home, we have Enid v. 33 Wa~kinshaw Case cites favorably the Smith v. The Crow, Oklahoma. It appeared that the city by drill­ City of Brooklyn Case,29 and the Forbell v. The City ing a water well on property adjacent to the plain­ of New York Case.3o Following the Smith Case, tiff's property and by withdrawing percolating un­ Judge Temple says: derground waters for sale off the premises, had In the absence of contract or enactment, reduced the Plaintiff's water supply. The land­ whatever it is reasonable for the owner to owners were entitled to damages under the rule thus do with sub-surface water, regard being had stated in syllabus 4 by the court, "Where an owner to the definite rights of others, he may do. of subterranean percolating waters withdraws such He may make the most of it that he reason­ waters for the purpose of transporting and selling ably can. It is not unreasonable (emphasis said water off the premises, resulting in a material ours) so far it is now apparent to us that interference with a neighboring landowner's right he should dig wells and take therefrom all to the reasonable use of subsurface water on his the water that he needs in order to have the land, he is liable for damages thereby." fullest enjoyment and usefulness of his land, Among other cases holding that one landowner as land, ·either for the purpose of pleasure, is not entitled to take underlying percolating water abode, productiveness of soil, trade, manu­ from a common source and transport it to distant facture, or for whatever else the land as land lands not overlying the common supply if such tak­ may serve. He may consume it, but he must ing is injurious to other landowners occupyinO' simi­ not discharge it to the injury of others. But lar positions with respect to that supply are Meeker to fit it up with wells and pumps of such v. East Orange, 77 N.J. Lew 623, 74 A.379, pervasive and potential reach that from their 25L.R.A.,N.S.,465, 134 Am. St. Rep. 798; Schenck base the defendant can tap the water stored v. City of Ann Arbor, 196 Mich. 75, 163 N.W. 109, in plaintiff's land, and in all the region there­ L.~.A.1917 F, 684, Ann. Cas. 1918E, 267; Koch v. about, and lead it to his own land, and by Wick, Fla., 87 So. 2d 47; Rothranff v. Sinking Spring merchandising it prevent its return, is how­ Water Co., 339 Pa. 129, 14 A 2d 87. ever reasonable it may appear to the defend­ The "California'' doctrine seems manifestly ant and its customers, unreasonable as to the more equitable and hydrologically correct for our plaintiff and others whose lands are thus own semi-arid state; why have not the courts taken clandestinely sapped and their value advantage of the new advances in geological science impaired. 31 ~nd s~t-aside the old "English" rule? Although one Thus we find California after the Case of Katz In this day and time often hears criticism of the v. Walkinshaw developing what is known as the rapidity with which some of our courts are setting­ California doctrine of correlative rights. 1.) Owners aside long established laws, we think Chief Justice of all lands that overlie a common supply of perco­ Traynor of California cam·e closest to the truth when lating water have coequal rights of reasonable bene­ he said, "The real danger to law is not that judges ficial use of the water on or in connection with their may take off onward and upward, but that all too overlying lands; 2.) any surplus above their re·ason­ many of them have long since stopped dead in the able requirements may-be appropriated for distant tracks of their predecessors."34 The Texas courts use, or for public utility use within the area; 3.) in seem to prefer the reasoning of a law that was de­ the event of a shortage, the common supply may be veloped in another country having no hydrological apportioned among the overlying landowners in pro­ or geological similarities to our own state at a portion to their reasonable needs; 4.) rights in per­ time-over a hundred years ago-when all' under colating waters physically connected with a surface the ground was "occult and mysterious." Some un­ stream or other source of water-all of which sources disclosed premise must underlie that preference. are considered a common supply-are correlated Until that premise has been brought out into the with all other rights of use that pertain to such open where we can see it and examine it we think common supply. 32 we may be forgiven for not being unduly cowed by As we can see, the "California" doctrine is the tone of inevitability that the Court attaches to much more refined than the original concept of the its conclusions. rule of reasonable use. We can see what might have As mentioned above, the Corpus Christi v. been the result if the Corpus Christi v. Pleasanton Pleasanton Case besides .reaffirming the "English" 9 rule so construed the definition of "waste'' found passed and makes the statute void, meaning­ in REV. Civ. Stat. article 7602 that it virtually con­ less and of no force and effect, and holds that strued it out of existence. Justice Griffin (dissent­ the legislature accomplished nothing and ing) stated the problem perfectly: only used a jumbled jargon of ineffective If no consideration is to be given the amount words to bring about a negative result, then of water that is dissipated between the the courts must give a statute the former time of its production and time of use, then construction. we can never have waste. If the Court had wanted to construe the statute, The statute in question reads as follows: art. 7602, favorably and still rely on precedent what Waste is defined for the purpose of this act, more did they need than the East Case and Cantwell in relation to artesian wells to be the caus­ v. Zenser? However, as the Court interpreted the ing, suffering or permitting the waters of an statute, of the 10,000,000 gallons withdrawn from artesian we I to flow into any river, creek or the artesian wells daily, all could be dissipated if other natural water course or drain, super­ a cupful reaching the city were to be used for a ficial or underground channel, bayou, or into legal purpos·e. This is obviously a complete frustra­ any sewer, street, road, highway, or upon the tion of the n1eaning of the word "conservation." land of any other person than that of the Judge Wilson (dissenting), says: owner of such well, or upon the public lands The majority .feel compelled to this result by or to run or percolate through the strata the belief that the problem is primarily legis­ above that in which the water is found, lative. It is indeed commendable for a court unless it be used for the purposes and in the to impose upon itself a rigid self control in manner in which it may be lawfully used on refusing to trespass upon the legislative func­ the premises of the owner of such well. tion, but I do not believe the courts to be As pointed out in Cantwell v. Zinser35 art. 7602 is a impotent in preventing such a waste and conservation statute enacted pursuant to the con­ especially so when existing legislation prop­ stitutionally declared policy of cons·ervation of erly construed against common law back­ natural resources, Constitution of Texas, art. 16, ground would prevent it. Sec. 59 (a), and is in harmony with the definition Judge Cardozo was perhaps thinking of a situation of "waste" contained in Section A ( 16) of art. such as this when he said: 7880-3c, R.C.S., Vernon's Ann. Civ. St. As inter­ Judges march at tim·es to pitiless conclusions preted by the Court, article 7602 would have to be under the prod of a remorseless logic which interpreted as a license to commit waste, rather is supposed to leave them no alternative. than as a conservation statute. They deplore the sacrificial rite. They per­ What is rather ironic in this case is that the form it, none the less, with averted gaze, con­ Court in its strict adherence to past Court decisions vinced as they plunge the knife that they and its determination not to break new ground obey the bidding of their office. The victim seemed in this instance not to take cognizance of is offered up to the gods of jurisprudence on a rather important passage in Cantwell v. Zinser the altar of regularity.36 In (the East) Case the Court did not pass The majority, though feeling their hands were upon the right of a person to intercept and tied, seen1 to have felt the unfortunateness of their waste percolating water to the detriment of decision when they noted that the legislature was an adjoining owner because such facts were to meet shortly after the delivery of their opinion not before the Court. Authorities are cited and that the legislature could make whatever by the Court, however, which hold that such changes in the law it felt necessary. right does not exist. We agree with such It has been more than ten years since that holdings. decision and the legislature has yet to act; however, Waste of natural resources is against the when and if it does, I propose the following points public policy of this state. Many conserva­ for consideration: that it be recognized that the tion laws have been enacted by our legisla­ rights of overlying owners in the subsurface waters ture which evidence such policy. They apply are correlative in nature; that one landowner may to privately owned as well as publicly owned not withdraw such waters for the purpose of tran­ resources. These laws need not be cited as sporting and selling said water off the premises they are generally known. We do call atten­ when it results in a material interference with a tion to articles 7600-7602, incl. Vernon's Ann. neighboring landowner's right to the reasonable use Civ. St., which make the waste of water from of subsurface water on his land; offending land­ artesian wells, a nuisance. owners, including municipalities, to be liable in Again in Corpus Christi v. Pleasanton, Judge damages; that "waste" of subsurface waters be Griffin in dissenting said: defined as escape from beneficial use; that any It is a fundamental rule of statutory con­ landowner in violation of this statutory definition struction that when courts have a choice to may be enjoined by any other owner or owners. construe statutes so that one construction However, if the legislature cannot achieve this, gives the statute a valid, legal and reasonable and retains current water rights which protect and (emphasis ours) construction which will ef­ sustain gross inefficiencies, the community should fect the intent and purpose of the legisla­ be given the power to tax or charge for the water ture in the passing of a law, or a construc­ wasted. The definition of "waste" can be progres­ tion which gives a statute no meaning to sively tightened so that losses now considered "un­ accomplish the purpose for which it was avoidable" can be increasingly charged as a respon- 10 sibility of the right holder. Thus a water right may eventually carry not only the assurance of a share of the water but also a share of the responsibility Delta Theta Phi for such items as evaporation from reservoirs, phreatophytes along ditches and canals and along On September 25th, Bickett Senate held its streams, and contaminants and pollutants in non­ initiation and is proud to announce the following consumptively used water. This would be a severence new members: Arthur Abraham, Kirby Ambler, Ed tax. Chastaine, George Cooper, Douglas Drury, Frank Ford, Alvaro Garza, Don Hendrie, Gerald Lopez, Paul Redman, and Guy Spiller. The ceremony was Footnotes held in the courtroom of Judge Hippo Garcia, County Court at Law Number Two of Bexar County, 1. "Underground Water in Texas Plentif ul," The San followed by a reception at the Old Heidelberg Inn. Antonio Light, (Dec. 12, 1965), p. 8AA. Alumni and members of Bickett Senate were present 2. Texas Board of Water Engineers, "A Plan For Meeting to preside in the function and welcome our new the 1980 Water Requirements of Texas) (May 1961) , brothers. p. 19-20. 3. Texas Water Commission, Reconnaissance Investigation On October 15th, Bickett Senate held its Fall of the Ground-Water Resources of the Neches River Rush Banquet at the Four Brothers Restaurant. Basin, Texas, Bulletin # 6308, (August 1963), p. 30. Guest speaker was the Honorable James Barlow, 4. Texas Water Commission, Reconnaissance Investigations Bexar County District Attorney. Later in the eve­ of the Ground-Water Resources of! the Guadalupe, San ning members and honored guests were entertained Antonio, and Nueces River Basins, Texas, Bulletin by a dazzling array of Spanish folk dancers, ar­ #6409. (August 1964), p. 87. ranged by Mrs. Douglas Drury and Mrs. Alvaro 5. George H. Davis, "Management of Water in Arid Lands," Garza, wives of two of the brothers. The evening Natural History, (August-September, 19•64), p. 26. progressed with cocktails and dancing for 200 guests 6. City .of Corpus Christi v. City of Pleasanton, 276 S.W. and members. 2d 798. Rush Week continued with a stag barbecue at 7. Actc•n v. Blundell, 12 M.&W. 324. the suburban retreat of our Alumni Brother 8. Frazier v. Brown, 12 Ohio St. 294. Lamoine Holland. Attendance was by alumni mem­ 9. Houston & Texas Central Ry. Co. v. East, 98 Tex. 146, ber and rushees. 81 s.w. 279. Rush Week resulted as one of the most success­ 10. Acton v. Blundell, 12 M. & W. 324. ful with the acceptance of 34 new pledges to Delta 11. Dickinson v. Grand Junction Canal Co., 7 Exch. Rep. 282. Theta Phi. Pledging ceremonies are expected to be 12. Chasemore v. Richards, 7 H. of L. Cas. 349. held on November 6th. 13. New River v. Johnson, 2 E & E. 435. The following members are on the Dean's List, 14. Frazier v. Brown, 12 Ohio St. 294. 15. H c·uston & Texas Central Ry. Co . v. E ast,, 98 Tex. 146, Marcel N otzon, John J onietz, Stanley Burch, Gerald 81 s.w. 279. Lopez, Wesley G. Knize, Weldon C. Byrd, Raymond 16. Arthur P. Duggan, "Texas Ground Water Law," Proceed­ Manning, Wayne Priest and John Y. Harper. ings: Texas Water Law Conference (1952-5b), p. 15. 17. Articles 7601, 7602, 7606-7608, R.C.S. 1925. 18. W. L. Matthews, "Ground Water Rights and Regula­ tions," "Proceedings: Texas Water Law Conference (1959), p. 7. 19. W. L. Broadhurst, "Ground Water H ydrology," "Pro­ Mrs. Harriet Owen, a senior student from ceedings: Texas Water Law Conference (1952-54) , p. 6. 20. Texas Water Commission Bulletins #6305- 63 09., 6409, Austin, was recently elected president of the student 6502. body at St. Mary's University School of Law. Run­ 21. 14 Mich. L. Rev. 119. ning unopposed, she received a total of 147 votes. 22. Farnham, Waters Sec. 935. Election officials said a total of 181 students 23. H. E. Thomas ~ "Ground Water and the Law," Gec·logical voted in the primary election on Monday, October Survey Circular 446, U.S. Dept. of Interior (1961) p. 1-6. 17, conducted by the Barristers Student Bar Asso­ 24. H. E. Thomas, "Water Rights in Areas of Grand-water ciation. A total of 112 students voted in the runoff Mining," Geological Survey Circular 347, U.S. Dept. of Interior, (1955) p. 1-15. election shortly after the primary. 25. E rickson v. Crookston Water Co., 100 Minn. 481, 111 The 181 votes casted in the primary amounted N.W. 391. to slightly more than one-half of the students 26. 6 Tex. L. Rev. 47-48. eligible to vote. 27. Katz v. Walkinshaw, 141 Calif. 116, 74 P. 766. Jesse Gamez was elected vice-president, win­ 28. Bassett v. Salisbury Mfg. Go., 43 N.H. 569, 82 AM. ning over Richard Clarkson with a vote of 112 to Dec. 179. 64. Elected to other offices were, Hector DePena, 29. Smith v. The City of BrctOklyn, 36 N.Y. Supp. 141, secretary; Karl Rubenstein, treasurer; Richard 18 App. Div. 340. Haynes, historian; Pat Thomas, sergeant-at-arms; 30. Forbell v. The City of New York, 164 N.Y. 522. Michael Schill, parliamentarian; and Vic Putman, 31. Katz v. Walkinshaw,, 141 Calif. 116, 74 P. 766. 32. Wells A. Hutchins, Trends in the Statutory Law of ALSA co-ordinator. Ground Water in the Western States, (1955), p. 159-160. The only race formed into a runoff was that of 33. Enid v. Crow, Okla., 316 P.2d 834. ALSA alternate. The winner was Bennie Bock. 34. Time (Jan. 21, 1966). President Owens said, "I want to thank those 35. Cantwell v. Zinser, 208 S.W.2d. 577. students who ran in the ·election and also those who 36. Margaret E. Hall (edited by), Selected Writings of worked at the polls. Without their effort we could Benjamin Nathan Cardozo, p. 215. not have a student body association at St. Mary's." 11 The Pres1:dent and Faculty of the St. Mary's University School of Law cordially 1:nvite you to attend the I Groundbreaking Ceremony for the new Center of Law Woodlawn Campus, 2700 Cincinnati A venue 11 o'clock in the m orning Tuesday, November Twenty-second N in eteen Hundred and Sixty-six

Please enter the campus at the Ligustrum Street entrance off W. Woodlawn Ave.

DEAN'S LIST

SUMMER SEMESTER 1966 At the end of each sem·ester, those students who have completed two full semesters of law work, and whose cumulative average places them in the upper ten per cent of the total student body, are placed upon the Dean's Honor List, as students of academic distinction, and their names are recorded as a matter of permanent record. Only those students carrying a normal load or more are eligible. (8 hours-Day Division-3 hours-Evening Division). DAY DIVISION 1. Putman, Vick ····------83.3 40 2. Notzon, Marcel C. ______82.6 79 3. Tedford, Charles ______81.7 39 4. Grant, Patricia ______': __ 81.6 90 5. Owen, Harriet ______81.2 79 6. Jonietz, John ______78.2 91 Harris, Steve W. ______78.2 26 7. Bingham Lloyd ______78.0 62 8. Courtney, John ______77.8 61 9. Burch, Stanley E. ______77.0 61 Thomas, Patrick ______77.0 36 10. Williams, Donald ______75.8 52 Lopez, Gerald ______75.8 47 11. Knize, Wesley G. ______75.7 59 12. Carson, Marion ______75.6 74 13. Byrd, Weldon C. ______75.4 70 14. Manning, Raymond ______75.2 77 Estefan, Arthur ______75.2 30 EVENING DIVIVSION 1. Hill, Roger C. ______84.2 47 2. Taylor, Edwin A. ______82.4 81 3. Benson, Philip ______81.3 61 4. Gilbert, Marlin ______80.4 72 Priest, Wayne ______80.4 45 5. Dawson, Emmett ______80.0 28 6. Holland, William E. ______78.4 75 7. Harper, John Y. -~------78.4 46 8. Adams, William ______77.8 86 SCHOOL AVERAGE ______74.4