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Court Holds Landowners Have Property Right to Ground Water Under Their Land

2004-0357 and 2004-0363. McNamara v. Rittman, 2005-Ohio-6433.
Certified Questions of State Law from the United States Court of Appeals for the Sixth Circuit, Nos. 02-3778 and 02-3965. The certified questions are answered. See opinion.
Resnick, Pfeifer, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Moyer, C.J., and Lundberg Stratton, J., concur in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2005/2005-Ohio-6433.pdf

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(Dec. 21, 2005) The Supreme Court of Ohio ruled unanimously today that landowners have a property right in the groundwater under their land, and that governmental interference with that right can constitute a “taking” of property for which the owner is entitled to compensation.

The cases involved virtually identical claims by two groups of homeowners whose private wells “went dry” as a direct result of public works projects to meet the water and sewer system needs of nearby cities.

Harry McNamara and other homeowners near the Wayne County village of Sterling lost the use of their wells when the City of Rittman, 10 miles away, purchased land in their area and installed a well field that pumped 500,000 to 750,000 gallons of water a day out of the local aquifer to meet the needs of city residents. Dorothy Hensley and several dozen of her neighbors in northeast Franklin County lost the use of the wells that supplied all of their household water needs when the City of Columbus deliberately lowered the groundwater table in their area in order to excavate for an extension of the city's water and sewer service lines to rapidly developing suburban areas.

Both groups attempted but failed to recover damages in state court by suing the respective cities under a 1984 decision of the Supreme Court of Ohio, Cline v. American Aggregates, for causing them harm by unreasonably diverting groundwater necessary to the owners' use and enjoyment of their homes. In both cases, the trial courts granted summary judgment to the cities and the local courts of appeals upheld those judgments, ruling that municipalities are immune from tort liability for non-negligent actions when an action that causes damages was “authorized by law” or “necessary or essential to the exercise of powers of the political subdivision.”

Both sets of plaintiffs took their cases to federal court, asserting claims that the cities' diversion of the groundwater underlying their homes was an unconstitutional “taking” of their property without just compensation and without due process of law as required by the 5th and 14th amendments to the U.S. Constitution. Hensley's case was heard by the U.S. District Court for Southern Ohio, which found that there could be no taking unless the homeowners had an ownership right to groundwater recognized under state law. Citing the only Ohio appellate decision directly addressing this issue, Smith v. Summit County, the court found no basis in that case to rule that Ohio courts have recognized a homeowner's property right to the groundwater under his home.

McNamara's federal action was heard in the U.S. District Court for Northern Ohio, which did not decide whether the petitioners had a property right to groundwater, but instead granted summary judgment to Rittman on procedural grounds, finding that McNamara and his fellow plaintiffs had not sought relief in federal court within a two-year statute of limitations. Both groups of plaintiffs appealed the dismissal of their federal actions to the U.S. Sixth Circuit, which consolidated the cases. Before deciding the legal issue raised by the plaintiffs, the Sixth Circuit asked the Supreme Court of Ohio for an advisory ruling on the specific issue of whether Ohio law recognizes homeowners' property right to such use of the groundwater under their property as is necessary for the use and enjoyment of their homes.

In today's decision, the Court held unanimously that such a property right does exist under Ohio law, and that governmental interference with that right can constitute a “taking” for which the property owner is entitled to compensation.

Writing for the Court, Justice Paul E. Pfeifer noted that, for more than a century, Ohio law regarding the ownership of groundwater was based on this Court's 1861 decision in Frazier v. Brown. In that case, because the existence and course of underground waters was largely untraceable using the scientific tools available at the time, the Court held that each owner of a piece of land was presumed to have total ownership and control of groundwater under his land, regardless of the impact one property owner's use of groundwater might have on adjacent properties.

Justice Pfeifer wrote that when the Court handed down its Cline decision in 1984, it abandoned the absolute standard set by Frazier and instead adopted a “reasonable use” standard that restricted a land owner's right to groundwater to the point where his use “unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure, (or that) the withdrawal of groundwater exceeds the proprietor's reasonable share of the annual supply or total store of groundwater.”

“Through Cline, a property owner has a remedy against another property owner with land overlying a common aquifer, if the other landowner's use of the water unreasonably diminishes his water supply,” wrote Justice Pfeifer. “Under Cline, a property owner's right to use the water underlying his property is not subject to a neighboring property owner's superior pumping system, as it would have been under Frazier. Instead, a landowner's right to the water underlying his property is protected by law. A property owner has a potential cause of action against anyone who unreasonably interferes with his property right in groundwater.”

In applying Cline's recognition of “reasonable use” of groundwater in the context of a local government taking of property, Justice Pfeifer wrote that Ohio law does not require that a property owner prove legal “ownership” of the water itself in order to assert a claim for compensation when his use of groundwater is unreasonably impaired. Citing case law from Washington, Nevada, North Dakota, Florida and the U.S. Supreme Court, Justice Pfeifer wrote that “(r)ights appurtenant to property are protected from government invasion, and water rights are appurtenant to title in real property. Separate title to the actual groundwater is not required to protect a landowner's use of that water.”

Steven J, Edwards, 614.875.6661, for Harry McNamara, Dorothy Hensley, and other plaintiff homeowners.

Patricia A. Delaney, 614.645.6933, for the City of Columbus.

Jack R. Baker, 330.499.6000, for the City of Rittman.