author: DWYER, Judge.

text:
    Ben F. HUDDLESTON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 5, 1978.
    Certiorari Denied by Supreme Court Dec. 29, 1978.

      Harold W. McLeary, Jr., Humboldt, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, A. H. Schoonover, Asst. Dist. Atty. Gen., Trenton, for appellee.
   OPINION

DWYER, Judge.

This is a delayed appeal from two convictions for committing the offense of robbery with a deadly weapon, T.C.A. 39-3901, with resulting punishment of confinement for ten years, and for committing the offense of assault with intent to commit voluntary manslaughter, with resulting punishment of confinement for not less than two nor more than two years. This delayed appeal is the aftermath of a post-conviction proceeding wherein the trial court of Gibson County determined that appellant was denied his appeal because of indigency.

There are six assignments of error contending that the conviction was had contrary to the law. In his first assignment of error he contends that the two criminal offenses, robbery and assault to commit murder in the first degree, were the result of one criminal episode and that the same evidence is required to make out both offenses. His second assignment of error contends that running the sentences consecutive was astray of the holding of Gray v. State, 538 S.W.2d 391 (Tenn.1976). The third assignment of error contends the trial court erred in allowing a police officer to testify over objections that the victim of the robbery identified the appellant as the robber. The fourth assignment of error is that the trial court erred in allowing the police officer to testify as to the victim’s prior identification of the automobile used in the commission of the criminal offenses. The fifth assignment of error is that the trial court erred in allowing the cross examination of a defense witness by the State’s attorney regarding statements and gestures made by a third person who was not a witness at the trial and whose testimony was not otherwise introduced at trial. The sixth assignment of error contends that the trial court erred in allowing the State’s attorney to cross examine a defense witness with regard to a weapon that was not presented in evidence and which weapon was not shown to be involved in the alleged commission of the criminal offense for which the appellant was tried. While there is no assignment of error attacking the sufficiency of the evidence, we will briefly narrate the facts as found from our review of this record.

A John Mehr, testifying for the State, related that he was an undercover agent for the T.B.I. in Gibson County; that in June of 1975, he met a Charles Pirtle and attempted to buy drugs from him and by prearrangement he followed Pirtle to Humboldt in order to meet a man to acquire the drugs. In Humboldt Pirtle pointed out the appellant as the drug seller and talked with him. Pirtle and the appellant then called Mehr over and discussed the sale of drugs. Mehr agreed to ride with the appellant and Pirtle to the appellant’s “stash”. They rode in a 1965 blue four-door Chevrolet which was driven by the appellant. The right front door of the car did not close properly and the back seat was torn at the time. The evidence later reflected that this car belonged to appellant’s father. At a deserted intersection some miles outside of Humboldt they stopped the car ostensibly so that Pirtle could go to the restroom. When Pir-tle returned to the car he and appellant grabbed Mehr and the two of them proceeded to beat him about the head and body. They took Mehr’s revolver, knife, a gold watch, and approximately $98. During the struggle Mehr suffered a head wound which bled in the car. They then pulled Mehr from the automobile, tied his hands and feet together and left him lying alongside the road. As they drove away a shot was fired at Mehr which hit within four to six feet from him. The appellant testified and denied the robbery and the assault on Mehr. There were other witnesses called by appellant, one being Pirtle who testified that the appellant did not participate in the robbery and the assault. The father, mother, and brother of the appellant testified that Mehr had at first identified the younger brother of appellant as his assailant.

The first assignment of error: this assignment of error has been laid to rest with the advent of State v. Black, 524 S.W.2d 913 (Tenn.1975). Our Supreme Court in that authority dispatched a similar contention as urged by the appellant in this assignment. It is accordingly overruled.

The second assignment of error: while it is true this record does not conform to the Gray v. State, 538 S.W.2d 391 (Tenn.1976) standard as to the imposition of consecutive sentences that, however, does not answer the question. The convictions of appellant in the case sub judice were rendered on October 28, 1975, and Gray was not handed down until June 1, 1976. We decline to hold Gray retroactive. There is no merit in this assignment. It is accordingly overruled.

The third assignment of error: with the appellant’s cross examination attempting to impeach the victim, that he identified appellant’s brother as his assailant, it was not error for the trial court to allow the officer to testify on direct examination that the victim Mehr identified appellant at the time of his arrest and not his brother. Unlike Blankenship v. State, 1 Tenn.Cr.App. 178, 432 S.W.2d 679 (1967), in that authority the objectionable identification was not in the presence of the appellant as was here. This assignment is overruled.

The fourth assignment of error: we think that it was error for the officer to testify that the photographs of the automobile represented the car as identified to him by Mehr. We think this was harmless and did not affect the results. T.C.A. 27-117. This assignment of error is overruled.

The fifth and sixth assignments of error: the State’s cross examination of the appellant’s mother, wherein it was developed that the father of appellant had to be restrained from attacking Pirtle at appellant’s house during his son’s arrest, and the questions of the State’s attorney regarding a pistol that was recovered from appellant’s house, with neither event relating to the guilt or innocence of the appellant, there was no error. These assignments are overruled.

The judgment of the trial court is affirmed.

DUNCAN and BYERS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    James HENDERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 5, 1978.
    Certiorari Denied by Supreme Court Dec. 8, 1978.

      Edward Witt Chandler, Seattle, Wash., for appellant.
    William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, A. H. Schoonover and Theodore Neumann, Asst. Dist. Attys. Gen., Trenton, for appel-lee.
   OPINION

DWYER, Judge.

The appellant appeals his conviction for possessing L.S.D., a Schedule I drug, T.C.A. 52-1413(c)(9), with the intent to sell, with resulting punishment of confinement for not less than five nor more than seven years. This is appellant’s second conviction for committing this offense, his first conviction having been reversed and remanded for a new trial by our Supreme Court in State v. Henderson, 554 S.W.2d 117 (Tenn.1977).

The appellant’s assignments of error are these: (1) the trial court erred in refusing appellant’s special request regarding entrapment; (2) there was no evidence in the present case to indicate that the substance sold by the appellant to the undercover agent was the Schedule I substance, lyser-gic acid diethylamide; and (3) the harsher jury imposed sentence upon retrial is constitutionally impermissible.

We will summarize the evidence as found from our review of this record. That un-controverted evidence concisely reflects from the testimony of the State’s witness, Ms. Pierce, that the appellant on November 18, 1974, was driving his automobile on Highway 79. At that time another automobile pulled in back of his and flashed its lights causing appellant to pull over and off the highway in front of the Silver Hook parking lot in Henry County. The driver of the automobile that caused appellant to pull off the road was one Billy Olds. In the car with Billy Olds was a Ms. Pierce, undercover agent employed by the Sheriff of Henry County to ferret out drug violators in that county. Olds at that time was told by the appellant he had some marijuana and wanted to know if Olds wished to buy any. Olds responded he did not have any money; that Ms. Pierce, his companion, might want to buy some. The two vehicles them moved to Uncle Lee’s parking lot, located on Highway 79. At that time the appellant handed Ms. Pierce a bag of marijuana and Ms. Pierce paid the appellant $20. The appellant also advised Ms. Pierce he had some “blond acid” for sale at $2.50 a hit. Ms. Pierce gave the appellant $5 for two hits of L.S.D. The contraband was turned in later by Ms. Pierce to the Sheriff of Henry County and this was forwarded to the toxicology laboratory at the University of Tennessee in Memphis where it was analyzed and the evidence showed that it was L.S.D. or lyser-gic acid diethylamide.

The appellant did not testify and offered no proof.

In appellant’s first assignment of error he urges that the trial court erred in not charging some seventeen variations of instructions regarding the defense of entrapment. We think with the uncontradict-ed evidence as narrated reflecting that the agent simply asked the appellant if he had any drugs for sale, and being told by the appellant that he had some “blond acid” and sold her two hits for $2.50 apiece, there is not one scintilla of evidence to support his theory that the appellant was lured, induced or enticed into committing this act. Prom the set of facts as detailed by the agent it is crystal clear that the appellant was predisposed to sell the contraband. It would stretch the imagination to fit an entrapment theory into these circumstances where appellant was in possession of the contraband and made the offer to sell to the agent. Absent any evidence to support the request, there was no error in the trial court refusing these seventeen special requests. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963); Crafton v. State, 545 S.W.2d 437 (Tenn.Cr.App.1976). This assignment is therefore meritless and overruled.

In his second assignment of error the appellant made a motion for a directed verdict at the conclusion of the State’s proof on the theory that L.S.D. as alleged in the indictment was insufficient to indicate that the substance sold by the appellant to the undercover agent was a Schedule I substance. While we think the better practice would have been to specify lysergic acid diethylamide, we do not think the appellant was handicapped or misled by the use of the initials in referring to the controlled substance in the indictment. State v. Kittrell, 66 Tenn. 167 (1874). There is no merit in this assignment and it is accordingly overruled.

Appellant contends in his third assignment of error that the punishment of five to seven years was harsher than the punishment imposed at his first trial of not less than five nor more than six years, and argues that the imposition of the harsher sentence was constitutionally impermissible, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 21 L.Ed.2d 258 (1969). With absolutely no evidence to reflect that the jury in the case sub judice was aware of the punishment imposed on the appellant in the first trial, coupled with a total lack of evidence to support any argument that the greater punishment on the second trial was a denial of due process or indicative of vindictiveness, there is no merit in this assignment. Somerville v. State, 521 S.W.2d 792 (Tenn.1975); McGlothlin v. State, 521 S.W.2d 51 (Tenn.Cr.App.1974). This assignment is accordingly overruled.

The judgment of the trial court is affirmed.

DUNCAN and BYERS, JJ., concur.


text:
    Billy Glenn CLENNY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 9, 1978.
    Certiorari Denied by Supreme Court Dec. 18, 1978.

      Hughie Ragan, Jackson, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, George W. Hymers, Dist. Atty. Gen., Jackson, Howard F. Douglass, Asst. Dist. Atty. Gen., Lexington, for appellee.
   OPINION

DWYER, Judge.

This is an appeal from the dismissal of appellant’s post-conviction petition after an evidentiary hearing.

The appellant is incarcerated in the State Penitentiary serving a period of fifteen years imposed upon his plea of guilty on September 28, 1977, to committing the offense of rape. The appellant’s assignments of error are these:

1. The trial court erred in overruling appellant’s motion for post-conviction relief on the ground that there was racial and sexual discrimination in the selection of the foreman of the grand jury which indicted appellant.
2. The trial court erred in denying appellant’s petition for post-conviction relief on the ground that appellant’s guilty plea hearing did not conform with requirements enumerated in State v. Mackey, 558 S.W.2d 337 (Tenn.1977).
3. The trial court erred in denying appellant’s petition for post-conviction relief on the ground that his guilty plea was not voluntary or intelligent.

We will discuss the first assignment of error which is predicated upon the fact that no female or black person has ever served as foreman of the Madison County Grand Jury. With no attack by motion or plea in abatement to the composition of the grand jury prior to appellant’s entry of a guilty plea to the charge of rape, this assignment is without merit. State ex rel. Henderson v. Russell, 3 Tenn.Cr.App. 204, 459 S.W.2d 176 (1970); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Quoting from the latter authority at page 267, 93 S.Ct. at page 1608:

“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standard set forth in McMann [v. Richardson, 397 U.S. 759, [90 S.Ct. 1441, 25 L.Ed.2d 763] (1970)].”

Ancillary to the first assignment of error is the urging of the appellant that his statutory’s failure to object to the selection process rendered his assistance not “within the range of competence demanded of attorneys in criminal cases.” McMann, supra. In the absence of an allegation in his petition, coupled with an absence of any proof in support thereof at the hearing this assignment is without merit and is overruled.

The second assignment of error: It is appellant’s contention that his guilty plea was not taken in conformity with State v. Mackey, supra. We evaluate this assignment under settled law that in a post-conviction proceeding the burden is on the petitioner to prove by a preponderance of the evidence the allegations in his petition. Bratton v. State, 477 S.W.2d 754 (Tenn.Cr.App.1971). It is also settled law that the trial judge’s findings on questions of fact are to be given the weight of a jury’s verdict and are conclusive on appeal unless the appellate court finds that the evidence preponderates against his judgment. Graves v. State, 512 S.W.2d 603 (Tenn.Cr.App.1973).

The guilty plea transcript was filed and marked as an exhibit at the hearing. A review of that transcript reveals that the trial court advised the appellant as to the range of punishment for the offense of rape, his rights to confrontation, to call witnesses, to a jury trial, and to appeal. It also reflects that appellant signed waiver forms as to all of these rights. The record further reveals that appellant entered his guilty plea contrary to the advice of his counsel, and when counsel informed the trial court that appellant was accepting the negotiated plea of the State contrary to his advice, the court then asked the appellant if it was still his desire to plead guilty, to which he received an affirmative answer. Prom our review of this record we are satisfied, as was the trial court at the hearing, that the guidelines in State v. Mackey, supra, were substantially complied with.

Appellant contends that he was not informed that his prior convictions could be used against him with reliance on State v. Mackey, supra. With waiver of a jury, and the court accepting the State’s recommendation of fifteen years as punishment for the offense, appellant’s reliance on Mackey is misplaced. This second assignment is accordingly overruled.

The third assignment of error: We note at the threshold, from a review of the record of the hearing sub judice appellant himself testified that his guilty plea was freely and voluntarily entered. It, however, appears from the hearing that appellant testified the State threatened to try him on the second count of the indictment charging him as being a habitual criminal as a lever to obtain his guilty plea. It is further his testimony that appellant’s counsel failed to advise him that one of the three convictions relied upon for the habitual criminal count was later reversed. Therefore, this third conviction being reversed prevented the State from carrying out the threat of trial as a habitual criminal. From this it is his urging that counsel was ineffective and that his guilty plea to the rape charge came about as a desire to escape conviction of being a habitual criminal. While the hearing developed that there may have been substance in appellant’s contention that one of the three convictions in the habitual criminal count was reversed, this allegation, if true, would not void his guilty plea if it was freely and voluntarily entered to the offense of rape. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). A guilty plea to escape harsher punishment does not void an otherwise voluntary and intelligently entered guilty plea. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), quoting at page 757, 90 S.Ct. at page 1473:

“The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.”

Further, in Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), the following may be found:

“. . . even if Parker’s counsel was wrong in his assessment of Parker’s confession, it does not follow that his error was sufficient to render the plea unintelligent and entitle Parker to disavow his admission in open court that he committed the offense with which he was charged. Based on the facts of record relating to Parker’s confession and guilty plea, which we have previously detailed, we think the advice he received was well within the range of competence required of attorneys representing defendants in criminal cases.” 397 U.S., at 797-798, 90 S.Ct. at 1462.

The State urges that the appellant’s reliance on counsel’s erroneous assumption regarding the validity of the habitual criminal charge is insufficient to establish that the guilty plea was involuntary or unintelligent. The State further reasons that two facts support this conclusion: (1) appellant admitted the facts of the rape case even though such an admission would not have been necessary to enter a plea of guilty. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); (2) appellant’s plea of guilty was not made at the insistence or recommendation of appellant’s counsel. With the reasoning of the State we are in full accord. The third and last assignment of error is overruled.

From our review of the full evidentiary hearing in which petitioner, his attorney at the guilty plea, and the circuit judge in charge of selecting the Madison County Grand Jury testified, we agree with the trial court’s memorandum of law and conclusion of facts that petitioner’s allegations were without merit. These findings as stated at the outset are given the weight of a jury verdict. Graves v. State, supra. The evidence from our review supports his dismissal of the appellant’s petition. The judgment of the trial court is affirmed.

DUNCAN and BYERS, JJ., concur.


author: GREENHILL, Chief Justice. GREENHILL, Chief Justice.

text:
    Josephine VISCARDI, Petitioner, v. Albina PAJESTKA and Griffin Smith, Respondents.
    No. B-7492.
    Supreme Court of Texas.
    Nov. 22, 1978.
    Rehearing Denied Dec. 29, 1978.

      Malcolm C. Smith, Robert W. Davidson, Austin, for petitioner.
    Graves, Dougherty, Heron, Moody & Gar-wood, James C. Phillips, Austin, for respondents.
   GREENHILL, Chief Justice.

Josephine Viscardi filed suit in the district court of Travis County seeking a declaratory judgment affirming her right to use an alleyway located between her property and that of Albina Pajestka. Viscardi further sought a permanent injunction prohibiting Pajestka from interfering with her use of the driveway.

The trial was held before the court sitting without a jury. The trial court granted Viscardi the relief she sought and permanently enjoined Pajestka from further interference. The court of civil appeals sitting in Austin reversed the judgment of the trial court and held: 1) that the alley in question was not dedicated to the public; and 2) that Viscardi had obtained no private right of easement by prescription. 562 S.W.2d 13 (1978). Our holding is that the existence of a public dedication is a question of fact. When the trial court rendered judgment for Viscardi, there was an implied finding of fact that there had been a public dedication. There is, under the circumstances of this case, factual support for such a finding; and accordingly, we reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The alley or driveway in question is located in block 104 of the City of Austin. The following drawing illustrates the land of the two parties and the L-shaped driveway in dispute:

This entire block was owned by one Florence Hooper and her husband prior to 1915. In that year the Hoopers conveyed all of the block to the south of the old city alley to Walter Bremond, who in turn conveyed it to the State National Bank of Austin. The Bank is presently non-existent. The Hoopers obtained title to the old city alley by prescription in 1919. With the exceptions of the portion now owned by Pajestka and the alleyway in dispute, the Bank then conveyed its interest in block 104 to various individuals.

In 1921 the Bank deeded the alley under dispute. It is the interpretation of that instrument which is the basis for the disagreement between the parties to this lawsuit. The document in part states:

That the State National Bank of Austin, Texas . . . has dedicated, and by these presents does dedicate, for the benefit of the owners of any of the property in the South half of Block No. One-Hundred and Four (104). . The said alley as above described is to be kept open for the use and benefit of the owners of property in the South half of said Block No. 104, forever.
This instrument further witnesses that in consideration of the dedication by the said The State National Bank of Austin, Texas .

The Bank in 1925 conveyed its remaining interest in block 104 to Pajestka’s predecessors in title.

The driveway in question has been used continuously by the owners of the respective properties, their guests and tenants for over fifty years. Since the 1930’s it has been the only entrance to the apartments that are located at the back of Viscardi’s lot. It has also been used by the City of Austin trash collectors, although it is not currently used for that purpose. There is conflicting testimony as to who has in the past cared for the maintenance of the driveway and as to which of the adjoining lot owners gave permission to the other to use the alley. Pajestka has in the past paid taxes on the property.

In 1976 after a dispute arose over the sharing of the driveway, Pajestka placed a chain across the alley to prevent its use by Viscardi or her tenants. That action prompted Viscardi to bring the present lawsuit. The question before this court is what rights, if any, Viscardi has with respect to the alley.

Viscardi claims both a prescriptive easement and that the above-described instrument creates a dedication of the alley to the public. The court of civil appeals held that an easement was not created by prescription and that, despite the use of the term, “dedicate,” the intention of the document was not a public dedication; rather, it was intended to create an easement appurtenant for a selected group of lot owners. We reverse this latter holding and hold that the land was dedicated to the public.

The deed by its very terms provides evidence of a public dedication. Dedicate is the sole term of conveyance to be found in the Bank’s document. The word “dedicate” clearly means “to appropriate and set apart one’s private property to some public use; as to make a private way public by acts evincing an intention to do so.” BLACK’S LAW DICTIONARY (4th ed. 1951).

Furthermore, the Bank describes its deed as a “dedication.” “Dedication of a street is setting apart land for the public use for a passageway . . ” City of Uvalde v. Stovall, 279 S.W. 889 (Tex.Civ.App.—San Antonio 1925, writ ref’d). Even prior to the time of the conveyance in question, the word “dedication” had denoted a setting aside of private property for public purposes. See Poindexter v. Schaffner, 162 S.W. 22 (Tex.Civ.App.—Dallas 1914, no writ) and City of Kaufman v. Franch, 171 S.W. 831 (Tex.Civ.App.—Dallas 1914, no writ). Later paragraphs of the conveying document indicate that the Bank was aware of the existing difference between what constituted an easement and what constituted a dedication, and that they were expressly calling this a dedication. The document states:

And further, in consideration of the foregoing [dedication], The State National Bank of Austin, Texas, for itself, its successors and assigns, hereby releases and relinquishes unto the said J. R. Nichols, the easement of the right-of-way over the west five feet (5) of the said lot of said J. R. Nichols, above referred to, and so releases such easement unto the said J. R. Nichols his heirs, legal representatives and assigns. [Emphasis added.]

The Bank called its conveyance a “dedication" of land instead of calling it a grant of an “easement” as it had done in the past.

Additionally, the extrinsic evidence surrounding the grant supports the conclusion that the Bank intended a dedication. None of the subsequent deeds given by any one owner of property in the south one-half of block 104, save a correction deed obtained by Pajestka in 1971, attempts to convey or even mentions any rights to a private easement in the alley. Furthermore, in over fifty years of use, until Pajestka chained the entryway to the alley, no one had ever attempted to exercise any private right in the alley, or attempted any act in contravention of the public’s right to the alley.

This court has recognized that the owner’s intent to dedicate, where not expressly delineated, may be implied from the owner’s conduct. City of Houston v. Scanlan, 120 Tex. 264, 375 S.W.2d 718 (1930); Ramthun v. Halfman, 58 Tex. 551 (1883); and Ladies Benevolent Society of Beaumont v. Magnolia Cemetery Co., 288 S.W. 812 (Tex.Comm’n App. 1926, judgmt. adopted). The intent of the grantor is a question of fact. Owens v. Hackett, 151 Tex. 503, 251 S.W .2d 957 (1952); Conway v. Irirck, 436 S.W.2d 219 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.); and Calhoun County v. Wilson, 425 S.W.2d 846 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.).

In the case at hand, the express declarations in the deed support what might seem to be somewhat contradictory conclusions: while the language expressly indicates a dedication, it seemingly limits the benefit of such to a limited group of landowners. It was up to the finder of fact in the trial court to decide what was the actual intent of the Bank. There, of course, can be no private dedication of property. Drye v. Eagle Rock Ranch Inc., 364 S.W.2d 196 (Tex.1962). The acts surrounding the Bank’s document, in the light of the entire instrument, are capable of the construction of an intention to make a public dedication. The owners of the surrounding property, as well as their tenants and guests, used the alleyway without interruption for over fifty years. The City of Austin made its trash collection for many years by means of the alley.

These facts, when added to the intentional use by the Bank of the words “dedicate” and “dedication,” instead of terms indicating an easement, support the implied finding of fact by the trial court that a public dedication was intended by the 1921 document.

Pajestka maintains that even if the Bank did intend a dedication to the public, there has been no public acceptance; and if there has been acceptance, then the city has abandoned the property. The courts of this state do not require that the acceptance by the public be express. An implied acceptance by the public is sufficient. Gilder v. City of Brenham, 67 Tex. 345, 3 S.W. 309 (1887). If an intention to dedicate is otherwise shown, as was done here by the 1921 deed, the public use of the land is sufficient to constitute a completed dedication. Oswald v. Grenet, 22 Tex. 99 (1858); and City of San Antonio v. Grandview, 91 Tex. 430, 41 S.W. 477 (1897).

An abandonment occurs when the use for which the property was dedicated becomes impossible of execution, or the object of the use totally fails. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950) and Griffith v. Allison, 128 Tex. 86, 96 S.W.2d 74 (1936). The mere fact that the city no longer uses it as a route for trash collection does not constitute an abandonment. The use of the driveway has been continuous since 1921. Prior to the driveway being chained, the public was using it for the same purposes for which it was dedicated over fifty years ago. The evidence does not show that the use for which the property was dedicated is impossible to execute or that the object of the use for which the property was dedicated has wholly failed as is required to support a finding of an abandonment.

Since the finder of fact impliedly found that a public dedication had occurred and since there was not an abandonment, the judgment of the trial court was correct. Therefore, the judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

POPE, J., not sitting.

ON MOTION FOR REHEARING

GREENHILL, Chief Justice.

In the oral argument before this court, there were several questions from the bench as to how this case was actually tried in the District Court.

The court was informed that the attorneys for the respective parties had tried the case under a procedure of their own making. As stated in the brief of Josephine Viscardi in the Court of Civil Appeals:

“Actually, although the pleadings are entitled Motions for Summary Judgment, this case was in effect tried upon the stipulated merits by a procedure created and agreed to by the parties for the purpose of speedy justice and so as not to waste at least one week of the trial court’s time . . ..”

Among the stipulations of the parties are these:

“12. That, if this case were brought to trial on the merits, the testimony taken in the hearing for temporary injunctions, heard before this Court on June 16,1976, would be repeated by those persons who so testified.
“13. That, for the purposes of any hearing on motion for summary judgment, the Court may make its own findings of fact based upon the pleadings and the testimony heretofore filed and made a part herein, upon these stipulations, and upon the other documents and exhibits contained herein, plus the affidavits filed in connection with any motion for summary judgment.”

Upon such oral argument, there was inquiry about how there could be reference to testimony taken at a former hearing, an agreement that the trial court could make its own findings of fact, and still have a trial upon motions for summary judgment. Counsellor both parties were questioned at length on this matter. As indicated, the court was informed that by agreement of counsel, the case was submitted to the trial court upon its agreed merits in which the trial court could make findings of fact.

Accordingly, this court accepted the representations of counsel and decided the case upon its merits, including the power of the trial court to make findings of fact. And accordingly, the point in the motion for rehearing that this court erred in failing to treat the case only as one tried upon conventional motions for summary judgment is overruled.

We add that while counsel were undoubtedly acting with proper and honorable motives, it is suggested that the better practice is to try cases by the rules as they are written. In following that course, they and the appellate courts will find it easier to have matters adjudicated without questions such have been here presented.

Counsel for Pajestka on the motion for rehearing, states that the Court of Civil Appeals made a factual finding that “an examination of the terms of the conveyance shows that the bank did not intend a public dedication.” 562 S.W.2d at 15. It is then argued that the Court of Civil Appeals is authorized to make fact findings, and that this court is not. This court did not make findings of fact: it held that the trial court made implied findings of fact in the non-conventional trial, and that there was evidence to support such findings.

The motion for rehearing is overruled.

No further motion for rehearing will be entertained.

POPE J., not sitting.

      . Viscardi did not strongly contend either in the court below or before this court that the Bank’s instrument granted any private easement right to Viscardi. We agree that such a contention is not supported by the apparent facts of this case.


author: DANIEL, Justice. POPE, Justice,

text:
    FRIENDSWOOD DEVELOPMENT COMPANY et al., Petitioners, v. SMITH-SOUTHWEST INDUSTRIES, INC., et al., Respondents.
    No. B-6682.
    Supreme Court of Texas.
    Nov. 29, 1978.
    Rehearing Denied Dec. 20, 1978.
    Fulbright & Jaworski, Kraft W. Eidman, David J. Beck and Simeon T. Lake, III, Robert D. McGee, Houston, McGinnis, Loch-ridge & Kilgore, Robert C. McGinnis and Peter M. Lowry, Austin, Childs, Forten-bach, Beck & Guyton, Stephen R. Kirklin and Ray T. Fortenbach, Cox, Parkenham & Roady, Joyce Cox, Otis H. King, Houston, for petitioners.
    Jamail & Gano, Joseph D. Jamail, S. Gus Kolius and Robert F. Stein, Houston, for respondents.
   DANIEL, Justice.

The question in this case is whether landowners who withdrew percolating ground waters from wells located on their own land are liable for subsidence which resulted on lands of others in the same general area.

Smith-Southwest Industries and other landowners located in the Seabrook and Clear Lake area of Harris County brought this class action in 1973 against Friends-wood Development Company and its corporate parent, Exxon Corporation, alleging that severe subsidence of their lands was caused by the defendants’ past and continuing withdrawals of vast quantities of underground water from wells on defendants’ nearby lands. Friendswood, alleged to be the operator of the wells, joined as third party defendants numerous parties alleged to be withdrawing ground water in the same general area. Friendswood and Exxon moved for a summary judgment against the plaintiffs, and it was granted by the trial court along with denial of relief in the third party actions.

The trial court followed a long-established common law rule that, in the absence of willful waste or malicious injury, a landowner has the right to withdraw ground waters from wells located on his own land without liability for resulting damage to his neighbor’s land. The Court of Civil Appeals reversed and remanded, holding that plaintiffs’ petition stated a cause of action in nuisance and negligence and that the summary judgment record raises genuine issues of material fact with regard thereto. 546 S.W.2d 890. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Our decision results from what we conceive to be our duty to apply a rule of property law as it existed during the time of the actions complained of in this suit, even though we disagree with certain aspects of the existing rule. As to future subsidence caused by wells hereinafter drilled or produced, this Court, in the manner hereinafter set forth, will recognize and apply the law of negligence along with willful waste and malicious injury as limitations on the present rule applicable to subsidence resulting from withdrawal of underground waters.

Allegations and Summary Judgment Proof

The petition of Smith-Southwest, the name by which all of the plaintiffs will be identified, recites that plaintiffs are landowners in the area of Seabrook and Clear Lake, and as a class include all owners of fee simple and leasehold estates along the west bank of Galveston Bay from the north dike of the Houston Yacht Club, following the shore line south to the mouth of Clear Creek and inclusive of the entire shore line of Clear Lake, Armand’s Bayou, and Taylor Bayou from the shore line to a contour line with elevation 15 feet above the shore line, except the land owned by the defendants.

The trial court had before it depositions, interrogatories, affidavits and exhibits which showed rather clearly that Friends-wood had pumped large amounts of subsurface waters from its own property for sale primarily to industrial users in the Bayport industrial area developed by Friendswood and Exxon. These wells were drilled from 1964 through 1971, even though previous engineering reports to defendants showed that production therefrom would result in a certain amount of land subsidence in the area. Plaintiffs alleged that the wells were negligently spaced too close together, too near the common boundary of lands owned by plaintiffs and defendants, and that excessive quantities were produced with knowledge that this would cause subsidence and flooding of plaintiffs’ lands. Plaintiffs alleged that this extensive withdrawal of ground water proximately caused the sinking and loss of elevation above mean sea level of their property and the property of others similarly situated along the shores of Galveston Bay and Clear Lake, resulting in the erosion and flooding of their lands and damage to their residences, businesses and improvements. Plaintiffs further allege that the manner in which Friendswood Development Company continues to use its property for the withdrawal and sale of large amounts of fresh water to commercial users on other lands constitutes a continuing nuisance and permanent loss and damage to their property.

The defendants, Friendswood Development Company and its parent company, Exxon, are sought to be held jointly liable for the damages alleged in this case on the theory that they jointly planned and pursued the operations complained of. Among other defenses, Friendswood and Exxon contend that subsidence was a problem in the area before their operations began and that owners of other water wells throughout Harris and Galveston Counties caused or contributed to the subsidence. Friends-wood’s third party action for contribution .and indemnity was filed against twenty-two companies and municipalities in Harris and Galveston Counties, alleging that they contributed to any existing subsidence by pumping large quantities of ground water from the common aquifers underlying the lands in question. Plaintiffs concede that subsidence in the area complained of was known to be a “potential problem” before defendants’ operations began, but they allege that Friendswood and Exxon knew that the problem “would be severely aggravated” by the withdrawals which the companies contemplated. There was summary judgment proof of such knowledge and aggravation.

Reports in the record and publications of official agencies reflect that land subsidence in Harris County is not peculiar to or confined within the Galveston Bay and Clear Creek areas described in plaintiffs’ petition. Rather it is a problem which has existed for many years in Harris and Galveston Counties. Harris County alone had 2,635 ground water wells in the inventory compiled by the U.S. Geological Survey in cooperation with the Texas Water Development Board in 1972. The Chicot and Evangeline aquifers underlie the Houston-Galveston region, which includes all of Harris and Galveston Counties and parts of adjacent counties. These two aquifers furnish all of the ground water pumped in the Houston-Galveston region, according to the U.S. Geological Report prepared by R. K. Gabrysch and C. W. Bonnet in 1974. This report states that water level declines of as much as 200 feet have resulted in wells completed in the Chicot aquifer and as much as 325 feet in the Evangeline aquifer during 1943-73, and “the declines in arte-sian pressures have resulted in a pronounced regional subsidence of the land surface.” It states that the area in which there has been subsidence of one foot or more has increased from 350 square miles in 1954 to about 2,500 square miles in 1973. The contour lines of this area encompass practically all of Harris and Galveston Counties and include all of the principal areas of ground water withdrawals. Maps in the report indicate that the land and wells involved in this suit are in or near the “Johnson Space Center Area,” where the land surface subsided about 2.12 feet between 1964 and 1973.

The general and widespread problem of subsidence in Harris and Galveston Counties has been considered in numerous other writings, and more notably by action of the Legislature, which created the Harris-Galveston Coastal Subsidence District in 1975. This is a comprehensive measure “to provide for the regulation of the withdrawal of ground water within the boundaries of the district for the purpose of ending subsidence which contributes to or precipitates flooding, inundation, or overflow of any area within the district . . It includes all of Harris and Galveston Counties and provides for a board of fifteen members with the power to grant or decline permits for new wells, regulate spacing and production, require metering devices, and adopt any rules necessary to prevent further subsidence.

The magnitude of the problem has been reviewed in depth because it is relevant to our determination of whether existing rules of law are applicable and appropriate, or whether new rules should be adopted by this Court or recommended for consideration by the Legislature.

Nature of Plaintiffs’ Action

Plaintiffs have alleged an action in tort based upon the general rule that a landowner has a duty not to use his property so as to injure others — sic utere tuo ut alienum non Iaedas. Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950); Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W .2d 221 (1936); Gulf, C. & S.F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999 (1900). The Court of Civil Appeals cited the above cases and this general rule of tort law in holding that plaintiffs were entitled to a trial on the allegations of nuisance and negligence. The problem is that those cases, none of which related to ground water withdrawals, involved liability for the unreasonable use of correlative property rights or the balancing of legal and equitable rights between property owners. This is a concept which was deliberately rejected with respect to withdrawals of underground water when this Court adopted the common law rule that such rights are not correlative, but are absolute, and thus are not subject to the conflicting “reasonable use” rule. Houston & T. C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904).

Plaintiffs insist that this is not a case involving conflicting claims to the ownership or nontortuous use of water and that, therefore, the “archaic and awkward” common law rule adopted in East as to “absolute” ownership should not insulate the defendants from damages due to nuisance in fact or negligence in the manner by which they made use of their property. This is, in effect, a contention that the “reasonable use” doctrine should apply to ground water the same as it does to other real property.

The plaintiff in East argued for the “reasonable use” rule in that case, and it was adopted by the Court of Civil Appeals. East v. Houston & T. C. Ry. Co., 77 S.W. 646 (Tex.Civ.App.1903, error granted). In that case the railroad company, with full knowledge of the long existence of Mr. East’s small shallow well on his homestead, dug a well twenty feet in diameter and 66 feet deep on its own adjacent property, from which it pumped 25,000 gallons of water per day. This resulted in lowering the water level on plaintiff’s land and drying up his well. The trial court found that the railroad’s well was not a reasonable use of its property, and that plaintiff and his land had sustained damage in the sum of $206.00. Nevertheless, the trial court granted judgment for the railroad. The Court of Civil Appeals reversed and rendered judgment in favor of East. It followed what has since become known as the “reasonable use” or “American rule” as set forth in Bassett v. Salisbury Mfg. Co., 43 N.H. 569, 82 Am.Dec. 179 (1862), which held that the right of a landowner to draw underground water from his land was not absolute, but limited to the amount necessary for the reasonable use of his land, and that the rights of adjoining landowners are correlative and limited to reasonable use. The court also noted the contrary English doctrine laid down in Acton v. Blundell, 12 M. & W. 324, 152 E.R. 1223 (Ex. 1843), that, “if a man digs a well on his own field and thereby drains his neighbor’s, he may do so unless he does it maliciously.” The court said that “to apply that rule under the facts shown here would shock our sense of justice.”

Adoption of the Common Law Rule of Absolute Ownership

Thus, on the appeal of the East case to this Court, the conflicting aspects of the “reasonable use” rule and the common law rule, later referred to as the “English rule” or “absolute ownership rule,” were clearly presented. This Court discussed both rules and made a deliberate choice of the common law rule as announced in Acton v. Blundell, supra, reciting that it had been followed since 1843 in the courts of England “and probably by all the courts of last resort in this country before which the [subject] has come, except the Supreme Court of New Hampshire.” Houston & T. C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279, 280 (1904). In reversing the Court of Civil Appeals and rejecting the “reasonable use” rule, this Court adopted the absolute ownership doctrine of underground percolating waters. It cited approvingly the language of the Supreme Court of Ohio in Frazier v. Brown, 12 Ohio St. 294 (1861): “In the absence of express contract and a positive authorized legislation, as between proprietors of adjoining land, the law recognizes no correlative rights in respect to underground water percolating, oozing, or filtrating through the earth; and this mainly from considerations of public policy . . . .”

In holding that the owner may withdraw water from beneath his land without liability for lowering the water table and thus damaging his neighbor’s well and land, the Court mentioned only waste and malice as possible limitations to the rule. Absent these, the Court clearly embraced the doctrine stated in Acton v. Blundell, supra, that this type of damage “falls within the description damnum absque injuria, which cannot become the ground of action.” This legal maxim denotes a loss without injury in the legal sense, that is, without the invasion of a legal right or the violation of a legal duty. Langbrook Properties, Ltd. v. Surrey County Council, 3 ALL E.R. 1424 (Ch.1969). In Langbrook, which was an action for subsidence caused by withdrawal of ground water, the court held that the law of negligence and nuisance did not apply under the English rule because pumping of the water was lawful and there was no duty to protect against the injury. We have been cited no case from a jurisdiction which adheres to the English rule in which actions in tort for subsidence have been recognized.

The English rule of so-called “absolute ownership” was applied by this Court in Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273 (1927), which held that a landowner has the absolute right to sell percolating ground water for industrial purposes off the land. At a time when the trend in other jurisdictions was away from the English rule and toward the “reasonable use” rule, the English rule was reaffirmed by this Court in City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 S.W.2d 798 (1955). The Court said:

“With both rules before it, this Court in 1904, adopted, unequivocally, the ‘Eng;ish’ or ‘Common Law’ rule. Houston & T. C. R. Co. v. East, 98 Tex. 146, 81 S.W. 279, 280, 66 L.R.A. 738, 107 Am.St.Rep. 620. The opinion in the case shows quite clearly that the court weighed the merits of the two rules — ‘The practical reasons upon which the courts base their conclusions [applying the “English” rule] fully meet the more theoretical view of the New Hampshire Court [applying the “American” rule] and satisfy us of the necessity of the doctrine’ — and, whether wisely or unwisely, made a deliberate choice. .
“Having adopted the ‘English’ rule it may be assumed that the Court adopted it with only such limitations as existed in the common law. What were these limitations? About the only limitations applied by those jurisdictions retaining the ‘English’ rule are that the owner may not maliciously take water for the sole purpose of injuring his neighbor, 55 A.L.R. 1395-1398; 67 C.J., sec. 257, p. 840; or wantonly and willfully waste it. 56 Am. Jur., sec. 119, p. 602; Stillwater Water Co. v. Farmer, 89 Minn. 58, 93 N.W. 907, 60 L.R.A. 875. . . ,”

For similar recognition that percolating ground waters belong to the landowner and may be produced by him at his will, absent waste or malice, see Pecos County Water Control & Imp. Dist. No. 1 v. Williams, 271 S.W.2d 503 (Tex.Civ.App.1954, writ ref’d n. r. e.), which was pending in this Court simultaneously with the Corpus Christi case, supra; City of Altus v. Carr, 255 F.Supp. 828 (W.D.Tex.1966), aff’d mem. Carr v. City of Altus, 385 U.S. 35, 87 S.Ct. 240, 17 L.Ed.2d 34 (1966); and U. S. v. Shurbet, 347 F.2d 103 (5th Cir. 1965). See also Brown v. Humble Oil & Ref. Co., 126 Tex. 296, 83 S.W.2d 935 (1935), one of the basic cases recognizing private ownership of oil and gas in place, which cites East as the earliest case establishing the “law of capture” in Texas. Other writers have traced both the Texas ownership and capture theories to the English rule relating to underground percolating waters, and it is interesting to note in this connection that the courts did not attempt to afford protection against the rule of capture of oil and gas until the Legislature enacted policy guidelines for the prevention of waste and protection of correlative rights. By the same token, it has been suggested that regulation of ground water production is primarily a legislative, not a judicial problem.

As heretofore mentioned in 1975 the Legislature undertook to retard further subsidence in Harris and Galveston Counties by creating a subsidence district with power to prevent future well spacing and excessive pumping of the nature alleged to have occurred in this case. Previously, in 1949 the Legislature provided for the creation of districts for the purpose of “conservation, preservation, protection, recharging, and prevention of waste of underground water . .” In 1973, the Legislature added to such purposes the authority “to control subsidence caused by withdrawal of water . . . .”

It is of some importance to note that in the laws authorizing these regulatory Underground Water Districts and the Harris-Galveston Coastal Subsidence District, the Legislature specifically confirmed private ownership of underground water. It provided: “The ownership and rights of the owner of land and his lessees and assigns in underground water are hereby recognized, and nothing in this Act shall be construed as depriving or divesting the owner or his lessees and assigns of the ownership or rights . . .,” subject only to the regulatory rules to be promulgated by the districts. See Vernon’s Tex.Water Code Ann. § 52.002 and Sec. 29, Ch. 284, Acts 64 Leg. 1975.

Subsidence Cases Under the Common Law Rule

Although the East, Corpus Christi, and Williams cases involved damages to wells and lands of the plaintiffs because the water tables beneath their lands were lowered by ground water withdrawals of the defendants, none of these nor any other Texas case has dealt specifically with land subsidence resulting from such pumping of underground waters. In other jurisdictions adhering to the English ground water rule, liability for neighboring land subsidence has been denied. Langbrook Properties, Ltd. v. Surrey County Council, [1969] 3 ALL E.R. 1424 (Ch. 1969); New York Continental Jewell Filtration Co. v. Jones, 37 App.D.C. 511 (D.C. Cir. 1911); English v. Metropolitan Water Board, 1 K.B. 588 (1907); Elster v. City of Springfield, 30 N.E. 274 (Ohio 1892); Popplewell v. Hodgkinson, [1861-73] ALL E.R. 996 (Ex. 1869). See also Finley v. Teeter Stone, Inc., 251 M.D. 428, 248 A.2d 106 (1968), in which the same holding was made in a jurisdiction which follows the reasonable use rule.

On the basis of the earlier decisions cited above, the Restatement of Torts § 818 (1939), adopted the following rule:

“§ 818. WITHDRAWING SUBTERRANEAN WATER.
To the extent that a person is not liable for withdrawing subterranean waters from the land of another, he is not liable for a subsidence of the other’s land which is caused by the withdrawal.”

The foregoing statement in § 818 fairly represents the law on the subject as pronounced in common law jurisdictions. In 1840, Texas adopted the common law of England, with exceptions not relevant here. Our present Article 1, Texas Revised Civil Statutes, reads:

“The common law of England, so far as it is not inconsistent with the Constitution and laws of this State, shall together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature.”

We have found nothing in our Constitution, laws, or decisions inconsistent with the common law rule. On the contrary, our decisions in East, City of Pleasanton, and Williams, denying liability for damages to neighboring property because of lowering the water tables beneath neighboring lands, are consistent with the rule as stated above. It has been suggested, but not by respondents, that another rule applicable to destruction of subjacent land support caused by withdrawal of minerals should be applied in this case. We disagree, because the common law has recognized a clear distinction between subsidence caused by withdrawal of water and that caused by withdrawal of minerals, especially when solid minerals were involved. Restatement of Torts § 820 (1939), relating to withdrawal of subjacent support, reflects this distinction by a specific exception of water withdrawals referred to in § 818, supra, as follows:

“§ 820. WITHDRAWING NATURALLY NECESSARY SUBJACENT SUPPORT.
(1) Except as stated in § 818, a person who withdraws the naturally necessary subjacent support of land in another’s possession or the support which has been substituted for the naturally necessary support is liable for a subsidence of such land of the other as was naturally dependent upon the support withdrawn, in the absence of a superseding cause or other reason for relieving him.”

Although a tentative revision of § 818 was adopted by the American Law Institute in 1969, which would completely reverse this rule, it is important to our decision in this case that the Restatement of Torts rule as quoted above was in effect, without any tentative change, from 1939 to 1969. The defendants began drilling and production from their wells in 1964 and the majority of their wells were completed by 1969.

The facts and legal issues in Langbrook, supra, were most similar to those in the instant case. In Langbrook, the plaintiffs alleged nuisance and negligence in an action for damages to their property due to subsidence alleged to have been caused by defendants in the manner by which they withdrew underground water from their own nearby property. The only question before the court was whether plaintiffs’ suit, cast in nuisance and negligence, stated a cause of action. The court, after an exhaustive review of the English cases, held that the law of nuisance and negligence was not applicable in the case by reason of the acts complained of because there was no duty to take care against the resulting damage and no unlawful act of interference with lawful rights of the plaintiffs. The court said:

“The authorities cited on behalf of the defendants in my judgment establish that a man may abstract the water under his land which percolates in undefined channels to whatever extent he pleases, notwithstanding that this may result in the abstraction of water percolating under the land of his neighbour and, thereby, cause him injury. In such circumstances the principle of sic utere tuo ut alienum non laedas [use your property so as not to injure the property of another] does not operate and the damage is damnum sine injuria [damages suffered without the invasion of a legal right or the violation of a legal duty].
“Is there then any room for the law of nuisance or negligence to operate? In my judgment there is not ... if there were, it seems to me highly probable that the courts would already have said so, and yet I have not been referred to any case in which that was done.” [1969] 3 ALL E.R. Rep. at 1439-40.

The above holding is in accord with Texas rules of tort law that (1) in order to create liability for the maintenance of a nuisance, the act complained of must in some way constitute an unlawful invasion of the right of another, Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565 (1941); and (2) for redress in negligence actions there must be a violation of a legal right and the breach of a legal duty, State v. Brewer, 141 Tex. 1, 169 S.W.2d 468 (1943).

Stare Decisis

We agree that some aspects of the English or common law rule as to underground waters are harsh and outmoded, and the rule has been severely criticized since its reaffirmation by this Court in 1955. Most of the critics, however, recognize that it has become an established rule of property law in this State, under which many citizens own land and water rights. The rule has been relied upon by thousands of farmers, industries, and municipalities in purchasing and developing vast tracts of land overlying aquifers of underground water. Approximately 50,000 wells are used to irrigate 2,800,000 acres in the thirteen county High Plains area of West Texas. As shown in the official reports cited earlier in this opinion, over 2,600 water wells have been drilled in Harris County alone while this rule of immunity from liability was in effect. The very wells which brought about this action were drilled after the English rule had been reaffirmed by this Court in 1955.

On this subject, we are not writing on a clean slate. Even though good reasons may exist for lifting the immunity from tort actions in cases of this nature, it would be unjust to do so retroactively. The doctrine of stare decisis has been and should be strictly followed by this Court in cases involving established rules of property rights. Southland Royalty Co. v. Humble Oil and Refining Co., 151 Tex. 324, 249 S.W.2d 914 (1952); Tanton v. State National Bank of El Paso, 125 Tex. 16, 79 S.W.2d 833 (1935). It is for this reason that, as to past actions complained of in this case, we follow the English rule and Restatement of Torts § 818 (1939) in holding that defendants are not liable on plaintiff’s allegations of nuisance and negligence. The same reasoning applies to plaintiffs’ other allegations in tort (wrongful diversion of surface waters onto and across plaintiffs’ lands and wrongful taking and conversion of plaintiffs’ property), which the Court of Civil Appeals did not reach. We have considered all of plaintiffs’ points of error in the Court of Civil Appeals complaining of the trial court’s judgment and find them to be without merit.

As To Future Wells and Subsidence

As heretofore mentioned, the Legislature has entered the field of regulation of ground water withdrawals and subsidence. This occurred after geologists, hydrologists, and engineers had developed more accurate knowledge concerning the location, source, and measurement of percolating underground waters, and after legislators became aware of the potential conflicts inherent in the unregulated use of ground water under the English rule of ownership. With a rule that recognizes ownership of underground water by each individual under his own land, but with no limitation on the manner and amount which another individual landowner might produce (absent willful waste and malicious malice), legislative action was essential in order to provide for conservation and protection of public interests.

The legislative policy contained in Chapter 52 of the Texas Water Code is designed to limit the exercise of that portion of the English rule which has been interpreted as giving each landowner the right to take all the water he pleases without regard to the effect on other lands in the same area. For instance, § 52.117 of the Water Code, applicable to Underground Water Conservation Districts, provides:

“§ 52.117. REGULATION OF SPACING AND PRODUCTION.
“In order to minimize as far as practicable the drawdown of the water table or the reduction of artesian pressure, to control subsidence, or to prevent waste, the district may provide for the spacing of water wells and may regulate the production of wells.”

Ten of these Underground Water Conservation Districts are active in an area embracing much of West Texas. 33rd Report, Texas Water Rights Commission for Fiscal Year 1977. The need for additional legislation for creation of districts to cover unregulated ground water reservoirs and to solve other conflicts which may arise in this area of water law and subsidence seems to be inevitable. Providing policy and regulatory procedures in this field is a legislative function. It is well that the Legislature has assumed its proper role, because our courts are not equipped to regulate ground water uses and subsidence on a suit-by-suit basis.

This case, however, gives the Court its first opportunity to recognize, and to encourage compliance with, the policy set forth by the Legislature and its regulatory agencies in an effort to curb excessive underground water withdrawals and resulting land subsidence. It also affords us the opportunity to discard an objectionable aspect of the court-made English rule as it relates to subsidence by stating a rule for the future which is more in harmony with expressed legislative policy. We refer to the past immunity from negligence which heretofore has been afforded ground water producers solely because of their “absolute” ownership of the water.

As far as we can determine, there is no other use of private real property which enjoys such an immunity from liability under the law of negligence. This ownership of underground water comes with ownership of the surface; it is part of the soil. Yet, the use of one’s ground-level surface and other elements of the soil is without such insulation from tort liability. Our consideration of this case convinces us that there is no valid reason to continue this special immunity insofar as it relates to future subsidence proximately caused by negligence in the manner which wells are drilled or produced in the future. It appears that the ownership and rights of all landowners will be better protected against subsidence if each has the duty to produce water from his land in a manner that will not negligently damage or destroy the lands of others.

Therefore, if the landowner’s manner of withdrawing ground water from his land is negligent, willfully wasteful, or for the purpose of malicious injury, and such conduct is a proximate cause of the subsidence of the land of others, he will be liable for the consequences of his conduct. The addition of negligence as a ground of recovery shall apply only to future subsidence proximately caused by future withdrawals of ground water from wells which are either produced or drilled in a negligent manner after the date this opinion becomes final.

While this addition of negligence as a ground of recovery in subsidence cases applies to future negligence in producing water from existing wells and those drilled or produced in a negligent manner in the future, it has been suggested that this new ground of recovery should be applied in the present cause of action. This is often done when a court writes or adds a new rule applicable to personal injury cases, but seldom when rules of property law are involved. Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825 (1919); 10 A.L.R.3d 1371, 1388; Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201, 242-43 (1965). This is because precedent is necessarily a highly important factor when problems regarding land or contracts are concerned. In deeds, property transactions, and land developments, the parties should be able to rely on the law which existed at the time of their actions. For the power of the courts in this regard, see Great Northern Ry. Co. v. Sunburst Oil and Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).

Judgment

Accordingly, the judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

Dissenting Opinion by POPE, J., in which SAM D. JOHNSON, J., joins.

CHADICK, J., not sitting.

POPE, Justice,

dissenting.

I respectfully dissent. The court has decided this cause upon the mistaken belief that the case is governed by the ownership of ground water. Plaintiffs assert no ownerships to the percolating waters pumped and extracted from the ground by defendants. They make no complaint that their own wells have been or will be pumped dry. They seek no damages for the defendants’ sale of the water. Plaintiffs’ action calls for no change in nor even a review of the English rule of “absolute ownership” of ground water, the American rule of “reasonable use” of ground water, nor the Texas rule of “nonwasteful” use of ground water. They claim no correlative rights in the water. The Texas law of percolating waters is not put in issue by this suit, and there is no occasion to overrule that law either now or prospectively. There is a question whether this court can or ought to do so after the Texas legislature has so often and so recently stated its intent that the law of ground waters should be respected. Tex.Water Code Ann. §§ 21.004, 52.-002; 1975 Tex.Gen.Laws, ch. 284, § 40, at 682 (creating Harris-Galveston Coastal Subsidence District).

Plaintiffs’ complaint is that defendants are causing subsidence of their land. They assert an absolute right to keep the surface of their land at its natural horizon. The landowners’ right to the subjacent support for their land is the only right in suit, and this is a case of original impression. Other areas of the law should not be disturbed, but the majority opinion needlessly does so. It is no more logical to say that this is a case concerning the right to ground water than it would be correct in a case in which an adjoining landowner removed lateral support by a caterpillar to say that the case would be governed by the law of caterpillars. In making this decision about one’s right to subjacent support, I would use as analogies other kinds of cases concerning support, such as the right to lateral support.

A landowner’s right to lateral support for his land is an absolute right. The instrument employed in causing land to slough off, cave in or wash away is not the real subject of inquiry. The inquiry is whether the adjoining owner actually causes the loss of support. Whether the support is destroyed by excavation, ditching, the flowing of water, the pumping of water, unnatural pressure, unnatural suction, or explosives, the right to support is the same, and it is an absolute right. Nichols v. Woodward Iron Company, 267 Ala. 401, 103 So.2d 319 (1958); Wiliiams v. Thompson, 152 Tex. 270, 256 S.W.2d 399 (1953); Whitehead v. Zeiller, 265 S.W.2d 689 (Tex.Civ.App.—Fort Worth 1954, no writ); Simon v. Nance, 100 S.W. 1038 (Tex.Civ.App. 1907, no writ); 2 C.J.S. Adjoining Landowners § 38 (1972). It was said in San Jacinto Sand Co. v. Southwestern Bell Tel. Co., 426 S.W.2d 338, 345 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.), in a case that concerned both the lateral and subjacent right to support for a utility easement: “[T]he existence of the right to lateral support is an absolute right and is not subordinate to any right of the adjoining proprietor.” Nichols v. Woodward Iron Company, supra. And again, the opinion stated, “Whether we say that necessary lateral and subjacent support of the easement here involved is an incident of appellee’s right to the complete enjoyment of the easements, or whether lateral and subjacent support is a separate right of property makes little practical difference.”

Respectable American authority supports the rule that a landowner has the right to the support afforded by subterranean waters. New York Central R. Co. v. Marinucci Bros. & Co., 337 Mass. 469, 149 N.E.2d 680 (1958); Gamer v. Milton, 346 Mass. 617, 195 N.E.2d 65 (1963), [rejecting the decision in Popplewell v. Hodkinson, L.R. 4 Ex. 248 (1869)]; Cabot v. Kingman, 166 Mass. 403, 44 N.E. 344 (1896); Bjorvatn v. Pacific Mechanical Construction, Inc., 77 Wash.2d 563, 464 P.2d 432 (1970); Muskatell v. City of Seattle, 10 Wash.2d 221, 116 P.2d 363 (1941); Farnandis v. Great Northern Ry. Co., 41 Wash. 486, 84 P. 18 (1906); 1 Am. Jur.2d Adjoining Landowners § 80 (1962); 2 C.J.S. Adjoining Landowners § 38 (1972); Annot., 4 A.L.R. 1104.

A second analogous rule which protects one’s subsurface from damage by an operator on other lands is found in Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 33, 344 S.W.2d 411, 416 (1961). Mr. Gregg, in the development of his mineral lease, was preparing to use a sand fracturing technique to open cracks and veins extending some distance from his lease and to alter the substructure of neighboring land. By use of hydraulic pressure the ruptures of the subsurface formations would free greater quantities of gas. The rupture beneath the Delhi-Taylor’s lands would create only small veins about one-tenth of an inch in diameter. This court regarded the creation of fissures on another’s land as an invasion of property rights. “The invasion alleged is direct and the action taken is intentional. . While the drilling bit of Gregg’s well is not alleged to have extended into Delhi-Taylor’s land, the same result is reached if in fact the cracks or veins extend into its land and gas is produced therefrom by Gregg.” This court denied one landowner the right to interfere with the subsurface of lands beyond his own lease boundaries. The same principle was applied in Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 38, 344 S.W.2d 419 (1961), and in Delhi-Taylor Oil Corp. v. Holmes, 162 Tex. 39, 344 S.W.2d 420 (1961).

In my judgment, the examples are indistinguishable from the present case. The geologic changes that the defendants are creating beneath the surface of the plaintiffs’ land in the instant case are more severe than in the Gregg and Holmes cases. The plaintiffs made summary judgment showing that the defendants squeeze the water from the clay beneath plaintiffs’ lands, and the clay is then compressed and compacted so that the layers become thinner. The subterranean strata beneath plaintiffs’ land is wholly altered by the process. The process is permanent and irreversible. If one may not use pressure that alters the geologic status of one’s subsurface estate, how can we approve a process which reduces the pressure and which more grievously alters the subsurface estate? With respect I suggest, had we used the same argument in the Gregg and Holmes cases that is today employed, we would have approached the problem by looking at Gregg’s and Holmes’s right to capture the oil through its wellbore on its own lease. Once we determine that they had the right to capture and own the oil, we would have ruled that the case was solved. In Gregg and Holmes, we correctly looked at the damage to the neighbors’ subsurface estate that was threatened by one who had a complete legal right to capture from a wellbore on his own land the oil from beneath another’s land. The right of capture did not carry with it the right to destroy or interfere with the geology beneath another’s land.

Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 4 A.L.R.2d 191 (1948), was another example in which this court looked at the damage done a neighbor’s subsurface estate by an oil driller who had the right to capture oil through the wellbore on his own lease. This court expressly rejected holdings by the Louisiana Supreme Court which held that an adjoining owner has no action against one who negligently destroys a reservoir. This court also rejected the defense that one’s right to capture the oil rendered him immune from damages for his negligence in wasting it.

We thus reach the end result. Under our prior holdings compared with today’s, one who mines for oil may not destroy his neighbor’s subjacent geology; but the right to pump water, we inconsistently say, is the right to destroy the subsurface geology, the subjacent support and even the surface of the land. Defendants may pump the plaintiffs’ land to the bottom of Galveston Bay.

There is a third analogous area which has rejected the approach and result of today’s decision. This area of the law is one in which one party actually contracts with another that the latter may remove the minerals beneath his surface estate. This area of the law presents the contest between the rights of the servient surface estate and the dominant mineral estate. This court has already held that the owner of the dominant estate may not exercise his rights to the point of destruction. In Acker v. Guinn, 464 S.W.2d 348, 352 (Tex.1971), we wrote that the grant of a right to mine for substances does not contemplate “that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired.” Even when the right to mine had been granted by contract, we rejected a practice that would consume or destroy the surface estate. Consistent with that trend to avoid the destruction of the surface estate, we also made our decision in Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex.1971). In Getty Oil, we protected the ser-vient surface estate from the dominant mineral estate which did no more than interfere with an automatic irrigation system. If, therefore, this court will protect a ser-vient estate in its operation of a watering system, surely we will protect an owner of an absolute property right to subjacent support from a neighbor whose practice is thrusting his land beneath the sea. See also, Humble Oil & Refining Company v. West, 508 S.W.2d 812 (Tex.1974); Winslow v. Duval County Ranch Company, 519 S.W.2d 217 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Hanen, The Surface Mineral Producer v. The Oil and Gas Producer; A Need For Peaceful Coexistence, 29 Baylor L.Rev. 907 (1977).

The error of the majority is its narrow focus upon the right of the defendants to pump ground water. We should enlarge our vision so we can see what this lawsuit is about. I do not believe it is sound law that the right to pump water is the power to destroy the surface of surrounding landowners. If defendants argue that they have an absolute right to pump groundwater, plaintiffs reply that they too have an absolute right to the support of their natural surface. According to some of the summary judgment proofs, the defendants with knowledge have destroyed and are destroying the natural surface estate of the plaintiffs. The summary judgment proofs include showings that the plaintiffs own lands that were originally seven feet above sea level; today their land is flooded or subject to periodic flooding and the situation is getting worse. The natural shoreline banks which once protected lands from Galveston Bay and Clear Lake have now fallen below sea level. Lands are innundat-ed. More lands will be innundated in the future. Lands that were once above sea level are now under salt water.

There is yet another legal principle that we should observe. Many things, though lawful, when done to excess, become remediable. Church bells may toll the knell of parting day or announce the time for solemn services, but when bells continuously clang without interruption for many days, the rights of others spring into being. What we do cannot be understood except in relation to those we touch. We have in this case the pleadings and showing that the defendants have abused their right to pump water to the point that property and the rights of others are ignored and destroyed.

Plaintiffs asserted their action upon theories of negligence, intentional tort, nui-sanee, and a taking of their property. In my opinion, subject to proof, they have an action on the first three theories.

I therefore dissent from this court’s treatment of this case as one which concerns ownership of ground water. I dissent from this court’s endorsement of English water cases that have been rejected in this country. I dissent from this court’s adherence to the Restatement of Torts § 818. As discussed above, Texas has its own developed and developing law in this area of the law that is fair and equitable. The members of the Restatement Committee are neither legislators nor members of the Congress, and we do not need their help in this instance.

I dissent from the court’s holding that this case is governed by the stare decisis of ground water cases. There has not previously been a case like this in Texas and there is no stare decisis applicable. Damages for subsidence was not the issue when courts were writing City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 S.W.2d 798 (1955), and Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273 (1927), and Houston & T. C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904). The parties in these cases were fighting over water rights. Nor was that the issue in Acton v. Blundeli, 12 Meeson & Welsby 324, 152 Eng.Rep. 1223 (Ex.1843). The law stated by those cases need not and should not be disturbed by today’s opinion. Because there is no stare decisis, I also dissent from the court’s holding that plaintiffs can have no remedy except by a retroactive application of the law. The defendants, according to some of the summary judgment proofs, had knowledge from expert opinions that their course of action would cause subsidence. When the defendants, after warning, elect to take their risks in an area in which there are no precedents, I see no reason to apply our holding prospectively. No property law had attached in this instance. I dissent from the court’s dicta that the legislature has in some fashion recognized or legislated about the defendants’ immunity. Where is that legislation found?

Finally, and importantly, I dissent from the majority’s holding that landowners in the future may prosecute a suit for damages for the destruction of their property if, and only if the action is one for negligence, wilful waste, or malicious injury. I rather assume that pumpers of ground water will carefully do so, will not waste their water, and will bear no ill will toward those whose property they are destroying. In fact, pumpers more probably, will feel benignly toward those who regrettably must suffer the loss of their lands under the law of Friendswood Development Company v. Smith-Southwest Industries, Inc.

I would hold that an owner of land may assert an action against one who destroys the lateral or subjacent support to his land in its natural state when: (1) he engages in conduct knowing that it will cause damages to another’s land by loss or destruction of the subjacent support, Paris Purity Coal Co. v. Pendergrass, 193 Ark. 1031, 104 S.W.2d 455 (1937); or (2) the plaintiff proves negligence, or (3) the plaintiff proves a nuisance, and here a balancing will be a factor. Justice Williams, the author of East also wrote Gulf, C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999 (1900), and accepted this reasonable solution to the resolution of the conflict between two property rights:

It is a general principle of the law that the owner of property may use it as he chooses in any lawful way; but another maxim, in general terms, requires him to so use it as not to injure another. . Since the owner may use his land as he chooses, if he does not violate any law, and is not to be substantially deprived of its use or of the ordinary pursuit of his own interests, but, at the same time, is required in its use to avoid injury to another, it at once follows that he may be required to forego a particular use when it is not essential to the substantial enjoyment of his property, and is fraught with unreasonable loss to his neighbor. On the other hand, the particular use may be so important to the owner, and the loss or inconvenience to his neighbor so slight compared to his, were he forbidden to so employ his property, that it would be unreasonable and unjust to impose such a restriction. In such cases, it is evident that all of the circumstances of the situation must be taken into consideration. The importance of the use to the owner, as well as the extent of the damage to be inflicted upon his neighbor, and the rights of the parties, are to be adjusted in a practical way; the question being whether or not the proposed use is a reasonable one, under all the circumstances. . As is said in some of the authorities, there must, in such inquiries where rights and interests seem to conflict, be a balancing of them. Id. at 1000-01.

The balancing of lawful but competing property rights has been the rule previously approved by our Texas courts. Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950); City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816 (1923); Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 (1923); Galveston, H. & S. A. Ry. Co. v. De Groff, 102 Tex. 433, 118 S.W. 134 (1909); Columbian Carbon Co. v. Tholen, 199 S.W.2d 825 (Tex.Civ.App.—Galveston 1947, writ ref’d). We wrote in Elliff v. Texon Drilling Co., 146 Tex. 575, 584, 210 S.W.2d 558, 563 (1948), “In the conduct of one’s business or in the use and exploitation of one’s property, the law imposes upon all persons the duty to exercise ordinary care to avoid injury or damage to the property of others.” That rule is fair. It has often been applied in Texas as appears from the citations above and there are many others. Rogers v. Scaling, 298 S.W.2d 877 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.); Hoover v. Horton, 209 S.W.2d 646 (Tex.Civ.App.—Amarillo 1948, no writ); Brown v. Cooper, 31 S.W. 316 (Tex.Civ.App. 1895, no writ). See also, Wright, Establishing Liability For Damage Resulting From the Use of Underground Percolating Water: Smith-Southwest Industries v. Friendswood Development Company, 15 Hous.L.Rev. 454 (1978).

I also dissent from the court’s denial of rights to the plaintiffs, while acknowledging that future landowners may have an action at least in negligence. This court, in recent years, has recognized a number of new actions, and each time, the successful party was allowed the victory. Among the recent examples are Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978) [consortium]; Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978) [abolition of no-duty doctrine in premises cases]; Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977) [interspousal tort immunity abolished in case of wilful and intentional torts]; Farley v. MM Cattle Company, 529 S.W.2d 751 (Tex.1975) [abolition of voluntary assumption of risk]; Felsenthal v. McMillan, 493 S.W.2d 729 (Tex.1973) [criminal conversation]; Getty Oil Company v. Jones, 470 S.W.2d 618 (Tex.1971) [dominant estate limited by rule of reasonable necessity]. In my opinion, it is basically unfair to treat the plaintiffs in this case unequally by recognizing that they possess an action, but by denying them the remedy.

I would affirm the judgment of the court of civil appeals.

SAM D. JOHNSON, J., joins in this dissent.

      . Ground-Water Data for Harris County, Texas, Volume II, Records of Wells, 1892-1972, Report 178, Texas Water Development Board, 1974.

      . Land Surface Subsidence in the Houston-Galveston Region, Texas, compiled by R. K. Ga-brysch and C. W. Bonnet for the U.S. Geological Survey in cooperation with the Texas Water Development Board and the cities of Houston and Galveston, Report 188, Texas Water Development Board, p. 2 (1975).

      . Id. 1.

      . Id. 3, 13. Figure 1 on page 3 delineates the principal areas of water withdrawals with the average rates of pumping in 1972 stated in million gallons per day (mgd). Figure 9 on page 13 contours the level of subsidence within the region during 1943-73. From these maps, the rate of pumping for 1972 and the maximum 1943-73 subsidence may be compared as follows:
      AVERAGE RATE OF PUMPING, 1972 MAXIMUM SUBSIDENCE, 1943-73
      Houston Area 195 mgd 3 to 5 feet
      Katy Area 125 mgd 1 foot
      Pasadena Area 120 mgd 7.5 feet
      Baytown-LaPorte Area 32 mgd 5 feet
      Johnson Space Center Area 18 mgd 3 feet
      Texas City Area 14 mgd 4 feet
      Alta Loma Area 13 mgd 2.5 feet

      .Id. 15.

      .See Winslow and Wood, Relation of Land Subsidence to Ground-Water Withdrawals in the Upper Gulf Coast Region, Texas, Mining Eng., October 1959, pp. 1030-1034; Wood and Gabrysch, Analog Model Study of Ground Water in the Houston District, Texas, Bulletin 6508, Texas Water Rights Commission, 1965; Land Subsidence in the Houston Gulf Coast Area, A Report to the 64th Session of the Texas Legislature by the Gulf Coast Waste Disposal Authority Pursuant to H.B. 705 of the 63rd Legislature (1975); Teutsch, Subsidence in the Houston-Galveston Region: A Comprehensive Analysis, M.S. Thesis, Rice University, 1977. See also our opinion in Coastal Industrial Water Authority v. York, 532 S.W.2d 949 (Tex.1976), wherein we note that land near the San Jacinto Monument “has subsided some nine feet in the past seventy years. . . . ”

      . Chap. 284, 64th Legislature, Reg.Sess., effective April 23, 1975. See Beckendorff v. Harris-Galveston Coastal Subsidence District, 558 S.W.2d 75 (Tex.Civ.App.1977, writ ref'd n. r. e.), a case which upheld the constitutionality of the Act.

      . Id., Sec. la; Secs. 19-24; and Secs. 28-30.

      . The public policy considerations were said to be (1) “because the existence, origin, movement and course of such waters, . . 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, therefore, be practically impossible”; and (2) “because any such recognition of correlative rights would interfere, to the material detriment of the commonwealth, with drainage and agriculture, mining, . .” etc. 81 S.W. 279 at p. 281. For criticisms of the reasons for the rule see note 17, infra.

      . In Bradford Corp. v. Pickles, 1 Ch. 145 (1895), aff'd H. L. [1895-99] ALL E.R. 984, and subsequent English cases, doubt was cast as to whether malicious injury was a limitation on the English rule. No doubt on this limitation has been expressed by this Court. We reaffirm the limitation in this opinion.

      . Kellam, A Century of Correlative Rights, 12 Baylor L.Rev. 1 (1960); Hardwicke, The Ruie of Capture and Its Implication As Applied to Oil and Gas, 13 Tex.L.Rev. 391, 408-410 (1935).

      . Greenhill and Gee, Ownership of Ground Water in Texas; The East Case Reconsidered, 33 Tex.L.Rev. 620, 622, 629 (1955).

      . Ch. 306, Acts 51st Leg.1949, p. 559, codified as Ch. 52 of Vernon’s Texas Water Code.

      . Ch. 598, Acts 63rd Leg.1973, p. 1641, codified in Sec. 52.021 of the Texas Water Code.

      . The tentative change of § 818 from non-liability to strict liability, with the addition of other substances, reads as follows:
      “§ 818. WITHDRAWING SUBTERRANEAN SUBSTANCES.
      One who is privileged to withdraw subterranean water, oil, minerals or other substances from under the land of another is not for that reason privileged to cause a subsidence of the other’s land by such withdrawal.”
      The proceedings of the American Law Institute reflect that this change was proposed by the Reporter, Dean Prosser, in what he termed “a rather bob-tailed session,” with the explanation that instead of fixing liability, this revision of § 818 would simply “knock out the absolute privilege to withdraw water without liability for the consequences.” 1969 Proceedings of the American Law Institute 268, 273. The Reporter’s Note to Institute appended to the tentative draft states that “[t]he Advisors and the Council, meeting the problem for the first time, are in some doubt, but express themselves as willing to follow the majority of the cases.” [Most of which related to substances other than water.] See tentative draft proposal # 15, Restatement (Second) of Torts § 818, Ch. 39.

      . See dissenting opinion of two justices in City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 S.W.2d 798 (1955); Castle-berry, A Proposal for Adoption of a Legal Doctrine of Ground-Stream Water Interrelationship in Texas, 7 St. Mary’s L.J. 503 (1975); Steel-hammer and Garland, Subsidence Resulting From the Removal of Ground Water, 12 South Texas L.J. 201 (1970); Roger Tyler, Underground Water Regulation in Texas, Texas B.J., June 1976, 532; Snyder, Ground Water Management: A Proposal for Texas, 51 Tex.L.Rev. 289 (1973); Comment: Subsidence, 9 Texas Tech L.Rev. 392 (1977-78); Garland F. Smith, The Valley Water Suit and Its Impact On Texas Water Policy, 8 Texas Tech L.Rev. 577 (1977); A. W. Walker, Jr., “Theories of Ownership and Control of Oil and Gas Compared With Those of Ground Water,” Water Law Conference Proceedings, Univ. of Texas, p. 121 (1956); Teutsch, Subsidence in the Houston-Galveston Region, M.S. Thesis, Rice Univ. (1977). For objective discussions of the rule see Hutchins, The Texas Law of Water Rights, 565-585 (1961), and Greenhill and Gee, Ownership of Ground Water in Texas; The East Case Reconsidered, 33 Tex.L.Rev. 620 (1955).

      . Amicus Curiae Brief of the High Plains Underground Water Conservation Dist. No. 1, p. 6, filed in this case (1977).

      . Sec. 29 of the Harris-Galveston Coastal Subsidence District Act, Ch. 284, Acts 64th Leg. 1975, contains a similar provision.

      . Nothing in this chapter affects ownership rights in underground water.

      . The ownership and rights of the owner of the land and his lessees and assigns in underground water are hereby recognized, and nothing in this code shall be construed as depriving or divesting the owner or his lessees and assigns of the ownership or rights, subject to the rules promulgated by a district under this chapter.


author: PER CURIAM.

text:
    Don Michael BATEY, Petitioner, v. DREVER & ASSOCIATES PROFESSIONAL PERSONNEL SERVICE, Respondent.
    No. B-8032.
    Supreme Court of Texas.
    Dec. 20, 1978.
    Rehearing Denied Jan. 17, 1979.

      Roger H. Broach, Woodlands, for petitioner.
    Grubb & Morris, John K. Grubb, Houston, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Drever & Associates Professional Personnel Service sought a temporary injunction forbidding Don Michael Batey from competing which was alleged to be a breach of his employment contract. The trial court denied the injunction, but the court of civil appeals reversed that judgment and remanded the cause with an instruction that the trial court issue an order temporarily enjoining Batey. 572 S.W.2d 30.

We agree with the decision of the court of civil appeals in its order that the trial court issue its temporary injunction. That part of the decision, however, which orders that the temporary injunction operate for a period of one year from the date Mr. Batey left his employment with Drever & Associates has the force of a permanent injunction and is in conflict with this court’s opinion in Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952).

Pursuant to Rule 483, Texas Rules of Civil Procedure, the application for writ of error is granted, and without hearing argument, the judgment of the court of civil appeals is reformed so that the trial court is ordered to grant its temporary injunction to be operative until the cause is finally heard on the merits or until further orders of the trial court. As reformed, the judgment of the court of civil appeals is affirmed.