ALEXANDER KOLODIN: Part 1 Of 4 – Arizonans Had Private Property Rights To Groundwater
By Alexander Kolodin |
Cuius est solum, eius est usque ad coelum et ad inferos. Also known as the ad coelum doctrine, it means: “Whoever owns the soil owns everything up to the heavens and down to the depths.” This includes gold, silver, oil—or groundwater—that may be below.
In basic property law, the ad coelum doctrine comes with the “right to exclude,” which is the right for landowners to keep, sell, use, protect, and conserve their property—including preventing others from taking it.
Sic utere tuo ut alienum non laedas, also known as the “no harm” principle, means: “Use your own property in such a way that you do not injure the property of another.” This includes groundwater.
Articulated by John Locke in his Second Treatise of Civil Government, the “no harm” principle represents the biblical golden rule: “Do unto others what you would have them do unto you.”
These principles form the foundation of American property law. And in Arizona, they were part of our groundwater code—that is, until 1953, when they were taken away.
Arizonans had property rights to groundwater
According to the Arizona Supreme Court in Davis v. Agua Sierra Resources (2009), Arizona’s common law on groundwater “evolved from the territorial-day view that a landowner has a property interest in groundwater underlying the surface estate.”
Indeed, as Ted Steinberg wrote in Slide Mountain: “Private property in the underground was real all right. At least there were a lot of people in Arizona who believed in it.” According to him, Arizona farmers swore they owned the groundwater beneath their feet, just like the ad coelum doctrine said they did.
In 1904, the Territorial Supreme Court of Arizona affirmed farmers’ beliefs, stating in Howard v. Perrin that “percolating waters are the property of the owner of the soil.”
After statehood, the Arizona Supreme Court upheld the territorial view, stating in Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co. (1931) that groundwater was “the property of the owner of the land,” subject to the rules of the common law, which included the “no harm” principle and biblical golden rule.
These affirmations confirmed what landowners already knew: that the groundwater was theirs, and they had a right to use it as long as they did not harm the rights of others.
But this framework is very different than the ‘free-for-all’ we have today, which does not recognize private property rights or the golden rule.
What happened? How did we get here?
Arizonans’ property rights were taken away
In the mid-1900s, a dramatic shift occurred. Armon Cheatham, an industrial cotton farmer, sunk eleven wells near Laveen, creating a large cone of depression that dried up thirty-eight other landowners’ wells.
The small landowners had been using their water for modest means, like household use and ranching. Tom Bristor, one of those landowners, sued to protect his private property rights, enforce the ad coelum doctrine, and uphold the golden rule.
But in a sudden reversal of precedent, the Arizona Supreme Court in Bristor v. Cheatham (1953) rejected the territorial view and replaced the golden rule with a new doctrine called “beneficial use.”
This dealt the first blow—eliminating John Locke’s “no harm” principle and opening the door for anyone to pump as much as they wanted, “without limitation and without liability to another owner.”
Twenty-eight years later, the Arizona Supreme Court dealt the final blow, declaring in Town of Chino Valley v. City of Prescott (1981), that “there is no right of ownership of groundwater in Arizona prior to its capture and withdrawal from the common supply,” eliminating the ad coelum doctrine in our state.
Here, small well owners in Chino Valley sued to stop the City of Prescott from taking their water and piping it 17 miles away under the state’s new 1980 Groundwater Management Act.
Although their wells hadn’t gone dry yet, they argued that the city’s scheme (and the state’s new groundwater law) constituted a “taking” that required just compensation, including for future groundwater supplies that hadn’t been pumped but that residents wanted to ensure would be available for future use.
Unfortunately, the Court sided with big government and the city, ruling that the water beneath their property wasn’t theirs until they pumped it—ending the ad coelum doctrine and handing full control over to the government.
This was the final nail in the coffin for private property rights—eliminating the right to exclude and declaring all groundwater a public resource, shared by all but owned by none, preventing anyone from protecting or conserving a discrete supply and leading to the situation we have today.
Ownership of subsurface groundwater should never have been taken away
The judges who decided the 1953 case were all Democrats, and the governor who adopted the 1980 law was Democrat Bruce Babbitt. They broke from our state’s traditional values and sided with corporate industry over small landowners, leaving everyday citizens helpless against the political and financial elite.
Had Arizona’s leaders maintained the traditional values that founded our country, we would not be in the situation we’re in today.
Fortunately, the detrimental effects of these negative decisions can be reversed. We can correct the mistakes of the past and return private property rights back to the people.
Only then can we ensure a fair system that restores what was taken, upholds our founding values, and allows property owners to protect and conserve the groundwater beneath their feet.
Alexander Kolodin serves Legislative District 3 in the Arizona State House and has been practicing election law in Arizona for over a decade. He is currently running to be Arizona’s next Secretary of State.
