[Cite as McNamara v. Rittman, 107 Ohio St.3d 243, 2005-Ohio-6433.]




                      MCNAMARA ET AL. v. CITY OF RITTMAN.
                   HENSLEY ET AL. v. CITY OF COLUMBUS ET AL.
     [Cite as McNamara v. Rittman, 107 Ohio St.3d 243, 2005-Ohio-6433.]
Property rights – Takings Clause – Procedural and substantive due process –
        Groundwater rights – Landowners have property interest in groundwater
        underlying their land – Governmental interference with that right can
        constitute compensable taking.
   (Nos. 2004-0357 and 2004-0363 — Submitted January 12, 2005 — Decided
                                 December 21, 2005.)
    ON ORDERS from the United States Court of Appeals for the Sixth Circuit,
          Certifying Questions of State Law, Nos. 02-3778 and 02-3965.
                                 _________________
        PFEIFER, J.
                         Factual and Procedural Background
        {¶ 1} The Sixth Circuit Court of Appeals has certified a single question
to this court arising from two cases. The question is a general one, so we need not
delve deeply into the facts of the cases at issue.
        {¶ 2} Both cases involve the effect of construction by governmental
entities on the water supplies of individual homeowners. In McNamara, the
petitioners are homeowners who reside in Sterling, Ohio. In 1973, respondent,
the city of Rittman, purchased a tract of land near Sterling for the purpose of
drilling three wells on the land to serve Rittman’s water needs. Petitioners allege
that Rittman’s operation lowered their aquifer, causing water shortages and poor
quality water. On January 4, 1994, petitioners filed a complaint seeking damages
and injunctive relief against Rittman. The trial court granted summary judgment
to Rittman. The appellate court affirmed, holding that Rittman was immune from
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liability under R.C. Chapter 2744.       This court accepted an appeal, but later
dismissed the case as having been improvidently allowed. McNamara v. Rittman
(1998), 82 Ohio St.3d 1414, 694 N.E.2d 76, and 85 Ohio St.3d 1206, 707 N.E.2d
943.
       {¶ 3} The McNamara petitioners filed a complaint in the United States
District Court for the Northern District of Ohio on December 7, 2000, seeking
relief pursuant to Section 1983, Title 42, U.S.Code, alleging a violation of their
due process rights as well as a taking without just compensation. The court did
not decide whether the petitioners had a property right in groundwater, but instead
granted summary judgment to Rittman based upon the court’s holding that
petitioners had not filed their case within the applicable statute of limitations.
       {¶ 4} Hensley evolved in much the same way. In Hensley, the city of
Columbus and others, in order to extend sewer lines, dug a trench up to 60 feet
deep near petitioners’ property.       To keep water out of the trench during
construction, groundwater was pumped out from under the petitioners’ property.
That “dewatering” caused petitioners’ wells to go dry.
       {¶ 5} Petitioners filed a suit in the Franklin County Common Pleas Court
on April 21, 1992, alleging that respondents’ actions constituted an unreasonable
use of their groundwater and that respondents were thus liable for damages
pursuant to this court’s decision in Cline v. Am. Aggregates Corp. (1984), 15
Ohio St.3d 384, 15 OBR 501, 474 N.E.2d 324. Ultimately, the trial court granted
summary judgment to respondents based upon sovereign immunity. The court of
appeals affirmed; this court declined to grant jurisdiction on petitioners’ appeal.
Hensley v. New Albany Co. Ohio Gen. Partnership (1998), 81 Ohio St.3d 1516,
692 N.E.2d 621.
       {¶ 6} On September 30, 1999, the petitioners filed a complaint in the
United States District Court for the Southern District of Ohio pursuant to Section
1983, Title 42, U.S.Code, alleging a federal taking claim and a procedural and




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substantive due process claim. The district court granted summary judgment to
respondents, finding that Ohio does not recognize a property interest in
groundwater, thus negating any claim of a governmental taking of property.
       {¶ 7} Both cases were appealed to the Sixth Circuit Court of Appeals.
Finding that the issue of whether petitioners have a property right in groundwater
is dispositive and noting that this court has yet to address the issue, the court
posed an identical certified question in both cases:
       {¶ 8} “Does an Ohio homeowner have a property interest in so much of
the groundwater located beneath the land owner’s property as is necessary to the
use and enjoyment of the owner’s home?”
       {¶ 9} We agreed to answer the certified question in both cases. 102 Ohio
St.3d 1420, 2004-Ohio-2003, 807 N.E.2d 365.
                                 Law and Analysis
       {¶ 10} We are asked in this case to answer a general question of law, not
to resolve the underlying cases. Whether there were takings in these two cases is
not for us to decide; corrective measures taken by the cities are likewise irrelevant
to our discussion.    We are asked a question in the abstract: Whether Ohio
recognizes a property right in that amount of groundwater beneath a landowner’s
property that is necessary to the use and enjoyment of the owner’s home. Our
response is that Ohio recognizes that landowners have a property interest in the
groundwater underlying their land and that governmental interference with that
right can constitute an unconstitutional taking.
       {¶ 11} In Frazier v. Brown (1861), 12 Ohio St. 294, this court established
an absolute ownership standard for groundwater in Ohio. According to that
doctrine, “such water is to be regarded as part of the land itself, to be enjoyed
absolutely by the proprietor within whose territory it lies.” Id. at 308. The court
refused to recognize any rule requiring the sharing of water among landowners
overlying a common aquifer. Thus, any owner of property was entitled to use all




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the groundwater he could, without regard to how that use affected neighboring
landowners.    The Frazier court set forth two reasons for its holding, which
resulted “mainly from considerations of public policy”:
       {¶ 12} “1. Because the existence, origin, movement and course of such
waters, and the causes which govern and direct their movements, 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 be, therefore,
practically impossible. 2. Because any such recognition of correlative rights,
would interfere, to the material detriment of the common wealth, with drainage
and agriculture, mining, the construction of highways and railroads, with sanitary
regulations, building and the general progress of improvement in works of
embellishment and utility.” Id. at 311.
       {¶ 13} Frazier’s absolute dominion standard stood for over 100 years,
until this court adjusted the course of Ohio groundwater law in the watershed
case, Cline v. Am. Aggregates Corp., 15 Ohio St.3d 384, 15 OBR 501, 474 N.E.2d
324. Cline established that each landowner has property rights with respect to
groundwater.
       {¶ 14} In Cline, this court set out to create a workable standard for the
resolution of groundwater disputes in Ohio. To that end, the court adopted the
“reasonable use” doctrine applicable to groundwater set forth in 4 Restatement of
the Law 2d (1979), Torts, Section 858, which states:
       {¶ 15} “A proprietor of land or his grantee who withdraws ground water
from the land and uses it for a beneficial purpose is not subject to liability for
interference with the use of water by another, unless
       {¶ 16} “(a) the withdrawal of ground water unreasonably causes harm to a
proprietor of neighboring land through lowering the water table or reducing
artesian pressure,




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        {¶ 17} “(b) the withdrawal of ground water exceeds the proprietor’s
reasonable share of the annual supply or total store of ground water, or
        {¶ 18} “(c) the withdrawal of the ground water has a direct and substantial
effect upon a watercourse or lake and unreasonably causes harm to a person
entitled to the use of its water.”
        {¶ 19} The Cline standard assumes nonliability – a landowner is able to
withdraw as much groundwater as he can put to beneficial use. Cline breaks from
Frazier’s absolute rule as soon as a common user is harmed. Both Frazier and
Cline recognize that aquifers are not neatly contained within property lines and
that one landowner’s use of water can have a detrimental effect on an adjoining
landowner’s groundwater supply. However, the Frazier court held that what
happens below the surface of the land is so unknowable that we cannot determine
with any certainty whether one person’s use affects another person’s use. Cline
rejects that notion. In Cline, this court concluded that the 100 years of science
since Frazier have enabled us to reliably determine the effect of one landowner’s
water use on another landowner’s property. The court was persuaded by “[o]ther
American decisions [that] have recognized that the advancement of scientific
knowledge can insure the protection of a landowner’s property rights in ground
water to the same degree that the riparian doctrine protects the interests of land
owners adjacent to a stream.” Id., 15 Ohio St.3d at 386, 15 OBR 501, 474 N.E.2d
324.    We note that the Cline court speaks of protecting a landowner’s
groundwater “property rights.”
        {¶ 20} Cline should thus be read as protecting landowners’ property rights
in groundwater, rather than limiting them. Through Cline, a property owner has a
remedy against another property owner with land overlying a common aquifer, if
the other landowner’s use of the water unreasonably diminishes his water supply.
Under Cline, a property owner’s right to use the water underlying his property is
not subject to a neighboring property owner’s superior pumping system, as it




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would have been under Frazier.           Instead, a landowner’s right to the water
underlying his property is protected by law. A property owner has a potential
cause of action against anyone who unreasonably interferes with his property
right in groundwater. That cause of action arises only from the effect on the
landowner’s water rights — no other effect on the overlying property is necessary
for the cause of action to proceed.
        {¶ 21} Respondents argue that although Cline established that property
owners have the right to the reasonable use of the groundwater beneath their
property, they have no right of title, no ownership right, in the water itself. Thus,
they argue, the government has not taken anything that the petitioners own.
        {¶ 22} We disagree. The title to property includes the right to use the
groundwater beneath that property. The “reasonable use” standard set forth in
Cline greatly expanded water rights protection, reflecting the importance of water
rights to every piece of property. Cline recognizes the essential relationship
between water and property and confirms that groundwater rights are a separate
right in property. The Restatement section cited in Cline “recognizes that the
right to withdraw ground water is a property right that may be granted and sold to
others.” 4 Restatement of Law 2d, Torts, Section 858, Comment b. That right is
one of the fundamental attributes of property ownership and an essential stick in
the bundle of rights that is part of title to property.
        {¶ 23} Although a cause of action for unreasonable use of water sounds in
tort, it is based upon the property right of the landowner making the claim, much
like a claim for trespass. The cause of action “retains the property basis of the
common law rules pertaining to ground water.” 4 Restatement of Torts, Section
858, Comment b.
        {¶ 24} “Property” in this context encompasses more than the physical
object owned:




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       {¶ 25} “The term ‘property’ as used in the Taking Clause includes the
entire ‘group of rights inhering in the citizen’s [ownership].’ United States v.
General Motors Corp., 323 U.S. 373 [378, 65 S.Ct. 357, 89 L.Ed. 311] (1945). It
is not used in the ‘vulgar and untechnical sense of the physical thing with respect
to which the citizen exercises rights recognized by law. [Instead, it] denote[s] the
group of rights inhering in the citizen's relation to the physical thing, as the right
to possess, use and dispose of it. * * * The constitutional provision is addressed to
every sort of interest the citizen may possess.’ Id., at 377-378 [65 S.Ct. 357, 89
L.Ed. 311].” (Ellipsis sic.) PruneYard Shopping Ctr. v. Robins (1980), 447 U.S.
74, 82, 100 S.Ct. 2035, 64 L.Ed.2d 741, fn. 6.
       {¶ 26} In Smith v. Erie RR. Co. (1938), 134 Ohio St. 135, 11 O.O. 571, 16
N.E.2d 310, paragraph one of the syllabus, this court held:
       {¶ 27} "Under Section 19, Article I, of the [Ohio] Constitution, which
requires compensation to be made for private property taken for public use, any
taking, whether it be physical or merely deprives the owner of an intangible
interest appurtenant to the premises, entitles the owner to compensation.”
       {¶ 28} Rights appurtenant to property are protected from governmental
invasion, and water rights are appurtenant to title in real property. Separate title
to the actual groundwater is not required to protect a landowner’s use of that
water. By way of analogy, a riparian landowner does not own the water in a
stream that runs along his property, but he does own the right to the reasonable
use of the stream as a part of the title to his real estate. In State ex rel. The
Andersons v. Masheter (1964), 1 Ohio St.2d 11, 12-13, 30 O.O.2d 6, 203 N.E.2d
325, this court held that “[r]iparian rights are private property within the meaning
of the Constitution. Where the state makes an improvement for a purpose other
than the improvement of navigation, which destroys riparian rights, the owners of
such rights are entitled to compensation for the loss they have suffered.”




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       {¶ 29} The United States Supreme Court in Dugan v. Rank (1963), 372
U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15, also held that governmental interference
with riparian rights constitutes a taking. In Dugan, the government’s construction
of dams upstream severely affected water flow in the San Joaquin River for
riparian owners downstream. The court wrote:
       {¶ 30} “A seizure of water rights need not necessarily be a physical
invasion of land. It may occur upstream, as here. * * * [W]hen the Government
acted here ‘with the purpose and effect of subordinating’ the respondents’ water
rights to the Project’s uses ‘whenever it saw fit,’ ‘with the result of depriving the
owner of its profitable use, [there was] the imposition of such a servitude [as]
would constitute an appropriation of property for which compensation should be
made.’ Peabody v. United States, 231 U.S. 530, 538 [34 S.Ct. 159, 58 L.Ed. 351]
(1913); Portsmouth Co. v. United States [(1922), 260 U.S. 327] at 329, [43 S.Ct.
135, 67 L.Ed. 287].” Dugan, 372 U.S. at 625-626, 83 S.Ct. 999, 10 L.Ed.2d 15.
       {¶ 31} As quoted above, this court in Cline found that “the advancement
of scientific knowledge can insure the protection of a landowner’s property rights
in ground water to the same degree that the riparian doctrine protects the interests
of landowners adjacent to a stream.” Id., 15 Ohio St.3d at 386, 15 OBR 501, 474
N.E.2d 324. The dark arts theory of Frazier – that the movements of groundwater
are so mysterious that we should not even try to determine who has rights to the
water – has been abandoned. Cline held that landowners do have rights to
groundwater and that those rights are not so murky that they should be
unprotected. They are entitled to protection, as riparian rights are.
       {¶ 32} Diverse jurisdictions have held that landowners’ rights to
groundwater are protected from interference by the government. The Supreme
Court of Washington in State by State Hwy. Comm. v. Ponten (1969), 77 Wash.2d
463, 472, 463 P.2d 150, held that “there is a property right (correlative though it
may be) in percolating waters” and that the state was liable for its taking of




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landowners’ percolating waters, i.e. groundwater, when highway construction
permitted those waters to escape, causing landowners’ wells to either go dry or
suffer a reduction in supply. In Dermody v. Reno (1997), 113 Nev. 207, 212, 931
P.2d 1354, the Nevada Supreme Court stated that “appurtenant water rights are a
separate stick in the bundle of rights attendant to real property. As such, they may
be condemned separately.” The North Dakota Supreme Court in Volkmann v.
Crosby (1963), 120 N.W.2d 18, 24, held that “where a landowner has applied
percolating subterranean water to reasonable beneficial use on his overlying land
and has thereby acquired a vested right to that use, the state may not by
subsequent legislation authorize its impairment or destruction without
compensation.”        Likewise, Florida courts have held that governmental
interference with an existing use of groundwater is sufficient to state a cause of
action for inverse condemnation.          Schick v. Florida Dept. of Agriculture
(Fla.App.1987), 504 So.2d 1318, 1320-1321, relying on Tequesta v. Jupiter Inlet
Corp. (Fla.1979), 371 So.2d 663.
        {¶ 33} Ohio has its own unique water resources and water needs. More
than 700,000 Ohioans have their own wells to meet their entire water needs;
industry uses more than 240 million gallons of groundwater per day, and Ohio’s
farmers use approximately two billion gallons of groundwater per year. Ground
Water    Protection     Council,     Report    to   Congress   (2000)    (found    at
http:/www.gwpc.org/gwreport/Acrobat/ohio.pdf).
        {¶ 34} Groundwater rights are knowable and protectible. This court in
Cline established the nature of the right, and Ohio has statutorily defined what
constitutes reasonable use. R.C. 1521.17. The well-being of Ohio homeowners,
the stability of Ohio’s economy, and the reliability of real estate transfers require
the protection of groundwater rights. We therefore hold that Ohio landowners
have a property interest in the groundwater underlying their land and that




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governmental interference with that right can constitute an unconstitutional
taking.


          RESNICK, O’CONNOR, O’DONNELL and LANZINGER, JJ., concur.
          MOYER, C.J., and LUNDBERG STRATTON, J., concur in judgment only.
                                 __________________
          MOYER, C.J., concurring in judgment only.
          {¶ 35} I concur in the response of the majority to the extent that it holds
that an Ohio landowner has a constitutionally protected property interest in
groundwater that regularly occupies an aquifer underlying his land. The majority
concludes that a property interest in groundwater originates from the reasonable-
use component set forth in 4 Restatement of the Law 2d, Torts (1979), Section
858, specifically, subsection (1)(a). Though I agree with the determination that a
property interest exists, I write separately because I do not believe that it
originates from the reasonable-use rule. Instead, I believe that a property interest
in groundwater originates from the correlative-rights component of Section 858
found in subsection (1)(b). Section 858(1)(b) provides that a landowner whose
withdrawal of groundwater interferes with the use of water by another is not
subject to liability unless the withdrawal “exceeds the proprietor’s reasonable
share of the annual supply or total store of ground water.” It was the recognition
of correlative rights in respect to groundwater that created a property interest in
groundwater.
          LUNDBERG STRATTON, J., concurs in the foregoing opinion.
                                 __________________
          Steve J. Edwards, for petitioners.
          Baker, Dublikar, Beck, Wiley & Mathews, Jack R. Baker, and Mel L. Lute
Jr., for respondent city of Rittman.




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       Richard C. Pfeifer Jr., Columbus City Attorney, Daniel W. Drake, Chief
Counsel, Columbus City Attorney and Patricia A. Delaney, Assistant City
Attorney, for respondent city of Columbus.
       Reminger & Reminger and Kevin Foley, for respondent Kokosing
Construction Co., Inc. in case No. 2004-0363.
       Harris, Turano & Mazzo and Kenneth E. Harris, for respondent Tata
Excavating in case No. 2004-0363.
       Freund, Freeze & Arnold and Carl A. Anthony, for respondent Contract
Dewatering Services, Inc. in case No. 2004-0363.
       Brooks & Logan Co., L.P.A., and J. Anthony Logan, in support of
petitioners, for amicus curiae Farmer’s Educational & Cooperative Union of
America, Ohio Division.
       Barry M. Byron, Stephen L. Byron, and John Gotherman, in support of
respondents, for amicus curiae Ohio Municipal League.
                          ______________________




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