1. In order to assess whether future condition is an unlawful enslavement, we must understand what absolute ownership means.
What does absolute ownership mean?
“He who is the absolute owner of a thing owns all its faculties for profit or increase; and he may, no doubt, grant the profits or increase, as well as the thing itself. Thus, it is every day’s practice to grant the future rents of profits of real estate; and it is held that a man may grant the wool of a flock of sheep for years.” Citing Banks, Adm’r v. Marksburg, Spring T. 1823, 3 Little’s Rep. 275, “A Key to Uncle Tom’s Cabin”, Stowe, 1853, republ. 2015, p. 76 wherein Harriet Beecher Stowe relates a discussion of the legal maxim Nemo dat quod non habet.
(Note that Stowe, a writer in the 1850’s, discusses concepts of settled black letter law but most lawyers of 2016 probably don’t even know much of the maxims of the law. )(Of the mid and early cases of the 1800’s, I am struck by the frequent reference to Latin phrases of the maxims of the law as we saw in the 1904 Houston v. East case. Nowadays, use of Latin in decisions is uncommon.)
“[T]he law vests in him at once the entire dominion of goods, being analogous to the fee simple which a tenant in tail may acquire in real estate.” Broom’s Maxims, 8th Am. 1882, p. . (Emphasis added)
In light of the groundwater producer’s yoke to Texas Water Code sec. 36.108 (d-2) preservation of private property land rights to groundwater the following is pertinent:
“Is perpetual service legal?”
“In the opinion of Thomas, J., said: Such a contract, it is scarcely necessary to say, is against the policy of our institutions and laws.”
“If such a sale of service could be lawfully made for five years, it might for the same reasons, for ten, and so for the term of one’s life.”
“The door would thus be opened for a species of servitude inconsistent with the first and fundamental article of our declaration of rights, which, propio vigore, not only abolished every vestige of slavery then existing in the commonwealth, but rendered every form of it thereafter legally impossible.”
“That article (the Declaration of Independence) has always been regarded, not simply as the declaration of an abstract principle, but as having the active force and conclusive authority of law. – Hammond.” Jones’ Blackstone, 1915, Bk II, p. , note 2.
2. Does freedom come from law, or coercion?
America stands for “Freedom through law”. That is true.
But here are the lies and double talk when Hegel asserts that “Freedom comes through coercion”.
Freedom is the absence of coercion. Marx’ reflects this double-talk with “I will stroll through the destruction a creator”. The seductive double-talker also claimed that “central control” “increases total production”.
Isn’t that what we hear when we are told that we have only 36 years of groundwater left (not true in itself) therefore we need “central control” through “preservations” of Water Code 36.108 (d-2) and “future conditions” imposed by TWDB TCEQ and TPWD?
3. The last time I looked, it appears that groundwater is excluded from Texas’ eminent domain statutes. If correct, why would that be?
4. Land law was so stable back about 1980 that the latest case I used in a research paper came from about 1948……….. the legislature now changes land law so frequently in Ch. 36 of the Water Code that lawsuits don’t have time to go through the judicial branch before there is another panicked change to the law.
5. Lawyers aren’t educated (trained) like CPAs. You can ask nearly any CPA about taxes and get consistent answers in all 50 states. Not counting federal law, there are some 52 areas of law in Texas alone, each of which have become exceedingly complex such that most lawyers don’t practice but a handful of areas of law.
Catch a lawyer at the bar and he’ll tell you anything. There is no attorney client relationship, so the lawyer might know or might not know the correct answer. What I’ve found is that lawyers’ guesses are mostly wrong. That is why the lawyer must be hired to research the question before relying on the information given so cheaply…………… that includes what is written here. And that is why I give references, so that the person exercising ordinary care in deciding what to do or not do can go directly to the source to determine on their own how badly things have gotten screwed up with land law lately.
And that is why this writing is also described as opinion.
My opinions can be just as technically wrong as the next person’s.
But in the end, I think we are dealing with the difference between right and wrong that most people can understand.