[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 
January Term, 2005 

3 

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, 
January Term, 2005 

5 

{¶ 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: 
January Term, 2005 

7 

{¶ 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 
January Term, 2005 

9 

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 reasonableuse 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. 
January Term, 2005 

11 

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. 

______________________