[3] For example, a water well owner may dry up wells owned by adjacent landowners without fear of liability unless the groundwater was withdrawn for malicious purposes, the groundwater was not put to a beneficial use without waste, or (in Texas) "such conduct is a proximate cause of the subsidence of the land of others.
[5][6] When presented with oil and gas cases, early common law jurists were somewhat reluctant to recognize a corporeal possessory interest in substances that they considered to be fugacious or “wild and migratory” and therefore subject to loss by drainage.
Some states, such as Texas, have adopted the “ownership-in-place” theory for oil and gas that landowners own a corporeal possessory interest (similar to a fee simple) in the substances beneath their land, but their ownership is a determinable fee subject to the rule of capture.
This concept is based upon a Roman legal principle of property law, cuius est solum eius est usque ad coelum et ad inferos (for whosoever owns the soil, it is theirs up to the sky and down to the depths).
[10] Such acts enforce prorationing, pooling, and limits on density of drilling to avoid physical waste and ensure maximum ultimate recovery.