WSP03064 - Laserfiche WebLink

Home Browse Search

event, the city could not be held liable for in- terfering with plaintiffs water table under the English Rule, Olson, in contrast, argued that the American Rule of Reasonable Use defined groundwater property rights in Nebraska, The Reasonable Use Rule, first suggested in Bassett v, Salisbury Manufacturing CO,,6, is similartothe English Rule in that rights are generally acquired by capture, The American Rule differs from the English Rule, however, in that use must be reasonable in relation to the overlying land, but not necessarily in relation to the needs of others,? The reasonable use limitation can be thought of as having two components: 1) groundwater captured must be applied to overlying land and 2) groundwater cannot be used for malicious purposes or in a wasteful manner given the purpose of use on the overlying land. Some confusion exists in the first component as to whether "overlying land" refers to all land over the aquifer, only to contiguous tracts over the aquifer owned by one person, or to some other standard. Clearly, however, the second component of the test imposes very little re- striction on a landowner's right to use ground, water and does not prevent the total economic depietion of the aquifer by a single overlying landowner, Although clearly dicta6 given the disposition of the case on causation grounds, the Nebraska Supreme Court announced that it favored the American Rule for percolating waters, In defining the American Rule, however, the court stated: that the owner of land is entitled to appro- priate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole, ' ' .9 With the "sharing in time of shortage" language the court included an essential component of the California Rule of Correlative Rights in its defin' ition of groundwater property rights, The apparent rejection of the English Rule in Olson was a significant step in the development of groundwater property rights in Nebraska, The Olson case, however, left many questions un- answered including what constituted an "in, sufficient supply" or whether, perhaps, the cor, relative rights language was merely inadvertent on the part of the court. Furthermore, the court's definition seems to suggest that disputes among landowners with substantial rights in the same source of water should be decided using a 1-2 nuisance style accommodation'o In any event, Olson created the potential for development of a unique rule of groundwater property rights in Nebraska. 2, Luchsinger v, Loup River Public Power District" (1941) In Luchsinger, defendant power district con, structed a canal extending from its power plant near Columbus to the Loup River, The canal was excavated adjacent to plaintiffs land, Plaintiff alleged that the canal drained his subirrigated cropland seriously decreasing his dryland corn production, Defendant power district un, successfully argued that, since the canal was constructed solely on lands it owned in fee, it was free to intercept groundwater which found its way into the canal. Such a result would have been consistent with the English Rule, The Nebraska Supreme Court again reiterated its version of the American Rule as articulated in Olson, however, and rejected the reasoning of the defendant. Under the American Rule defendant's use of water was unreasonable orwasteful in relation to the overlying land since the captured ground, water merely flowed into the Loup River, The plaintiff was awarded damages by the court for the depreciation in value to his land caused by the construction of the canal. The emphatic language of the court in Luchsinger should have ended all speculation that the English Rule of Absolute Ownership was ever the law in Nebraska, In discussing the American Rule quoted from the Olson decision, the Court stated: It is argued, however, that this is dictum in the opinion in which it appears and not binding on defendant in the present con, troversy, Whatever may be thought of its applicability to the case in which the rule was adopted, it answers for itself as a sound proposition of law essential to the pro, tection of property rights of private in, dividuals and is consistent with the Con, stitution and with morality and justice, it expresses the wisdom of the Roman Senate to the effect that private property cannot be taken for public purposes except on an estimate of its value; of the Magna Charta which declares that no one shall be de' prived of his property except by the law of the land and by the judgment of his peers; of the Code of Napoleon which provides that no one can be cornpelled to give up his property except for the public good and for a just and previous indemnity; of the people of the United States who inserted in their Constitution the fundamental principle that