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<br />suggests that a landowner's proprietary interest
<br />in groundwater is limited to the amount which
<br />can be put to reasonable and beneficial use on
<br />the overlying land, The language of Olson and
<br />Luchsinger suggests that groundwater supplies
<br />can be apportioned when supplies are insuffi,
<br />cient to meet all needs, The issue is complicated
<br />by the existence of Nebraska's groundwater
<br />preference statute which places agricultural
<br />uses above industrial uses,19 What constitutes a
<br />reasonable and beneficial use on the overlying
<br />land? Presumably the definition and limitation of
<br />such terms would be within the power of the
<br />legislature as the following language from the
<br />dissent suggests: "The water rights here at'
<br />tempted to be condemned will be owned, main'
<br />tained, and operated by the municipality, The
<br />state has declared water to be a public use and
<br />its control is entirely in the hands of the
<br />legislature,,20 (emphasis added), This language
<br />suggests a very flexible approach to ground,
<br />water property rights, at least by a portion of the
<br />court in 1967,
<br />
<br />5. Prather v, Eisemann21 (1978)
<br />
<br />Prather was an action brought by plaintiff
<br />domestic well owners to enjoin pumping by
<br />defendant irrigators, Plaintiff alleged that de-
<br />fendant's pumping caused a loss of artesian
<br />pressure in their wells, thereby interfering with
<br />their domestic consumption, The court held the
<br />irrigator liable for the costs of replacing the
<br />domestic users' wells, Although the case was
<br />decided on an interpretation of Nebraska's
<br />groundwater preference statute (arguably an in-
<br />correct interpretation since the court failed to
<br />distinguish between rights to the groundwater
<br />itself and rights to the means of diversion), the
<br />court took the opportunity to extensively review
<br />the Nebraska law of groundwater rights,
<br />The court began by reiterating the Nebraska
<br />Rule of Reasonable Use first announced in Olson
<br />and approved in Luchsinger, The court stressed
<br />that omission of the "sharing" language in
<br />Metropolitan Utilities was not significant since
<br />proportional use was not at issue in that case,
<br />Consequently,"Nebraska, in Olson, adopted the
<br />rule of reasonable use with the addition of the
<br />California doctrine of apportionment in time of
<br />shortage."22
<br />Plaintiffs argued that runoff from defendant's
<br />lands indicated that water in excess of a reason,
<br />able and beneficial use was being applied, The
<br />court did not reach the issue of how a reasonable
<br />and beneficial use on overlying land was to be
<br />determined although it did discuss the meaning
<br />of reasonable use under three competing
<br />doctrines, the American, California, and Restate'
<br />
<br />1-4
<br />
<br />ment Rules, According to the court, reasonable
<br />use is defined in relation to the appropriator's
<br />land in American Rule jurisdictions, is defined as
<br />a reasonable share of the whole in correlative
<br />rights jurisdictions, and is defined by balancing
<br />the equities among competing users in Restate'
<br />ment jurisdictions, By implication, reasonabie
<br />use under the Nebraska Rule would seem to be a
<br />reasonable share of the whole not to exceed
<br />what can be reasonably and beneficially applied
<br />to the appropriator's lands, The court speaks of
<br />this as an "equal right to a fair share" of the
<br />underground water,23
<br />The "equal right to a fair share" applies only
<br />among users of the same preference class, how-
<br />ever. When competing uses in different pre-
<br />ference classes are involved, the court favors the
<br />preferred use although its reasoning is far from
<br />clear, On the one hand, the court may be saying
<br />that the preference statute entitles preferred
<br />users to a property right in water tables and
<br />artesian head undiminished by the pumping
<br />operations of less preferred users, Although
<br />such a conclusion would be consistent with the
<br />court's holding in Prather, it is possible that the
<br />court intended to create a property right in the
<br />"reasonable maintenance of water levels and
<br />artesian head" with reasonable derived from the
<br />rule of nonliability for use of groundwater
<br />enunciated in RESTATEMENT (SECOND) OF
<br />TORTS,24
<br />The court quotes from an earlier draft of what is
<br />now RESTATEMENT (SECOND) OF TORTS
<br />9856(1 )(a), This section provides for liability if a
<br />withdrawal of groundwater "unreasonably"
<br />causes harm to a proprietor of neighboring land
<br />through lowering the water table or reducing
<br />artesian pressure, RESTATEMENT (SECOND)
<br />OF TORTS 9850A provides that determining
<br />"reasonableness" involves a consideration of
<br />many factors including:
<br />a) the purpose of use
<br />b) the suitability of use
<br />c) the economic value of use
<br />d) the social value of use
<br />e) the extent and amount of harm
<br />caused
<br />f) the practicality of avoiding the
<br />harm by adjusting the use or
<br />method of use of one proprietor or
<br />the other
<br />g) the practicality of adjusting the
<br />quantity of water used by each
<br />proprietor
<br />h) the protection of existing values of
<br />water uses, land, investments and
<br />enterprises, and
<br />i) the justice of requiring the user
<br />causing harm to bear the loss,
<br />
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