Laserfiche WebLink
<br />American jurisdictions initially adopted the <br />English Rule. According to Professor Powell. <br />before 1922, twenty-eight states accepted the <br />English Rule announced in Acton by holding or <br />dictum.13 While initially nearly all of the con- <br />tiguous western states accepted the English <br />Rule, today only Texas continues to adhere to <br />it.14 <br />The only apparent advantage to the English <br />Rule is its ease of application. Landowners have <br />completely unfettered access to as much water <br />as they can pump from beneath their land. Under <br />such a system, overlying landowners must use <br />groundwater as fast as they can to protect their <br />supply from being used by another landowner <br />overlying a common aquifer. <br /> <br />Case Study <br /> <br />The Texas experience indicates the adverse <br />consequences of such a rule of property. Under <br />Texas law landowners have no remedy against <br />extremely high volume users,15 even where the <br />water is for use off the overlying land.16 Recently, <br />Texas, despite a long history of cases adhering to <br />the English Rule, began to back avyay from the <br />rule in land subsidence cases.17 The English <br />Rule could not accommodate the needs of land- <br />owners in a modern setting. Since the English <br />Rule increases private incentives to deplete <br />aquifers at a rapid rate, the rule has been widely <br />criticized as incompatible with sound manage- <br />ment practices in water short areas. <br /> <br />Socio-Economic Impacts <br /> <br />The English Rule does not protect a land- <br />owner's right to use of water from the actions of <br />other landowners. Thus, under the English Rule, <br />a landowner's water right is not secure. Con- <br />sequently, the English Rule leads to very in- <br />efficient patterns of water use. Since the law <br />offers landowners no water right protection, <br />landowners must either rely on their ability to <br />capture water faster than their neighbors or on <br />their ability to negotiate contractual water use <br />limits with their neighbors. The consequence of <br />the first course of action is overuse and <br />excessive aquifer depletion. The attainment ot <br />the second course of action is normally blocked <br />by excessive transaction costs. Thus, from an <br />economic perspective, the English Rule is appro- <br />priate only where groundwater supplies are far in <br />excess of groundwater demands, such that over- <br />use and aquifer depletion are not perceived to be <br />potential problems. <br />A second economic difficulty with the English <br />Rule is its extreme inflexibility. If an unfettered <br />right to capture groundwater is a constitutionally <br /> <br />3-4 <br /> <br />protected property right, any regulations design- <br />ed to minimize the adverse impacts of the rule <br />would be subject to attack on taking grounds, <br />leaving little or no flexibility to respond to <br />developing problems. <br />From an equity perspective, the English Rule <br />favors high volume, short term users over water <br />users who would prefer to stretch supplies over <br />longer periods oftime.lt also favors current users <br />over future users and private landowners over <br />members of the general public. <br /> <br />Physical-Hydrologic and Environmental <br />Impacts <br /> <br />Adoption of this alternative would encourage a <br />maximum rate of aquifer withdrawal and <br />depletion. Eventually, certain aquifers would <br />likely become economically exhausted necessi- <br />tating a return to dryland farming and ranching. <br />In areas where dryland farming is not feasible, <br />difficulty in reestablishing native vegetation <br />could result in serious soil erosion problems. <br /> <br />Alternative #3: Adopt the <br />American Rule of Reasonable Use <br />as the definition of groundwater <br />property rights in Nebraska. <br /> <br />Description and Methods of <br />Implementation <br /> <br />The classic statement of the American Rule is <br />found in Forbell v. City of New York.18 In Forbell, <br />wells operated by the city of Brooklyn lowered <br />the water table and made lands farmed by the <br />plaintiff unfit for the cultivation of celery or water <br />cress. In affirming a judgment in favor of the <br />plaintiff, the court stated: <br /> <br />In the absence of contract or enactment, <br />whatever it is reasonable for the owner to do <br />with his sub-surface water, regard being held <br />for the definite rights of others, he may do. He <br />may make the most of it that he reasonably <br />can. It is not unreasonable... that he should dig <br />wells and take therefrom all the water that he <br />needs in order to the fullest enjoyment and <br />usefulness of his land as land, either for <br />purposes of pleasure, abode, productiveness <br />of soil, trade, manufacture, orforwhateverelse <br />the land as land may ser'lle. He may consume it <br />but must not discharge it to the injury of others. <br />But to fit it up with wells and pumps of such <br />per'llasive and potential reach that from their <br />base the defendant can tap the water stored in <br />the plaintiff's land, and in all the region there- <br />about, and lead it to his own land, and by <br />