WSP03064

• File Number: 8407.400
• Description: Platte River Basin - River Basin General Publications - Nebraska
• State: NE
• Basin: South Platte
• Water Division: 1
• Date: 1/1/1983
• Author: Nebraska Natural Res
• Title: Policy Issue Study on Selected Water Rights Issues - Property Rights in Groundwater
• Water Supply Pro - Doc Type: Report/Study

ably causes harm to a proprietor of neighbor-
ing land through lowering the water table or
reducing artesian pressure,
(b) the withdrawal of groundwater exceeds
the proprietor's reasonable share of the
an n ual supply or total store of g rou ndwater, or
(c) the withdrawal of the groundwater has a
direct and substantial effect upon a water-
course or lake and unreasonably causes harm
to a person entitled to the use of its water.
(2) The determination of liability under clauses
(a), (b), and (c) of Subsection (1) is governed by
the principles stated in 99 850 to 857.

Sections 850 to 857 of the Restatement set
forth principles to be applied in resolving surface
water disputes among riparian proprietors. The
Restatement position is thus a somewhat more
sophisticated version of the eastern approach to
the American Rule discussed in Alternative #5.

Case Study

The RESTATEMENT (SECOND) OF TORTS
Rule, as explicated in a preliminary draft, has
been adopted in Wisconsin and its operation is
illustrated by the case of State v. Michels Pipeline
Construction, Inc.31 In Michels Pipeline, de-
fendant dewatered an aquiferto permit tunneling
for a sewer some forty feet beneath the surface.
Plaintiffs sued alleging that defendant's activi-
ties caused great hardship by drying up some
wells, decreasing capacity and quality in other
wells, and by causing foundations, basement
walls, and driveways to crack due to soil sub-
sidence. The trial court granted defendant's
motion to dismiss the complaint for failing to
state a cause of action. The dismissal was proper
under the then prevailing English Rule.
On appeal, the Wisconsin Supreme Court
examined the basis of the English Rule, determ-
ined that modern hydrologic sophistication
obviated the need for the English Rule, and
adopted the Restatement Rule. The court stated
that the rule preserves a "privilege" to use
groundwater beneath the land while expanding
the protection of the American Rule to owners of
small wells harmed by large withdrawals for use
on overlying lands. As pointed out by the court, a
central assumption of the Restatement Rule is
that enough groundwater usually exists tosatisfy
the needs of all users with the crucial issue a
determination of how costs associated with a
general lowering of the water table are to be
shared. In Michels Pipeline, the case was
remanded to the trial court to determine whether
defendants,use of water caused "unreasonable
harm" to the plaintiffs. Essentially, the effect of
the Restatement Rule is to bring groundwater

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rights law "in line with the general limitation of
the use of property embodied in the law of
nuisance."

The Restatement Rule demonstrates the often
obscured relationship between rules of liability
and rules of property. Under the RESTATEMENT
(SECOND) OF TORTS, a landowner's property
right in groundwater is defined by reference to
the liability of others for interfering with his
groundwater source. A landowner under the
Restatement Rule has an absolute right to
capture water found beneath his land as long as
the amount of water captu red is not great enough
to cause unreasonable harm to other land-
owners. In addition, clause (1 )(b) of the Rule
permits apportionment of groundwater stocks in
a situation where the aquifer is being mined. The
Restatement Rule also assumes that ground-
water rights are marketable.32
The chief benefit of the Restatement Rule is its
flexibility to meet changing circumstances. This
flexibility is its chief shortcoming as well, how-
ever, since landowners have no certainty of right
to use water. Water use investment decisions are
always subject to the possibility that a court
might find the particular use to be unreasonable
in relation to the needs of others at some future
date. Furthermore, as an attempt to incorporate
the best features of the three traditional common
law rules, it lacks internal consistency. Finally,
the rule is designed to place most groundwater
use and allocation decisions within the equitable
jurisdiction of courts rather than with in the policy
making purview of legislatures, gaining a degree
of flexibility in the law at the expense of the