WSP06827 - Laserfiche WebLink

Home Browse Search

C ~"':;4 private property shall not be taken for publiC use without just compensation; of the Nebraska Bill of Rights declaring that "The property of no person shall be taken or damaged for public use without just com- pensation therefore,'" 2 A significant implication of the Luchsinger decision is that landowners have some pro- prietary interest in the water in place beneath their lands.' 3 The property right is apparently limited. however, to a right that runs against thGse who are not making a reasonable use 01 the water within the American Rule meaning A secondary right. of course. will run against all users of water from a common source to the extent the correlative rights language In Olson is applied during a water shortage. 3. Metropolitan Utilities District v. Merritt Beach CO'4 (1966) The next significant groundwater rights case occurred twenty-five years after Luchsinger. In the interim period the Nebraska Legislature enacted the City. Village and Municipal Ground Water Permit Act.' 5 The constitutionality of this Act was challenged in Metropolitan Utilities. In upholding the constitutionality 01 the Act. the Nebraska Supreme Court discussed ground- water rights. Defendant M.U.D. had received a permit under the Act to withdraw 60 million gallons of water a day from wells located on the north bank of the Platte River and on an adjacent island. Water was to be transferred to Omaha. located in a different river basin. Ninety-three percent of the "groundwater' pumped was the result of induced aquifer recharge from the Plalte River. The opinion contains several significant state- ments. First. the court literally applied the stat- utory definition of groundwater as "water which occurs or moves. seeps. filters. or percolates through the ground under the surface of the land",16 and ignored physical realities that a diversion of surface water was. in fact. taking place. Second. the opinion holds that authority can be granted to transfer groundwater off the overlYing land without offending constitutionally vested rights. at least where the reasonable uses of overlying landowners are not impaired and a publiC purpose is served. In other words "excess groundwaters" are available for use off the over- lying land. a holding consistent with the Cor- relative Rights Rule of groundwater property rights. but contrary to traditional Interpretations of the American Rule. Interestingly. however, the supreme court used a deflnltion of the American Rule that dropped the "shanng in times of shortage:' language announced in Olson and repeated in Luchsinger. The Metropolitan Utilities definition reads as follows: The American. as distinguished from the English Rule, is that. while the owner of the land IS entitled to appropriate subterranean or other waters accumulating on his land. which thereby becomes a part of the realty, he cannol extract and appropriate them in excess of a reasonable and beneficial use upon the land he owns. unconnected with the beneficial use of the land, especially if the exercise of such use in excess of the reasonable and beneficial use is injurious to others. who have substantial rights to the water,17 It is thus possible to read Metropolitan Utilities as establishing a limit to a landowner's proprietary Interest in underlying groundwater. the limit defined by the amount of water that can be put to reasonable and bene;icial use on the overlying land. 4. Burger v. City of Beatrice" (1967) Although groundwater property rights were not directly tt1e subject of Burger, the case has significant implications. In Burger, defendant city attempted to use its power of eminent domain to condemn an easement on plainllff larmer's lands so that water could be withdrawn from an under. lying aquifer. The water was to be used by two large fertilizer plants located outside the Beatrice city limits. The Nebraska Supreme Court held that the City'S power of eminent domain did not extend to condemnation of agri- cultural water rights for use by industries located outside the city limits. Since the case turned on the limits of a city's eminent domain power. the nature of the right that was to be condemned was not discussed. In light of Metropolitan Utilities, the value of the pumping easement was conjectural. If the water in Question was excess. that is. water not needed to satisfy reasonable beneficial uses on the over- lying land. then Metropolitan Utilllles would suggest that the farmers would suffer no compensable injury as long as their surface rights were not invaded. Even if the sought waters were excess. however. Burger held that the power of eminent domain could not be used to secure access to the water under the restrict- ed circumstances of the case. Assuming. as is more likely, that the ground- water sought to be condemned in Burger was not all excess. what inte~ests of the farmers would have been taken by the city had the supreme court approved the condemnation? M.U.O. '-3