305 N.W.2d 614 (Neb. 1981), 43206, State ex rel. Douglas v. Sporhase

Docket Nº:43206.
Citation:305 N.W.2d 614, 208 Neb. 703
Opinion Judge:WHITE, J.
Party Name:STATE of Nebraska ex rel. Paul L. DOUGLAS, Attorney General, Appellee, v. Joy SPORHASE et al., Appellants.
Attorney:Peter E. Schoon, Jr., and George M. Zeilinger of Padley & Dudden, P.C., for appellants. Steven C. Smith, Special Assistant Attorney General, of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke for appellee.
Case Date:May 08, 1981
Court:Supreme Court of Nebraska

Page 614

305 N.W.2d 614 (Neb. 1981)

208 Neb. 703

STATE of Nebraska ex rel. Paul L. DOUGLAS, Attorney General, Appellee,


Joy SPORHASE et al., Appellants.

No. 43206.

Supreme Court of Nebraska.

May 8, 1981

Page 615

Syllabus by the Court

1. Constitutional Law. In order for the commerce clause of the U.S. Constitution to apply to state regulation of a commodity, that commodity must be an article of commerce.

2. Waters. Nebraska's common law of ground water permits the overlying landowner to appropriate 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.

3. Constitutional Law: Waters. The Nebraska Constitution declares water for irrigation purposes in the State of Nebraska to be a natural want.

4. Legislature: Waters. Since the Nebraska common law of ground water permits use of the water only on the overlying land, legislative action is necessary to allow for transfers off the overlying land.

5. Legislative Power: Waters. The Legislature has the power to determine public policy with regard to ground water.

6. Legislature: Waters. Ground water may be transferred from the overlying land only with the consent of and to the extent prescribed by the public through its elected representatives.

7. Waters. Free transfer and exchange of ground water in a market setting have never been permitted in this state.

8. Waters. The public may limit or deny the right of private parties to freely use the water when it determines that the welfare of the state and its citizens is at stake.

9. Waters. Nebraska ground water is not an article of commerce.

Page 616

10. Waters. Since water is the only natural resource absolutely essential to human survival, the application of rules designed to facilitate commerce in less essential resources to the transfer of water must be done, if at all, with extreme caution.

11. Constitutional Law: Statutes: Waters. Since ground water in Nebraska is not an article of commerce, the commerce clause of the U. S. Constitution does not apply to Neb.Rev.Stat. § 46-613.01 (Reissue 1978).

12. Waters: Constitutional Law. Neb.Rev.Stat. § 46-613.01 (Reissue 1978) does not deprive affected persons of liberty or property without due process of law.

13. Legislative Delegation. The Legislature cannot delegate its powers [208 Neb. 704] to make a law, but it can make a law to become operative on the happening of a certain contingency or on an ascertainment of fact upon which the law intends to make its own action depend.

14. Waters. The reciprocity provision of Neb.Rev.Stat. § 46-613.01 (Reissue 1978) merely states one of several conditions which must be satisfied before a permit to transfer ground water out of state may issue.

15. Waters. Neb.Rev.Stat. § 46-613.01 (Reissue 1978) sets up a reasonable classification of persons which is reasonably related to a legitimate state interest in preserving, for the beneficial use of its citizens, Nebraska's underground water supply, and it operates equally on all members of the affected class.

Peter E. Schoon, Jr. and George M. Zeilinger of Padley & Dudden, P. C., Ogallala, for appellants.

Steven C. Smith, Sp. Asst. Atty. Gen., of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Gering, for appellee.


WHITE, Justice.

Appellants own adjacent tracts of land in Chase County, Nebraska, and in Phillips County, Colorado. A well physically located on the Nebraska tract pumps ground water for the purpose of irrigating crops on both the Nebraska tract and the Colorado tract. Defendants' predecessor in title registered the well with the State of Nebraska on January 18, 1971, as required by Neb.Rev.Stat. § 46-602 (Reissue 1978). However, neither the defendants nor their predecessor in title applied to the Nebraska Department of Water Resources for a permit to transport ground water from the Nebraska well across the border into Colorado as required by Neb.Rev.Stat. § 46-613.01 (Reissue 1978).

The State of Nebraska brought this action in the District Court of Chase County to enjoin defendants from transporting Nebraska ground water into Colorado without a permit. After trial on the merits, the [208 Neb. 705] District Court issued the injunction, holding that § 46-613.01 does not violate the commerce clause of U.S.Const. Art. I, § 8, since under Nebraska law water is not an article of commerce. The District Court also held that even if ground water is an article of commerce, the statute does not impose an unreasonable burden of interstate commerce. We affirm.

We start our analysis with the assumption that if the commerce clause is to apply to a state statute regulating the interstate transfer of a commodity, that commodity must be an "article of commerce." The term "commerce" implies that the commodity must be capable of being reduced to private possession and then exchanged for goods or services of the same or similar economic value. An analysis of Nebraska case law and statutes demonstrates that Nebraska law has never considered...

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