McDowell v. Rural Water Dist. No. 2, Boyd County

• Decision Date: 21 August 1979
• Docket Number: No. 42331,42331
• Citation: 204 Neb. 401,282 N.W.2d 594
• Parties: H. W. McDOWELL et al., Appellees, v. RURAL WATER DISTRICT NO. 2, BOYD COUNTY, Nebraska, a public corporation, Appellant.
• Court: Nebraska Supreme Court

Page 594

282 N.W.2d 594

204 Neb. 401

H. W. McDOWELL et al., Appellees, v. RURAL WATER DISTRICT NO. 2, BOYD COUNTY, Nebraska, a public corporation, Appellant.

No. 42331.

Supreme Court of Nebraska.

Aug. 21, 1979.

Syllabus by the Court

1. Summary Judgments: Evidence. Before a summary judgment may be granted, the moving party must establish that there exists no genuine issue as to any material fact in the case, and that under the facts he is entitled to a judgment as a matter of law. Even where there are no conflicting evidentiary facts, a summary judgment is not appropriate if the ultimate inferences to be drawn from those facts are not clear. In considering such a motion, the trial judge must take that view of the evidence most favorable to the party against whom summary judgment is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence.

2. Waters: Statutes: Licenses and Permits: Public Corporations. The Rural Water District Act, sections 46-1001 to 46-1026, R.R.S.1943, contains no specific requirement that such district must first obtain a permit to construct, install, maintain, and operate wells and other facilities for the storage, transportation, or utilization of water, which are necessary to carry out the purposes of its organization.

3. Waters: Public Corporations: Governmental Subdivisions. A rural water district is not a municipal corporation within the purview of the City, Village and Municipal Corporation Ground Water Permit Act.

James L. Sedgwick and Steven G. Seglin of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellant.

William W. Griffin, O'Neill, and George C. Rozmarin of Swarr, May, Smith & Andersen, Omaha, for appellees.

Heard before KRIVOSHA, C. J., McCOWN, BRODKEY and HASTINGS, JJ., and STUART, District Judge.

BRODKEY, Justice.

All the plaintiffs are persons owning real property in Holt County, Nebraska, who have brought this action for declaratory and injunctive relief against the defendant, a rural water district organized pursuant to the provisions of sections 46-1001 to 46-1026, R.R.S.1943, located in Boyd County, Nebraska. The district owns land located in Holt County, Nebraska, in the general vicinity of the property owned by the plaintiffs. In their petition filed in the District Court for Holt County, plaintiffs, after alleging the status of the respective parties, allege that defendant has constructed a well and a water distribution system upon its property in Holt County for the purpose of withdrawing substantial amounts of ground water from beneath its property in Holt County and for transporting it off that land for use in Boyd County; and that the ground water will be withdrawn from an acquifer which extends under the land owned by the plaintiffs. Plaintiffs further allege in their petition that such withdrawals of ground water will result in a serious depletion and shortage of ground water supply available to plaintiffs for irrigation and domestic use, and that the injury and damage to plaintiffs is irreparable. Plaintiffs further allege that defendant's intended withdrawal and use of ground water located under its land in Holt County is in violation of the American rule of reasonable use because the use will not be on the overlying land, and further is in violation of the law of Nebraska prohibiting the transportation of waters from one watershed to another watershed. Plaintiffs pray that the court declare defendant's intended withdrawal and use of the ground water is unlawful, and permanently enjoin the defendant from such withdrawal and use.

In its answer and counterclaim filed in the action, the defendant admits that it is a public corporation organized under the provisions of the Rural Water District Act and owns land located in Holt County, and alleges that it has drilled test holes on its property and intends to construct two water supply wells on the property and a water distribution system in order to transport the water to Boyd County for use of residents of Boyd County who are without adequate water supplies for domestic purposes. Defendant also alleges there is sufficient ground water for plaintiffs' continued use and also for the use of the defendant, but that even if there is insufficient ground water for that purpose, defendant has priority under section 46-613, R.R.S.1943, since its intended use is for domestic purposes while the plaintiffs' use is primarily for irrigation. Defendant further alleges the American rule of reasonable use is not applicable to the facts in the case at bar, since there is sufficient water for both plaintiffs and the defendant; and further alleges the intended use by the defendant is within the same water basin as the source of the ground water. Defendant finally alleges that plaintiffs have an adequate remedy at law, and that plaintiffs have not and will not in the future suffer any cognizable injury or damage.

Plaintiffs thereafter filed a motion for a summary judgment requesting the court to grant the prayer set forth in their petition based upon the pleadings, answers to interrogatories, and an affidavit attached to the motion, for the following reasons: "1. There are no genuine issues of material fact. 2. Defendant's actions will be illegal per se under the reasonable use doctrine as adopted by the Supreme Court of Nebraska. 3. Defendant's actions will be illegal per se as a transbasin diversion. 4. As raised in their Reply, Defendant fails to state a cause of action in its counterclaim upon which relief may be granted. * * * In the alternative, Plaintiffs move the Court for a partial Summary Judgment declaring Defendant's actions to be unreasonable per se under the reasonable use doctrine as adopted by the Supreme Court of Nebraska." At the hearing on the motion for summary judgment, there was also introduced in evidence an affidavit of Carl Nuzman, a consulting engineer and expert in ground water hydrology, employed by the plaintiffs, to the effect that the proposed movement of water by the defendant from Holt County into Boyd County will result in movement of water within the same general watershed area. However, there was also introduced in evidence at the hearing an affidavit from Ralph Marlette from the Department of Civil Engineering of the University of Nebraska-Lincoln, whose specialty was in the area of river engineering and ground water hydrology, who was also retained to consult with and appear as an expert witness on behalf of the plaintiffs in this case, and he stated in his affidavit: "That the proposed movement of water by defendant from Holt County into Boyd County will result in movement of water from the Niobrara River Watershed into the Ponca Creek Watershed, each of which is independent of one another and flows into the Missouri river." It is obvious that the affidavits of the above two experts, both employed by the plaintiffs, were in direct contradiction to each other on the issue of transbasin diversion.

Defendant contends, however, that the trial judge, on his own motion and without notice, raised a new issue at the hearing on summary judgment as to whether the Rural Water District was required to obtain a permit under the City, Village and Municipal Corporation Ground Water Permit Act, sections 46-638 to 46-650, R.R.S.1943, before it could withdraw and transport ground water off its land in Holt County to its patrons in Boyd County; and that if it had had notice that the trial judge was raising the issue of whether it needed a permit in accordance with that act, it would have introduced evidence at the hearing pertinent to that issue. We must therefore examine the record in this case to determine upon what basis or for what reason the court sustained plaintiffs' motion for a summary judgment.

The order of the court, entered on August 28, 1978, provides, in pertinent part, as follows: "The matter was heard, and the same submitted, and the Court being advised finds from the pleadings and the evidence and taking judicial notice of the provisions of Sections 46-638 through 46-655, R.S.Nebr.1943, Reissue 1974, that the Defendant's well is illegal, and that the Plaintiff's Motion should be granted.

"IT IS THEREFORE ORDERED that Defendant should be, and it is hereby enjoined permanently from the exportation of groundwater from and for use off of the Defendant's land located in Holt County, Nebraska, until application is made and permit granted by the Director of Water Resources of the State of Nebraska, authorizing such action." The language of the order itself, therefore, would seem to support defendant's contention that the court's reason in sustaining plaintiffs' motion for a summary judgment for injunctive relief was based on the fact that it felt the defendant's well or wells were illegal because of the fact a permit had not been obtained. The bill of exceptions covering the hearing on the motion for summary judgment is enlightening in this regard, especially the comments of the trial judge evidencing his reasoning, and also the colloquy between counsel and the court at that time; and we quote certain pertinent portions thereof.

The record reveals that early in the hearing on the motion for summary judgment, the trial court stated: "Before we get into extended dissertation on the merits of this case, I am concerned about the question raised on the last page of the brief of Mr. Griffin and Mr. Rozmarin that states simply, 'Secondly, even if defendant could properly raise the issue as pleaded, it must at least exhaust administrative remedies available with the Natural Resources District, in whom the Legislature placed authority under the Groundwater Management Act of 1975.' I note from reading all of the cases cited with reference to water, they arise by reason of application made to the old Department of Roads and Irrigation, and more recently an application made to the director of water resources. He...