Metropolitan Utilities Dist. of Omaha, In re

• Decision Date: 25 February 1966
• Docket Number: No. 36128,36128
• Citation: 140 N.W.2d 626,179 Neb. 783
• Parties: In the Matter of Application Number 10538 filed by the METROPOLITAN UTILITIES DISTRICT OF OMAHA, Omaha, Nebraska etc. METROPOLITAN UTILITIES DISTRICT OF OMAHA, Omaha, Nebraska, Appellee, v. MERRITT BEACH COMPANY et al., Appellants.
• Court: Nebraska Supreme Court

Page 626

140 N.W.2d 626

179 Neb. 783

In the Matter of Application Number 10538 filed by the METROPOLITAN UTILITIES DISTRICT OF OMAHA, Omaha, Nebraska etc.

METROPOLITAN UTILITIES DISTRICT OF OMAHA, Omaha, Nebraska, Appellee, v. MERRITT BEACH COMPANY et al., Appellants.

No. 36128.

Supreme Court of Nebraska.

Feb. 25, 1966.

Syllabus by the Court

1. The power to declare an act of the Legislature unconstitutional is a judicial power reversed solely to the courts.

2. The constitutionality of a legislative act must be raised at the earliest opportunity consistent with good pleading and orderly procedure, or it will be considered as waived.

3. On a direct appeal from an order of an administrative agency to the Supreme Court the constitutionality of an act under which the administrative agency is proceeding may be raised for the first time in the Supreme Court, it being the first opportunity to raise such issue before a judicial tribunal.

4. It is a well-established rule that no one can complain that a statute is unconstitutional unless he is injuriously affected thereby, and that the courts will not set aside a law as violative of the Constitution for the reason that there is a possibility that one's interest may be injuriously affected in the future.

5. A question of constitutionality will not be passed on if the situation is such that the rights of the complaining party would be the same whether or not the statute is held unconstitutional.

6. The common law rights of a riparian landowner have been modified in this state by limiting such rights to a reasonable and beneficial use upon the land he owns, 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.

7. Whether or not ground waters may be transported from one watershed to another is ordinarily a question of legislative policy.

8. All public waters of the state, whether they be surface or underground waters, are a natural want by constitutional declaration. The waste of such waters as a natural resource is against public policy.

9. Whether or not a diversion of ground water beyond the watershed of its source is lawful, in the absence of a legislatuve declaration of public policy, is determined from a consideration of the rights of appropriators and riparian owners having substantial rights in the use of such waters.

10. A riparian owner's contention that he requires the whole of the flow of a stream to moisten his land by subirrigation is not sufficient to establish a reasonable use of the entire amount of the water of a stream.

11. The rule in this state as to the rights of riparian owners is that, while the owner of land is entitled to appropriate substerranean or other waters accumulating on his land, which thereby become a part of the realty, he cannot 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.

12. The use of ground water by a municipality for human needs as it relates to health, fire control, and sanitation, as provided by section 46-613, R.R.S.upp.1963, is a public use.

13. Where the evidence shows that the rights of appropriators and riparian owners are not damaged and the water diverted would be otherwise lost, the transportation of ground water beyond the watershed, in the absence of legislation to the contrary, does not offend the public interest or the doctrine of reasonable and beneficial use of the water resources of the state.

Herman Ginsburg, Lincoln, Charles S. Reed, Omaha, Dixon Adams, Bellevue, for appellants.

C. S. Brubaker, George C. Pardee, Omaha, Lester A. Danielson, Scottsbluff, for appellee.

Stewart, Calkins & Duxbury, David L. Crawford, Lincoln, Ralph D. Nelson, City Atty., Henry L. Holst, Deputy City Atty., Vincent D. Brown, Arlyss E. Brown, Asst. City Attys, Lincoln, George Svoboda, Fremont, amici curiae.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

CARTER, Justice.

This is an appeal from an order of the Director of Water Resources of Nebraska authorizing the Metropolitan Utilities District of the city of Omaha to supplement its water supply in the maximum amount of 60,000,000 gallons of ground water per day from a well field located in Sections 29, 30, 31, and 32, Township 13 North, Range 13 East of the 6th P.M., and tax lots and government lots associated therewith, all located in Sarpy County on the north bank of the Platte River and an island therein. Numerous objections were filed to the grant of the application. Five objectors have appealed from the grant of the application, to wit: Bellevue Rod and Gun Club, Mr. and Mrs. Gerald Merrit, Merritt Brothers Sand and Gravel Company, Merritt Beach Company, and the County of Sarpy, who will hereafter be referred to as Gun Club, the Merritts, Merritt Sand Company, Merritt Beach, and Sarpy County, respectively. The Metropolitan Utilities District will be referred to as M. U. D.

The M. U. D. produced evidence showing that it was in the business of furnishing water to the city of Omaha and its environs. It showed that it was in need of water in the maximum amount of 60,000,000 gallons per day to provide adequate service to its customers with an estimated average use per day of 40,000,000 gallons. The proposed water wells were to be located on the north bank of the Platte River and an island adjacent thereto in Sarpy County approximately 5 miles west of the conflucence of the Platte River and the Missouri River. The water was to be pumped from a number of wells on property purchased by M. U. D., treated, and conveyed by pipeline to the service area of M. U. D. in and around the city of Omaha.

The objectors, or some of them, raise each of the following issues: (1) Section 46-639, R.S.Supp., 1963, is in violation of Article III, section 14, and of Article I, sections 3, 16, and 21, of the Constitution of Nebraska. (2) The grant of the application amounts to an unlawful diversion of water from one watershed to another. (3) The statute fails to properly limit the legislative powers granted to the Director of Water Resources or to fix adequate standards by which the authority granted is to be administered. (4) The grant of the application to take water for industrial and commercial purposes violates the preferred rights of the objectors to use it for domestic purposes. (5) The grant of the application would constitute a violation of the vested rights of riparian property owners, in that great damage will accrue by the lowering of the underground water table below the surface of their lands. After a hearing on the application and the objections filed thereto, the Director of Water Resources granted the application.

The evidence shows that the present facilities of M. U. D. for the furnishing of water to its customers are 140,000,00 gallons per day. The water is taken from the Missouri River and treated at its Florence station. Its future need, based on projected population and customer increases, has been determined to be a maximum of 60,000,000 additional gallons per day. The studies made by engineers and hydrologists indicated that the most feasible plan was to construct a well field of approximately 35 wells on the north bank of the Platte River and the island adjacent thereto, about 5 miles west of the mouth of the river on the riparian lands heretofore described. The island is designated in the record as Cedar Island and we hereafter designate it as such. The proposal includes a treating plant on or near the well field and a pipe line to transport the treated water into the present facilities of M. U. D. The estimated cost of the project is $15,030,000.

M. U. D. has purchased 600 acres of land in or adjacent to the Platte River upon which the well field and treating plant are to be constructed. The main current of the Platte River is south of Cedar Island. The island is separated from the north bank of the river by a chute which carries water only a part of the time. The plans shows that 18 water wells will be constructed on Cedar Island and the remaining wells on the north side of the river. All of the water will be pumped from the ground, a direct diversion of water from the river not being contemplated.

By expert evidence it is shown that the aquifer from which the water is to be pumped underlies some 1,200 acres of land more than a mile wide and 50 to 100 feet in depth. The Platte River flows over the south edge of the aquifer. The wells are to be located 175 feet or more from the river and will be from 50 to 65 feet in depth.

The aquifer, which includes the 600 acres of land purchased by M. U. D., has the capacity of producing 60,000,000 gallons of water per day. The evidence of the experts is that the source of the recharge of the aquifer, to replace the water pumped, will be 4,000,000 gallons per day from underground waters and 56,000,000 gallons per day from surface waters, primarily the Platte River. It is estimated that the aquifer would produce 60,000,000 gallons of water per day for 15 days after the Platte River contained no natural flow, if such an event would ever occur.

The expert testimony is to the effect that the operation of the pumps will lower the water table to its greatest depth at the location of the wells. This draw-down of the water table tapers up and away from the bottom of the wells to the point where it has no effect on the static water table. The area thus affected between the point of productivity and the upward and outward slope to nonexistence is referred to as the cone of influence. The slope of the water table thus described produces the gradient which induces the movement of water that recharges the aquifer whatever be its source,...