Olson v. City of Wahoo

• Citation: 248 N.W. 304,124 Neb. 802
• Decision Date: 05 May 1933
• Docket Number: 28533
• Parties: GEORGE W. OLSON ET AL., APPELLANTS, v. CITY OF WAHOO, APPELLEE
• Court: Supreme Court of Nebraska

248 N.W. 304

124 Neb. 802

GEORGE W. OLSON ET AL., APPELLANTS, v. CITY OF WAHOO, APPELLEE

No. 28533

Supreme Court of Nebraska

May 5, 1933

APPEAL from the district court for Saunders county: HARRY D. LANDIS JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The furnishing of water to the inhabitants of a city for the purpose of health, convenience, and comfort is a public use of such water.

2. The law in relation to underground waters flowing in known and well-defined channels is not applicable to percolating waters, the source and channel of which are undefined and unknown.

3. The owner of land is entitled to appropriate subterranean waters found under his land, but his use thereof must be reasonable and not injurious to others who have substantial rights in such waters.

Appeal from District Court, Saunders County; Landis, Judge.

Action in equity by George W. Olson and another against the City of Wahoo. From a judgment dismissing the action, plaintiffs appeal.

Affirmed.

Good, Good & Kirkpatrick and E. S. Schiefelbein, for appellants.

Hendricks & Kokjer, contra.

Heard before GOSS, C. J., ROSE, EBERLY, DAY and PAINE, JJ.

OPINION

PAINE, J.

This is an action in equity, brought against the city of Wahoo, upon the charge that the city's new pumping plant has exhausted the water at the bottom of plaintiffs' gravel pit and made it worthless. Plaintiffs pray that the city be restrained from operating its pumps to a greater capacity than 300 gallons a minute, and that plaintiffs have judgment for damages in the sum of $ 39,271.50. The trial court determined that the plaintiffs had failed to make out a case, and dismissed the action.

As the trial court determined the controversy largely as a question of fact, it is necessary to make a rather full statement of the case. The petition sets out that the plaintiffs are the owners of a tract of land containing 13.56 acres. A portion of this tract is on a small hill, and is underlaid with a valuable bed of gravel. Deep excavations have been made in said gravel pit, reaching to the water line, and pumping machinery, installed upon a raft or float, with a sluicing device, washes the gravel and separates it into grades for commercial purposes. This gravel pit is located upon a part of a large geological formation, known as Todd Valley, which in previous geologic eras constituted a former bed and channel of the Platte river from the village of Morse Bluff to a point near Ashland, Nebraska. The said Todd Valley consists of a great gravel bed, filled with water, which comes to an average depth of 12 feet below the surface of the ground, the gravel bed reaching to a depth of from 70 to 100 feet below the surface of the ground. The excavation in plaintiffs' gravel pit reached below the water level of Todd Valley. The city pumping plant, installed in 1910 by the city of Wahoo, was not of sufficient capacity, and in April, 1930, the city of Wahoo constructed a new well, approximately 80 feet deep and 10 feet in diameter, and installed a steam turbine engine generator and condenser, with a capacity of 900 gallons a minute, half of said water pumped being used to cool the turbine engine generator and condenser, and, as a result of said operation, the water has been greatly lowered in said city wells. The lowering of the water table extends for a distance of more than a mile in every direction from said well, and has lowered the water level in the gravel pit of plaintiffs by more than four feet, thereby practically ruining it, to the great and irreparable injury of the plaintiffs. There is a bed of clay, about 17 feet thick, lying between the bottom of the present excavation and the lower gravel, and it would require large expenditures to reach gravel at a lower point. That the acts of the city of Wahoo are wholly unlawful, and constitute an unreasonable use of the underground water, and plaintiffs are entitled to an injunction restraining the defendant from taking said water in such unreasonable quantities, to the damage of the plaintiffs. That the acts of the city of Wahoo constitute a deprivation of the plaintiffs of their property without due process of law, in violation of the Constitution of the United States, and of section 3, art. I of the Constitution of the state of Nebraska, and constitute the taking and damaging of plaintiffs' property without just compensation, as forbidden by section 21, art. I of the Constitution of Nebraska. That the damage to the real estate of the plaintiffs is $ 30,000, loss of production $ 5,000, which, with additional items, make the total amount set out above.

The defendant in its answer admits certain facts of the petition, and alleges that it has been the owner of the land from which the water is taken for more than 20 years; that it has established said pumping plant at large expense; that all of the water taken therefrom is used by the defendant and its inhabitants; that, if the water level on the lands of plaintiffs had receded at the time the petition was filed, August 23, 1930, it is because of the extremely dry weather of the year 1930, and other causes, and is not due to any action of the defendant city; that, when the plaintiffs purchased the land on which the gravel pit is located, they knew the water plant of the city had been located where it is now for many years prior thereto, and was the exclusive source of the city's water supply, and defendant prays that the action of plaintiffs be dismissed.

Among the witnesses called to support the plaintiffs' allegations, the principal one was Professor A. L. Lugn, the holder of several degrees, assistant professor of geology at the University of Nebraska, who has been working for the past three years on ground-water hydrology, under the direction of Dr. George Condra, particularly with reference to the Platte river and its underflow, which investigations he has conducted from southeast of Wahoo to the Wyoming line. He described Todd Valley as a channel through which the Platte river once flowed, and that it varies from five to eight miles in width, and is some 35 miles in length, and at several places is known to have beds of gravel and sand to the depth of 100 feet; that this gravel bed is covered with soil, and receives its water from local rainfall and from a leakage from the Platte river north of Cedar Bluffs, where the present Platte river is in direct contact with the sand and gravel of the old Todd Valley, making an underflow from the Platte river down through this valley. He testified that the plaintiffs' gravel pit, at the northeast corner of the city of Wahoo, was right on the border or edge of the Todd Valley, but he had not been able to determine whether it properly belongs to the Todd Valley sand and gravel, or to some older geological formation, but that the water level was such that it usually conformed to the water level in the Todd Valley. In June, 1929, he made observations of the elevation of water at many points in this vicinity. The water level in the Olson gravel pit was at that time 1,169 to 1,170 feet above the sea level, and in August, 1930, the water level at the city pumping plant was 1,151, and the water level at the Olson gravel pit on August 3, 1930, was 1,166, making a drop of three to four feet in the year intervening. Professor Lugn concluded that the fall in the water level at the gravel pit was not due to general conditions, but was due to local conditions; in other words, to the new city pumping plant. He is corroborated in this by the fact that the water level in other wells in the vicinity had also gone down, and by the time of trial in July, 1931, the water level in the Olson gravel pit had declined between six and seven feet from the first observation in June, 1929. The evidence of a number of residents was taken, which showed that the water had gradually failed in wells or pumps. The city sunk a number of test wells, test well No. 1 being 2,300 feet away from the turbine well in the general direction of the Olson gravel pit, and in this well the water rose 2 inches between June 4 and June 6, when the large turbine was not in operation, and in test well No. 2, 1,500 feet away from the city turbine well, the water level at the same time rose 4 1/3 inches, but declined again when the pump began operation. Test well No. 3, 870 feet away from the city turbine well, rose 4 2/3 inches during the two days when the large pump was not in operation, and test wells located on the other side of the city pumping plant also exhibited similar changes. Several farmers were called as witnesses, and testified that water levels had gone down in the summer of 1930. When Professor Lugn was asked the reason for the lowering of the water levels in the plaintiffs' gravel pit, he made answer: "As far as there is any evidence the cause of the lowering in the sand pit is local, and there is no other local cause adequate to account for the lowering other than the pumping, so I would conclude that the pumping is responsible for that lowering of the water in the sand pit." His evidence was supported by exhibits introduced.

Clark E. Mickey, professor of civil engineering in the University of Nebraska, also testified in favor of the plaintiffs. The direct evidence of the plaintiffs makes up about 382 pages of the 810 pages of the bill of exceptions.

The defendant contested every allegation tending to show that the city pump was in the slightest degree the cause of the lowering of the water in the plaintiffs' gravel pit.

Mr. E W. Bennison, a graduate of the engineering department of the University of Nebraska in 1904, and who studied geology under Dr. Barbour while at the university,...