Prather v. Eisenmann

• Decision Date: 01 February 1978
• Docket Number: No. 41203,41203
• Citation: 261 N.W.2d 766,200 Neb. 1
• Parties: Derald PRATHER and Ruth Prather, husband and wife, Appellees, v. Don EISENMANN and Sharon R. Eisenmann, husband and wife, Appellants.
• Court: Nebraska Supreme Court

Page 766

261 N.W.2d 766

200 Neb. 1

Derald PRATHER and Ruth Prather, husband and wife, Appellees, v. Don EISENMANN and Sharon R. Eisenmann, husband and wife, Appellants.

No. 41203.

Supreme Court of Nebraska.

Feb. 1, 1978.

Syllabus by the Court

1. Preference in the use of underground water shall be given to those using the water for domestic purposes. They shall have preference over those claiming it for any other purpose. Those using the water for agricultural purposes shall have the preference over those using the same for manufacturing or industrial purposes.

2. Domestic use of ground water shall mean all uses of ground water required for human needs as it relates to health, fire control, and sanitation and shall include the use of ground water for domestic livestock as related to normal farm and ranch operations.

3. As between domestic users of ground water there is no preference or priority. Every overlying owner has an equal right to a fair share of the underground water for domestic purposes.

4. The measure of recovery in all civil cases is compensation for the injuries sustained.

5. A possessor of land who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability to preferential users unless the withdrawal causes unreasonable harm through lowering the water table or reducing the artesian pressure in existing wells having a preferential use.

6. Under our preference statute an irrigation appropriation can never obtain a right superior to overlying owners to the use of underground water for domestic purposes.

Thomas H. DeLay of Mueting, DeLay & Spittler, Norfolk, for appellants.

George H. Moyer, Jr. of Moyer, Moyer & Egley, Madison, for appellees.

Deutsch, Jewell, Otte, Gatz, Collins & Domina, Norfolk, for brief of Lower Elkhorn Natural Resources District, amicus curiae.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.

SPENCER, Justice.

This is an action brought by domestic well owners to enjoin the pumping of ground water from an irrigation well owned by defendants, and for damages. The District Court found defendants' withdrawal caused a loss of artesian pressure in plaintiffs' wells, interfering with their domestic appropriation.

The court found the water was sufficient for all users if plaintiffs lowered their pumps to below the aquifer and defendants did not lower their pump. It permanently enjoined defendants from lowering their pump and from pumping for the period of time reasonably required by plaintiffs to lower their pumps. The court awarded plaintiffs the necessary costs of providing an assured alternative method of water supply, or a total recovery of $5,346.58. We affirm.

Plaintiffs Prather are the owners of a 9-acre tract upon which they maintain their residence. The residence is supplied with water by an artesian well located on the premises. The artesian pressure was normally sufficient to force water in the well to a level 5 to 6 feet above the ground. The well was 121 feet 10 inches deep and 2 inches in diameter.

Two other landowners, Furleys and Zessins, assigned their claims to Prathers. Unless designated by name hereafter, they are included in the title "plaintiffs." The Furleys are the owners of a 2-acre tract. The residence on the premises is supplied with water from an artesian well 111 feet deep and 2 inches in diameter. The artesian pressure was sufficient to raise the water above the ground.

The Zessins are the owners of a tract of land in the same area which is occupied by their daughter. The residence upon the premises is supplied with water by a 160-foot well with 4-inch casing and a submersible pump. The water in the Zessin well did not rise above the surface of the ground.

Defendants Eisenmanns purchased a 90-acre tract of land in the area in March of 1976. On July 9, 1976, they completed an irrigation well on the premises. The well was 179 feet deep and had a capacity of 1,250 gallons per minute on a 2-hour test.

On July 9, 1976, Eisenmanns commenced pumping from the well at an estimated rate of 650 gallons per minute. Prathers and Furleys lost the use of their wells on July 10, 1976. Zessins lost the use of their well between the evening of July 12 and the morning of July 13 when the water level dropped below the level of the submersible pump. Because of the loss of water, the Zessins' pump overheated and welded itself to the casing. Zessins were unable to dislodge the pump and were forced to drill a new well to a depth of 164 feet.

Following a stipulation by the parties, a temporary injunction was issued on July 20, 1976, to permit the University of Nebraska Conservation and Survey Division to conduct certain tests on the wells. The tests consisted of pumping the irrigation well at a rate of 375 gallons per minute for 3 days, then measuring the draw down of the Eisenmanns' well and a number of other observation wells which included the three domestic wells. At the end of the pumping period the measured draw down on the Prathers' well was 61.91 feet; the Furleys' well, 65.45 feet; and the Zessins' well, 65.6 feet. The draw down of the Eisenmanns' well was 97.92 feet. All the wells recovered to the prepumping level within 11 days after cessation of pumping from the irrigation well.

The two hydrologists who conducted the tests made certain findings: (1) The irrigation well and the domestic wells were drawing from the same aquifer. (2) The aquifer could be defined with reasonable scientific certainty. (3) The pumping by Eisenmanns depressed the artesian head of the domestic wells. (4) The cone of influence caused by Eisenmanns' pumping intercepted or affected the plaintiffs' wells. (5) The common aquifer from which the domestic and irrigation wells draw water is sufficient to supply both domestic and irrigation needs. (6) For plaintiffs to obtain water from their wells during periods when Eisenmanns were pumping, they would have to pump water from the top of the shale.

Section 46-635, R.R.S.1943, defines "ground water" as: " * * * that water which occurs or moves, seeps, filters, or percolates through the ground under the surface of the land." The existence of ground water in any particular area is dependent not only on the source of the water but also on the geologic formation of the earth. The earth materials with sufficient porosity to contain significant amounts of ground water and sufficient permeability to allow its withdrawal in significant quantities are called "aquifers." The upper surface of the water-saturated material is called "the water table."

Aquifers are almost always underlain by an impervious layer which prevents the water from percolating and seeping downward to such a level that it would be beyond economical reach. Two of the domestic wells involved were dependent upon artesian pressure. This results when ground water is not only underlain by impervious material but is confined between or underneath impervious layers as well. A well penetrating through one of the surrounding impervious layers provides an escape valve through which water will flow without external force so long as sufficient artesian pressure exists.

Before restating the current Nebraska law, it is well to note the various common law views concerning rights to ground water. The nonstatutory theories are classified as: (1) The common law, or English rule; (2) the reasonable use, or American rule; and (3) the correlative rights doctrine, or California rule.

Under the English or common law rule, a landowner had absolute ownership of the waters under his land. He could, therefore, without liability, withdraw any quantity of water for any purpose even though the result was to drain all water from beneath surrounding lands.

The American rule of reasonable use also recognized a proprietary interest of an overlying owner in the waters under his lands. " ' "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 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. " ' " Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966). There is no preference as to use under the American rule.

The California or correlative rights rule essentially provides the rights of all landowners over a common aquifer are coequal or correlative and one cannot extract more than his share of the water even for use on his own land where others' rights are injured thereby.

Nebraska has had few decisions dealing with underground water problems. In Olson v. City of Wahoo, 124 Neb. 802, 248 N.W. 304, our court, in 1933, enunciated a modified reasonable use rule. It said: "The American rule is that the owner of land is entitled 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, and while a lesser number of states have adopted this rule, it is, in our opinion, supported by the better reasoning." (Italics supplied.) The portion emphasized was not a part of the American rule as enunciated in a majority of the states. Nebraska, in Olson, adopted the rule of reasonable use with the addition of the California doctrine of apportionment in time of shortage.

In the subsequent case of Luchsinger v. Loup River P. P. Dist., 140 Neb. 179, 299 N.W....