Sorensen v. Lower Niobrara Natural Resources Dist., 84-224

• Citation: 376 N.W.2d 539,221 Neb. 180
• Decision Date: 08 November 1985
• Docket Number: No. 84-224,84-224
• Parties: Harvey L. SORENSEN and Margot Sorensen, Appellants and Cross-Appellees, v. LOWER NIOBRARA NATURAL RESOURCES DISTRICT, Appellee and Cross-Appellant.
• Court: Supreme Court of Nebraska

Page 539

376 N.W.2d 539

221 Neb. 180

Harvey L. SORENSEN and Margot Sorensen, Appellants and Cross-Appellees, v. LOWER NIOBRARA NATURAL RESOURCES DISTRICT, Appellee and Cross-Appellant.

No. 84-224.

Supreme Court of Nebraska.

Nov. 8, 1985.

Syllabus by the Court

1. Waters: Legislature. By enacting the Municipal and Rural Domestic Ground Water Transfers Permit Act, Neb.Rev.Stat. §§ 46-638 to 46-650 (Reissue 1984), as a part of Nebraska's policy, the Legislature has altered certain aspects of common law governing use of ground water, such as exoneration from the common-law prohibition against transfer of ground water and elimination of use on overlying land as a factor in determining reasonable and beneficial use of ground water.

2. Constitutional Law: Waters: Appurtenances: Property. The right of an owner of overlying land to use ground water is an appurtenance constituting property protected by Neb. Const. art. I, § 21.

3. Words and Phrases. Injury is an invasion of any legally protected interest of another, while damage is a loss, detriment, or harm sustained by reason of an injury.

4. Causes of Action: Words and Phrases. A cause of action is judicial protection of one's recognized right or interest, when another, owing a corresponding duty not to invade or violate such right or interest, has caused a breach of that duty.

5. Eminent Domain: Damages. All damages, present or prospective, which are caused by the exercise of eminent domain must be compensated and recovered in the original condemnation proceeding. A final award in a condemnation proceeding for the acquisition of a right-of-way is conclusive upon the parties thereto as to all matters necessarily within the issues joined, although not formally litigated.

6. Eminent Domain: Damages. Damages recoverable in a condemnation case are determined by the extent of the taking and a condemner's rights actually acquired, not by a condemner's use resulting from less than full exercise of a right acquired by eminent domain.

7. Eminent Domain: Damages: Pleadings. A promissory stipulation not contained in the condemner's petition cannot affect the extent of the taking or the amount of the damages to be awarded.

8. Eminent Domain: Damages: Testimony. Testimony offered by a condemner to diminish the taking stated in the condemnation petition or to describe anything less than full exercise of rights acquired by eminent domain is irrelevant to the question of damages caused by the condemner's appropriation.

9. Eminent Domain: Presumptions. It is a principle of law, or a "presumption," in eminent domain that a condemner will exercise all rights acquired and use the property appropriated to the full extent.

10. Trial: Rules of Evidence: Expert Witnesses. As a result of Rule 705, Nebraska Evidence Rules (Neb.Rev.Stat. § 27-705 (Cum.Supp.1984)), where cross-examination of an expert witness discloses there is no adequate factual basis for an expert's opinion, such opinion is irrelevant (Rule 401, Nebraska Evidence Rules, Neb.Rev.Stat. § 27-401 (Reissue 1979)), is inadmissible (Rule 402, Nebraska Evidence Rules, Neb.Rev.Stat. § 27-402 (Reissue 1979)), and should be stricken from consideration by a jury on proper motion of the party adversely affected by such irrelevant evidence.

11. Rules of Evidence: Expert Witnesses. An expert's opinion based on a misinterpretation or misconception of applicable law renders the opinion irrelevant.

Donald J. Pepperl of Pepperl & Melcher, P.C., Lincoln, and Frank Roubicek, Creighton, for appellants and cross-appellees.

Steven G. Seglin and Leroy W. Orton of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee and cross-appellant.

Before KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

Harvey L. and Margot Sorensen appeal the judgment entered in the district court for Knox County on a verdict in an eminent domain proceeding commenced by Lower Niobrara Natural Resources District (NRD). We reverse and remand for a new trial.

On February 4, 1981, NRD applied for a permit under the Municipal and Rural Domestic Ground Water Transfers Permit Act, Neb.Rev.Stat. §§ 46-638 to 46-650 (Reissue 1984) (the act), to install two wells on a quarter section owned by Sorensens and obtain statutory spacing protection. After a hearing on April 2 the Director of Water Resources (director) approved NRD's application and authorized NRD to pump ground water at a rate of 864,000 gallons per day (600 gallons per minute) and prohibited landowners and occupiers from placing within 1,000 feet of NRD's well sites any well with a capacity in excess of 100 gallons per minute. See Neb.Rev.Stat. § 46-651 (Reissue 1984).

NRD, in January 1982, filed its petition commencing eminent domain proceedings regarding a quarter section owned by Sorensens, the southeast quarter of Section 20, Township 29 North, Range 6 West of the 6th P.M., in Knox County. According to its petition, NRD sought fee simple title to two 1/2-acre tracts in Sorensens' quarter section, "for the purpose of supplying water for the beneficial use to the residents of the West Knox Rural Water District ..." by "construction of well sites, water storage tank, water transmission lines, distribution pipelines and their appurtenances." Regarding the proposed wells, NRD's petition did not specify the number of wells, a rate for pumping ground water, or the quantity of water to be extracted.

NRD's proposed well sites were located in one of four quarter sections owned by Sorensens--two quarter sections of dry cropland with some pasture in the south half of Section 20 and two quarters irrigated by center pivot systems on the south half of Section 21, lying east of Section 20. Farming was the highest and best use of Sorensens' land. The plat, below, depicts the location of Sorensens' quarters and the two well sites sought by NRD.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Sorensens operated their quarters as a farm unit. Corn production on Sorensens' dryland was 75 bushels per acre, while the irrigated quarters produced 150 bushels per acre. Four wells, two for each center pivot system, supplied water for the irrigated cropland. Water pumped at the rate of 600 gallons per minute is necessary for operation of the existing center pivot irrigation systems on Sorensens' land.

Before proceeding, a glossary of hydrologic terms, or water words, may be helpful:

Aquifer: A geological formation or layer of material that is porous or permeable to water, thus capable of containing or carrying ground water.

Cone of depression: The funnel-shaped area around a well, where the water table has been lowered by the withdrawal of ground water through the well. The spout of the "funnel" is downward along the pump, while the upper part of the funnel, the radius of influence, extends laterally away from the pump.

Drawdown: The amount by which the elevation of the surface of a body of water is or could be reduced by withdrawal or release of water.

Recharge: Addition of water in an aquifer to replace that which has been withdrawn.

See 7 R. Clark, Waters and Water Rights (1976).

Sorensens' land and NRD's well sites are located over a common aquifer, that is, at the northern edge of the Ogallala aquifer, an alluvion outwash from the Rocky Mountains. Test holes on NRD's proposed sites disclosed a ground water yield of 300 to 350 gallons per minute. North of NRD's sites, near the center of the southeast quarter of Section 20, a test hole drilled by Sorensens indicated a yield from 150 to 200 gallons per minute.

Hydrologists testifying at trial did not materially disagree with each other's methodology but took issue with the different information used by opposing experts to formulate their opinions and feed their computers. The hydrologists described their use of a computer ground water model, a simulated aquifer to demonstrate behavior of the formation over a protracted period of water withdrawal. The model involves complicated computations vulnerable to "garbage in, garbage out," that is, computer computations were only as good as the validity of data supplied.

Testimony from expert witnesses was a sequence of point and counterpoint.

One of Sorensens' hydrologists testified the primary and most important characteristic of an aquifer is the formation's capability of providing economic withdrawal of subterranean water. In Sorensens' situation, however, there was no recharge of the aquifer supplying ground water for irrigation. Using a pumping rate of 300 gallons per minute on each of NRD's well sites and considering a well's expanding cone of depression, Sorensens' hydrologist concluded that NRD's extraction of water would lower the water table to a level where Sorensens' existing wells would become useless in 3 to 5 years. According to the hydrologist, with NRD's pumping ground water at a rate of 600 gallons per minute, Sorensens will "end up going dry." In the opinion of Sorensens' expert, as the cone of depression for NRD's wells expands, the ground water level will become so depleted that Sorensens' irrigation wells will "suck air."

Testimony of real estate appraisers called by Sorensens focused on the vulnerability of Sorensens' ground water supply as a result of NRD's project. According to Sorensens' appraisers, on account of well spacing and impracticality of irrigation wells outside the area restricted to NRD's wells, any land development dependent on ground water north of NRD's well sites was curtailed, resulting in reduction of land value and price obtainable for Sorensens' dry land. Also, a factor bearing upon damages was Sorensens' diminishing supply and eventual loss of ground water for irrigation presently conducted, a loss caused by NRD's unlimited pumping pursuant to rights acquired in eminent domain.

NRD retained consulting engineers to design wells based on information supplied in a well-driller's report...