Prather v. Eisenmann
1978 Neb. LEXIS 647, 200 Neb. 1, 261 N.W.2d 766 (1978)
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Rule of Law:
Nebraska law prioritizes domestic use of underground water over all other uses, including agricultural irrigation, and holds a lower-priority user liable for the reasonable and necessary expenses incurred by a domestic user to restore their water supply if the lower-priority user's withdrawal causes unreasonable harm by lowering the water table or reducing artesian pressure.
Facts:
- Plaintiffs Prathers owned a 9-acre tract with a residence supplied by an artesian well, 121 feet 10 inches deep, where water normally rose 5-6 feet above ground.
- Plaintiffs Furleys owned a 2-acre tract with a residence supplied by an artesian well, 111 feet deep, where water also rose above ground.
- Plaintiffs Zessins owned a tract with a residence supplied by a 160-foot well with a submersible pump, where water did not rise above ground.
- In March 1976, Defendants Eisenmanns purchased a 90-acre tract of land in the same area.
- On July 9, 1976, Eisenmanns completed an irrigation well on their premises, 179 feet deep, with a capacity of 1,250 gallons per minute.
- On July 9, 1976, Eisenmanns commenced pumping from their irrigation well at an estimated rate of 650 gallons per minute.
- On July 10, 1976, Prathers and Furleys lost the use of their wells.
- Between the evening of July 12 and morning of July 13, 1976, Zessins lost the use of their well as the water level dropped below their submersible pump, causing the pump to overheat and weld itself to the casing, forcing Zessins to drill a new well to 164 feet.
- Tests conducted by hydrologists showed that the irrigation well and domestic wells drew from the same aquifer, Eisenmanns' pumping depressed the artesian head of the domestic wells, and the common aquifer was sufficient for both domestic and irrigation needs if domestic wells were lowered and the irrigation well was not.
Procedural Posture:
- Plaintiffs Prathers (and assignees Furleys and Zessins) brought an action against Defendants Eisenmanns in the District Court (the trial court) seeking to enjoin the pumping of ground water and for damages.
- The District Court found that Eisenmanns’ withdrawal caused a loss of artesian pressure in plaintiffs’ wells, interfering with their domestic appropriation.
- The District Court permanently enjoined Eisenmanns from lowering their pump and from pumping for the period of time reasonably required by plaintiffs to lower their pumps.
- The District Court awarded plaintiffs the necessary costs of providing an assured alternative method of water supply, totaling $5,346.58.
- Eisenmanns appealed the District Court's judgment to the Nebraska Supreme Court.
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Issue:
Does an agricultural irrigation well owner, whose pumping causes unreasonable harm to neighboring domestic well owners by lowering the water table and reducing artesian pressure, have a legal obligation to compensate the domestic well owners for the expenses necessary to restore their domestic water supply, given Nebraska's statutory preference for domestic water use?
Opinions:
Majority - Spencer, J.
Yes, an agricultural irrigation well owner is liable to compensate neighboring domestic well owners for expenses necessary to restore their domestic water supply when the irrigation owner's pumping causes unreasonable harm by lowering the water table or reducing artesian pressure, due to Nebraska's statutory preference for domestic water use. The court reaffirmed Nebraska's 'modified reasonable use rule' from Olson v. City of Wahoo, which combines the American rule (reasonable and beneficial use on overlying land) with the California correlative rights doctrine (apportionment in times of shortage). This rule, however, must be construed in light of Nebraska's preferential use statute, § 46-613, R. R. S. 1943, which grants first preference in the use of underground water to domestic purposes, taking priority over all other uses, including agricultural. While between domestic users there is no preference, this case involves domestic users (plaintiffs) and an agricultural user (defendants), where plaintiffs have preferential rights. The defendants' appropriation rendered the plaintiffs' wells useless, causing unreasonable harm by lowering the water table and reducing artesian pressure. Plaintiffs had a property right in that use. The court adopted an adaptation of the rule from Tentative Draft No. 17 of section 858A of Restatement, Torts 2d, which holds a possessor of land liable for interference with water use if withdrawal causes unreasonable harm through lowering the water table or reducing artesian pressure. The court found the solution devised by the trial court equitable: reimbursing plaintiffs for the expense they were forced to incur. The measure of recovery is compensation for injury sustained, meaning the cost of restoring or obtaining what plaintiffs had before it was appropriated or destroyed by defendants' action.
Analysis:
This case solidifies Nebraska's unique approach to groundwater rights by explicitly integrating its statutory preference for domestic use with the common law 'modified reasonable use' doctrine. It establishes that while a landowner generally has a right to use water under their land, this right is curtailed when it interferes with a higher preferential use. The decision provides a clear remedy for domestic users harmed by lower-priority uses, ensuring access to essential water and placing the financial burden of such interference on the party causing the harm. This precedent reinforces the importance of domestic water supply and serves as a significant protection for homeowners against large-scale commercial or agricultural withdrawals.
