The Prophecy of Poor Dick: the Nebraska Supreme Court Recognizes a Surface Water Appropriator's Claim Against a Hydrologically Connected Ground Water User in Spear T Ranch, Inc. v. Knaub

• Publication year: 2021

85 Nebraska L. Rev. 284. The Prophecy of Poor Dick: The Nebraska Supreme Court Recognizes a Surface Water Appropriator's Claim Against a Hydrologically Connected Ground Water User in Spear T Ranch, Inc. v. Knaub

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Note(fn*)

The Prophecy of Poor Dick: The Nebraska Supreme Court Recognizes a Surface Water Appropriator's Claim Against a Hydrologically Connected Ground Water User in Spear T Ranch, Inc. v. Knaub

TABLE OF CONTENTS

I. Introduction ....................................................... 285
II. Background ........................................................ 286
A. The Development of Water Law in Nebraska--Two
Separate Theories .............................................. 286
1. Surface Water Law in Nebraska ............................... 286
2. Ground Water Law in Nebraska ................................ 287
a. Moving away from "Non-Liability"--Judicial
Pronouncements ........................................... 287
b. Statutory Pronouncements ................................. 289
B. Hydrologically Connected Ground Water and
Surface Water .................................................. 289
1. Ground Water Hydrology ...................................... 290
2. The Interaction of Ground Water and Surface
Water ....................................................... 291
C. The Rise of Ground Water Use in Nebraska ....................... 292
III. Spear T Ranch, Inc. v. Knaub ........................ 293

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A. Facts and Procedural Posture of Spear T Ranch,
Inc. v. Knaub .......................................... 293
B. The Nebraska Supreme Court Opinion ............................ 295
IV. Analysis .......................................................... 297
A. The Threshold Burden of Proof--The Battle of the
Experts ........................................................ 298
1. Forming a Model of the Hydrologically
Connected System ............................................ 298
2. Public Records--A "Treasure Trove"? ......................... 299
3. Setting the Stage for the Battle of the Experts ............. 300
4. The Best Expert Prevails .................................... 302 B. The Uncertainty Burden--The Restatement Rule ...... 303
1. The Immediacy Requirement ................................... 304
2. Reasonableness Factors ...................................... 306
V. Conclusion ......................................................... 309

I. INTRODUCTION

In 1757, Benjamin Franklin's fictitious prognosticator, Poor Dick, uttered a prophetic quote: "When the well's dry, they know the worth of water."(fn1) Standing in a dry streambed, Rex Nielsen understands this better than anyone. Nielsen, owner of the Spear T Ranch, sustained his livestock with water diverted from Pumpkin Creek for more than fifty years. Today he relies on something else--a backhoe. Pumpkin Creek has run dry, and he has resorted to digging pits to find water for his cattle.

This curious ranching practice is the result of a gray area in the law. Nebraska water law embodies a dichotomy whereby ground water and surface water are governed by separate legal doctrines. By ignoring their incontrovertible hydrologic link, this dichotomy fails to address a conflict between a ground water user and a surface water user. When the Nebraska Supreme Court addressed this conflict in Spear T Ranch, Inc. v. Knaub,(fn2) the inevitable collision between the two inconsistent legal doctrines finally occurred. The court's adoption of the Restatement (Second) of Torts to govern this dispute is the first step toward integrating water law in Nebraska. Although this decision answers some questions, it leaves much uncertainty.

This Note begins by briefly exploring the historic development of the separate doctrines of water law in Nebraska, followed by a basic outline of the complex science of ground water hydrology so that the basis of the "inevitable collision" between the inconsistent theories of law can be understood. Additionally, this Note analyzes the holding and reasoning of Spear T Ranch and proposes that the Nebraska Supreme Court's opinion, while recognizing the surface water appropriator's legal claim, creates an inherent economic burden that will be

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difficult to overcome. In support of this proposition, this Note discusses the necessary methods of proving causation and identifies its expensive and inevitable result--the "battle of the experts."

This Note next discusses the uncertainties in the application of the Restatement left unanswered by the Nebraska Supreme Court, beginning with an analysis of the thin line of precedent from other jurisdictions, and concluding with a brief discussion of the "reasonableness" factors present in the Restatement and the interesting questions raised with their application.

II. BACKGROUND

A. The Development of Water Law in Nebraska--Two Separate Theories

In general terms, "water law" includes all law relating to the allocation and use of water. Nebraska became a state in 1866, and the territorial legislature subsequently adopted the common law of England.(fn3) Thus, Nebraska inherited the English common law anomaly whereby surface water and ground water were governed by two separate legal doctrines. From this early split, the development of water law in Nebraska continued along separate paths.

1. Surface Water Law in Nebraska

Under English common law, surface water use was governed by the doctrine of riparianism, whereby water rights are derived from the ownership of land.(fn4) The fundamental principle of the riparian doctrine is that the owner of land bordering a surface water body (a "riparian") has a right to make reasonable use of the water, subject to the reasonable use of other riparians.(fn5) This riparian doctrine proved impracticable for farmland in Nebraska. Unlike England, the lion's share of Nebraska farmland is technically classified as "semi-arid," making agricultural land use risky without irrigation.(fn6) Since early farmers in Nebraska lacked the technology to develop ground water efficiently, Nebraska's agricultural economy was dependent on diversion of surface water from rivers and streams.(fn7) Pure riparianism stifled development since only riparian landowners had a right to this irrigation water.(fn8) Nebraska responded by adopting the doctrine of

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prior appropriation.(fn9) Rather than limiting water use to riparians, the doctrine of prior appropriation provides that surface water may be appropriated anywhere for any use that is beneficial. Priority is the crux of this right. First in time is first in right the senior appropriator has the highest priority to make beneficial use of surface water.(fn10) The doctrine of prior appropriation survives as the surface water law of Nebraska today.

2. Ground Water Law in Nebraska

Unlike surface water law, ground water law was premised on a rule of capture at the English common law whatever ground water an overlying landowner could "capture" from the aquifer underlying his or her land could be used without liability.(fn11) This traditional dichotomy in water law represented a lack of understanding of ground water hydrology.(fn12) Indeed, this lack of accountability was based on the idea that it would be unfair to hold ground water users liable for harm to others when "no man can tell what changes these under-ground sources have undergone in the progress of time."(fn13)

Because of the limited technology available, most of the intricacies of ground water flow were not known in the territorial days. Moreover, since there was little ground water used for irrigation in Nebraska before 1920, there was little push for deeper scientific understanding.(fn14) However, the next thirty years would see a tremendous growth in the use of ground water.(fn15) The need for more efficient means of withdrawing ground water paved the way for more complete understanding of the subsurface flow of water. As the knowledge of ground water hydrology increased, Nebraska's water law developed.

a. Moving away from "Non-Liability"--Judicial Pronouncements

The first judicial pronouncement of ground water law in Nebraska occurred in Olson v. City of Wahoo.(fn16) The plaintiff installed machinery to recover gravel from a pit for commercial purposes. The defendant, City of Wahoo, installed a large capacity municipal well to

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supply water for power generation. As a result, the water table was sufficiently lowered to make the plaintiff's operation of the gravel pit unprofitable. The defendant argued that the English common law "non-liability" rule was applicable. However, hydrologic knowledge had progressed to the point of rendering the justifications for the common law rule moot. In recognition of this, the court set down a rule governing ground water by endorsing the American rule of reasonable use.(fn17)

In general, the reasonable-use rule allows an overlying landowner to withdraw as much ground water from the underlying aquifer as can be put to a beneficial and reasonable use.(fn18) "What is reasonable is judged solely in relationship to the purpose of such use on overlying land it is not judged in relationship to the needs of others."(fn19) To this traditional definition of reasonable use, the Olsoncourt added: "[I]f the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole . . . ."(fn20) This additional language is very similar to another ground-water doctrine known as the doctrine of correlative rights.(fn21) Thus, the Olsonrule is a "hybrid" rule containing aspects of both the American rule of reasonable use and the California doctrine of correlative rights. Although this language is technically dicta,(fn22) Olsonforeshadowed the Nebraska Supreme Court's abandonment of the total non-liability rule for ground water...