124 Neb. 802 | Neb. | 1933
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.
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
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, was one of the technical experts who supported the contentions of the defendant. He was engaged in engineering for five years with the Burlington, three years with the Iowa state highway commission, for two years with the United States army, was three years city engineer of Grand Island, and for the last seven years has
Professor E. E. Brackett, of the University of Nebraska, also made actual experiments to determine the shape of the cone of the depression of the water line reaching out from the well, and explained specific tests at the Hugh Brown farm southwest of Gibbon, Nebraska, in a soil formation which tallied with that of the Todd Valley formation, and said that, when water was being pumped in this well at the rate of 1,020 gallons a minute, at the end of 14 hours’ pumping there was only a lowering of about a foot in a test well 200 feet away, and he testified positively that the area of influence did not extend more than 1,000 feet away from the city pump at Wahoo, and that it could not extend a distance of 3,400 feet.
Mr. G. L. Weishaar, a well contractor, of 22 years’ experience in eight states, who resides at Scott City, Kansas,
Mr. A. C. Kirkwood, an engineer, who had graduated at the Stanford University and at the Massachusetts Institute of Technology, and who is an expert of the Burns & McDonnell Engineering Company, of Kansas City, Missouri, testified that the area of influence would not exceed 1,000 feet. He was asked to make a computation, by assuming that the great body of water in the gravel, of 33 1/3 per cent, porosity, was not replenished from any source, and that the center of this cone of water had a depression at the city pump, when it was drawing out 900 gallons a minute, of 9.3 feet below the water level, how much water .would have to be pumped out to lower the level of water 3,400 feet away, at the Olson gravel pit, four feet. His answer was that, if there was no replenishment from any source, 115,300,000 cubic feet of water, or 865,000,000 gallons of water, would have to be pumped out, and that this would require a constant pumping, at full capacity, night and day, for one year and ten months. If this estimate is true, then it was impossible to lower the level at the gravel pit by the city pump, which was only installed April 12, 1930, a distance of four feet before the date the petition was filed, August 23, 1930; or, to put the converse of the proposition, that, to lower the level, as indicated, in the 134 days between those dates, the city pump would have had to pump out 4,480 gallons a minute every hour, according to Mr. H. S. Nixon, an Omaha engineer, and its capacity was but 900 gallons a minute.
The Olson gravel pit lies at the west edge of the Todd Valley, and Professor Lugn testified that he had not been able to determine whether it properly belongs to the Todd Valley sand and gravel, or to something older geologically. He said that part of this formation on the west edge of
It is contended by the plaintiffs that the city has destroyed their gravel pit, but it is set out by the petition of the plaintiffs that it would cost the plaintiffs at least $1,000 to lower the bottom of their pit through a stratum of clay which is 10 to 17 feet thick. It is evident that' below such clay there would be a bed of gravel which would be far under the present water line in Todd Valley, and could be worked successfully, although at some additional expense because of the greater depth.
The only grounds for a new trial presented were: That the judgment was contrary to the law and to the evidence, and was not sustained by sufficient evidence, and because of errors duly excepted to during the trial.
In Meng v. Coffee, 67 Neb. 500, Commissioner Pound, in a very long opinion, held that the common-law rules as to the rights and duties of riparian owners are in force in this state, except as modified by statute, but it has been held that the law in relation to surface waters
It is a general rule that the furnishing of water to the inhabitants of a city, for the purpose of health, convenience, and comfort, is a public use. 27 R. C. L. 1402.
In the case at bar, the plaintiffs contend for the American rule on percolating waters, while the defendant insists upon the common-law rule, and it is admitted that this court has not yet adopted either view. A full discussion of these two rules, together with the citations from the states following each rule, will be found in the note of 181 pages in 55 A. L. R. beginning on page 1385. There is a distinction made between underground waters flowing in known and well-defined channels, such as the water flowing in the gravel bed in Todd Valley, and also underground waters, the channels of which are undefined and unknown, and it is held that the principles of law governing the former are not applicable to the latter. 55 A. L. R. 1444. The defendant in the case at bar, by its evidence, throws much doubt on the question whether the water under the plaintiffs’ gravel pit is connected directly with the underground stream of water flowing in the Todd Valley. The question of the rights in percolating’ waters is comparatively modern. The first case arising; in England, in 1840, Hammond v. Hall, 10 Sim. 551, 59 Eng. Reprint, 729, did not definitely decide the question, but, in 1843, Tindale, C. J., in Acton v. Blundell, 12 M.
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.
For further discussion of the two rules, we cite the following opinions: Meeker v. City of East Orange, 77 N. J. Law, 623, 25 L. R. A. n. s. 465; Erickson v. Crookston Waterworks, P. & L. Co., 100 Minn. 481, 8 L. R. A. n. s. 1250, 10 Ann. Cas. 843; Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179 (decided in June, 1862, in which decision the English rule was first questioned in the United States) ; Rouse v. City of Kinston, 188 N. Car. 1, 35 A. L. R. 1203; Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687, 68 L. R. A. 175; Pure Springs Water Supply Co. v. Town of Olney Springs, 87 Colo. 420; Cohen v. La Canada Land and Water Co., 151 Cal. 680, 11 L. R. A. n. s. 752; Clinchfield Coal Corporation v. Compton, 148 Va. 437, 55 A. L. R. 1376.
In the trial of this case, Judge Landis made a personal examination of the city pumping plant, of some or all of the test wells, and of the gravel pit, and this court has held that, where the oral evidence on the material issues
In the opinion filed by the trial judge in the case at bar, he states that the plaintiffs have proved that the water level in their gravel pit has been lowered, but that they have failed to prove that the defendant caused such lowering. After stating that he visited the gravel pit, he states that one of the important elements in determining the flow of the underground water in the Todd Valley is the porosity of the material through which it flows, and that no evidence was offered as to the porosity of the materials as it affects the water level in the gravel pit, and that the expert evidence offered by the plaintiffs is indefinite, in that it locates a probable cause only of the lowering of the water level in the gravel pit, and adds that, if the defendant had rested at the close of the plaintiffs’ testimony, he would have dismissed the action because of failure of proof. The trial court then adds that the expert evidence offered by the defendant shows that there are many causes which might have caused the lowering of the water level in the gravel pit, and that it is quite improbable that the pumping done by the city, 3,400 feet away, was the proximate cause of plaintiffs’ damage.
This court finds that the evidence indicates that a deepening of the bottom of the gravel pit through the clay bed now reached, of 10 to 17 feet in thickness, would secure an abundance of water for further operations in the gravel below the clay bed, if, as the plaintiffs contend, the water in the gravel pit is connected directly with the percolating water in Todd Valley, for this water is inexhaustible, and one of the experts estimated that the flow or volume of water passing through the gravel of the Todd Valley was more than 10,000,000 gallons a day,
Upon a consideration of all of the evidence, we find no error in the judgment entered by the trial court, and the same is hereby
Affirmed.