Rights of Well Owners

The Rights of Well Owners

A Water Policy Issue

The State and the courts have established the rights of the surface water user to an uninterrupted flow of water. If the pumping of the aquifer causes the water table to drop and, thus, the springs to cease to flow, then the surface user may seek damages against the well user.

As the aquifer is pumped, the water table is lowered, and some of the springs are then above the water table and go dry.

Some of the wells (such as C) are no longer in the saturated zone and can no longer pump water. Other wells (such as A) must lower their well to continue pumping water.

Does well owner C have a claim against well owner A and B for their contribution to Mr. C’s inability to continue to access water? It isn’t Mr. C’s fault that the geology of the land makes it impossible for him to continue to pump while his neighbor a mile a way can.

To say that the surface user has a claim against the well owners but that the well owners do not have a claim against each other is to say that the well owners do not have any rights. The cause of suffering for both well owner C and the surface user is the same.

Common belief recognizes the rights of the surface user, but denies any rights to the well owners. The logic seems to be that it is natural for the water to flow from the spring, but it is unnatural to pump water from the ground. Therefore, any “unnatural” activity has no rights; instead, there is an obligation to compensate the user of water from a natural flow, if that flow is interrupted.

If common belief prevails, then no spring will ever be allowed to go dry without compensation to the surface user. If one wants to continue to use the aquifer, then the well owner must buy out the surface user. One can suck out the bottom 3/4 of the glass of water as long as the top 1/4 remains in place.

The Nebraska courts, however, recognize the right of the citizen to access water for irrigation use from both the surface and underground streams. What the courts have never been asked is, “what are the rights of the well owners?”

The courts have ruled that the:

“Constitution as well as statutes recognizes and encourages irrigation. Landowner may improve land by artificial application of water in reasonable and careful manner, without liability to adjoining owner except for negligence or willful act proximately causing damage. Spurrier v. Mitchell Irr. Dist., 119 Neb. 401, 229 N.W. 273 (1930).”

The definition of proximately is:

prox·i·mate, adv “Very near or next, as in space, time, or order.” The American Heritage® Dictionary of the English Language

“\Prox"i*mate*ly\, adv. In a proximate manner, position, or degree; immediately.” Merriam Webster

The Spurrier v Mitchell case is about flooding of a neighbor’s land caused by excess seepage from a canal. The neighbor complained that the canal leakage made his land unfarmable due to an excess of water. The courts ruled that the benefits of irrigation gained from the presence of the canal outweighed the loss suffered by the individual farmer. They also ruled that the canal owners had no financial obligation to compensate the neighbor for the damages caused by the canal.

This ruling by the court counters the common belief that the well owners A, B, and C have an obligation to those who are affected by their pumping.

Right to Access Water is a Property Right	Water Rights are Communal
As the aquifer declines, the water source may disappear. This person will run out of water and be out of luck.	As the aquifer declines, this person will have a claim against the remaining well owners.
The Nebraska Supreme court in Spurrier v. Mitchell supports this idea. This calls into question what obligation the well owner has to the surface user, if any.	The US Supreme Court, in its refusal to hear an appeal from the ruling by the Special Master in the Republican River dispute, rules that the well owner has an obligation to the surface user. It would imply that other well owners have an obligation to well owner C, as well. However, this specific question has not been addressed by the Court.
The aquifer will continue to be accessible to individuals who live in geologically favorable locations.	Aquifer usage will stop long before the aquifer is depleted, as the burden on the users with access to water will make it too expensive to access.

The fundamental question is, what are the rights and obligations of well owner C? Well owner A? Well owner B? The Nebraska legislature and courts have never directly addressed this issue. LB108 and LB962 have stated that the waters of the two systems are hydrologically connected, but they do not address the claims of the various well owners.

What are the rights of Well Owner A? It is the activities of man that have caused him to lose his access to water. He could lower his well and continue to have access to water. Should this be his expense? Today, it is; and, there is no thought of asking one’s neighbor for help in paying the expense. But if Well Owner C is entitled to compensation, then isn’t Well Owner A as well?

If a surface user drills Well D when his surface water disappears so that he can continue to irrigate, has he been harmed by more than the cost of drilling the well? Does he now become a contributor to the problem? Have his rights and obligations changed?

Today, the Department of Natural Resources is operating under the authorization or orders of the Settlement agreement between Kansas and Nebraska . This agreement does not address the rights of well owners, but only their obligations to the surface users. What are the well owners’ rights?

Should the NRD cause the well owners to reduce their use in order to protect the surface user while the well user’s rights remain undefined? Shouldn’t society answer the overall question of how to address the water issue before changing the way things have been done for 70 years?