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Show NEBRASKA 737 large one and plaintiffs water level dropped. On appeal, the supreme court stated that there is a distinction between rules affecting defined underground streams and pure percolating waters and that in this case it was doubtful if the water flowed in a defined underground stream. The court said: The American rule is that the owner of land is entitled to appro- priate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and bene- ficial use upon the land which he owns, especially if such is injuri- ous 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.319 Inasmuch as the plaintiff had failed to show to the court's satisfaction that the loss of water in his gravel pit was due to the defendant's pumping, judgment for the defendant was sustained. In the Olson case, the court apparently adopted the American rule of rea- sonable use, with the factor of proportional distribution in the event of short- age. However, judgment for the defendant city could have been sustained under either rule-absolute ownership regardless of injury to others, or owner- ship subject to the qualification of not inflicting injury on owners of other overlying lands. Whether or not it was necessary to adopt one rule or the other in the Olson case, the Nebraska court has considered that it has adopted the American rule. The court has stated, "We are committed to the rule: 'The owner of land is entitled to appropriate subterranean waters found under his land, but his use thereof must be reasonable, and not injurious to others who have substantial rights in such waters,' " citing the Olson case.320 In a more recent case,321 the court affirmed the rule of reasonable use. In addition, the court held that where no damage was done by a transwatershed diversion of percolating ground waters for municipal use, such diversion was reasonable in keeping with the American rule. Ground Water Statutes The Nebraska statutes define ground water as "that water which occurs or moves, seeps, filters, or percolates through the ground under the surface of the land."322 The Nebraska Legislature has declared that the conservation and beneficial 319Olson v. City of Wahoo, 124 Nebr. 802, 248 N.W. 304 (1933). 320Osterman v. Central Nebr. Pub. Power & In. Dist., 131 Nebr. 356, 268 N.W. 334 (1936). "> In re Metropolitan Util. Dist. of Omaha, 179 Nebr. 783, 140 N.W. (2d) 626 (1966). 3"Nebr. Rev. Stat. § 46-635 (1968). |
