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Show 358 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS held that a lower riparian could enjoin an upstream appropriator, depending upon a balancing of the interests involved and the appropriateness of injunctive relief. The factors to be considered in determining the appropriateness of an injunction constitute a comparative appraisal of all elements of the case, including: (a) the character of the interest to be protected; (b) the public interest; (c) the relative adequacy to the plaintiff of injunctive relief and other remedies; and (d) the relative hardship likely to result to the defen- dant if the injunction is granted and to the plaintiff if the injunction is denied.133 Ground Waters Court decisions.-There have been relatively few Nebraska Supreme Court cases decided on the subject of ground water. Olson v. City of Wahoo, decided in 1933, arose between owners of land in a basin-a plaintiff who had an excavation in a gravel bed and a defendant city which pumped water for domestic use. The defendant city had begun pumping the water prior to plaintiffs purchase of land. In a dry year, the city replaced its pumps with a large one and plaintiffs water level dropped. On appeal, the Nebraska Supreme Court stated that there is a distinction between rules affecting defined underground streams and 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 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 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.134 (Continued) asserted by irrigation companies offering a public service. The court attached signifi- cance to the public benefit, to the appropriation project completed in good faith and at great cost, and to the tardy initiation of the riparian use. If the court went too far, the limitations themselves have remained. We reject the startling proposition [urged by the defendant appropriators] that equity sends every riparian proprietor packing. Defend- ants are private appropriators-not champions of the public interest. * * * The remedy rests on other considerations." Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738, 747 (1966). 133141 N.W. (2d) at 745-747. The court concluded that the defendant appropriators should be enjoined for injuring a recognized riparian right where the harmful use was unreasonable with respect to the riparian proprietor. While the riparian was granted an injunction in this case, the riparian right was not an unused right. For a critical discussion of this case, see Comment, "The Dual-System of Water Rights in Nebraska," 48 Nebr. L. Rev. 488, 497-498 (1969). 134Olson v. City of Wahoo, 124 Nebr. 802, 248 N.W. 304 (1933). |
