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Show NEBRASKA 359 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 reasonable use, with the factor of proportional distribution in the event of shortage. However, judgment for the defendant city could have been sustained under either rule-absolute ownership regardless of injury to others, or ownership 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. In a 1936 case, the court 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.135 In a more recent case,136 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.137 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."138 The Nebraska Legislature has declared that the conservation and beneficial use of ground water are essential and that "Complete information as to the i3sOsterman v. Central Nebr. Pub. Power & In. Dist., 131 Nebr. 356, 268 N.W. 334 (1936). 136 In re Metropolitan Util. Dist. of Omaha, 179 Nebr. 783, 140 N.W. (2d) 626 (1966). 137The court added: "It is argued that the Osterman case [discussed at notes 55 and 94-95 supra], by analogy, sustains a contrary holding. We do not think that this is so. That case involved a division of the natural flow of the Platte River into the watersheds of the Republican and Blue Rivers. The taking of the water there involved would damage the rights of lower appropriators on a river already over-appropriated. In the instant case, M.U.D. is a riparian landowner. No water is taken directly from the river. There are no appropriators or riparian owners who are injured by the taking between the well field and the mouth of the Platte River some 5 miles east. In any event, the Osterman case was decided on a statute first enacted in 1889 which prohibited transportation of water beyond the watershed. There is authority that one not damaged cannot raise the question of a diversion of ground water beyond the watershed. But we choose to decide the question on the ground of reasonable use and all the factors that enter into such a consideration, including the reasonableness of a watershed diversion, thus preserving the right of the Legislature, unimpaired, to determine the policy of the state as to underground waters and the rights of persons in their use. Under the record in this case and the applications of the declared law in this case, we can find no basis for holding the diversion from the well field to be unlawful. Under the evidence in this case the transwatershed diversion was reasonable, for a public purpose, beneficial, not against public policy, and in the public interest." 140 N.W. at 637. l38Nebr. Rev. Stat. §46-635 (1974). |