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Show NEBRASKA 469 enemy" jurisdiction, although there were statements in the cases which seemed to be influenced by the "civil law" rule. In 1962, the court decided Nichol v. Yocum,60 and attempted to reassess the earlier cases and to introduce some certainty into the conflicting approaches. The court approved what it termed the "com- mon law" rule, although it has been suggested that the court really applied the "reasonable use" rule which requires an analysis of the "equities" of the parties in the particular case.61 Since the Nichol decision, the court has steadfastly adhered to the following rules as being well settled:62 diffused surface waters may be collected by the landowner; he may change their course, collect them in a pond on his land, or channel them into a natural drain, all without incurring liability to a lower landowner. He cannot divert them onto the lower land except in "depressions, draws, swales, or other drainageways through which such waters were wont to flow by nature." When collected m such natural drainways, the water may not be repelled, dammed, or diverted without incurring liability to the upper landowner. 4. Ground Water Before 1963, the Nebraska court adopted the "reasonable use" rule as a guide to a landowner's right to appropriate ground water. In times of shortage, a correlative rights or apportionment theory was recognized. There was no requirement that a permit be obtained by an appropriator of ground water. The history of ground water law in Nebraska was reviewed by Professor Richard Harnsberger in 1963,63 and his recommendations apparently influenced the legisla- ture, for in 1963 a ground water code was adopted.64 Ground water is now denned as "water which occurs or moves, seeps, filters, or percolates through the ground under the surface of the land." Recognizing that pumping water for irrigation from pits within 50 feet of the bank of any natural stream may affect the flow of the stream, the legislature required appropriators to secure a per- mit in such a situation from the Department of Water Resources before initiating such use. In acting on such applications, the depart- ment may take into consideration the effect of the pumping on the amount of water in the stream and the ability of the stream to meet the requirements of appropriators from the stream. A special provi- sion accords to municipalities a preference for domestic use.65 There are numerous sections of the code which relate to registra- tion of wells66 and to the establishment of ground water conservation districts.67 The latter are no longer formed in view of the natural resources district legislation referred to in section 2.3 supra. Ground water may be transported outside the State if the department finds 8<>173 Neb. 298,113 N.W. 2d 195 (1962). «i See note. 41 Neb. L. Rev. 765, 787-92 (1962). 92 See Rolfameyer v. Seward County, 182 Neb. 348, 154 N.W. 2d 752 (1967) ; Kuta v. Flynn, 182 Neb. 479, 155 N.W. 2d 795 (1968) ; Muff v. Mahloeh Farms Co., 184 Neb. 286, 167 N.W. 2d 73 (1969) ; Niokeraon Township v. Adams, 185 Neb. 31, 173 N.W. 2d 387 (1970). 83 See R. Harnsberger, Nebraska Ground Walter Problems, 42 Neb. L. Rev. 721 (1963). «* Sees. 46-635 to 46-655. 65 Sees. 46-638 to 46-650. « Sees. 46-601 to 46.613.01. w Sees. 46-614 to 46-634. New districts may not be organized after June 30, 1972. See. 46-614.01 (1971 supp.). |
