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Show 806 WISCONSIN may be modified to some extent by special statutes relating to the construction of highways and the drainage of agricultural land.62 Rights of use in diffused surface water seem not to have created serious enough conflicts to result in major litigation, although most jurisdictions allow the landowner to capture and use such water while it is on his land. 4. Ground Water One of the most extreme applications of the English view of abso- lue ownership of ground water by the owner of the subsoil is found in Wisconsin. The early case of Huber v. Merhel63 permitted a land- owner to use, in what was alleged to be a malicious manner, water in a small artesian aquifer to the detriment of an adjoining landowner whose pressure level declined. The court held a statute requiring an owner to use due care to prevent waste to be unconstitutional for the reason that the police power does not extend to promoting the welfare of one citizen over another. The case represents, of course, an exag- gerated notion of property ownership, and to the extent that it may seem to sanction malicious waste, it is out of line with most decisions elsewhere. The general theory of the Huber case has been reaffirmed in more recent decisions in contexts, however, in which nonwasteful uses were involved.64 The cases suggested that statewide regulation by the legislature of ground water sources would be permissible.65 The Wis- consin cases seem to make no distinction between artesian aquifers and percolating water. After Huber was decided in 1903, the State legislature was slow to act. Finally in 1945, the High Capacity Well Law was enacted, which affects the right of private landowners to drill wells.66 Tt is intended to affect directly large quantity withdrawals. The following sentence suggests the gist of the act: No wells shall be constructed, installed or operated to withdraw water from underground sources for any purpose where the capacity and rate of with- drawal of all wells on one property is in excess of 100,000 gallons a day without first obtaining the approval of the department. The section then provides that if the proposed withdrawal will ad- versely affect a public utility furnishing water to the public, the de- partment of natural resources may either withhold its approval or conditionally approve the application. A number of questions remain unanswered.87 Apparently, some have felt that the application can be denied only if it affects public utilities. Under this interpretation, private landowners who operate wells would be without a remedy if their wells would be damaged by applications approved-Huber would apply to them. The act ap- parently encompasses all underground sources, whether artesian basins, percolating water, or water flowing in defined streams; and 62 Sees. 88.87(2 and 3) (a) ; 88.89(1) ; 88.90. 98 117 Wis. 355, 94 N.W. 354 (1903). For a criticism, see Note, The Law of Under- ground Water; A Half Century of Huber v. Merkel, 1953 Wis. L. Rev. 491. MFond du Lac v. Empire, 273 Wis. 333, 77 N.W. 2d 699 (1956) and Meene v. Fond du Lack, 273 Wis. 341, 77 N.W. 2d 703 (1956). 65 See Comment, Wisconsin Ground Water Law-A New Era, 1957 Wis. L. Rev. 309. 88gPC. 144.025 (2> (e). w See Ellis et al., note 2. at 320-346, where problems of interpretation as well as administration of the act are discussed. |