Rex Nielsen, owner of the Spear T Ranch, sustained his livestock with water diverted from Pumpkin Creek for more than fifty years. Today he relies on something else--a backhoe. Pumpkin Creek has run dry, and he has resorted to digging pits to find water for his cattle. This curious ranching practice is the result of a gray area in the law. Nebraska water law embodies a dichotomy whereby ground water and surface water are governed by separate legal doctrines. By ignoring their incontrovertible hydrologic link, this dichotomy fails to address a conflict between a ground water user and a surface water user. When the Nebraska Supreme Court addressed this conflict in Spear T Ranch, Inc. v. Knaub, the inevitable collision between the two inconsistent legal doctrines finally occurred. The court's adoption of the Restatement (Second) of Torts to govern this dispute is the first step toward integrating water law in Nebraska. Although this decision answers some questions, it leaves much uncertainty. This Note begins by briefly exploring the historic development of the separate doctrines of water law in Nebraska, followed by a basic outline of the complex science of ground water hydrology so that the basis of the "inevitable collision" between the inconsistent theories of law can be understood. Additionally, this Note analyzes the holding and reasoning of Spear T Ranch and proposes that the Nebraska Supreme Court's opinion, while recognizing the surface water appropriator's legal claim, creates an inherent economic burden that will be difficult to overcome. In support of this proposition, this Note discusses the necessary methods of proving causation and identifies its expensive and inevitable result-the "battle of the experts." This Note next discusses the uncertainties in the application of the Restatement left unanswered by the Nebraska Supreme Court, beginning with an analysis of the thin line of precedent from other jurisdictions, and concluding with a brief discussion of the "reasonableness" factors present in the Restatement and the interesting questions raised with their application.
Joseph A. Kishiyama,
The Prophecy of Poor Dick: The Nebraska Supreme Court Recognizes a Surface Water Appropriator's Claim Against a Hydrologically Connected Ground Water User in Spear T Ranch, Inc. v. Knaub,
85 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol85/iss1/8