dissenting.
There are several reasons why I cannot agree with the majority opinion. In my judgment, the act in question is clearly unconstitutional. Legislative power is vested in the director. Section 46-642, R. S. Supp., 1963, authorizes the director to grant permits without limitation. Nowhere in the act is there any criteria given to control the rulings or actions of the director.
I do not agree that the appellants have not shown a sufficient present interest to raise the issue of constitutionality. The assistant director of the conservation and survey division of the University of Nebraska, who testified for appellee, stated that in his judgment the appellants would not be affected by the appropriation. He did admit, however, that there would be an effect on the surface water that flowed down the stream, and the testimony of appellants is to the effect that the level of their lakes is dependent upon the level of the river. The *803majority opinion fixes this lowering of the level of the river at not to exceed 1.1 inches. If this were true, the effect would be minimal.
There is evidence in the record that the operation of the well on Cedar Island, which was one of the four test wells put down by the appellee, lowered the level of a lake located midway between the M. U. D. site and the Merritt property 4 feet while it was in operation. Appellee’s evidence would also indicate that in periods of low flow, the appropriation might be more than one-third of the flow of the river. The testimony of its expert was that 60 million gallons a day represented 38.7 percent of the lowest recorded flow. On the present record, I feel that appellants have a sufficient interest to raise the question of the constitutionality of the statute.
I also observe that the expert referred to above testified that although his opinion was that the appellants would not be affected, he could only be sure that this would be true by a period of observation after the M. U. D. wells became operative. It is apparent from the record that in determining the adequacy of the acquifer, M. U. D. was interested solely in the adequacy of the water for its own purpose and was not concerned with the effect on lower riparians.
Section 46-635, R. S. Supp., 1963, defines ground water as follows: “Ground water is that water which occurs or moves, seeps, filters, or percolates through the ground under the surface of the land.”
By its expressed mandate, the act is applicable only to ground water. It would appear to me that we ignore the obvious when we describe the water involved herein as ground water and say no water is taken directly from the river. The testimony is undisputed that the waters of the Platte River are to be induced to move toward the appellee’s well field under artificial gradient. Surface water does not become ground water by an act of an appropriator. As is well said in III Farnham, Waters and Water Rights, § 940, p. 2722: “The fact that the source *804of a running stream is percolating water does not take the stream itself out of the rules applicable to other running water. And, therefore, the water cannot be diverted from its course. And what cannot be done directly cannot be done indirectly; SO' that, after the water has reached the stream, it cannot be diverted by sinking wells so close to the stream that the water is drawn from it by percolation.” The acquifer as such does not have the storage capacity to furnish 60 million gallons of water a day. Fifty-six million gallons of water a day will come from the Platte River, and the balance of 4 million from the acquifer. Further, the testimony is undisputed that the surface flow of the river lies directly on the underground acquifer. Eighteen of appellee’s 35 wells are to be placed on an island in the river. The most that can be said is that we are dealing here with the subflow of the Platte River which, from all the law I have found, should be treated as the river itself rather than as percolating or ground water.
I find some difficulty in understanding why the principles enunciated in Osterman v. Central Nebraska Public Power & Irr. Dist., 131 Neb. 356, 268 N. W. 334, are not applicable in this case. We are dealing substantially with surface water and riparians. In my judgment, the distinction drawn by the majority opinion is a distinction without a difference.
There is an inference in the opinion that even if the act were unconstitutional, appellee could still divert the water. There is no merit to the inference. As I view the law, in the absence of statute such act would amount to an unlawful diversion of waters from one watershed to another. I disagree with the statement in the opinion, without the citation of authority, that at common law a riparian in a like situation could transport the water wherever he chose. He could not do so if his well was so close to a stream or lake that he lowered the level of that body by doing so. See Grand Junction Canal Co. v. Shugar, 6 Chancery Appeals 483, in which *805Lord Hatherley stated the rule as follows: “Although a landowner will not in general be restrained from drawing off the subterranean waters in the adjoining land, yet he will be restrained if, in so doing, he draws off the water flowing in a defined surface channel through the adjoining land.”
To the same effect, see Aetna Mills v. Brookline, 127 Mass. 69, one of the early American cases on percolating waters, which follows the English rule. This was the law applicable at the time the Legislature in 1866 adopted the act referred to in the majority opinion.
I am in full accord with the doctrine of reasonable use. So vital a resource as water should not be permitted to go to waste. In our present society, reasonable use for a beneficial purpose without waste is a necessity. I only insist that the law be observed and the rights of all parties involved be protected. In my view, neither the Legislature nor the courts have the power to abolish rights of riparian proprietors which have become vested, except as such rights be taken or impaired for a public use in an exercise of the powers of eminent domain for which compensation must be made for the injuries sustained. See Crawford Co. v. Hathaway, 60 Neb. 754, 84 N. W. 271.