Title: Olson v. City of Wahoo - Supreme Court of Nebraska, May 5, 1933
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Title: Olson v. City of Wahoo - Supreme Court of Nebraska, May 5, 1933
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Language: English
Publisher: 248 North Western Reporter
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Olson v. City of Wahoo - Supreme Court of Nebraska, May 5, 1933 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 11
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004448
Volume ID: VID00001
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I


248 NORTH WESTERN REPORTER


STATE of Iowa, Appellee, v. C. W. ROSS,
Appellant.
No. 4200 1.

Supreme Court of Iowa.
May 6, 1933.

Appeal from District Court, Hamilton
County; 0. J. Henderson, Judge.
John H. Meyers, of Waterloo, for appellant.
Edw. L. O'Connor, Atty. Gen., and Walter
F. Maley, Asst. Atty. Gen., for the State.

PER CURIAM.
On February 3, 1933, a Hamilton county
grand jury indicted the appellant, C. W. Ross,
for obtaining money under false pretenses.
The appellant pleaded not guilty to the indict-
ment, and he was tried to a jury, which body
returned a verdict of guilty. Accordingly,
the district court sentenced the appellant.
From the judgment thus entered, he appeals.
After carefully reviewing the record, we
find no error. Consequently the judgment of
the district court is affirmed.
Affirmed.


STATE of Iowa, Appellee, v. James RUSSELL,
Appellant.
No. 41962.

Supreme Court of Iowa.
May 6, 1933.

Appeal from District Court, Scott County;
D. V. Jackson, Judge.
Johntry & Fitzgerald, of Chicago, Ill., and
Glenn D. Kelly, of Davenport, for appellant.
Edward L. O'Connor, Atty. Gen., and Wal-
ter F. Maley, Asst. Atty. Gen., for the State.

PER CURIAM.
The grand jury of Scott county, on October
28, 1932, indicted the appellant, James Rus-
sell, for entering a bank with intent to rob.
He pleaded not guilty to the indictment, and
was tried to a jury. After deliberating, the
jury found the appellant guilty of the crime
charged in the indictment. Thereafter the
appellant was sentenced accordingly. From
said judgment of the district court, the appel-
lant appeals.
An examination of the record discloses no
error, and accordingly the judgment of the
district court is affirmed.
Affirmed.


OLSON et al. v. CITY OF WAHOO.
No. 28533.

Supreme Court of Nebraska.
May 5, 1933.
1. Eminent domain s=28.
Furnishing of water to inhabitants of
city for purpose of health, convenience, and .
comfort is "public use."
[Ed. Note.-For other definitions or -
"Public Use (In Eminent Domain)," -e t
Words and Phrases.]
2. Waters and water courses C-101. .-
Law in relation to underground w Iern
flowing in channels held inapplicable to. per-.
colating waters.
3. Waters and water courses C=101.
Landowner may appropriate subterrane-
an waters found under his land, but his use
thereof must be reasonable and not injuri-
ous to others who have substantial rights in
waters.
4. Waters and water courses =I107(3).
Where landowner, charging that city's
new pumping plant exhausted water at Lot-
tom of landowner's gravel pit and made it
worthless, sued to limit operation of pump,
evidence held to justify judgment for city.

Syllabus by the Court.
1. The furnishing of water to the inhab-
itants of a city for the purpose of I.- litim.
convenience, and comfort is a public u-- of
such water.
2. The law in relation to undergr-.rnd
waters flowing in known and well-d-;u.-l .-
channels is not applicable to percolating wr- -
ters, the source and channel of which are .
undefined and unknown.
3. The owner of land is entitled ro .p-
piopriate subterranean waters found irlfnr-.
his land, but his use thereof must be re i ..n- 5
able, and not injurious to others who Lasve
substantial rights in such waters.


Appeal from District Court, Saunders C',:,- -.-
ty; Landis, Judge.
Action in equity by George W. Olson and
another against the City of Wahoo. From a
judgment dismissing the action, plaintiffs ap-- |
peal.
Affirmed.
Good, Good & Kirkpatrick, of Lincoln, and
E. S. Schiefelbein, of Wahoo, for appellants.
Hendricks & Kokjer, of Wahoo, for appel-
lee.
Heard before GOSS. C. J., and ROSE, EB-
ERLY, DAY, and PAINE, JJ.


=rFor other cases see same topic and KEY NUMBER in all Key number Digests and Indexes


304 Neb.


_ _1~Zfi







OLSON v. CITY OF WAHOO
24 N.VW.


PAINE, Justice.
This is an action in equity, brought against
the city of Wahoo, upon the charge that the
city's new pumping plant has exhausted the
water at the bottom of plaintiffs' gravel pit
and made it worthless. Plaintiffs pray that
the city be restrained from operating its
pumps to a greater capacity than 300 gallons
a minute, and that plaintiffs have judgment
for7 al ages in the sum of $39,271.50. The
trial court determined that the plaintiffs had
failed to make out'a case, and dismissed the
action.
As the trial court determined the contro-
versy largely as a question of fact, it is neces-
sary to make a rather full statement of the
case. The petition sets out that the plaintiffs
arc the owners of a tract of land containing

snll hill, and is underlaid with a valuable
bed of gravel. Deep excavations have been
made in said gravel pit, reaching to the wa-
ter line, and pumping machinery, installed
upon a raft or float, with a sluicing device,
:washes the gravel and separates it into grades
for commercial purposes. This gravel pit is
located upon a part of a large geological for-
mation, known as Todd Valley, which in pre-
vious geologic eras constituted a former bed
and channel of the Platte river from the vil-
Inge of Morse Bluff to a point near Ashland,
Nebraska. The said Todd Valley consists of
a great gravel bed, filled with water, which
comes to an average depth of 12 feet below
the surface of the ground, the gravel bed
reaching to a depth of from 70 to 100 feet
below the surface of the ground. The exca-
vation in plaintiffs' gravel pit reached below
the water level of Todd Valley.- The city
pumping plant, installed in 1910 by the city
of Wahoo, was not of sufficient capacity and
in April, 1930, the city of Wahoo constructed
a new well approximately SO feet deep and
10 feet in diameter, and installed a steam tur-
bine engine generator and condenser, with a
capacity of 900 gallons a minute, half of said
water pumped being used to cool the turbine
engine generator and condenser, and, as a
result of said operation, the water has been
greatly lowered in said city wells. The low-
ering of the water table egtenls for a dis-
tance of more than a mile in every direction
from said well, and has lowered the water
level in the gravel pit of plaintiffs by more
than four feet, thereby practically ruining it,
to the 'reat and irreparable injury of the
plaintiffs. There is a bed of clay about 17
feet thick, lying between the bottom of the
present excavation and the lower gravel, and
it would require large expenditures to reach
gravel at a lower point. That the acts of the
city of Wahoo are wholly unlawful, and con-
stitute an unreasonable use of the ntder-
ground wnter, and plaintiffs are entitled to an
injunction restraining the defendant from
taking said water in such unreasonable quan-
248 N.W.-20


titles, to the damage of the plaintiffs. That
the acts of the city of Wahoo constitute a
deprivation of the plaintiffs of their property
without due process of law, in violation of the
Constitution of the United States, and of sec-
tion 3, art. 1, of the Constitution of the state
of Nebraska, and constitute the taking and
damaging of plaintiffs' nronertv without iust
compensation, as forbidden by section 21, art.
1, of the Constitution of Nebraska. That the
damage to the real estate of the plaintiffs is
$30,000, loss of production $5,000, which, with
additional items, make tie total amount set
out above.
The defendant in its answer admits certain
facts of the petition, and alleges that it has
been the owner of the land from which the
water is taken for more than 20 years; that
it has established said pumping plant at large
expense; that all of the water taken there-
from is used by the defendant and its inhabit-
ants; that, if the water level on the lands of
plaintiffs had receded at the time the petition
was filed, August 23, 1930, it is because of
the extremely dry weather of the year 1930,
and other causes, and is not due to any action
of the defendant city; that, when the plain-
tiffs purchased the land on which the gravel
pit is located, they knew the water plant of
the city had been located where it is now
for many years prior thereto, and was the
exclusive source of the city's water supply,
and defendant prays that the action of plain-
tiffs he dismissed.
Among the witnesses called to support the
plaintiffs' allegations, the principal one was
Prof. A. L. Lugn. the holder of several de-
grees, assistant professor of geology at the
University of Nebraska, who has been work-
ing for the past three years on ground-water
hydrology, under the direction of Dr. George
Condra, particularly with reference to the
Platte river and its underflow, which investi-
gations he has conducted from southeast of
Wahoo to the Wyoming line. He described
Todd Valley as a channel through which the
Platte river once flowed, and that it varies
from five to eight miles in width, and is some
35 miles in length, and at several places is
known to have beds of gravel and sand to
the depth of 100 feet; that this gravel bed is
covered with soil, and receives its water from
local rainfall and from a leakage from the
Platte river north of Cedar Bluffs, where the
present Platte river is in direct contact with
the sand and gravel of the old Todd Valley,
making an undertow from the Platte river
down through this valley. He testified that
the plaintiffs' gravel pit, at the northeast cnr-
ner of the city of Wahoo, was right on the
border or edge of the Todd Valley, but he had
not been able to determine whether it prop-
erly belongs to the Todd Valley sand and
gravel, or to some older geological formation,
but that the water level was such that it usu-
ally conformed to the water level in the Todd


Neb. 305








248 NORTH WESTERN REPORTER


Valley. In June, 1929, he made observations
of the elevation of water at many points in
this vicinity. The water level in the Olson
gravel pit was at that time 1,169 to 1,170 feet
above the sea level, and in August, 1930, the
water level at the city pumping plant was
1,151, and the water level at the Olson gravel
pit on August 3, 1930, was 1,166, making a
drop of three, to four feet in the year inter-
vening. Prof. Lugn concluded that the fall
in the water level at the gravel pit was not
due to general conditions, but was due to lo-
cal conditions; in other words, to the new
city pumping plant. He is corroborated in
this by the fact that the water level in other
wells in the vicinity had also gone down, and
by the time of trial in July, 1931, the water
level in the Olson gravel pit had declined be-
tween six and seven feet from the first ob-
servation in June, 1929. The evidence of a
number of residents was taken, which showed
that the water had gradually failed in wells
or pumps. The city sunk a number of test
wells, test well No. 1 being 2,300 feet away
from the turbine well in the general direction
of the Olson gravel pit, and in this well the
water rose two inches between June 4 and
June 6, when the large turbine was not in
operation, and in test well No. 2, 1,500 feet
away from the city turbine well, the water
level at the same time rose 4V inches, but
declined again when the pump began opera-
tion. Test well No. 3, 870 feet away from the
city turbine well, rose 4% inches during the
two days when the large pump was not in
operation, and test wells located on the other
side of the city pumping plant also exhibited
similar charges. Several farmers were called
as witnesses, and testified that water levels
had gone down in the summer of 1930. When
Prof. Lugn was asked the reason for the
lowering of the water levels in the plaintiffs'
gravel pit, he made answer: "As far as there
is any evidence the cause of the lowering in
the sand pit is loial. and there is no other
local cause adequate to account for the lower-
ing other than the pumping, so I would con-
clude that the pumping irresponsible for that
lowering of the water in the sand pit." His
evidence was supported by exhibits intro-
duced.
Clark E. Mickey, professor of civil engineer-
ing in the University of Nebraska, also testi-
fied in favor of the plaintiffs. The direct
evidence of the plaintiffs makes up about 382
pages of the 810 pages of the bill of excep-
tions.
The defendant contested every allegation
tending to show that the city pump was in
the slightest degree the cause of the lowering
of the water in the plaintiffs' gravel pit.
Mr. E. W. Bennison, a graduate of the en-
gineering department of the University of Ne-
braska in 1904, and who studied geology un-
der Dr. Barbour while at the university, was


one of the technical experts who supported
the contentions of the defendant. He was
engaged in engineering for five years with the
Burlington, three years with the Iowa state
highway commission, for two years with the
United States army, was three years city en-
gineer of Grand Island, and for the last seven
years has been the engineer of the Kelly Well
Company of Grand Island, during which time
he has developed water supplies in all parts
of the United States east of the Rocky Moun-
tains. He has developed extensive water sup-
plies for the Bayer Aspirin Company, the Sei-l
berling Rubber Company, the Pittsburg Plate
Glass Company, the Fleischmann Yeast Coin-
pany, the American Tobacco Company, Libby, -,
McNeill & Libby, and many other large indus-
trial concerns. He has delivered lectures and
contributed articles to various scientific mag-
azines upon the subject of water supply.
Many exhibits were introduced to support Iis
evidence. It was shown that, while the tur-
bine pump was in full operation, it woull
draw down the water line in the 80-foot well
9.3 feet from the static or normal water level.
and that this lower end of the cone rose
sharply in the test well 50 feet away; and
other test wells at a greater distance, super-
vised by Mr. Bennison, showed decreasing ef-
fect upon the water level at greater distances
from the well. Mr. Bennison, after a careful
study of the entire situation, gave it as his
opinion that there could be no possible influ-
ence on the water level in the Olson gravel
pit by the pumping of the city well, 3,400 feet
away.
Prof. E. E. Brackett, of the University of
Nebraska, also made actual experiments to
determine the shape of the cone of the de-
pression of the water line reaching out from .-,
the well, and explained specific tests at the
Hugh Brown farm southwest of Gibbon, Ne-
braska, in a soil formation which tallied with
that of the Todd Valley formation, and said -
that, when water was being pumped in this ;,
well at the rate of 1,020 gallons a minute, at
the end of 14 hours' pumping there was only
a lowering of about a foot in a test well 2o"
feet away, and he testified positively that the
area of influence did not extend more thn:m
1,000 feet away from the city pump at Waho->.
and that it could not extend a distance .'f
3,400 feet.
Mr. G. L. Weishaar, a well contractor, of
22 years' experience in eight states, who re-
sides at Scott City, Kansas, and who con-
structed this well for the city of Wahoo, tes-
tified there would be no influence upon the
water level at a distance of 3,400 feet in any
direction from this well, even though it was
pumping 900 to 1,000 gallons a minute con-
tinuously.
Mr. A. C. Kirkwood, an engineer, who had
graduated at the Stanford University and at
the Massachusetts Institute of Technology,


i^"S1YIOSIYr*)-~IUIL-L(~~-Y--n ---


_ ~ ~ --- l1sy


306 Neb.







OLSON v. CITY OF WAHOO
248 N.W.


nnd who is an expert of the Burns & McDon-
nell Engineering Company, of Kansas City,
Missouri, testified that the area of influence
would not exceed 1,000 feet. He was asked
to make a computation, by assuming that the
great body of water in the gravel, of 33% per
cent. porosity, was not replenished from any
source, and that the center of this cone of
water had a depression at the city pump,
when it was drawing out 900 gallons a min-
ute, of 9.3 feet below the water level, how
much water would have to be pumped out to
lower the level of water 3,400 feet away, at
the Olson gravel pit, four feet. His answer
was that, if there was no replenishment from
any source, 115,300,000 cubic feet of water,
or 865,000,000 gallons of water, would have to
Lbe pumped out, and that this would require a
constant pumping, at full capacity, night and
day, for one year and ten months. If this
estimate is true, then it was impossible to
lower the level at the gravel pit by the city
pump, which was only installed April 12, 1930,
a distance of four feet before the date the pe-
tition was filed, August 23, 1930; or, to put
the converse of the proposition, that, to lower
the level, as indicated, in the 134 days be-
tween those dates, the city pump would have
had to pump out 4,480 gallons a minute ev-
ery hour, according to Mr. H. S. Nixon, an
Omaha engineer, and its capacity was but
900 gallons a minute.
The Olson gravel pit lies at the west edge
of the Todd Valley, and Dr. Lugn testified
that he had not been able to determine wheth-
er it properly belongs to the Todd Valley sand
and gravel, or to something older geologi-
cally. He said that part of this formation on
the west edge of Todd Valley consisted of
sand, clay, and gravel, heterogeneously mixed
together, so that in places it constituted a
water-tight material, and without making
drillings it was impossible to tell. whether
these various beds of clay ran out into T6dd
Valley or not. He also testified that he had
made no tests of the material between the
Olson pit and the city pumping plant to de-
termine the porosity of the materials between
these two points. Testimony was given by
others to show that the continual pumping in
the gravel pit, during the years it has been
used, and washing the gravel free of the clay,
had put fine silt back into the bottom of the
gravel pit, and might in places make an im-
lprvious bed, which in itself would interfere
with the water reaching the same level as in
the Todd Valley. There was evidence to show
that the year 1930, when the petition was
liled, was a dry year, and that wells of farm-
ers in that locality had gone dry, and that the
Pumips in city water plants in several towns
la the Platte Valley had had to be lowered
that season because of the lower water level.
It is contended by the plaintiffs that the
City has destroyed their gravel pit, but it is
set out by the petition of the plaintiffs that.
it would cost the plaintiffs at least $1,000 to


lower the bottom of their pit through a stra
turn of clay which is 10 to 17 feet thick. It
is evident that below such clay there would
be a bed of gravel which would be far under
the present water line in Todd Valley, and
could be worked successfully, although at
some additional expense because of the great-
er depth.
The only grounds for a new trial presented
were: That the judgment was contrary to
the law and to the evidence, and was not sus-
tained by sufficient evidence, and because of
errors duly excepted to during the trial.
In Meng v. Coffee, 67 Neb. 500, 93 N. W.
713, 60 L. R. A. 910, 10S Am. St. Rep. 697,
Commissioner Pound, in a very long opinion,
held that the common-law rules as to the
rights and duties of riparian owners are in
force in this state, except as modified by stat-
ute, but it has been held that the law in rela-
tion to surface waters is not applicable to
subterranean waters. Beatrice Gas Co. v.
Thomas, 41 Neb. 662, 59 N. W. 925, 43 Am.
St. Rep. 711. This case involved the pollu-
tion of underground water, and Commissioner
Irvine, citing from a Kentucky case (Kinnaird
V. Standard Oil Co., 89 Ky. 46S, 12 S. W. 937,
7 L. R. A. 451, 25 Am. St. Rep. 545), said
that one must so use his property as not to
injure his neighbor, and because the owner
had the right to make an appropriation of all
the underground water, and thus prevent its
use by another, he had no right to poison it,
and was liable for damages thereby sustained.
He also discusses in this case the fact that
the injury might be lessened or avoided by
putting down another well, which might be
considered in mitigation of the damages.
[1] It is a general rule that the furnishing
of water to the inhabitants of a city, for the
purpose of health, convenience, and comfort,
is a public use. 27 R. C. L. 1402.
[2] In the case at bar, the plaintiffs con-
tend for the American rule on percolating wa-
ters, while the defendant insists upon the
common-law rule, and it is admitted that this
court has not yet adopted either view. A full
discussion of these two rules, together with
the citations from the states following each
rule, will be found in the note of 181 pages
In 55 A. L. R. beginning on page 1385. There
is a distinction made between underground
waters flowing in known and well-defined
channels, such as the water flowing in the
gravel bed in Todd Valley, and also under-
ground waters, the channels of which are un-
defined and unknown, and it is held that the
principles of law governing the former are
not applicable to the latter. 55 A. L. R. 1444.
The defendant in the case at bar, by its evi-
dence, throws much doubt on the question
whether the water under the plaintiffs' gravel
pit is connected directly with the under-
ground stream of water flowing in the Todd
Valley. The question of the rights in perco-
lating waters is comparatively modern. The


Neb. 307







248 NORTH WESTERN REPORTER


first case arising in England, in 1840, Ham-
mond v. Hall, 10 Sim. 551, 50 Eng. Reprint,
729, did not definitely decide the question, but,
in 1843, Tindale, C. J., in Acton v. Blundell,
12 M. & W. (Eng.) 324, established the Eng-
lish, or common-law, doctrine. This rule is
that percolating waters are regarded as be-
longing to the owner of the freehold, like
rocks, soil, minerals, and, in the absence of
malice, the owner may appropriate such wa-
ters while they are upon his premises, re-
gardless of the fact that such use cuts off the
flow of such waters to adjoining land, and in
the long note from 55 A. L. R., supra, deci-
sions are cited from 29 states, the District
of Columbia, England, and Ireland, showing
the adoption of this common-law rule.
[3] The American rule is that the owner of
land is entitled to appropriate subterranean
waters found under his land, but he cannot
extract and appropriate them in excess of a
reasonable and beneficial use upon the land
which he owns, especially if such use is inju-
rious to others who have substantial rights
to the waters, and if the natural underground
supply is insufficient for all owners, each is
entitled to a reasonable proportion of the
whole, and while a lesser number of states
have adopted this rule, it is in our opinion,
supported by the better reasoning.
For further discussion of the two rules, we
cite the following opinions: Meeker v. City
of East Orange, 77 N. J. Law, 623, 74 A. 379,
25 L. R. A. (N. S.) 465, 134 Am. St. Rep. 79S;
Erickson v. Crookston Waterworks, P. & L.
Co., 100 Minn. 481, 111 N. W. 391, 9 L. R.
A. (N. S.) 1230, 10 Ann. Cas. 843; Bassett v.
Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec.
179 (decided in June, 1862, in which decision
the English rule was first questioned in the
United States); Rouse v. City of Kinston,
18S N. C. 1, 123 S. E. 482, 35 A. L. R. 1203;
Gagnon v. French Lick Springs Hotel Co.,
163 Ind. 687, 72 N. E. 849, 68 L. R. A. 175;
Pure Springs Water Supply Co. v. Town of
Olney Springs, 87 Colo. 420, 288 P. 631; Co-
hen v. La Canada Land & Water Co., 151 Cal.
680, 91 P. 584, 11 L. R. A. (N. S.) 752; Clinch-
field Coal Corporation v. Compton, 148 Va.
437, 139 S. E. 308, 55 A. L. R. 1376.
[4] In the trial of this case, Judge Landis
made a personal examination of the city
pumping plant, of some or all of the test
wells, and of the gravel pit, and this court
has held that, where the oral evidence on the


material issues is conflicting, this court will
consider the personal examination made of
the physical facts by the trial judge, as wefl
as his observance of the witnesses, and that
he must have accepted one version of the
facts rather than the opposite. City of Wil-
ber v. Bednar, 123 Neb. 324, 212 N. W. 644:
State v. Delaware-Hickman Ditch Co., 114
Neb. 806, 210 N. W. 279.
In the opinion filed by the trial judge in
the case at bar, he states that the plaintiffs
have proved that the water level in their
gravel pit has been lowered, hut that they
have failed to prove that the defendant
caused such lowering. After stating that he
visited the gravel pit, he states that one of
the important elements in determining the
flow of the underground water in the Todd
Valley is the porosity of the material through
which it flows, and that no evidence was of-
fered as to the porosity of the materials a:
it affects the water level in the gravel pit,
and that the expert evidence offered by the
plaintiffs is indefinite, in that it locates a
probable cause only of the lowering of the
water level in the gravel pit, and adds that, if
the defendant had rested at the close of the
plaintiffs' testimony, lie would have dismisol
the action because of failure of proof. The
trial court then adds that the expert evidence
offered by the defendant shows that there are
many causes which might have caused the
lowering of the water level in the gravel pit,
and that it is quite improbable that the pump-
ing done by the city, 3,400 feet away, was the
proximate cause of plaintiffs' damage.
This court finds that tl.e evidence indicates
that a deepening of the bottom of the gravel
pit through the clay bed now reached, of 10
to 17 feet in thickness, would secure an abun-
dance of water for further operations in the
gravel below the clay bed, if, as the plaintiffs
contend, the water in the gravel pit is con-
nected directly with the percolating water in
Todd Valley, for this water is inexhaustible,
and one of the experts estimated that the
flow or volume of water passing through the
gravel of the Todd Valley was more than 10,-
000,000 gallons a day, as it has a direct con-
nection with the present bed of the Platte
river at one point.
Upon a consideration of all of the evidence,
we find no error in the judgment entered by
the trial court, and the same is hereby
Affirmed.


- rr -3- II~BBIWlt~ill~lS~'


308 Neb.




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