868 N.W.2d 806
Neb. Ct. App.2015Background
- Bernard and Vickey Kobza (south lot) and Rhonda and Melvin Bowers (north lot) own adjacent residential parcels with two drainageways (western and eastern) crossing both properties.
- Kobzas installed a sump pump and later an underground dewatering well to remove groundwater from their home; outflow originally ran through piping across the Bowers property into a culvert.
- After repeated pipe failures in 2008, Kobzas stopped repairing the pipe and began discharging at the property line; water then ponded on the southwest corner of the Bowers lot.
- The Bowerses obtained a permit, installed a second culvert in 2009, and constructed an earthen berm with a pipe through it to manage the flow; this reduced flooding on the Bowers lot but caused ponding on the northwest corner of the Kobza lot while the well was used.
- Kobzas sued for a permanent injunction to remove the berm and restore drainage; Bowerses counterclaimed for injunction and damages for loss of trees. The district court denied all injunctive relief and denied damages; both parties appealed (Bowerses cross-appealed).
- The Court of Appeals affirmed, concluding the ponding was caused by groundwater pumped by the Kobzas (not natural surface flow), Bowerses’ actions were reasonable, and the Bowerses failed to prove tree loss causation.
Issues
| Issue | Plaintiff's Argument (Kobza) | Defendant's Argument (Bowers) | Held |
|---|---|---|---|
| Whether the Bowerses unlawfully obstructed the western drainageway and must remove berm | Berm unlawfully blocks a natural drainageway, causing continuing injury; injunction required | Berm was a reasonable response to pumped groundwater; ponding resulted from Kobzas’ dewatering, not natural drainage; no negligence | Court: No injunction. Ponding resulted from Kobzas’ pumped groundwater; Bowers’ measures were reasonable and nonnegligent |
| Whether the Bowerses altered/narrowed the eastern drainageway causing actionable risk | Eastern ditch moved/ narrowed toward Kobza, creating risk of flooding in major rain; injunction required | No present damage shown; any change speculative and de minimis | Court: No injunction. Plaintiffs failed to show present or imminent injury |
| Whether Kobzas should be allowed to amend complaint after trial to add lack-of-adequate-legal-remedy allegation | Amendment justified to assert inadequacy of legal remedy | Too late after evidence submitted; case submitted to court | Court: Did not decide on amendment because plaintiffs failed to prove entitlement to injunction (issue unnecessary) |
| Whether Bowerses proved damages for death of trees and whether they should be enjoined from future pumping | Trees died from Kobzas’ discharged water; injunction needed to prevent waste of groundwater and future harm | No expert proof tying tree deaths to pumping; Kobzas have not pumped since 2010 so no imminent irreparable harm | Court: No damages (insufficient causation evidence); no injunction (no real/imminent irreparable harm) |
Key Cases Cited
- Conley v. Brazer, 278 Neb. 508 (establishes that an action for injunction sounds in equity)
- Romshek v. Osantowski, 237 Neb. 426 (appellate de novo review in equity and analysis of drainage/negotiation issues)
- Nichol v. Yocum, 173 Neb. 298 (diffused surface water may be repelled; natural drainageways must be kept open)
- Spear T Ranch v. Knaub, 269 Neb. 177 (definition and treatment of groundwater)
- Nu-Dwarf Farms v. Stratbucker Farms, 238 Neb. 395 (lower estate not obligated to receive diffused water not in a natural drainageway)
- Slusarski v. County of Platte, 226 Neb. 889 (reasonableness standard for damming/repelling diffused waters)
- Lesiak v. Central Valley Ag Co-op, 283 Neb. 103 (expert evidence requirement to prove causation for crop/tree damage)
- Rath v. City of Sutton, 267 Neb. 265 (injunction is extraordinary; requires clear right and irreparable harm)
- Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783 (waste of underground waters contrary to public policy)