Weber v. North Loup River Pub. Power
854 N.W.2d 263
Neb.2014Background
- North Loup River Public Power and Irrigation District (North Loup) supplies irrigation water under written annual contracts that require landowners to pay charges by December 1 for the following year; nonpayment for 45 days accrues interest and delivery may be withheld after 4 months.
- William and Dixie Weber (the Webers) held contracts (and leased additional tracts) to receive water from the upper Taylor-Ord Canal; the 2010 annual assessment was $32/acre (including a special assessment).
- Heavy rains in June 2010 destroyed the diversion dam that supplied the upper canal; North Loup concluded it could not supply water to upper-canal users for the 2010 season and decided to rebuild a permanent dam.
- The Webers had not paid the 2010 charges before the 2010 season and did not pay until April 13, 2011 (after the irrigation season began April 1). North Loup waived 2010 charges for one newly contracted irrigator but did not waive charges for longstanding users.
- The Webers sued for breach of contract and negligence (seeking crop-loss damages). The district court granted summary judgment to North Loup, holding the Webers’ nonpayment was a failed condition precedent and barred both contract and negligence claims. The Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether payment by Dec.1/April1 was a condition precedent to North Loup’s duty to deliver 2010 water | Weber: payment obligation unclear as to applicability when no water was available; payment due is a question of fact | North Loup: contract language makes advance payment a condition precedent to delivery | Held: Payment by April 1 was a condition precedent; no payment, so no duty to deliver; no breach by North Loup |
| Whether North Loup waived the payment condition for 2010 | Weber: North Loup considered waivers and therefore there is a factual issue whether it waived assessments | North Loup: only one discrete waiver (new contract) — not a general waiver for longstanding users | Held: No genuine issue — waiver requires clear, unequivocal action; single isolated waiver did not waive the condition for the Webers |
| Whether North Loup anticipatorily breached by deciding on June 15, 2010 not to provide water for 2010 | Weber: North Loup’s June decision was an unequivocal repudiation making payment question factual | North Loup: Webers had already breached by not paying, so they cannot claim anticipatory breach; an anticipatory repudiation requires an unequivocal preexisting right to performance | Held: No anticipatory breach — Webers’ prior material breach (nonpayment) excused North Loup’s performance |
| Viability of negligence claim and applicability of Neb. Rev. Stat. § 46-263 (criminal statute) | Weber: statutory and tort duties required delivery; refusal to deliver violated § 46-263 and supports negligence claim | North Loup: no duty existed because the contractual condition precedent (payment) was unmet; the criminal statute does not reach persons without a right to water | Held: Negligence and statutory claims fail because North Loup owed no duty to deliver when Webers had not paid; § 46-263 does not apply to persons without water rights under the contract |
Key Cases Cited
- Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014) (summary-judgment standard and review of contractual questions)
- Empfield v. Ainsworth Irr. Dist., 204 Neb. 827, 286 N.W.2d 94 (1979) (irrigation-contract principles)
- Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886 (2006) (anticipatory breach requires unequivocal repudiation)
- Anderson Excavating v. SID No. 177, 265 Neb. 61, 654 N.W.2d 376 (2002) (reciprocal performance and discharge by repudiation)
- Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780 N.W.2d 416 (2010) (waiver requires clear, unequivocal action)