Bahm v. Raikes, 41281

• Decision Date: 01 March 1978
• Docket Number: No. 41281,41281
• Citation: 263 N.W.2d 437,200 Neb. 195
• Parties: Ernest G. BAHM and Alvina Wischmann et al., Appellees, v. Ralph RAIKES, Appellant.
• Court: Nebraska Supreme Court

Page 437

263 N.W.2d 437

200 Neb. 195

Ernest G. BAHM and Alvina Wischmann et al., Appellees, v. Ralph RAIKES, Appellant.

No. 41281.

Supreme Court of Nebraska.

March 1, 1978.

Syllabus by the Court

1. The authority to punish for contempt is a power inherent in all courts of general jurisdiction such as the District Court of this state.

2. Where a party to an action fails to obey an order of the court, made for the benefit of the opposing party, the rule is well recognized that such act is, ordinarily, a civil contempt.

3. In civil contempt proceedings, willfulness is an essential element.

4. In contempt proceedings, it is necessary to establish guilt beyond a reasonable degree.

5. This court on appeal will consider the fact the trial court saw and heard the witnesses and observed their demeanor, and will give great weight to the trial court's judgment as to credibility.

6. This court on appeal will give consideration to the fact the trial court inspected the premises.

John F. Kerrigan of Kerrigan, Line, Martin & Hanson, Fremont, for appellant.

Edstrom, Bromm & Lindahl, Wahoo, for appellees.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.

PAUL W. WHITE, Chief Justice.

This is a contempt proceeding brought against the defendant for his alleged willful violation of a 1954 court decree. That decree required the defendant to perform certain acts and forbade other acts in relation to the flow of waters upon his land. The defendant appealed from the original decree. We affirmed the decree of the District Court. See Bahm v. Raikes, 160 Neb. 503, 70 N.W.2d 507 (1955). Our decision there describes the lay of plaintiffs' and defendant's land and the various watercourses involved.

On June 26, 1967, plaintiff Alvina Wischmann filed a motion with the District Court to issue to the defendant a citation to show cause why he should not be punished for contempt. On October 13, 1967, plaintiff Wischmann filed an accusation alleging that after substantially complying with the 1954 decree, the defendant thereafter willfully and contumaciously violated the decree. The defendant filed an answer to the accusation and the matter proceeded to trial. Trial was held on a number of days between March 25, 1968, and July 10, 1968.

On March 1, 1974, the District Court entered its judgment, holding the defendant in indirect contempt, in that he knowingly and willfully violated the court's 1954 decree, after substantially complying initially with it, as alleged by the plaintiffs. The defendant was given 3 months to purge himself of the contempt as found.

On March 8, 1974, a motion for a new trial was filed by the defendant. A hearing was held on this motion and the court took it under advisement. On January 5, 1977, the defendant's motion for a new trial was overruled. The defendant appeals. We affirm the judgment of the District Court.

The authority to punish for contempt is a power inherent in all courts of general jurisdiction such as the District Court of this state. State ex rel. Beck v. Frontier Airlines, Inc., 174 Neb. 172, 116 N.W.2d 281 (1962). "Where a party to an action fails to obey an order of the court, made for the benefit of the opposing party, the rule is well recognized that such act is, ordinarily, a mere civil contempt." McFarland v. State, 165 Neb. 487, 86 N.W.2d 182 (1957).

In civil contempt proceedings willfulness is an essential element. Village of Springfield v. Hevelone, 195 Neb. 37, 236 N.W.2d 811 (1975). The disobedience of an injunction must be willful before the breach thereof may be punished as a contempt. Kasparek v. May, 174 Neb. 732, 119 N.W.2d 512 (1963). In contempt proceedings, it is necessary to establish guilt beyond a reasonable degree. Whipple v. Nelson, 138 Neb. 514, 293 N.W. 382 (1940).

Under the 1954 decree, the defendant was required to:

"1. Restore the creeks and flood planes through and across his land in Sections 17 and 18, Township 13, Range 9, Saunders County, Nebraska, as hereinbefore described, to as near their natural condition as is possible, as of the time the defendant took possession of said lands.

"2. Do the above described work in such sequence as will best serve to allow the waters of Mosquito creek, Wahoo creek and Silver creek to flow in their natural flood channels and to allow the waters of Wahoo creek and Silver creek to flow in their natural courses.

"3. Remove the dikes along the east side of Mosquito creek commencing approximately 2400 feet south of Wahoo creek and extending to the junction of Mosquito creek with Wahoo creek.

"4. Remove the dikes along Wahoo creek, except that where the course of Wahoo creek has been straightened by the defendant, the dikes along the east bank of said new channel shall not be lowered to a level below the height of the east bank of the natural course of Wahoo creek as it was before the course was straightened, and except that the defendant need not remove the dikes along the present course of Wahoo creek from the point designated cross-section 3-3 on exhibit 30 to the south line of Section 17, if he makes an opening in the west dike opposite the point where Silver creek formerly flowed into Wahoo creek of the same size as the opening required to be made in the east dike to return the flow of Silver Creek into Wahoo creek.

"5. Cut a channel for Silver creek from the north line of Section 18 to the point in Wahoo creek where Silver creek formerly flowed into Wahoo creek, this channel to be of the same depth at the entrance to Wahoo Creek as Wahoo creek with a gradual grade upstream to the point where Silver creek enters said Section 18.

"6. Effectively plug the ditch which now allows Silver creek to flow into the railroad borrow pit.

"7. Fill and compact the cutoff ditch extending from the old course of Silver creek into Ab's lake.

"IT IS FURTHER ORDERED that defendant be, and he hereby is, enjoined from maintaining the dikes along the present courses of Wahoo and Mosquito creeks which were ordered to be removed and from diverting the natural flow of Silver creek and from diverting the flow of flood waters of Wahoo creek, Mosquito Creek and Silver creek from the flood channels west and south of Wahoo creek as it flows through said lands of the defendant."

The District Court found that, after initially substantially complying with the decree, the defendant had thereafter violated the decree as follows: (1) By willfully and gradually raising the land level along the east side of Mosquito Creek on his land so as to now constitute a dike and by maintaining the same in violation of the injunction contained in the decree; (2) by diverting the waters of Wahoo Creek from their natural flood channel to the west and south through his lands by building dikes on the south side of Wahoo Creek and raising the land level north thereof; (3) that the defendant, as required by the decree, made an opening in the west dike erected by him on Wahoo Creek opposite the point where Silver Creek formerly flowed into Wahoo Creek and opposite the point where defendant reconnected Silver Creek to Wahoo Creek as required by the decree. The defendant raised and maintains such opening in the west dike at a height to prevent a normal flow of floodwaters of Silver Creek west onto defendant's lands in the natural flood channel; and (4) by again, and in violation of the decree, diverting the flow of flood waters of Wahoo Creek, Mosquito Creek and Silver Creek from the flood channels west and south of Wahoo Creek as it flows through the lands of the defendant.

The District Court further found that the plaintiff Wischmann had sustained damage as a result of defendant's violations of the decree.

Witness Ralph Mason testified for the plaintiffs as follows: He inspected the Raikes' land in May or June 1957. Water in Wahoo Creek was about 31/2 feet below the floor of the DeFoil Bridge. Water was moving out of Mosquito Creek to the southwest for quite a distance all along the creek and it was flowing southeasterly. The area was again observed by him on May 21, 1960. Water was coming out of Mosquito Creek. He observed fresh dirt along the south bank of Wahoo Creek west of the DeFoil Bridge. The fresh dirt extended about 600 feet and was substantially higher than the ground level where it was piled. The witness also observed fresh dirt on Mosquito Creek south about 200 feet from the junction with Wahoo Creek. On May 26, 1960, Mason observed several washouts leading from Silver Creek to the east toward Ab's Lake.

During May of 1960 the witness made further observations. New dirt along the south bank of Wahoo Creek had been tapered and there were Caterpillar marks on it. New dirt along the south side of Wahoo Creek started a couple hundred feet west of the DeFoil Bridge and extended about 600 feet. The new dirt along the east side of Mosquito Creek extended about 600 to 700 feet south from a point 200 feet from the junction with Mosquito Creek.

Observations were made by Ralph Mason in June of 1960. On June 20, 1960, there was flooding to the west and east of Mosquito Creek; however, the water appeared to have come up from the south. At this time the water in Wahoo Creek was about a foot below the girders on the DeFoil Bridge, the girders being about 2 feet beneath the floor of the bridge. The flood plain to the northeast of Wahoo Creek was inundated. There was a broad stream of water to the north of Raikes' land north of the DeFoil Bridge and a sheet of water going to the east. There was a smaller amount of water in the southwest flood plain.

On June 16, 1964, Ralph Mason again observed flood conditions in the area. Water in Wahoo Creek was even with the girders of the DeFoil Bridge. None of the Raikes' land was under water at the time, and there was no water coming out of the Wahoo or Mosquito Creek banks. The land directly north of Wahoo Creek, the northeast flood plain, was under water. Lots of water was...