Barthel v. Liermann

• Decision Date: 14 December 1993
• Docket Number: No. A-92-293,A-92-293
• Citation: 2 Neb.App. 347,509 N.W.2d 660
• Parties: Keith BARTHEL and Dorothy Barthel, Husband and Wife, Appellants, v. Gene LIERMANN and Erna Liermann, Husband and Wife, Appellees.
• Court: Nebraska Court of Appeals

Page 660

509 N.W.2d 660

2 Neb.App. 347

Keith BARTHEL and Dorothy Barthel, Husband and Wife, Appellants, v. Gene LIERMANN and Erna Liermann, Husband and Wife, Appellees.

No. A-92-293.

Court of Appeals of Nebraska.

Dec. 14, 1993.

Richard E. Gee, Grand Island, for appellants.

David A. Domina and Cletus W. Blakeman, Domina & Copple, P.C., Norfolk, for appellees.

CONNOLLY, IRWIN, and WRIGHT, JJ.

IRWIN, Judge.

I. INTRODUCTION

Keith and Dorothy Barthel are appealing the order of the Holt County District Court which denied their request for a mandatory injunction. The Barthels sought a court order requiring Gene and Erna Liermann to annually clean out a ditch that extends from the Barthels' land onto the Liermanns' land. The Barthels claim that Neb.Rev.Stat. § 31-224 (Reissue 1988) requires the Liermanns to clean out the ditch. The Barthels also sought recovery of damages for the loss of crops caused by flooding which occurred when the Liermanns negligently failed to maintain the ditch. The Liermanns counterclaimed, asserting that the Barthels had damaged the Liermanns' land by dredging the ditch too deep in 1983. The Liermanns also requested from the court a mandatory injunction ordering the Barthels to refill the ditch. The requests for mandatory injunction were denied, and the trial court failed to award damages to either party. The Barthels subsequently perfected this appeal, asserting that the trial court erred in failing to find that the Liermanns had obstructed the ditch, in failing to issue an injunction, in failing to award the Barthels damages, and in misstating the proper measure of damages. For the reasons recited below, we reverse the judgment and remand the cause for a mandatory injunction to issue and for the trial court to determine if the Barthels are entitled to damages for crop loss.

II. SCOPE OF REVIEW

An action for an injunction sounds in equity. City of Newman Grove v. Primrose, 240 Neb. 70, 480 N.W.2d 408 (1992); Kaiser v. Western R/C Flyers, 239 Neb. 624, 477 N.W.2d 557 (1991); Stuthman v. Adelaide D. Hull Trust, 233 Neb. 586, 447 N.W.2d 23 (1989). In an appeal of an equity action, the appellate court tries the factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Vejraska v. Pumphrey, 241 Neb. 321, 488 N.W.2d 514 (1992); Dowd v. Board of Equal., 240 Neb. 437, 482 N.W.2d 583 (1992); State v. Nebraska Assn. of Pub. Employees, 239 Neb. 653, 477 N.W.2d 577 (1991); Hartford v. Womens Services, P.C., 239 Neb. 540, 477 N.W.2d 161 (1991); State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

III. FACTS

Keith and Dorothy Barthel, plaintiffs-appellants, own a 400-acre hay meadow in Holt County, Nebraska. The hay meadow, referred to by the parties as the "Grass Lake" or the "Grass Lakebed," lies within Sections 29, 32, and 33, Township 26 North, Range 15 West of the 6th P.M. The southeast section of the hay meadow is adjacent to property owned by Gene and Erna Liermann, defendants-appellees. The hay meadow, resting in the Sandhills of Nebraska, may be described as a fairly flat basin where surface water drains from the surrounding hillsides. The south fork of the Elkhorn River runs across the hay meadow and exits at the southeast edge of the Barthels' property, where it enters the Liermanns' property. The parties testified that years ago a portion of the south fork, which crosses the boundary between the two properties, was straightened. This straightened portion is referred to as a "ditch," "drainageway," "streamway," or "natural drainageway," and it extends approximately 6,100 feet onto the Liermanns' property. The parties and the Liermanns' expert witness, Dr. Sanford Kaplan, assert that the ditch is indistinguishable from the south fork of the Elkhorn River. This testimony is supported by a 1932 Holt County soil survey map. A 1981 geological survey map by the U.S. Department of the Interior shows the course of the south fork of the Elkhorn River traversing the hay meadow and exiting what would now be considered the southeastern corner of the Barthels' property. The river continues to meander in an easterly direction and eventually joins the Elkhorn River just southeast of Ewing, Nebraska.

The dispute between the parties surrounds that portion of the south fork of the Elkhorn River which the parties call, inter alia, the ditch. The Barthels assert that the ditch is obstructed and that this has caused the water which used to drain out of the hay meadow to back up and create a lake. Testimony by the parties and witnesses, which is supported by a review of the contour lines on both the soil survey and geological survey maps, reveals that the hay meadow has a very gradual slope toward the southeast corner of the Barthels' property. A survey was performed by Al Dearmont. He testified that the fall of the land entering the ditch area was .0328 feet per 100 feet. The survey of the ditch shows that the distance between the bottom of the ditch and the surrounding land varies between 3 and 7 feet.

Keith Barthel testified that in the late 1960's the hay meadow was graded to connect all the low spots so the surface water would drain into the ditch more efficiently. Since that time until 1987, the hay meadow has produced reed canary grass for the Barthels' stock and dairy cattle. This testimony was supported by Bob Lowe, a ranch consultant, who viewed the hay meadow in 1974 and testified that it was "one of the best stands [of reed canary grass] that I had ever seen...." Keith Barthel testified that traditionally in the spring the ditch would be frozen for a time and that 100 to 150 acres would flood until the ditch thawed. He also testified that the reed canary grass could survive this 3- to 4-week flood condition and, by June, could provide sufficient palatable food to feed all his cattle.

In the 1950's, even before the grading of the hay meadow, the ditch was dredged with a dragline because the flow of the water had slowed to a point where the water upstream on the Barthels' land was covering the grass too long for it to survive. In 1977, the ditch had to be cleared again. The cost of dredging the ditch was paid by the Barthels and an adjacent landowner, Blaine Garwood.

In the spring of 1983, the ditch was again partially obstructed, and Keith Barthel asked Garwood to contact Gene Liermann and seek permission to dredge the ditch. The Liermanns agreed to allow the dragline on their property, and the cost was again split between Garwood and the Barthels. The dragline operator testified that he believed he had dredged the ditch only as deep as it had been before the flow stopped and that when he was finished, the ditch flowed the full length. During the summer of 1983, the Barthels were able to harvest over 150 stacks of hay from the meadow. The Barthels continued to feed their cattle without having to pasture them on rental pasture or buy hay until 1987, when the ditch became obstructed and water covered nearly the whole meadow for the entire year. Keith Barthel testified that in 1988 Gene Liermann refused to dredge the ditch again. In 1988, the Barthels harvested 23 stacks of hay from the meadow. In 1989, 81 stacks were harvested; in 1990, 68 stacks were harvested; and in 1991, 30 stacks were harvested. To compensate for the loss of hay during these years, the Barthels had to purchase hay and pasture their cattle on rental pasture.

Gene Liermann testified at trial that he had acquired his property in the early 1970's. He claimed to maintain the ditch, monitoring where his cattle crossed and monitoring the weeds in the ditch so that nothing would block the waterflow. He further testified that when he needed to have a roadway cross the ditch, he installed a culvert on his property to maintain the ditch's passage. Gene Liermann claimed that during each spring for the last several years, he or his son removed 3 to 6 inches of dirt from the ditch near the cattle crossings because the ditch needed to be cleared. It was his belief that the dredging of the ditch in 1983 made the ditch deeper than it originally had been and caused his crops adjacent to the ditch to suffer. Gene Liermann presented no facts to support these claims.

Charles Liermann, Gene's son, testified that the vegetation which had been removed from the ditch in the 1983 dredging returned by the next spring. Gene Liermann felt that the ditch had filled in since 1983, but "[n]ot any more than normal." He also asserted that he would not clean out the ditch because it was "a lot of expense and I don't think that it is the logical thing to do."

Following the trial, the court found that (1) the ditch was part of the south fork of the Elkhorn River system; (2) the ditch had been dredged in 1950, 1976 or 1977, and 1983 by the Barthels and third parties; (3) the drainage out of Grass Lake was good for several years, but that it would get progressively slower; and (4) the evidence showed that the drainage from Grass Lake was poor because of the following:

A. The flat topography of the draingage [sic] area.

B. The sandy soil type tends to cave in and refill the dredged ditch....

C. Animal traffic across the drainage way. While some sand is dragged into the drainage way by cattle, the evidence does not show it is the primary cause of the poor drainage....

The court then concluded that since the Barthels did not prove by a preponderance of the evidence that the Liermanns caused the obstruction of the ditch, the Barthels were not entitled to an injunction and could not recover damages. The court also found that the Liermanns failed to show that the Barthels had lowered the water table on the Liermanns'...