Barthel v. Liermann

• Decision Date: 28 January 2014
• Docket Number: No. A–12–745,A–12–745
• Citation: 842 N.W.2d 624,21 Neb. App. 730
• Parties: Craig Lynn Barthel et al., Copersonal Representatives of the Estate of Dorothy Barthel, Deceased, Appellants, v. Charles A. Liermann, Individually and as Successor Trustee of the Gene W. Liermann Living Revocable Trust, and Erna E. Liermann, Trustee of the Erna E. Liermann Living Revocable Trust, Appellees.
• Court: Nebraska Court of Appeals

21 Neb.App. 730

842 N.W.2d 624

Craig Lynn Barthel et al., Copersonal Representatives of the Estate of Dorothy Barthel, Deceased, Appellants,

v.Charles A. Liermann, Individually and as Successor Trustee of the Gene W. Liermann Living Revocable Trust, and Erna E. Liermann, Trustee of the Erna E. Liermann Living Revocable Trust, Appellees.

No. A–12–745

Court of Appeals of Nebraska.

Filed January 28, 2014

Appeal from the District Court for Holt County: Mark D. Kozisek, Judge.Affirmed.

Mark Porto, of Shamberg, Wolf, McDermott & Depue, for appellants.

Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, for appellees.

Inbody, Chief Judge, and Moore and Riedmann, Judges.

Syllabus by the Court

1.Statutes.The meaning and interpretation of a statute are questions of law.

2.Judgments: Appeal and Error.An appellate court independently reviews questions of law decided by a lower court.

3.Statutes: Appeal and Error.When an appellate court confronts a statute, it gives statutory language its plain and ordinary meaning and will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

4.Statutes: Judicial Construction: Legislature: Presumptions: Intent.When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation.

5.Real Estate: Waters: Time.Neb.Rev.Stat. § 31–224(Reissue 2008) imposes upon a landowner the duty to clean a drainage ditch once a year, between March 1 and April 15.

6.Real Estate: Waters: Time: Words and Phrases.In Neb.Rev.Stat. § 31–224(Reissue 2008), the phrase “at least” prior to “once a year” indicates that a landowner may have a duty to clear the ditch more than once during the specified period of March 1 to April 15, if the flow of water again becomes obstructed during this period.

7.Real Estate: Waters: Time.There is nothing in Neb.Rev.Stat. § 31–224(Reissue 2008) that can be interpreted to require a landowner to clean a drainage ditch outside the March 1 to April 15 period if the flow of water becomes obstructed at any other time during the year.

Moore, Judge.

INTRODUCTION

Craig Lynn Barthel, Keith Alan Barthel, and Kerry Louis Barthel, as copersonal representatives of the estate of Dorothy Barthel, deceased, and having been substituted as parties, appeal from a judgment entered by the district court for Holt County.Following a bench trial, the district court ruled that the appellees, Charles A. Liermann and Erna E. Liermann, had not breached their duty to clean a shared drainage ditch and that Dorothy had not sufficiently proved her damages.Finding no error in that decision, we affirm the district court's judgment.

FACTUAL BACKGROUND

The parties in this case are neighboring landowners in Holt County, Nebraska.A drainage ditch that runs west to east through the Barthels' property and onto the Liermanns' property before eventually joining the Elkhorn River forms the center of this ongoing dispute.Dorothy claimed that the Liermanns had failed to clear obstructions from this ditch, causing her hay meadow to flood and thereby preventing significant hay production.

This seemingly ordinary drainage ditch has been the subject of significant litigation, in both state and federal courts, during the past 20 years.While not all of the history is germane to the present appeal, a short summary of the more important events is necessary to give context to the current matter.This court's decision in Barthel v. Liermann,2 Neb.App. 347, 509 N.W.2d 660(1993), is the appropriate starting point.After that decision, a series of events transpired that culminates with this current appeal.

In the years preceding Barthel v. Liermann, supra, the Liermanns had allowed Keith and Dorothy to bring a dragline onto their property to dredge the ditch on the various occasions when the waterflow in the ditch became obstructed.In 1988, the Liermanns denied the Barthels' request to dredge and the Barthels filed suit, asking that an injunction issue requiring the Liermanns to clear the ditch.The district court denied the Barthels' request for injunctive relief and damages, concluding that they had not established that the Liermanns obstructed the waterflow in the ditch.Id.The Barthels appealed that decision to this court.

We reversed the district court's decision.In so ruling, we determined that the outcome of the case was dependent on interpreting Neb.Rev.Stat. § 31–224(Reissue 2008).Barthel v. Liermann, supra.In interpreting § 31–224, we stated that “it is the duty of a landowner to clean from this type of ditch once a year all weeds or other substances obstructing the flow of the water, provided the landowner knows of the obstruction.”Barthel v. Liermann,2 Neb.App. at 356, 509 N.W.2d at 665(emphasis omitted).We concluded the statute obligated the Barthels to show that the Liermanns' acts caused the ditch obstruction or that the obstruction occurred with the Liermanns' knowledge or consent.Barthel v. Liermann, supra.We also found that the evidence clearly established that the obstruction occurred with the Liermanns' knowledge or consent.Therefore, we determined that the trial court erred when it refused to grant the injunction, and we remanded the cause to the district court to issue a mandatory injunction requiring the Liermanns to clean out the ditch.Id.

On remand, the district court issued the mandated injunction.The injunction required the Liermanns to clean the ditch of all substances obstructing waterflow beginning and ending at specified stations.The Liermanns were also required to hire a surveyor to establish a grade to which the ditch would be excavated and to hire a dragline operator to excavate the ditch according to the completed survey.The court specified that the grade needed to be set at or below the level of the bottom of the culvert installed by Holt County in the county road in 1988.

Because the cleaning and maintenance of this ditch affected a potential wetland area (the Barthels' meadow), the federal government became involved.To maintain their eligibility for federal farm-assistance programs sponsored by the U.S. Department of Agriculture(USDA), the Barthels were required to comply with the “Swampbuster” provisions of the federal Food Security Act (the Act).SeeBarthel v. U.S. Dept. of Agriculture,181 F.3d 934, 935(8th Cir.1999).The relevant Swampbuster provisions, aimed at preserving wetland areas, denied eligibility for these federal programs if wetlands were converted to agricultural use.Id.However, the Act also allowed exemptions for wetlands that had been converted before the Act became effective in 1985.Barthel v. U.S. Dept. of Agriculture, supra.The Barthel hay pasture was classified as an “ ‘other wetland area’ ” under the Act because it seasonally flooded or ponded but had been converted to agricultural use prior to December 23, 1985.Barthel v. U.S. Dept. of Agriculture,181 F.3d at 936.

A dispute soon arose between the Barthels and the USDA and the National Resources Conservation Service (NRCS), a division of the USDA, as to how the Act affected the depth of the ditch.The Barthels contended that the land had been used for hay production and pasture prior to the Act and should be maintained in that state.Thus, they argued the ditch should be dredged to a depth that allowed the water to drain from the meadow and permitted hay production.Barthel v. U.S. Dept.of Agriculture, supra.The NRCS, however, determined that the level of the ditch at the time of litigation should be preserved, no matter the effect on the Barthels' land.Id.

After making their way through the various administrative reviews of this determination, the Barthels eventually initiated suit in the U.S. District Court for the District of Nebraska.Id.In a memorandum opinion, the U.S. District Court affirmed the USDA's decision, concluding that the USDA appropriately construed the law and made adequate findings of fact.

Following the adverse decision from the federal district court, the Barthels appealed to the Eighth Circuit Court of Appeals.Id.The Eighth Circuit reversed the decision of the federal district court, finding that the USDA had misinterpreted the focus of the Swampbuster provisions, namely that the Act's purpose is to preserve wetlands or, if wetlands were altered, to preserve the altered conditions.Barthel v. U.S. Dept. of Agriculture, supra.The court held that the Barthels were entitled to utilize their land as they did before the Act, “ ‘so long as the previously accomplished drainage or manipulation is not significantly improved upon, so that wetland characteristics are further degraded in a significant way.’ ”Barthel v. U.S. Dept. of Agriculture,181 F.3d at 939(emphasis in original), quotingGunn v. U.S. Dept. of Agriculture,118 F.3d 1233(8th Cir.1997).The matter was then remanded to the district court with directions that it remand the matter to the USDA for a hearing and determination of the state of the Barthels' land prior to the Act and the necessary dredging and cleaning of the ditch to maintain the land in its pre-Act state.Barthel v. U.S. Dept. of Agriculture, supra.

When the matter returned to the NRCS after remand, it conducted tests to determine the proper depth of the ditch.After those tests were completed, the NRCS concluded that the ditch could be dredged to the level directed by the 1994 injunction entered by the district court for Holt County, which level was at or below the level of the bottom of the culvert.This final determination by the NRCS was not appealed.Since that time, the Liermanns have used the USDA-commissioned survey when cleaning the ditch to the allowed depth.

In the time following the previous litigation, Keith, Dorothy's husband, died and Dorothy became sole owner of the Barthels' property.On December 16, 2011, Dorothy filed her operative complaint in ...