Belsky v. Dodge County, 83-870

• Decision Date: 31 May 1985
• Docket Number: No. 83-870,83-870
• Citation: 369 N.W.2d 46,220 Neb. 76
• Parties: Lawrence BELSKY et al., Appellants v. COUNTY OF DODGE et al., Appellees.
• Court: Nebraska Supreme Court

Page 46

369 N.W.2d 46

220 Neb. 76

Lawrence BELSKY et al., Appellants v. COUNTY OF DODGE et al., Appellees.

No. 83-870.

Supreme Court of Nebraska.

May 31, 1985.

Syllabus by the Court

1. Waters: Words and Phrases. As defined by Neb.Rev.Stat. § 31-202 (Reissue 1984), a watercourse is "[a]ny depression or draw two feet below the surrounding lands and having a continuous outlet to a stream of water, or river or brook."

2. Waters: Words and Phrases. Floodwaters are those that spill over banks of a stream during high water, flow over adjacent lands in the stream's flood plain, and return to the stream at a point or points downstream.

3. Waters: Words and Phrases. Surface waters are waters which appear upon the surface of the ground in a diffused state, with no permanent source of supply or regular course, which ordinarily result from rainfall or melting snow.

4. Waters. The flow of surface waters in any well-defined course, whether it be a ditch, swale, or draw in its primitive condition, and whether or not it is 2 feet below the surrounding land, cannot be interfered with or arrested to the injury of a neighboring proprietor.

5. Waters. One building a structure across a natural drainway has a continuing duty to provide natural passage for water reasonably anticipated to move in the drainway occupied by the obstruction.

Hurt, Gallant & Flores, Schribner, for appellants.

Dean Skokan, Dodge County Atty., Fremont, for appellees.

BOSLAUGH, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

In the district court for Dodge County, Lawrence and Marie Belsky (Belsky), owners of an 80-acre farm (south half of the southeast quarter of Section 27, Township 20 North, Range 5 East of the 6th P.M.), requested an injunction against the County of Dodge, the county's supervisors and highway superintendent, and Webster Township to prevent obstruction of drainage from Belsky's farm. Belsky's son, Larry, and his wife, Kathleen, own an 80-acre farm (north half of the northeast quarter of Section 34, Township 20 North, Range 5 East of the 6th P.M.), south of the farm owned by Lawrence and Marie. The farms owned by the Belsky families are separated by an east-west county road. On the east side of Belsky's farm is a north-south township road. Pebble Creek is a drainway running generally northeasterly through Belsky's farm. The source of water for Pebble Creek is rain and melted snow, but the creek is dry approximately 90 percent of the time. The outlet for Pebble Creek is undisclosed.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Land on both sides of the township road is devoted to agriculture. Before 1979, area drainage collected in a depression near the southeast corner of Belsky's farm, approximately 300 to 400 feet south of the bridge for the township road. The collected water drained eastward across the road and rendered it impassable much of the time. Belsky complained to Dodge County about drainage from his farm and the intermittent water problem on the township road. Dodge County, in 1979, undertook extensive grade work on the road and built a new bridge across Pebble Creek. In connection with the county's project to remedy the drainage problem, Belsky indicated he would take the bow out of Pebble Creek across his farm to provide more direct flow from the county road bridge to the location of the new bridge.

Before the 1979 project, fields immediately adjacent to the road had an elevation the same as the road. The opening beneath the old bridge on the township road was 105 square feet, although the greater part of such opening was clogged with debris.

The new bridge's opening is 313 square feet. This new bridge did not intercept Pebble Creek at a right angle. Rather, contemplating Belsky's straightening the creek, the county constructed its new bridge in a northwesterly-southeasterly direction so that an oblique angle was formed as the bridge crossed Pebble Creek. In this manner water in Pebble Creek, after removal of the creek bow by Belsky, would flow perpendicular to the opening beneath the new bridge for direct and unobstructed passage. In constructing the new bridge with its larger opening for passage of water, the county elevated the bridge approach of the road 2.4 feet. This increased elevation caused previously eastward draining water to run north on the west side of the road and then into Pebble Creek at the site of the new bridge. Additionally, after the increased road elevation, water collects on Sections 26 and 27 at an identical level on both sides of the road. Belsky never straightened the bow of Pebble Creek as it crossed his farm.

Belsky filed suit, asserting that the defendants by "negligent, wrongful and unlawful acts" have caused irreparable injury, namely, the opening beneath the new bridge was insufficient for passage of water in a watercourse and the postconstruction elevation of the township road obstructed a natural drainway, resulting in flooding and standing water on Belsky's farm. Belsky prayed for restoration of drainage as such existed before the 1979 bridge-road construction. On the other hand, Dodge County contends that water had drained across the previous township road because the debris-clogged opening under the old bridge was insufficient for passage of Pebble Creek and caused the creek to back up and drain across the old road. The county also contends that design of the bridge was modified in the light of Belsky's assurance that he would straighten Pebble Creek across his farm and that Belsky's failure to do so bars equitable relief.

At trial all expert witnesses agreed that the increased elevation of the township road may contribute to an increased depth and duration of standing water.

Belsky's expert witness testified that the opening under the new bridge is inadequate to accommodate area drainage in the event of a 50-year storm. A 50-year storm has a 2-percent chance of occurring in any given year. In the opinion of Belsky's expert, a bridge opening of 427 square feet was necessary for adequate drainage from a 50-year storm. To obtain an opening of 427 square feet, it would be necessary to raise the new bridge another 2 feet above its present elevation or dredge a deeper channel for Pebble Creek beneath the new bridge.

An expert witness for Belsky also testified that water would be found on both sides of the road, that is, on Sections 26 and 27, even if there had been no road separating the sections; that the new road did not create backwater on section 34; and that there would be standing water on Section 27 irrespective of the county's "improvements."

The new bridge was constructed to handle runoff from a 25-year storm. A 25-year storm has a 4-percent chance of occurring in any given year. The 25-year standard is widely utilized by state and public subdivisions in bridge design and construction. The new bridge's capacity for passage of water is greater than the capacity of the county road bridge located south of the new bridge and upstream on Pebble Creek. Water will leave Pebble Creek somewhere south of the new bridge before there is any obstruction to the creek as it flows toward and passes beneath the new bridge. Overbank flows of Pebble Creek can be expected at 1.4- to 2.5-year frequencies and will move in a northeasterly direction parallel to Pebble Creek. These overbank flows eventually leave Belsky's farm by way of the creek channel under the new bridge. On account of the increased capacity for drainage beneath the new bridge, the road-bridge project has improved area drainage, including drainage from Belsky's farm.

The county's expert testified that previous drainage had flowed easily across the old road because the maintained road was capable of conducting a greater flow of water than would be conveyed by agricultural land on either side of the road. As explained by such expert witness, more water was conducted by the old road than by the adjacent cultivated fields because crops in the fields caused a "retardance" to flow, whereas the maintained road, due to an absence of surface obstruction such as vegetation or crops, permitted a greater conveyance of water over the road's surface.

Apart from Pebble Creek, there was no evidence concerning existence or location of a natural drainway for Belsky's farm before installation of a road.

The district court found that Belsky had failed to prove negligence or the existence of a watercourse and dismissed Belsky's action.

For assignments of error Belsky claims the district court erred (1) in determining a statutory watercourse did not exist; (2) in applying the common enemy rule regarding surface waters; and (3) in finding that the county had provided for sufficient passage of all waters reasonably anticipated to flow beneath the new bridge placed in a natural drainway.

Since this is an action in equity, we review the matter de novo without reference to findings of fact made by the trial court. Barry v. Wittmersehouse, 212 Neb. 909, 327 N.W.2d 33 (1982); Jameson v. Nelson, 211 Neb. 259, 318 N.W.2d 259 (1982). Where testimony or evidence is in conflict, we take into account that the trial court observed the witnesses. Barry v. Wittmersehouse, supra. A party seeking an injunction must establish by competent evidence every controverted fact necessary to entitle the claimant to relief. Grint v. Hart, 216 Neb. 406, 343 N.W.2d 921 (1984). Our review of the record and disposition of this matter is governed accordingly.

Without becoming swamped by or bogged down in terminology, nevertheless, we are reminded that applicable to this case are certain definitions and characteristics of distinctive waterways.

Regarding Belsky's claim that he is entitled to relief due to the county's obstruction of Pebble Creek as a statutory "watercourse," there is a double deficiency in Belsky's proof. A watercourse is defined or characterized by Neb.Rev.Stat. § 31-202 ...