Bunger v. Ortgiesen, No. A-08-1147 (Neb. App. 5/26/2009)
| Decision Date | 26 May 2009 |
| Docket Number | No. A-08-1147.,A-08-1147. |
| Parties | WILLIAM BUNGER AND ANDREW BUNGER, APPELLEES AND CROSS-APPELLANTS, v. EUGENE ORTGIESEN AND JEANNE ORTGIESEN, HUSBAND AND WIFE, ET AL., APPELLANTS AND CROSS-APPELLEES. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Franklin County: STEPHEN R. ILLINGWORTH, Judge. Affirmed in part, and in part vacated.
Donald G. Blankenau and Thomas R. Wilmoth, of Husch, Blackwell & Sanders, L.L.P., for appellants.
Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
William Bunger and Andrew Bunger filed suit against Eugene Ortgiesen, Jeanne Ortgiesen, Chad Ortgiesen, and Reggie Ortgiesen, the owners of the property to the east of the Bungers' property. The Bungers sought an injunction and money damages alleging that the Ortgiesens interfered with a natural drainageway flowing from the Bungers' property to the Ortgiesens' property. The district court for Franklin County found that a natural drainageway did exist; that the Ortgiesens must remove the dikes they built that inhibited the flow of water through the natural drainageway; and that both parties came to court with unclean hands, and therefore, the Bungers were not entitled to money damages. The court further found that the Bungers were enjoined from placing pipes in their berms on the border of their property with the Ortgiesens' property. The Bungers appealed this order, and the Ortgiesens cross-appealed. For the reasons set forth herein, we affirm the district court's order in part, and in part vacate.
William Bunger (hereinafter Bunger) owns the southwest quarter of Section 27, Township 4 North, Range 16 West of the 6th P.M., Franklin County, Nebraska. This quarter section will be referred to as "the Bunger property" for purposes of this opinion. In 1969, Carl Kriley purchased the Bunger property and Richard Schepler farmed it until 1997, when Bunger purchased the land. Brad Quadhamer was the tenant and operator of the Bunger property from 1998 to 2002. Since the 2003 crop year, Andrew Bunger (hereinafter Andrew) has been the tenant and operator. The northwest quarter of Section 27, Township 4 North, Range 16 West of the 6th P.M., Franklin County, Nebraska, is also farmed by Andrew, and its drainage pattern is necessarily discussed in depth in the testimony in this case and in this opinion, although this particular quarter of land is owned by Kristie Bunger, who is not a party to this dispute. This land will be referred to as "the northwest quarter" throughout this opinion.
In 1999, the Ortgiesens purchased the west half of the northeast quarter and the west half of the southeast quarter of Section 27, Township 4 North, Range 16 West of the 6th P.M. This land, which can also be described as the west half of the east half of Section 27, will be referred to as "the Ortgiesen property" for purposes of this opinion. The Ortgiesen property is directly east of the Bunger property. Eugene began farming the Ortgiesen property in the 1980's and currently farms the land with his two sons, Chad and Reggie.
Section 27 is very flat, with changes in elevation of only a few feet, with the Bunger property slightly higher than the Ortgiesen property. The greatest variation in elevation we can discern from exhibit 15, a topographical map, is 9 feet. Both the Bunger property and the Ortgiesen property have been developed for row crop agriculture and are now irrigated by center-pivot irrigation systems. Center pivots were installed on the northwest quarter in 1999 and on the Bunger property in 2003. There have been several alterations to the drainage patterns of Section 27, which we will briefly describe. In 1968, an irrigation well was put in on the Bunger property, and 2 years later, a reuse pit to collect runoff from gravity irrigation was constructed at the northwest corner of the Bunger property. The outer dimensions of the reuse pit were originally 70 feet wide by 335 feet long, with the longer side running east to west. In 2003, when the center pivot was put on the Bunger property, the westernmost 30 to 40 feet of the reuse pit were filled in, reducing the length of the pit. Also in 1970, two berms were constructed along the eastern side of the reuse pit, and each berm was approximately 8 to 12 inches high and ran end-to-end along the eastern boundary of the Bunger property. Over time, the height of these berms increased by another 8 to 10 inches due to sediment deposits from wind and water movement over the berms. These berms ran along the property line between the Bunger property and the Ortgiesen property. The exact length of the berms was not discussed at trial, but aerial photographs show that the berms ran for the majority of the length of this half-mile boundary. There was an area between the two berms where a naturally occurring high spot in the ground was located, inferentially explaining why two berms were constructed. After the berms were installed on the Bunger property, less water flowed to the Ortgiesen property. There was also a drainage ditch that was constructed along the eastern boundary of the Bunger property, just west of the berms, to direct drainage from the southeast corner of the Bunger property to the reuse pit at the northeast corner. Another drainage ditch was constructed starting in the center of the Bunger property running north to the half-mile line and then running east to the reuse pit.
The northwest quarter also had many alterations to its natural drainage. Schepler testified that from 1969, when he started farming this quarter, until the 1980's, there was a lagoon in the center of the quarter, which was surrounded by terraces. The terraces were put in place to prevent more water from entering the lagoon. In the early 1980's, Kriley removed the terraces and built a drainage ditch about 1 foot deep running southeasterly across the northwest quarter, which ended at the same location as the reuse pit in the northeast corner of the Bunger property. The lagoon was still in existence, though smaller, until 1997, when Bunger had it filled in and the northwest quarter was developed for center-pivot irrigation.
In 2000, Quadhamer and Bunger installed a pipe in each of the berms at the approximate lowest elevation to alleviate the backup of water on the Bunger property. The pipes were installed at a level such that the reuse pit would fill to capacity before water would go through the pipes in the berms onto the Ortgiesen property. To place the pipes, part of each berm was excavated with a backhoe. In the spring of 2001, a major rainstorm washed out the pipe in the northern berm and the spring thaw caused erosion around the pipe in the southern berm. Soon after, because of this severe erosion, the Ortgiesens constructed two dikes along the western boundary of their property. The north dike was 1,040 feet long and the south dike was 665 feet long, which dikes were approximately equal to the length of the existing berms on the Bunger property. In other words, the dikes ran parallel to the berms. There was some dispute at trial as to the height of these two dikes, but their height was variously estimated at 30 to 38 inches.
In response to the construction of the dikes by the Ortgiesens, in 2003, the Bungers buried an underground pipe from the reuse pit to the center point of the pivot, which allowed Andrew to pump water back to the pivot for redistribution onto the Bunger property. As of the time of trial, the Bungers had also removed their berms and dug out the drainage ditch that runs along the eastern edge of the Bunger property and the drainage ditch that runs from the center of the northwest quarter to the reuse pit, returning both drainage ditches to their original levels. In 2005, the Bungers dredged the reuse pit to increase its holding capacity.
During the 2001 and 2002 crop years, Quadhamer testified that he did not suffer crop damage as a result of water backing up on the Bunger property due to the Ortgiesen dikes. However, in the following 4 years, 2003 to 2006, Andrew testified that he had crop losses and additional pumping costs because the Ortgiesen dikes prevented the natural drainage of water east onto the Ortgiesen property. Bunger and Andrew also testified that there was no crop damage in 2007, which they attributed to the fact that the rains "were evenly spaced; they came slow" unlike rains in the previous 4 years—the years for which the Bungers claim damages for crop loss. However, beyond this testimony, there was no specific evidence about overall rainfall amounts, dates, and amounts per rain.
The Bungers filed suit in the district court for Franklin County against the Ortgiesens on January 25, 2007. In their complaint, the Bungers claimed that the Ortgiesens' two earthen dikes prevented the natural flow of rainwater onto the Ortgiesen property and caused damage to crops on the Bunger property in the 2003, 2004, 2005, and 2006 crop years and caused the Bungers to expend money to mitigate such damage. The Bungers claimed that the earthen dikes violated the Ortgiesens' duty to refrain from preventing natural drainage of waters, the dikes were a nuisance inhibiting the use and enjoyment of the Bunger property, and the dikes constituted trespass upon the Bunger property. The Bungers sought injunctive relief from the interference with the natural flow of rainwater and monetary damages totaling $14,307.70 for the lost crops and the costs of mitigating the backup of water on the Bunger property. In their answer filed February 27, the Ortgiesens raised the affirmative defenses of failure to state a claim upon which relief can be granted, the statute of limitations, laches, unclean hands, failure to mitigate damages, and that the Bungers altered their property to drain water onto the Ortgiesen...
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