Central Nebraska Broadcasting Co., Inc. v. Heartland Radio, Inc.

• Decision Date: 07 March 1997
• Docket Number: No. S-95-374,S-95-374
• Citation: 251 Neb. 929,560 N.W.2d 770
• Parties: CENTRAL NEBRASKA BROADCASTING CO., INC., a Nebraska Corporation, Appellant, v. HEARTLAND RADIO, INC., a Nebraska corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 770

560 N.W.2d 770

251 Neb. 929

CENTRAL NEBRASKA BROADCASTING CO., INC., a Nebraska Corporation, Appellant, v. HEARTLAND RADIO, INC., a Nebraska corporation, et al., Appellees.

No. S-95-374.

Supreme Court of Nebraska.

March 7, 1997.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Judgments: Appeal and Error. On questions of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Injunction. An injunction is an extraordinary remedy and ordinarily should not be granted except in a clear case where there is actual and substantial injury.

4. Injunction. Injunctive relief should not be granted unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

5. Injunction. As an injunction is an extraordinary remedy, it is available in the absence of an adequate remedy at law and where there is a real and imminent danger of irreparable injury.

6. Injunction: Damages: Words and Phrases. An injury may be said to be irreparable when it is of such a character or nature that the party injured cannot be adequately compensated therefor in damages, or when the damages which may result therefrom cannot be measured by any certain pecuniary standard, or it is shown that the party who must respond is insolvent and for that reason incapable of responding in damages.

7. Words and Phrases. An adequate remedy at law means a remedy which is plain and complete and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.

Jack W. Besse, of Knapp, Fangmeyer, Aschwege & Besse, Kearney, for appellant.

Larry Beucke, of Parker, Grossart, Bahensky & Beucke, Kearney, and Clifford F. Mesner, of Mesner & Mesner, Central City, for appellees Heartland Radio and Fant Broadcasting Co.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and COADY, District Judge.

CAPORALE, Justice.

The plaintiff-appellant, Central Nebraska Broadcasting Co., Inc., seeks to permanently enjoin the defendant-appellee Heartland Radio, Inc., from placing a broadcast antenna on a tower owned by the defendant-appellee Fant Broadcasting Company of Nebraska, Inc. Following the dissolution of a temporary restraining order and the denial of a temporary injunction, the district court sustained the joint motion for summary judgment filed by Heartland Radio and Fant Broadcasting, and thereby dismissed Central Nebraska's petition. Central Nebraska appealed to the Nebraska Court of Appeals, asserting, in summary, that the district court erred in (1) refusing to receive certain evidence and (2) dismissing its petition. Under our authority to regulate the caseload of this court and that of the Court of Appeals, we, on our own motion, removed the matter to our docket. We now affirm.

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Slagle v. J.P. Theisen & Sons, 251 Neb. 904, --- N.W.2d ---- (1997). To the extent questions of law are involved, an appellate court reaches a conclusion independent of the lower court's ruling. PSB Credit Servs. v. Rich, 251 Neb. 474, 558 N.W.2d 295 (1997).

Central Nebraska owns and operates a radio station at Kearney, in connection with which it rents space on a tower owned by Fant Broadcasting and on which Central Nebraska houses a broadcasting antenna. Heartland Radio wishes to place an antenna on the same tower and at the same height as Central Nebraska's antenna, but on a different leg of the tower.

Central Nebraska's expert, a structural engineer engaged in the analysis and design of broadcast towers, is of the view that the tower is already overloaded and that placing the proposed antenna on it would create an imminent danger of structural failure in the sense that if the tower were subjected to an 85-mile-per-hour wind, a once-in-50-years occurrence, blowing from the most critical direction and the tower were encrusted with one-half inch of ice, the tower would fall.

In order to determine whether a material issue of fact exists in the instant case, it is necessary to review the requirements for obtaining a permanent injunction. As an injunction is an extraordinary remedy, it ordinarily should not be granted except in a clear case where there is actual and substantial injury. Ben Simon's, Inc. v. Lincoln Joint-Venture, 248 Neb. 465, 535 N.W.2d 712 (1995). Stated otherwise, injunctive relief should not be granted unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice. Id. As an injunction is an extraordinary remedy, it is available in the absence of an adequate remedy at law and where there is a real and imminent danger of irreparable injury. Otey v. State, 240 Neb. 813, 485 N.W.2d 153 (1992); Mueller v. Union Pacific Railroad, 220 Neb. 742, 371 N.W.2d 732 (1985); Grein v. Board of Education, 216 Neb. 158, 343 N.W.2d 718 (1984).

With those rules in mind, we turn to the first assignment of error, in which Central Nebraska claims that the district court erred by refusing to permit its general manager to testify that he recently saw evidence of people occupying a house located 50 to 75 yards from the tower.

In making that claim, Central Nebraska refers us to Wasserburger v. Coffee, 180 Neb. 149, 162, 141 N.W.2d 738, 747 (1966), modified on reh'g on other grounds 180 Neb. 569, 144 N.W.2d 209, citing McCubbin v. Village of Gretna, 174 Neb. 139, 116 N.W.2d 287 (1962), in which we wrote:

The appropriateness of injunction against tort depends upon a comparative...