Clinton v. Farwell Irr. Dist.

• Decision Date: 18 December 1987
• Docket Number: No. 86-169,86-169
• Citation: 417 N.W.2d 1,227 Neb. 187
• Parties: James S. CLINTON, Appellant, v. FARWELL IRRIGATION DISTRICT et al., Appellees.
• Court: Nebraska Supreme Court

Page 1

417 N.W.2d 1

227 Neb. 187

James S. CLINTON, Appellant, v. FARWELL IRRIGATION DISTRICT et al., Appellees.

No. 86-169.

Supreme Court of Nebraska.

Dec. 18, 1987.

Syllabus by the Court

1. Actions: Parties. A court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights.

2. Parties. Indispensable parties to a suit are those who not only have an interest in the subject matter of the controversy, but also have an interest of such a nature that a final decree cannot be made without affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.

3. Actions: Parties. Generally, in an action brought by a third-party beneficiary, the original contracting party is not an indispensable party.

Leo A. Knowles and William F. Hargens of McGrath, North, O'Malley & Kratz, P.C., Omaha, for appellant.

Steven G. Seglin and Leroy W. Orton of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellees.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

BOSLAUGH, Justice.

This was an action to recover for seepage damage to a tract of farmland in Howard County, Nebraska, owned by the plaintiff, James S. Clinton. The amended petition alleged that the damage was caused by water seeping from an irrigation canal operated and maintained by the defendants, Farwell Irrigation District and Loup Basin Reclamation District. The amended petition further alleged that the Farwell Canal and its laterals ran within a half mile of the plaintiff's property. The plaintiff claimed $5,000 for crop loss in 1984 and $80,000 for diminution in the market value of the land.

The defendants' answer denied that the Loup Basin Reclamation District is an irrigation district and denied that the Farwell Canal runs within a half mile of the plaintiff's property. The answer also alleged that the plaintiff's land was not suitable for irrigated row crop production and that the conversion of the land from grassland to such production caused or contributed to any damages sustained by the plaintiff. The answer further alleged that the U.S. Department of the Interior, Bureau of Reclamation (United States), owned a perpetual easement for "a grassed waterway to seep, flow and flood water over and across" a portion of the plaintiff's land; that the plaintiff had damaged or destroyed the grassed waterway, which caused or contributed to any damages sustained by the plaintiff; and that the plaintiff should be required to restore the grassed waterway. Later, the answer was amended to allege that the United States was an indispensable party, and the defendants moved for an order requiring the plaintiff to join the United States as a party, or to dismiss the amended petition for failure to join an indispensable party.

On October 16, 1985, the trial court found that the United States was an indispensable party and ordered the plaintiff to join the United States as a party defendant within 30 days. On February 7, 1986, the amended petition was dismissed without prejudice for failure to join an indispensable party. From that order the plaintiff has appealed.

The plaintiff contends that the trial court erred in finding that the United States was an indispensable party to the action.

Neb.Rev.Stat. § 25-323 (Reissue 1985) provides:

The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.

We have held:

" ' "Indispensable parties to a suit are those who not only have an interest in the subject matter of the controversy, but also have an interest of such a nature that a final decree cannot be made without affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience...." ' "

Koch v. Koch, 226 Neb. 305, 312, 411 N.W.2d 319, 323 (1987), citing Johnson v. Mays, 216 Neb. 890, 346 N.W.2d 401 (1984); Burke Lumber & Coal Co. v. Anderson, 162 Neb. 551, 76 N.W.2d 630 (1956).

As we understand the defendants' argument, the easement which the United States owns is for the...