Czarnick v. Loup River Public Power Dist., 38844

• Decision Date: 20 July 1973
• Docket Number: No. 38844,38844
• Citation: 209 N.W.2d 595,190 Neb. 521
• Parties: Helen C. CZARNICK, Individually, and Helen C. Czarnick, Administratrix of the Estate of Louis Czarnick, Deceased, Appellant, v. LOUP RIVER PUBLIC POWER DISTRICT and the State of Nebraska, Department of Roads, Appellees.
• Court: Nebraska Supreme Court

Page 595

209 N.W.2d 595

190 Neb. 521

Helen C. CZARNICK, Individually, and Helen C. Czarnick, Administratrix of the Estate of Louis Czarnick, Deceased, Appellant, v. LOUP RIVER PUBLIC POWER DISTRICT and the State of Nebraska, Department of Roads, Appellees.

No. 38844.

Supreme Court of Nebraska.

July 20, 1973.

Syllabus by the Court

1. Section 25--218, R.R.S.1943, provides that every claim and demand against the State shall be forever barred, unless action be brought within 2 years after the claim arose.

2. A suit against the State for the taking or damaging of private property for public use must be commenced within 2 years from the time the taking or damaging of the property occurred.

3. An injunction will not be granted unless the right is clear, the damage irreparable, and the remedy at law inadequate to prevent a failure of justice.

4. Acts which destroy or result in a serious change of property either physically or in the character in which it has been held or enjoyed may constitute an irreparable injury and warrant injunctive relief.

5. Where an injury wrongfully committed is continuous or is being constantly repeated so that complainant's remedy at law requires the bringing of successive actions, that remedy is inadequate and the injury may be prevented by injunction.

Robak & Geshell, Columbus, for appellant.

John A. Wagoner, Thomas A. Wagoner, Grand Island, Deutsch & Hagen, Thomas H. DeLay, Norfolk, Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., John P. Regan, Dale L. Babcock, Jr., Sp. Asst. Attys. Gen., Lincoln, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

WHITE, Chief Justice.

This is an action for money damages caused by flooding which resulted from a diversion of the Loup River from its natural course. The plaintiff also seeks injunctive relief against the State of Nebraska. From a judgment of dismissal in favor of both defendants on the pleadings, the plaintiff appeals. We affirm in part and reverse and remand in part.

The plaintiff owns certain farm land in Nance County located south of the Loup River. In August of 1966 and again in March of 1969, flooding occurred on the north and northwest portions of this land which caused erosion, destroyed crops and fences, and deposited sand and gravel which required removal. The plaintiff brought suit against the defendant Loup River Public Power District on June 3, 1970, claiming that the District was negligent in constructing dikes along the bed of the Loup River thereby diverting the Loup from its natural course, which diversion the plaintiff alleges was the cause of the floodings and resultant damage to the plaintiff's land. On May 12, 1972, the plaintiff filed an amended petition joining the District and the State of Nebraska, Department of Roads, as parties defendant. Process, for the first time, was served on the defendant State of Nebraska, Department of Roads. In the amended petition, the plaintiff alleged that the defendants were negligent in 'constructing and operating the * * * channel cut which diverted the normal and natural course of the Loup River.' The plaintiff alleged that the defendants were negligent in failing to exercise ordinary care when they knew or should have known that the said diversion would cause the eventual flooding and erosion and damage to the plaintiff's land and crops thereon. She asks for money damages as the result of the actions of the defendants.

The District Court sustained the State of Nebraska, Department of Roads', motion to dismiss the plaintiff's action. Section 25--218, R.R.S.1943, provides in part that: 'Every claim and demand against the state shall be forever barred, unless action be brought thereon within two years after the claim arose.' The statute requires no construction and we have held in Bordy v. State, 142 Neb. 714, 7 N.W.2d 632, that a suit against the State for the taking or damaging of private property for public use must be commenced within 2 years from the time the taking or damaging of the property occurred. Here, the plaintiff stated in her amended petition that the damage to her property occurred in August 1966 and March 1969. Her respective causes of action for money damages accrued on those dates and consequently the action against the State of Nebraska is barred under the statute. The State was not made a party until the amended petition was filed and service of process was had in May 1972. The trial court was therefore correct in holding that the statute of limitations, so far as the cause of action for money damages is concerned, had run.

We now turn to the question of whether or not the demurrer of the Loup River Public Power District was properly sustained and the action dismissed. In her amended petition, the plaintiff alleged that the defendant District was negligent in failing to exercise ordinary care in constructing and operating the channel cut which diverted the course of the Loup River. However, the facts alleged against the District were that it granted the easement to the Department of Roads upon which the channel cut was executed; that it consented to the execution of said channel cut upon the easement; and that in executing and constructing the channel cut, the Department of Roads excavated high ground and land fill from a dike which had been constructed by and was located on the land owned by the District. Nowhere in the petition is it stated that the District actively took part in the construction or operation of the channel cut which caused the flooding. The plaintiff contends, citing authorities including Restatement, Torts 2d, § 364, p. 259, that the District, as possessor of the land, is liable for the negligent acts of the Department of Roads committed in constructing the channel cut upon the land. However, it is clear from the petition and the exhibits attached thereto, that the District was not in possession of the land upon which the channel cut took place. The easement agreement between the District and the Department of Roads, which is attached to the amended petition and made a part thereof, specifically states that the Department of Roads was given possession of the land for the purposes of constructing the channel cut. Nor does the plaintiff allege nor contend that the Excavation performed upon the District's land in any way contributed to the flooding of the plaintiff's land. The District was not shown, in the pleadings, to be in possession or control of any of the land upon which the negligent Channel diversion took place. The gist of the plaintiff's cause of action against the District is Therefore, simply that it granted the easement to the Department of Roads, but the plaintiff fails to state how or why the District was negligent in so granting the easement or even that the granting of the easement was in fact a negligent act on the part of the District. It therefore follows that the District Court properly sustained the demurrer of the District to the amended petition for failure to state a claim upon which relief could be granted.

However, a much more serious question remains as to the District Court's ruling upon the plaintiff's prayer for injunctive relief against the State to prevent future damage resulting from the alleged channel diversion. It is fundamental that an injunction will not be granted unless the right is clear, the damage irreparable, and the remedy at law inadequate to prevent a failure of justice. Muchemore v. Heflin, 187 Neb. 217, 188 N.W.2d 713. The plaintiff alleged that the channel cut altered the flow of the Loup River in such a manner that it causes and Will continue to cause annual flooding of the plaintiff's land. The plaintiff alleged that the defendants intend to continue to operate the said channel cut; that this will irreparably damage her land; that this will result in interminable litigation; and that her remedy at law, therefore, is...