Delp v. Laier, 42460
| Decision Date | 05 February 1980 |
| Docket Number | No. 42460,42460 |
| Citation | 288 N.W.2d 265,205 Neb. 417 |
| Parties | Ralph DELP and Dorothy Delp, Appellees, v. Gretchen LAIER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Waters: Drainage. It is the law of this state that waters resulting from rainfall and melting snow are diffused waters which an owner may control on his own land. He may collect them, change their course, pond them upon his land, or cast them into a natural drain without liability. He may not, however, collect such waters and divert them onto the lands of another except in depressions, draws, swales, or other drainageways through which such waters were wont to flow in a state of nature.
2. Waters: Drainage. It is fundamental that an owner may not by ditch, dam, or terrace divert surface waters in such a manner as to cast them in volume upon the adjoining lands of another to his damage.
3. Injunction: Damages. Where the evidence establishes that the injury will be either continuous or repetitive, the granting of an injunction is an appropriate remedy.
4. Trial: Evidence: Appeal and Error. It is the duty of this court on review of the findings made by a trial court when it has made an inspection of the premises and has given consideration to the competent and relevant facts revealed thereby to give weight thereto.
5. Damages: Evidence. Where it has been proven that damage has resulted and the only uncertainty is the exact amount, it is sufficient if there is evidence from which the amount of the damages can be ascertained with reasonable certainty.
6. Damages: Proof: Evidence: Witnesses. In proving damages, the law requires not mathematical certainty but merely the best evidence obtainable under the conditions existing and some reliance must be placed upon the integrity and good faith of witnesses and the discretion of the jury.
Bernard B. Smith and David B. Smith of Smith & Smith, Lexington, for appellant.
John M. Wightman and Michael L. Bacon of Wightman, Fallesen & Bacon, Lexington, for appellees.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
This is an appeal by the defendant, Gretchen Laier, from a judgment entered by the District Court for Gosper County, Nebraska, on August 9, 1978, awarding damages in favor of the plaintiffs, Ralph Delp and Dorothy Delp, husband and wife, in the amount of $1,203.85, and from the further order of the District Court permanently restraining and enjoining the defendant from discharging waters upon plaintiffs' land except at specific locations and from permitting any waters which may accumulate by reason of earthwork or other structures constructed by the defendant on defendant's land to run over a road located on plaintiffs' land near its southern boundary. Our examination of the entire record leads us to the conclusion that the trial court was correct, and therefore we affirm the judgment in all respects.
The record discloses that the defendant is the owner of certain real estate located in Section 21, Township 8 North, Range 23 West of the 6th P.M., Gosper County, Nebraska. The plaintiffs own property located immediately north of defendant's property, legally described as the south half of Section 16, Township 8 North, Range 23 West of the 6th P.M., Gosper County, Nebraska. The defendant's northern boundary line is coincident to the plaintiffs' southern boundary line. The natural grade of the defendant's property is generally from the southern portion of her property toward plaintiffs' property, though the evidence discloses that the property likewise slopes from west to east. At the place where the properties touch, the south-to-north slope continues for several hundred feet and then generally levels off across plaintiffs' property, though it still has a slight west-to-east grade.
A canyon runs southwest to northeast upon plaintiffs' property at a point north and slightly east of where defendant constructed certain pits. Fingers of the canyon extend down into defendant's property near the site of the pits. The fingers were caused by erosion over the years. Water falling on defendant's land flowed in one of two directions. A small part of the defendant's land drained to the west and onto plaintiffs' land through a culvert located in the northwest corner of the defendant's land. Most of the remainder of defendant's land drained from south to north and from west to east into the fingers of the canyon located in the northeast portions of the property.
Sometime in 1976 defendant decided to develop her land both for purposes of preventing further excessive erosion and to permit her land to be irrigated. A portion of the canyon fingers located upon defendant's land that had been created by excessive erosion were filled and two retaining pits constructed to collect and hold irrigation water and runoff water. The excess water escaped from the pits through an overflow pipe and into the canyons.
The evidence would establish that the defendant intended to cause all the water falling upon her land to be drained toward the north and east and into the retaining pits. This is substantiated by reason of the fact that during the course of the construction and leveling on defendant's land, the culvert located in the northwest portion of her land was blocked so that water which normally would have flowed through the northwest culvert was not also diverted to the north and east and into the pits.
The first pit was built in the northeast corner of the northwest quarter of the section, or almost exactly in the northeast corner of the irrigated portion of the defendant's land. The second pit is located southeast of the first pit. The inlet tube of the first pit located on its west rim was approximately 10 feet higher in elevation than the outlet tube on its east rim.
Beginning in April of 1977 the plaintiffs found mud in their pasture. On two occasions in May of 1977 heavy rains caused the east wall of the defendant's first pit to collapse and permit water and silt to flow onto the lands of the plaintiffs. A third rain, later in May, resulted in further silt being washed upon plaintiffs' pastureland. Finally, on Memorial Day morning there was an additional hard 2-inch rain. Much of the water was forced over the plaintiffs' roadway through the fields on the plaintiffs' farm by the dam forming the west edge of the north pit on defendant's farm. This water coming across the road deposited silt across the end rows of the plaintiffs' fields and in the waterway west and north of the plaintiffs' house. The waterway was covered with silt in some areas and in other scouring had occurred.
On August 25, 1977 a rain of 11/2 inches again caused a breach of the east wall of the defendant's pit which had since been repaired, and again brought silt into the pastureland of the plaintiffs.
The evidence does disclose that at the time of the commencement of the trial the defendant had relocated the retention pit that had failed and it had been redesigned and reconstructed, to the end that it serves its purpose and does collect and retain irrigation runoff water with the excess being spilled into the canyon.
Plaintiffs filed suit against the defendant alleging the various facts as disclosed herein and seeking injunctive relief against defendant from continuing to cause the waters to flow onto plaintiffs' land. Defendant filed an answer and cross-petition. By her answer defendant generally denied the allegations of plaintiffs' claim, and further alleged that the slope of the land was such that in its natural state surface and floodwaters were assembled in natural drains and flowed from the lands of defendant onto the lands of the plaintiffs. Defendant then alleged that the plaintiffs constructed a dam upon their property in the form of a private roadway, which roadway dam prevented the waters from traveling in their natural drainageway, thereby causing the damage to plaintiffs' property. Defendant therefore alleged that any damage which may have been occasioned was caused by the plaintiffs' own action in damming the natural flow of the water. By way of cross-petition, defendant sought to have the plaintiffs remove the roadway dam and permit the waters to flow uninterrupted in their natural drainways.
The evidence with regard to the roadway discloses that a road of some type existed in the location of the questioned road since before 1941. It was a private roadway wholly located upon the plaintiffs' land. The evidence further disclosed that in approximately 1961, after...
To continue reading
Request your trial
-
World Radio Laboratories, Inc. v. Coopers & Lybrand
...have been used. Understandably, WR did not rely upon this evidence to establish damages. N.W.2d 42 (1950)). See, also, Delp v. Laier, 205 Neb. 417, 288 N.W.2d 265 (1980). Scott, an experienced accountant, testified that the methodology used in exhibit 180 is "typically relied on by accounta......
-
Nebraska Public Power Dist. v. Austin Power, Inc., s. 84-2420
...with reasonable certainty." Knoell Construction Co. v. Hanson, 209 Neb. 461, 463, 308 N.W.2d 356, 358 (1981), citing Delp v. Laier, 205 Neb. 417, 288 N.W.2d 265 (1980). Thus, these courts have recognized that the ascertainment of damages is not an exact science, and when the responsibility ......
-
Creason v. Myers
...home. Where the legal right to damages exists, computation of damages with mathematical certainty is not required. See, Delp v. Laier, 205 Neb. 417, 288 N.W.2d 265 (1980); Robert E. McKee General Con., Inc. v. Insurance Co., 269 F.2d 195 (10th Cir.1959). The size of an award for alienation ......
-
State ex rel. Spire v. Strawberries, Inc.
...establishes that an injury will be either continuous or repetitive, granting of an injunction is an appropriate remedy. Delp v. Laier, 205 Neb. 417, 288 N.W.2d 265 (1980). A court of equity may properly afford injunctive relief where there has been a continuing and flagrant course of violat......