Gustafson v. Bodlak

• Decision Date: 18 December 2018
• Docket Number: No. A-16-1213.,A-16-1213.
• Parties: ROGER L. GUSTAFSON AND DAVID GUSTAFSON, INDIVIDUALS, AND R.D.G. ENTERPRISES, INC., A NEBRASKA CORPORATION, APPELLANTS, v. PAUL J. BODLAK AND JEAN M. BODLAK, INDIVIDUALS, ET AL., APPELLEES.
• Court: Nebraska Court of Appeals

ROGER L. GUSTAFSON AND DAVID GUSTAFSON, INDIVIDUALS, ANDR.D.G. ENTERPRISES, INC., A NEBRASKA CORPORATION, APPELLANTS, v. PAUL J. BODLAK AND JEAN M. BODLAK, INDIVIDUALS, ET AL., APPELLEES.

No. A-16-1213.

NEBRASKA COURT OF APPEALS

December 18, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Thurston County: JOHN E. SAMSON, Judge. Affirmed.

Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., for appellants.

Thomas R. Wilmoth, Ellen C. Kreifels, and Kennon Meyer, of Blankenau, Wilmoth & Jarecke, L.L.P., for appellees Paul J. Bodlak and Jean M. Bodlak.

Charles W. Campbell, of Angle, Murphy & Campbell, P.C., L.L.O., for appellee County of Thurston.

RIEDMANN and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Roger L. Gustafson and David Gustafson are the sole shareholders of R.D.G. Enterprises, Inc., a Nebraska corporation (Roger, David, and R.D.G. Enterprises will be collectively referred to as the Gustafsons). The Gustafsons farm properties in Thurston County, Nebraska. They brought an action for damages and injunctive relief against Paul J. Bodlak and Jean M. Bodlak (collectively the Bodlaks) and Thurston County (the County). The Gustafsons claim that separate acts by the Bodlaks and the County impeded the flow of a creek that runs through properties the Gustafsons farm, which caused flooding in the Gustafsons' fields and interfered with their farming activities and damaged their crop production. After a bench trial, the district court for Thurston County found the Gustafsons had failed to meet their burden of proof as to all of their claims. On appeal, the Gustafsons claim the district court erred by failing to grant their requested injunctive relief against the Bodlaks and the County. We affirm.

II. BACKGROUND

1. LAY OF THE LAND

The Gustafsons farm on multiple properties in Thurston County through which Old Logan Creek (the creek) runs. The relevant sections of land will be referred to as Sections 14, 24, and 25. The creek is a natural watercourse that meanders through Thurston County, and as relevant here, runs southeast from Section 14, through Section 24, and then Section 25. The creek does not drain efficiently because it is relatively flat, and winds back and forth frequently. Logan Creek, known locally as "the dredge," is a separate manmade waterway created to help with drainage in the area. The dredge is west of the creek and runs essentially parallel to the creek until the creek eventually drains into the dredge at a point downstream of all of the properties involved in this action.

The creek flows downstream (northwest to southeast) through the relevant properties and structures in the following order: through the Gustafsons' property in Section 14, under the "E" Avenue bridge in Section 14 ("E" Avenue runs east/west), through property of others in Sections 14 and 24, through another Gustafson property in Section 24, through a 54-inch corrugated metal pipe culvert under 12th Road crossing (12th Road runs north/south, so this culvert allows water to pass from the west to the east under the road), through Gustafson property on the east side of 12th Road in Section 24, then through Gustafson property in Section 25, through Bodlaks' property also in Section 25, through a 48-inch corrugated metal pipe culvert underneath "G" Avenue ("G" Avenue runs east/west along the southern border of Section 25), and then through the property of others before draining into the dredge. The creek absorbs diffuse surface waters from a watershed area above "E" Avenue. Between "E" Avenue and "G" Avenue, it adds additional acres of surface water drainage. "E" Avenue, 12th Road, and "G" Avenue are all public county roads maintained by the County, and the culverts and bridges that allow the creek to pass underneath them are also maintained by the County.

2. PROCEDURAL BACKGROUND

On April 17, 2013, the Gustafsons filed a complaint for an injunction and damages against the Bodlaks and the County claiming that actions by each of them caused and will continue to cause flooding of the Gustafsons' properties that are located upstream, resulting in interference with the Gustafsons' farming activities and crop production damage. As to the Bodlaks, the Gustafsons claimed that beginning at least as early as the late 1980's, and continuing up to the date of the lawsuit, the Bodlaks have "filled" the creek channel that passes through the Bodlaks' property. The Gustafsons argued the fill has created a "damming effect" that "blocks, interferes with, and prohibits the free flow of water within the natural drainage channel across the Bodlak property." The Gustafsons claimed this blocks the runoff that naturally flows from the upstream properties they farm, and it has caused and will continue to cause flooding of the Gustafsons' properties located upstream.

As to the County, the Gustafsons claimed the 54-inch culvert at the 12th Road crossing and the 48-inch culvert further downstream at the "G" Avenue crossing caused flooding in their fields because the culverts are "undersized" and inadequate for natural flow purposes. The Gustafsons asserted that the continued use of these culverts will continue to flood their property and result in interference with their farming activities and cause crop damage.

The Gustafsons sought money damages and mandatory injunctions against both the Bodlaks and the County. The money damages were mainly for crop damages and losses allegedly incurred from flooding caused by the Bodlaks and the County in 2010. The Gustafsons asked for an injunction directing the Bodlaks to immediately remove the fill from the portion of the creek channel that runs through the Bodlaks' property. The Gustafsons also asked for an injunction directing the County to "immediately redesign" the drainage structures located at the crossings at both 12th Road and "G" Avenue to increase their size and create a freer natural flow of water at those locations.

The Gustafsons subsequently filed an amended complaint on February 27, 2015, adding as necessary parties the downstream property owners, including the United States (because it held some downstream property in trust for certain Native Americans), and the U.S. Army Corps of Engineers (which had previously exercised jurisdiction over the creek and because it would need to review and approve any modification of structures that affect the flow of the creek). On April 2, the United States and the U.S. Army Corps of Engineers removed the action to the United States District Court for the District of Nebraska, and filed a motion to dismiss the action as to them based on their assertion of sovereign immunity. Their motion was granted on June 11, and the case was remanded back to the district court for Thurston County for further proceedings as to the Gustafsons' claims against the remaining defendants.

3. TRIAL AND COURT ORDER

A bench trial took place over 5 days in April 2016, and concluded with a final day of trial on August 2. Only one of the additional property owners named in the Gustafsons' amended complaint filed an answer and participated in the trial in a limited manner; that property owner did not join in this appeal. At trial, the remaining additional property owners were ruled to be in default by the court.

The district court entered a very thorough order on November 30, 2016; we set forth only those portions of the order relevant to the issues on appeal. The district court initially stated that the evidence established that the creek is "a natural watercourse that slopes at the rate of approximately 1.6' per mile in a meandering fashion through property farmed by the Gustafsons in Sections 14, 24, and 25 . . . [and that the creek] channel on the Gustafson property absorbs diffuse surface waters from a watershed area above "E" Avenue of approximately 6.5 square miles." It noted that between "E" Avenue and "G" Avenue, the creek adds hundreds of additional acres of surface water drainage. Further, the creek "is relatively flat between 'E' Avenue crossing and 12^th Road crossing . . . and it meanders in a serpentine manner making it an inefficient drainageway of water from the basin."

The district court indicated that the 54? corrugated metal culvert at the 12th Road channel crossing was installed by the County "sometime between approximately 1970 and 1980 when theprevious 24' long bridge was removed," and this culvert "has the maximum capacity to allow approximately 220 [cubic feet per second] of water to flow." The court pointed out that the "12^th Road crossing of the [creek] channel had been served by the 54? wide culvert for more than 30 years prior to the 2010 flood. [The creek] water flow never overtopped 12^th Road during that time period, nor subsequent thereto." However, "[o]ver the years, [the] County has experienced an ongoing problem with maintenance of the 12^th Road crossing - primarily the west shoulder of the road - due to bank erosion in the location of the culvert."

The district court found that the County repaired the bank and shoulder of 12th Road in the fall of 2009, installing dirt and building up the shoulder to make the road safe for travel. "There was no removal, replacement, or alteration of the culvert at the crossing at 12^th Road as part of any road repair project prior to the [June 2010] flood." Two county road workers testified, both of whom the court found were credible witnesses. One said he saw muskrat holes in the bank causing the erosion and the other suggested the erosion was "the result of sloughing off from the road bank." Neither saw any water passing under 12th Road from west to east underneath the road. Therefore, although Roger testified that prior to 2010 he had seen water flowing around the culvert under 12th Road, "[t]here was no credible evidence or any witnesses" to...