Kasparek v. May

• Decision Date: 01 February 1963
• Docket Number: No. 35279,35279
• Citation: 174 Neb. 732,119 N.W.2d 512
• Parties: Stanley KASPAREK and Emma Kasparek, Appellants, v. George E. MAY and Rose M. May, Appellees.
• Court: Nebraska Supreme Court

Page 512

119 N.W.2d 512

174 Neb. 732

Stanley KASPAREK and Emma Kasparek, Appellants, v. George E. MAY and Rose M. May, Appellees.

No. 35279.

Supreme Court of Nebraska.

Feb. 1, 1963.

Syllabus by the Court

1. A civil contempt action is concerned only with compliance with the judgment on the issues as they existed in the action which resulted in the judgment.

2. Where a party to an action fails to obey an order of the court, made for the benefit of the opposing party, the rule is well recognized that such act is, ordinarily, a civil contempt.

3. A civil contempt has for its purpose the preservation and enforcement of the rights of private parties to suits, and to compel obedience to orders and judgments made to enforce private rights to which the court has found them to be entitled. Such a contempt is remedial and coercive in its nature, and affects the parties whose private rights and remedies are involved.

4. Proceedings in contempt are governed by the rules applicable to prosecutions by indictment, are in their nature criminal, and no intendments will be indulged in to sustain a conviction. It is necessary to establish guilt beyond a reasonable doubt.

5. The disobedience of an injunction must be willful before the breach thereof may be punished as a contempt.

6. Indemnity for damages cannot be secured in a contempt proceeding.

7. The power to punish for contempt is an essential attribute of a court of general jurisdiction.

8. Costs and expenses incurred by an injured party may be recovered in the contempt proceedings from the contemner.

McCown & Baumfalk, Beatrice, for appellants.

Robert V. Denney, Fairbury, W. O. Baldwin, Hebron, for appellees.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

SPENCER, Justice.

This is a civil contempt proceeding brought by Stanley Kasparek and Emma Kasparek against George E. May and Rose M. May for the violation of a judgment entered by the district court for Jefferson County on June 8, 1956. This judgment will be hereinafter referred to as the 1956 decree. The trial court found the Mays to be in contempt, but held the contempt was not willful or contumacious. The court further interpreted the judgment, which provided for the removal of a dike to the natural ground level, to mean that the dike should be removed to a ground level of 82 feet. The court also held that a ditch constructed pursuant to the judgment was sufficient and that each party should pay his own costs. Previous to the hearing, the court had sustained a motion to strike all reference to damages and expenses from the accusation. The Kaspareks prosecute an appeal to this court.

For convenience, Stanley Kasparek and Emma Kasparek, plaintiffs and appellants, who are the joint owners of approximately 158 acres in the north half of the southeast quarter and the south half of the northeast quarter of Section 26, Township 2 North, Range 2 East of the 6th P.M., in Jefferson County, and George E. May and Rose M. May, defendants and appellees, who are the joint owners of the southwest quarter of Section 25, Township 2 North, Range 2 East of the 6th P.M., in Jefferson County, except for 6 acres, will be referred to hereinafter as Kasparek and May respectively. The only connection of the respective spouses with this action, unless otherwise specifically stated, is as joint owners. The east section line of the north half of the southeast quarter of Section 26 is the west section line of the north half of the southwest quarter of Section 25.

The portion of the 1956 decree involved in this proceeding is the following: 'IT IS THEREFORE BY THE COURT, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the dike as shown on plaintiffs' Exhibit No. 40 in this said action, constructed by the defendants George E. May and Rose M. May in the year 1949 upon the Southwest Quarter of Section 25, Township 2 North, Range 2 East, Jefferson County, Nebraska, lies in its entirety in and obstructs the natural flood channel of the Little Blue River, and said defendants, and each of them, be and they hereby are permanently enjoined from maintaining said dike and that within five (5) months from this date the said defendants shall cause said dike to be removed from their land, in its entirety, or, in the alternative and within the said time said defendants shall cause to be removed all of said dike from a point in said dike opposite the point where the watercourses from the south merge and join together near said dike, as shown on plaintiffs' Exhibit No. 40, on to the north and east of said point, the latter alternative to be available to the defendants only on the condition that the defendants shall, within the said time, construct, and thereafter maintain (CBE) on their own land a ditch or drain from the point of merger of the watercourses above referred to on to the Little Blue River sufficient to carry the water from the flow of said watercourses into said river.

'IT IS FURTHER BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that when said dike is removed pursuant to this decree the land shall be restored as nearly as possible to its natural elevation and contour as it was before the construction of said dike with the exception of the area of the ditch or drain to be constructed in the event that the defendants elect to remove only a part of said dike as provided in the alternative set forth; that in the event the defendants elect to remove only a part of said dike as provided in the alternative set forth, and to construct the ditch or drain then required to be constructed, the waste dirt, if any, resulting from the construction of said ditch or drain shall not be piled so as to raise a mound or ridge more than two (2) feet above the natural level of the ground immediately adjacent to said mound or ridge.'

May accepted the alternative provided in the 1956 decree, and employed consulting engineers to stake out the land to comply with the court's order. He then employed a contractor who did the work suggested by the consulting engineers within the 5-month limitation. This construction work was done with a bulldozer with a 10-inch blade. The contractor started the removal of the dike at the point immediately east of the southeast corner of the Kasparek land. The dike was lowered by pushing the dirt to either side of the blade In October 1956, a survey, made at the request of May, disclosed that a fence which supposedly separated the north half of the southeast quarter, owned by Kasparek, and the north half of the southwest quarter, owned by May, was approximately 55 feet east of the section line at the southeast corner of the Kasparek property, and curved to the northeast so that it varied in distance east of the section line from 55 feet at the southeast corner to 310 feet at the river bank due east of the northeast corner. These distances are indicated on exhibit 107, an exhibit prepared by Kasparek's surveyor. The drainage ditch provided for in the alternative was constructed through a portion of this area.

Kasparek claims the ownership of the land in the north half of the southwest quarter of Section 25 west of the fence line as it existed at the time of the 1956 decree by adverse possession. We make no determination on this point. If Kasparek has such claim, it is by virtue of acts which ripened after the filing of the original action. There is no question the drainage ditch was constructed in the southwest quarter of Section 25, Township 2 North, Range 2 East of the 6th P.M., in Jefferson County, Nebraska, and that May is the record title owner thereof. The question as to whether or not Kasparek has acquired any portion of this property by adverse possession is not properly triable in a civil contempt action. We are concerned herein only with compliance with the 1956 decree on the issues as they existed in the action which resulted in the 1956 decree. The ownership of this land was not and could not have been an issue involved in the 1956 decree.

The following general principles of law governing contempt proceedings are applicable herein: 'Where a party to an action fails to obey an order of the court, made for the benefit of the opposing party, the rule is well recognized that such act is, ordinarily, a civil contempt.' McFarland v. State, 165 Neb. 487, 86 N.W.2d 182.

'Contempts instituted to preserve and enforce the rights of private parties to a suit and compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them entitled, are civil contempts which may be prosecuted in the original action by the affidavit of any party therein who is injuriously affected.' Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274.

'A civil contempt has for its purpose the preservation and enforcement of the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce private rights to which the court has found them to be entitled. Such a contempt is remedial and coercive in its nature, and affects the parties whose private rights and remedies are involved.' McFarland v. State, supra.

'Proceedings in contempt are governed by the rules applicable to prosecutions by indictment, are in their nature criminal, and no intendments will be indulged in to sustain a conviction. It is necessary to establish guilt beyond a reasonable doubt.' Whipple v. Nelson, 138 Neb. 514, 293 N.W. 382.

Has May complied with the alternative provided in the 1956 decree? This alternative required the removal of the dike from a point opposite the place where the two watercourses from the south merged. In this proceeding, May testified that this point is at the southeast corner of the Kasparek land. It was at the southeast corner that the removal of the dike was started. Kasparek testified the point of merger is 150 to 200 feet south of the southeast corner. We call attention to...