Keystone Ranch Co. v. Central Nebraska Public Power and Irr. Dist., 88-408

• Decision Date: 08 February 1991
• Docket Number: No. 88-408,88-408
• Citation: 237 Neb. 188,465 N.W.2d 472
• Parties: KEYSTONE RANCH COMPANY, a Corporation, Appellee and Cross-Appellant, v. CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT, Appellant and Cross-Appellee, Nebraska Public Power District, Appellee and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 472

465 N.W.2d 472

237 Neb. 188

KEYSTONE RANCH COMPANY, a Corporation, Appellee and Cross-Appellant, v. CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT, Appellant and Cross-Appellee, Nebraska Public Power District, Appellee and Cross-Appellee.

No. 88-408.

Supreme Court of Nebraska.

Feb. 8, 1991.

Syllabus by the Court

1. Summary Judgment: Final Orders: Appeal and Error. An order overruling a motion for summary judgment is an interlocutory order, not a final order from which an appeal can be taken.

2. Summary Judgment. A trial court, in its discretion, may permit the renewal and resubmission of a motion for summary judgment which has previously been overruled.

3. Summary Judgment: Records: Appeal and Error. Affidavits, depositions, and other evidence considered at a hearing on a motion for summary judgment must be preserved in a bill of exceptions filed in

the court before an order on such a motion may be reviewed.

4. Judgments: Records: Presumptions: Evidence: Appeal and Error. In the absence of a record of the evidence considered by the court, it is presumed that the order of the trial court was supported by the evidence and was correct.

5. Judgments: Appeal and Error. In reviewing a judgment in a civil case, this court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, which is entitled to every reasonable inference deducible from the evidence.

6. Trial: Expert Witnesses. Triers of fact are not required to take the opinions of experts as binding upon them.

7. Actions: Damages: Prejudgment Interest. If the right to damages is a matter of reasonable litigation, and the amount to be recovered, if any, is unliquidated and must be fixed not by mere computation but by suit, interest may not be allowed for time precedent to the settlement of the right to a recovery and the ascertainment of the amount.

Michael C. Klein and Bruce A. Peterson, of Anderson, Klein, Peterson and Swan, Holdrege, for appellant and cross-appellee.

James E. Schneider, of Schneider & Griffin, P.C., North Platte, for appellee and cross-appellant Keystone Ranch.

Gary L. Scritsmier and Frankie J. Dawson, of Kelley, Scritsmier, Moore & Byrne, P.C., North Platte, for appellee and cross-appellee NPPD.

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

BOSLAUGH, Justice.

The plaintiff, Keystone Ranch Company, commenced this action in the winter of 1978 for damage to its land, pursuant to article I, § 21, of the Nebraska Constitution. The defendants are the Central Nebraska Public Power and Irrigation District (hereinafter Central District) and Nebraska Public Power District (hereinafter NPPD).

The plaintiff is the owner of 251 acres of accretion land located along the south bank of the North Platte River, in Keith County, Nebraska, approximately 4 miles east of Kingsley Dam in Keith County.

In 1937, the Central District constructed and presently operates Kingsley Dam and Lake C.W. McConaughy, and also operates Lake Ogallala, a small reservoir located immediately below Kingsley Dam. Lake McConaughy has approximately 2 million acre-feet of storage capacity. Its primary purpose is to store water for irrigation and hydroelectric power purposes.

The third amended petition, filed in 1982, alleged that the plaintiff had been damaged in the amount of $241,900 by the operation of Kingsley Dam by the Central District. The plaintiff contended that Kingsley Dam impeded the flow of the North Platte River and altered the silt-carrying capacity of the water as it was released from Kingsley Dam and Lake McConaughy reservoir, which was created by construction of the dam. The plaintiff further alleged that in 1971 and 1973, the Central District released excessive quantities of water from Kingsley Dam; that the excessive release of these waters degraded the North Platte River channel and caused the deepening of the riverbed adjacent to the accretion land by 8 to 10 feet; that the deepening of the North Platte River bed caused an 8- to 10-foot lowering of the adjacent water table under plaintiff's 251 acres of accretion land; that the lowering of the water table under plaintiff's accretion land deprived the trees and vegetation thereon of access to moisture and caused the trees and vegetation on the plaintiff's 251 acres of accretion land to die; and that by reason of the deepening of the riverbed, the lowering of the water table, and the death of the trees and vegetation, the value of the plaintiff's 251 acres of accretion land was diminished.

I. THE MOTIONS FOR SUMMARY JUDGMENT

Both defendants filed motions for summary judgment. On March 1, 1983, the district court sustained the Central District's motion for summary judgment. Thereafter, the plaintiff filed a motion for new trial, which was sustained by the district court on June 28, 1983, and the summary judgment in favor of the Central District was vacated. The Central District attempted to appeal the June 28, 1983, order of the district court, but this court dismissed that appeal on September 14, 1983. See Keystone Ranch Co. v. Nebraska Public Power & Irrigation District, 215 Neb. xxvi (case No. 83-568, Sept. 14, 1983). See, also, Otteman v. Interstate Fire & Cas. Co., Inc., 171 Neb. 148, 105 N.W.2d 583 (1960).

The motion for summary judgment filed by NPPD on November 1, 1984, was overruled on December 1, 1985. At the pretrial conference held on November 30, 1987, the trial court announced that, on its own motion, it was "reconsidering the Motion for Summary Judgment filed by the defendant, Nebraska Public Power District," which matter was taken under advisement. On December 7, 1987, the trial court reversed its previous ruling, sustained the motion of NPPD, and dismissed the action as to NPPD.

The Central District has assigned as its first assignment of error the ruling of the trial court on the plaintiff's motion for new trial, and the plaintiff has cross-appealed from the order sustaining the motion for summary judgment filed by NPPD.

The plaintiff argues that the trial court could not reverse its ruling on the motion filed by NPPD because the term of court had expired. An order overruling a motion for summary judgment is an interlocutory order, not a final order from which an appeal can be taken, so the contention that the trial court could not reconsider the motion of NPPD because the term had expired is without merit. See, Commerce Sav. Scottsbluff v. F.H. Schafer Elev., 231 Neb. 288, 436 N.W.2d 151 (1989); Krueger v. Zarley, 229 Neb. 203, 425 N.W.2d 893 (1988); Schmuecker Bros. Implement v. Sobotka, 217 Neb. 114, 348 N.W.2d 130 (1984); Bryant Heating v. United States Nat. Bank, 216 Neb. 107, 342 N.W.2d 191 (1983); Cockle v. Cockle, 215 Neb. 329, 339 N.W.2d 63 (1983); Pressey v. State, 173 Neb. 652, 114 N.W.2d 518 (1962); Otteman v. Interstate Fire & Cas. Co., Inc., supra; Rehn v. Bingaman, 157 Neb. 467, 59 N.W.2d 614 (1953).

The plaintiff argues that it was error for the trial court to reconsider the previous ruling on NPPD's motion. In Bringewatt v. Mueller, 201 Neb. 736, 272 N.W.2d 37 (1978), we held that a trial court, in its discretion, may permit the renewal and resubmission of a motion for summary judgment which has previously been overruled. In the Bringewatt case we said at 738, 272 N.W.2d at 38-39:

Plaintiff contends that it was error for the court to allow the renewal of motions without an additional showing of facts. The previous order overruling the motions was not a final order and was not appealable. Pressey v. State of Nebraska, 173 Neb. 652, 114 N.W.2d 518. The order was interlocutory and none of the issues considered and decided by the court at the hearing became res judicata. The trial court has discretion to determine whether and under what circumstances a motion may be renewed. No abuse of that discretion has been shown. The procedure followed by the court was proper and the assignment of error is overruled.

In this case the parties have failed to preserve and present a record which will permit a review of the order overruling the motion of the Central District or the order sustaining the motion of NPPD. Since there is no bill of exceptions concerning the evidence which may have been offered at the hearing on the motion for summary judgment or at the hearing on the motion for new trial, there is nothing to review, and this court cannot determine whether error occurred. Affidavits, depositions, and other evidence considered at a hearing on a motion for summary judgment must be preserved in a bill of exceptions filed in the court before an order on such a motion may be reviewed. Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959); Brown v. Shamberg, 190 Neb. 171, 206 N.W.2d 846 (1973).

In the absence of a record of the evidence considered by the court, it is presumed that the order of the trial court was supported by the evidence and was correct. Peterson v. George, supra. Consequently, the assignments of error relating to the motions for summary judgment are without merit.

After various delays, continuances, and motions by other parties, the case was finally tried to a jury against only the Central District on December 14 to 17, 1987. The jury returned a verdict of $12,550 for the plaintiff. Judgment was entered on the verdict, and the plaintiff was awarded interest on the judgment from June 1, 1975, the date the damage allegedly occurred. Motions for new trial were filed by the Central District and by the plaintiff and overruled by the district court on April 12, 1988.

II. SUFFICIENCY OF THE EVIDENCE

The Central District's second assignment of error alleges that the evidence was insufficient to support a finding that the operation of Kingsley Dam by the Central District caused the damage to the trees and vegetation on plaintiff's 251 acres of accretion land.

The Central District contends that it is not...