Lambert v. Holmberg, S-04-1334.
| Citation | 712 N.W.2d 268,271 Neb. 443 |
| Decision Date | 21 April 2006 |
| Docket Number | No. S-04-1334.,S-04-1334. |
| Parties | C. Ronald LAMBERT and Charlotte K. Lambert, Appellants, and Sanitary and Improvement District No. 5, Appellee, v. James J. HOLMBERG and Mary Lou Holmberg, Appellees. |
| Court | Supreme Court of Nebraska |
James G. Egley, of Moyer, Moyer, Egley, Fullner & Montag, Madison, for appellants.
Kristopher J. Covi, Mark F. Enenbach, and Thomas O. Kelley, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for appellees James J. Holmberg and Mary Lou Holmberg.
This is an equitable action seeking injunctive relief for a repeated and continuous trespass involving a private sewerline. The district court for Platte County determined that James J. Holmberg and Mary Lou Holmberg committed an indirect trespass when they connected the sewerline from their home to a public sewer system which ultimately connected to a private sewerline owned by C. Ronald Lambert and Charlotte K. Lambert. The court determined, however, that the Lamberts were not entitled to injunctive relief because they failed to prove substantial damages. Although we determine on de novo review that a direct or traditional trespass occurred, we conclude that the Lamberts have an adequate remedy at law and are not entitled to injunctive relief.
The Holmbergs are the owners of a residence located in Columbus, Platte County, Nebraska. Sanitary Improvement District No. 5 (SID 5) is located to the east of the Holmberg residence, across 48th Avenue. In approximately 1973, the Lamberts developed the Hillside Estates subdivision, which is located south of SID 5 and southeast of the Holmberg residence. The Lamberts also own undeveloped property located to the south of Hillside Estates. When developing Hillside Estates, the Lamberts constructed roads and laid sewerlines in the subdivision.
In 1973, the Lamberts dedicated the Hillside Estates subdivision and 60th Street located therein. In the deed of dedication, the Lamberts specifically dedicated to the perpetual use and benefit of the public each of the strips set out and designated in the subdivision as public roads, and further granted perpetual easements as shown on the plat for the installation and maintenance of utilities to serve the owners of the subdivision lots. The dedication was accepted by Platte County and the city of Columbus. Neither the deed of dedication nor the resolutions of acceptance provided the Lamberts any exclusive rights to the sewers or other utilities and roads dedicated to the use and benefit of the public.
A sanitary sewerline located beneath the dedicated streets of the Hillside Estates subdivision crosses the southern boundary of the subdivision and then extends east across the undeveloped property owned by the Lamberts. The line running across this undeveloped Lambert property extends 1,872 feet before connecting with the sewerline maintained by the city of Columbus. This 1,872-foot section of "private" sewerline is the site of the alleged trespass.
In 1980, the Lamberts entered into a perpetual hookup agreement which authorized SID 5 to connect its system of sewers to the sewerline running across the Lamberts' private property for the purpose of conveying SID 5 sewage to the sewer main owned by the city. SID 5 paid the Lamberts $16,280 and agreed to be proportionately responsible for future maintenance of the Lamberts' sewerline. In 1987, the Lamberts entered into a similar perpetual hookup agreement with Sanitary Improvement District No. 9 (SID 9), which permitted that district to also run its sewage through the Lambert line prior to connecting with the sewer main owned by the city. SID 9 is located north of the Holmberg residence and northwest of SID 5. Under the agreement, SID 9 paid the Lamberts $16,000 and agreed to be proportionately responsible for future maintenance of the sewerline.
The Lamberts also developed an area directly north of SID 5 known as Country Shadows. In 1994, the Lamberts connected the Country Shadows sewer system to the SID 5 sewer system without first securing the permission of SID 5. As a result of negotiations, the Lamberts subsequently paid $14,070 for the right to connect the Country Shadows sewer system to that of SID 5.
In October 2000, the Holmbergs notified SID's 5 and 9 and the Lamberts of their desire to connect to an existing sewerline located beneath 48th Avenue, which lies to the east of the Holmberg residence and to the west of SID 5, Hillside Estates, and the undeveloped Lambert property. Sewage entering at this connection point would necessarily pass through the Lamberts' private sewerline prior to entering the city's sewage system. The Holmbergs expressed a willingness to pay fees similar to those paid by other homeowners in the area. The Lamberts refused to grant permission to use the private line.
In November 2000, the Holmbergs received a permit from the city of Columbus allowing them to connect to the city sewer system. The Holmbergs also acquired a permit from Platte County allowing them to construct their sewer hookup across 48th Avenue. The Holmbergs then hired a contractor and, at their own expense, connected to the existing sewerline located beneath 48th Avenue. The point of connection is beneath a public roadway and is not within the geographic boundaries of SID 5 or any property owned by the Lamberts. However, sewage entering at this connection point eventually and necessarily passes through the segment of private sewerline owned by the Lamberts before it reaches the city sewer system.
The Lamberts brought this action alleging that the Holmbergs' use of the Lamberts' private sewerline constitutes a repeated and continuous trespass entitling the Lamberts to injunctive relief. SID 5 later joined in the petition. After conducting an evidentiary hearing, the district court concluded that because the sewer connection was not on property owned by either the Lamberts or SID 5, there was no direct trespass committed. The court reasoned that the action was instead one for indirect trespass and refused relief after concluding that the Lamberts failed to prove they suffered substantial damages. The Lamberts filed this timely appeal, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state. See Neb. Rev.Stat. § 24-1106(3) (Reissue 1995). SID 5 has not joined in the appeal.
The Lamberts assign that the trial court erred in (1) finding that the Holmbergs' use of the Lamberts' sewerline is not a case of direct trespass, (2) adopting the doctrine of indirect trespass and requiring the Lamberts to prove substantial damages, (3) applying the doctrine of indirect trespass to a case which bears no relation to the line of cases out of which the doctrine arose, and (4) determining that the Lamberts did not prove substantial damages.
An action for injunction sounds in equity. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court. State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d 512 (2003).
The Lamberts assert that the district court erred in finding that an indirect trespass occurred. They argue that the action is instead based upon a direct or traditional trespass theory as defined by our case law and the Restatement (Second) of Torts § 157 et seq. (1965). To bring an action in trespass, the complaining party must have had title to or legal possession of the land when the acts complained of were committed. Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994). It is undisputed that the Lamberts have legal possession of the private sewerline. However, the district court concluded that the possession requirement was not established by the Lamberts in the instant case because the geographic point at which the Holmbergs connected to the sewer was not on the Lamberts' property and was instead beneath a public street. See Neb. Rev.Stat. § 39-1404 (Reissue 2004) (no private party may acquire interest in any part of city street).
The geographic point of connection is not outcome determinative because liability for trespass exists if an actor intentionally "enters land in the possession of [another], or causes a thing or a third person to do so." (Emphasis supplied.) Restatement, supra, § 158(a) at 277. The Holmbergs' connection to the sewerline beneath 48th Avenue clearly and necessarily causes sewage to enter and pass through the privately owned sewerline beneath the undeveloped Lambert property. Although the entry was not direct and immediate, it nevertheless amounted to a trespass because an "actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing either on or beneath the surface of the land." Restatement, supra, § 158, Comment on Clause (a)i. at 278. Further, Id. at 278-79.
Without expressly stating these principles, we have applied them in analogous situations. In Lackaff v. Bogue, 158 Neb. 174, 62 N.W.2d 889 (1954), the plaintiffs constructed ditches in order to divert water from two lakes. Although the ditches were constructed entirely on the plaintiffs' land, they caused the lake water to drain over the defendants' land. The trial court found a trespass had occurred and entered an injunction requiring the plaintiffs to fill the ditches,...
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