Lindgren v. City of Gering, s. 42887

• Decision Date: 03 June 1980
• Docket Number: 42892,Nos. 42887,s. 42887
• Citation: 292 N.W.2d 921,206 Neb. 360
• Parties: William E. LINDGREN and Donna Lindgren, husband and wife, Appellees, v. CITY OF GERING, Nebraska, a Municipal Corporation, and Gering IrrigationDistrict, Appellants.
• Court: Nebraska Supreme Court

Page 921

292 N.W.2d 921

206 Neb. 360

William E. LINDGREN and Donna Lindgren, husband and wife, Appellees, v. CITY OF GERING, Nebraska, a Municipal Corporation, and Gering IrrigationDistrict, Appellants.

Nos. 42887, 42892.

Supreme Court of Nebraska.

June 3, 1980.

Syllabus by the Court

1. Political Subdivisions: Tort Claims Act: Appeal and Error. In an appeal to the Supreme Court of an action brought under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 to 16 and 2418 to 20 (Reissue 1977) and 2417 (Cum.Supp.1978) the finding of the trial court will not be disturbed unless it is clearly wrong.

2. Evidence: Judgments: Appeal and Error. In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in that party's favor and that party is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

3. Strict Liability: Irrigation Districts. An irrigation district is liable for seepage damage under Neb.Const. art. I, § 21, without regard to negligence.

4. Negligence: Irrigation Systems. The owner of an irrigation ditch or canal is required to exercise ordinary care in the construction, maintenance, and operation thereof. Otherwise stated, the measure of care which an owner is bound to use is that which ordinarily prudent people exercise under like circumstances when the risk is their own, or such as a prudent person, with due regard for the rights of others, and the risk of the undertaking, would exercise in conveying through an artificial channel a substance, such as water, that possesses detrimental and destructive, as well as beneficial and productive qualities, unless properly restrained. If the requisite degree of care is not exercised, the proprietor may be held liable for all damage proximately resulting from the wrongful act or omission.

5. Negligence: Joint Tortfeasors. Where the negligence of two or more persons concurs producing a single indivisible injury, such persons are jointly and severally liable, although there was no common duty, common design, or concerted action.

6. Negligence: Joint Tortfeasors: Proximate Cause. If the negligence charged does nothing more than furnish a condition by which the injury is made possible, and if an injury is caused by the subsequent independent act of a third person made possible by such condition, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.

7. Evidence: Appeal and Error. A party may not properly assign as error on appeal the admission of evidence if no objection or motion to strike was made at trial.

8. Judgments: Findings of Fact. Under the provisions of Neb.Rev.Stat. § 25-1127 (Reissue 1975), the court is not obligated to answer specific interrogatories propounded to the court by a litigant, but is merely required, when requested, to make such specific findings of fact as the trial court concludes are appropriate and necessary to resolve the action.

James W. Ellison, James M. Mathis, and Alan D. Carlson of Holtorf, Hansen, Kovarik, & Nuttleman, P. C., Gering, for appellant City of Gering.

Jim Zimmerman of Atkins, Ferguson, Hahn, Zimmerman, & Carney, Scottsbluff, for appellant Gering Irrigation District.

James R. Hancock and Richard S. Kleager of Hancock Law Offices, Scottsbluff, for appellees.

Heard before KRIVOSHA, C. J., BRODKEY, WHITE, and HASTINGS, JJ., and CAPORALE, District Judge.

KRIVOSHA, Chief Justice.

The appellants, the City of Gering, Nebraska, a municipal corporation, and Gering Irrigation District, each have appealed from an order of the District Court for Scotts Bluff County, Nebraska, entered after a trial to the court, finding the City and the District jointly and severally liable to William E. Lindgren and Donna Lindgren in the amount of $3,481 under the provisions of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 to 16 and 2418 to 20 (Reissue 1977) and 2417 (Cum.Supp.1978). Each appellant has individually appealed maintaining that, if there is any liability, it is the liability of the other. In addition, each appellant maintains that the Lindgrens were contributorily negligent and are, therefore, precluded as a matter of law from recovering. Further, each of the appellants maintains that the evidence concerning damages was insufficient to permit the court to make an award and, finally, that the trial court erred in refusing to answer some 22 questions put to it by the District, presumably pursuant to the provisions of Neb.Rev.Stat. § 25-1127 (Reissue 1975). For the reasons more particularly set out in this opinion, we believe that the trial court was correct in all respects and that the judgment should be affirmed.

The evidence, as disclosed by the record, was sufficient for the court to find the following: That the Lindgrens own a residence on a lot which lies approximately 200 feet east of the District's canal which runs north and south alongside a row of houses paralleling 21st Street in Gering, Nebraska. The District's canal is approximately 16 feet wide. The east bank has a service road on it approximately 15 feet wide. The interior of the canal is 8 feet deep from the top of the service road to its bottom. The level of water in the canal is usually from 3 to 31/2 feet below the top or surface of the road except after heavy rains. The service road lies about 4 feet above the surface of the land to the rear of the Lindgrens' house.

On August 1, 1976, an employee of the District, while "riding the ditch," observed a whirlpool in the water in the canal immediately behind the Lindgren house, which he felt indicated a break in the bank. He returned to the District shop and obtained a backhoe for the purpose of repairing the bank. He then returned to the canal with the backhoe. While making the repair, he found a pipe which was approximately 1 to 11/4 inches in diameter and about 20 feet long, buried in the road next to the canal. He dug the pipe out, took dirt from the east side of the bank with the backhoe and dumped it where he had pulled the pipe out. He then drove across the fill to tamp it down. Experts called to testify stated that, in their opinion, the repair to the canal was improper. The evidence tends to bear this out because the following day, August 2, 1976, an employee of the City received a call at about 5:30 a. m. from a Gering resident, not the Lindgrens, complaining of water in the basement. Seeking out the source of this flooding, the employee eventually found the break in the District's ditch. He observed a 9-foot-wide break in the ditch bank at that point, with water pouring through it.

The water was washing out of the ditch and swirling around a manhole, located immediately east of the ditch, which stood above the terminus of the City's sewer line in that area. Extending out from this buried terminus in different directions were three short "stub-outs," extension points built on to provide for future expansion of the system but which were supposed to have been temporarily plugged and watertight.

The water from the ditch had filled all of the sewer lines and manholes from 21st Street to 10th Street and had backed up into many homes through the sewer lines. The sewer lines and the manholes were owned and maintained by the City.

Later, the employee saw water running into the manhole area and going "straight down." He removed the manhole cover, looked down inside, and saw water running in from the west stub-out. It was the opinion of this employee, an expert witness, that the stub-out had not been properly covered and that, had it been properly covered, the water would not have found its way into the Lindgrens' basement.

After the breakout, the Lindgrens found in their basement 10 inches of water which came up through the sanitary sewer. There was also sand, mud, and raw sewage brought into the basement through the sewer. Mr. Lindgren itemized the various items that were damaged and gave his opinion as to their value. He concluded that the total amount of his damages was $3,481.

The court could further find from the evidence that, in the spring of 1971, Mr. Lindgren obtained permission from the then manager of the District to draw water for his garden out of the District canal by means of a pipe. Mr. Lindgren claimed that he obtained a pipe about 2 inches in diameter and from 16 to 18 feet long and laid the pipe across the top of the road and then, using 45-degree elbows on each end, ran one extension down into the water and another extension down on the other side to a buried plastic pipe which led to his garden. The length of pipe across the road was buried at a depth of about 4 inches but could be felt by anyone using the road. Any person driving along the ditch road, including a ditch rider employed by the District, could see the pipe since it stuck out 12 to 18 inches on either side of the road. Mr. Lindgren irrigated his garden that way during the summers of 1971, 1972, and 1973. In the summer of 1974, he became discouraged with the pipe system and used it only occasionally that year. He discontinued its use in 1975.

In the spring of 1973, the ditch company struck the pipe with its sloper machine, tearing it out and bending it. Mr. Lindgren was angry, since he felt he had had permission to keep it there, and several times went to the District office to complain to the manager but was unable to see him. He told the manager's secretary that, if the District wanted to clean the ditch, they should notify him prior to doing so and he would remove the pipe. In any event, the evidence would justify a finding that the District was aware that the pipe was there, as it was aware that others had also inserted pipes into the canal. A former manager testified that he tore one out for Mr. Lindgren either 2 years in a row or 3 years in a row...