Nu-Dwarf Farms, Inc. v. Stratbucker Farms, Ltd.

• Decision Date: 14 June 1991
• Docket Number: No. 89-369,NU-DWARF,89-369
• Citation: 238 Neb. 395,470 N.W.2d 772
• Court: Nebraska Supreme Court
• Parties: FARMS, INC., a Nebraska Corporation, Appellant, v. STRATBUCKER FARMS, LTD., a Nebraska Limited Partnership, et al., Appellees.

Page 772

470 N.W.2d 772

238 Neb. 395

NU-DWARF FARMS, INC., a Nebraska Corporation, Appellant, v. STRATBUCKER FARMS, LTD., a Nebraska Limited Partnership, et al., Appellees.

No. 89-369.

Supreme Court of Nebraska.

June 14, 1991.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record show that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from any material fact and that the movant is, as a matter of law, entitled to judgment.

2. Summary Judgment: Appeal and Error. When reviewing a motion for summary judgment, the Nebraska Supreme Court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from that evidence.

3. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment is not a final order and thus is not appealable, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions and may determine the controversy which is the subject of those motions, making an order specifying the facts which appear without substantial controversy and directing such further proceedings as it deems just.

4. Waters. A lower proprietor may defend his or her land against diffused surface waters, so long as that defense does not negligently or unnecessarily injure another, while an upper proprietor has a right to drain surface waters through a natural drainageway, and the flow of that drainageway cannot be arrested or interfered with to the injury of neighboring proprietors.

5. Waters: Words and Phrases. Diffused surface waters are waters which appear upon the surface of the ground in a diffused state, with no permanent source of supply or regular course, which ordinarily result from rainfall or melting snow.

6. Waters: Words and Phrases. A natural drainageway is formed when diffused surface waters are channeled into a well-defined natural course, whether the course be ditch, swale, or draw in its primitive condition.

7. Waters. Unlike a statutory watercourse, a natural drainageway need not be at least 2 feet below the surrounding land.

8. Waters. A landowner is the owner of surface waters which fall, rise, or flow upon the land, and the landowner may retain them for his or her own use without liability. The landowner may also change their course on his or her own land by ditch or embankment, but may not divert them upon the lands of others except in depressions, draws, swales, or other drainageways through which such waters were wont to flow in a state of nature.

9. Real Estate: Vendor and Vendee: Easements: Notice. One who purchases land burdened by an open and visible easement is ordinarily charged with notice that he or she is purchasing a servient estate.

10. Real Estate: Vendor and Vendee: Easements: Notice. A person takes land subject to an easement where that person purchases the land with knowledge or with actual, constructive, or implied notice that the land is burdened with an easement.

11. Waters: Easements. When a landowner substitutes a permanent artificial drainageway crossing his or her own land for a natural one obstructed by that landowner, the landowner impresses the artificial drainageway with a servitude in favor of the land drained thereby, and the upper proprietor (that is, the owner of the land drained) may enforce this servitude against the substituting landowner and its successors in interest; the mere fact that the land through which the easement runs is later subdivided does not destroy the easement.

Thomas C. Huston and Mark A. Christensen, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellant.

Michael S. Mostek, of McGill, Parsonage & Lanphier, P.C., Omaha, for appellees.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Appellant, Nu-Dwarf Farms, Inc., commenced this action seeking a mandatory permanent injunction requiring appellees, Stratbucker Farms, Ltd., Herman Stratbucker, and Stratbucker Farms of Nebraska, Inc. (hereinafter collectively referred to as Stratbuckers), to unblock an artificial drainage ditch which transversed a portion of Stratbuckers' land. Nu-Dwarf claims it is entitled to relief under the theory that by blocking the drainage ditch, Stratbuckers unlawfully obstructed a watercourse, and under the additional theory that Stratbuckers' conduct unreasonably interfered with Nu-Dwarf's use and enjoyment of its property. The district court granted the Stratbuckers' motion for summary judgment and overruled Nu-Dwarf's motion for such judgment. Nu-Dwarf asserts, in summary, that the district court (1) erred in concluding that the law affords the drainage ditch no protection from obstruction and that there could thus be no question of fact as to Nu-Dwarf's enjoyable use of its own property and (2) erred in overruling Nu-Dwarf's motion. We reverse and remand with direction.

Before proceeding to a recitation of the relevant facts and analysis of the applicable substantive law, we recall that our review is controlled by the rule that summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record show that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from any material fact and that the movant is, as a matter of law, entitled to judgment. Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d 125 (1991); Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124 (1991). Moreover, when reviewing a motion for summary judgment, the Supreme Court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from that evidence. Millard v. Hyplains Dressed Beef, supra. Additionally, although the denial of a motion for summary judgment is not a final order and thus is not appealable, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions and may determine the controversy which is the subject of those motions, making an order specifying the facts which appear without substantial controversy and directing such further proceedings as it deems just. Licht v. Association Servs., Inc., 236 Neb. 616, 463 N.W.2d 566 (1990).

With those rules in mind, we turn our attention to the facts. The parties own adjacent farmland in Washington County, Nebraska, just south of the DeSoto National Wildlife Refuge. Nu-Dwarf owns the west half of the northwest quarter and Tax Lots 15 and 18 of Section 35, Township 18 North, Range 12 East of the 6th P.M. Tax Lot 18 comprises all but the extreme southwest corner of the northwest quarter of the southwest quarter of Section 35, and Tax Lot 15 is essentially the northern half of the southeast quarter of the northwest quarter of Section 35. Nu-Dwarf's petition alleges that Stratbucker Farms, Ltd., is the record owner of Tax Lot 23, property abutting that of Nu-Dwarf on the south and east, and that the true owner is Stratbucker Farms of Nebraska, Inc., by virtue of unrecorded deeds.

U.S. Highway 75 crosses the southwest quarter of Section 35, running from the northwest to the southeast. There is a railroad right-of-way along the northeastern edge of the highway. That portion of the right-of-way which is within Section 35 is referred to as Tax Lot 25. Nu-Dwarf's petition asserts that Herman Stratbucker claims an interest in Tax Lot 25 but that, by virtue of another unrecorded deed, the true owner is Stratbucker Farms of Nebraska, Inc. George Stratbucker, one of the shareholders of Stratbucker Farms of Nebraska, Inc., and a limited partner in Stratbucker Farms, Ltd., stated that Stratbucker Truck Farms, Ltd., is the owner of Tax Lot 25. It appears that Stratbucker Truck Farms, Ltd., and Stratbucker Farms, Ltd., may be the same entity, which is also referred to in the depositions as "Stratbucker Truck" and perhaps "Stratbucker Farms" as well. In their answer, Stratbuckers allege that Herman Stratbucker is the record owner of Tax Lot 25 and that an unrecorded deed exists naming Stratbucker Farms of Nebraska, Inc., as grantee of Tax Lot 25.

The Nu-Dwarf property originally drained in a south-southwesterly direction into a swamp; it is not clear whether this drainage flowed along a well-defined natural course. It appears that the Chicago and North Western Transportation Company laid a rail line adjacent to the Nu-Dwarf property in the 1870's, obstructing the natural drainage. A ditch was dug along the railroad right-of-way, and this ditch carried the drainage from Nu-Dwarf in a southeasterly direction, the drainage eventually making its way into the nearby Missouri River. This railway ditch is parallel to the railroad and highway and extends to the northwest beyond Section 34. The ditch was extant in 1933 and may date to the building of the railroad.

In the early 1940's, the ditch was deepened by the then owner of the Nu-Dwarf property, apparently with the railroad paying the costs. At that same time, two ditches were constructed on the Nu-Dwarf property, emptying into the railway ditch. Nu-Dwarf's president stated that he performs maintenance on the railway ditch once each year.

The railroad was abandoned in the early 1980's, and the portion of the right-of-way referred to as Tax Lot 25 made its way into the hands of Stratbuckers. In June 1987, Stratbuckers filled a large section of the ditch within this lot, and water no longer passes through. The unfilled portion of the ditch is several feet deep, and the filled portion is alleged to be as much as 6 feet in depth. George Stratbucker stated that...