Omega Chemical Co., Inc. v. United Seeds, Inc.
| Decision Date | 28 March 1997 |
| Docket Number | No. S-94-822,S-94-822 |
| Citation | 252 Neb. 137,560 N.W.2d 820 |
| Parties | OMEGA CHEMICAL COMPANY, INC., Appellee and Cross-Appellant, v. UNITED SEEDS, INC., and Nebraska Seed Company, Appellants and Cross-Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Injunction: Equity. An action for injunction sounds in equity.
2. Equity: Appeal and Error. In an appeal from an equitable action, the reviewing court reviews the action de novo on the record and reaches a conclusion independent of the factual findings of the lower court, subject to the rule that where credible evidence is in conflict on material issues of fact, the reviewing court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.
3. Equity: Trial: Evidence: Appeal and Error. Erroneous admission of evidence in a bench trial in an equity case does not require reversal where other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings.
4. Actions: Equity: Nuisances. With respect to an action in equity, a legitimate business enterprise is not a nuisance per se, but it may become a nuisance in fact by reason of the conditions implicit in and unavoidably resulting from its operation or because of the manner of its operation.
5. Actions: Equity: Nuisances. With respect to a nuisance in the context of an action in equity, the invasion of or interference with another's private use and enjoyment of land need only be substantial.
6. Claims: Nuisances. The exercise of due care is not a defense to a claim based on nuisance.
7. Injunction. An injunction is an extraordinary remedy and ordinarily should not be granted except in a clear case where there is actual and substantial injury. Such a remedy should not be granted unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.
8. Property: Improvements: Damages. Where an improvement upon realty is damaged without damage to the realty itself and where the nature of the thing damaged is such that it is capable of being repaired or restored and the cost of doing so is capable of reasonable ascertainment, the measure of damages for its negligent damage is the reasonable cost of repairing or restoring the property in like kind and quality.
Eugene P. Welch and Francie C. Riedmann, of Gross & Welch, P.C., Omaha, for appellant United Seeds.
Duane M. Katz, Omaha, for appellee.
Appellee Omega Chemical Company, Inc. (Omega), in its amended petition in equity, complains that appellants United Seeds, Inc., and Nebraska Seed Company (both hereinafter United Seeds), constructed a large grain bin on its own property in such close proximity to Omega's already existing structure that it constituted a nuisance. Omega prayed for the removal of the grain bin and an award of general damages. Following a 5-day bench trial, the district court agreed with Omega and ordered United Seeds to completely remove its grain bin and assessed damages against United Seeds in the sum of $13,000. For the reasons that follow, we affirm the judgment of the district court.
Omega and United Seeds own and operate businesses on separate properties which share a common boundary. A metal building on a block foundation was located on Omega's property at all times relevant to the instant case. Omega's building sits parallel to and slightly over the common property line between these corporate neighbors.
At one time, two Quonset huts sat on United Seeds' property directly adjacent to the Omega building. In the fall of 1986, United Seeds decided to remove the Quonset huts and prepare the site for construction of a large grain bin. United Seeds hired an excavation contractor to remove the Quonset huts, level and prepare the site for construction, and dig the footing and foundation for the grain bin. In addition, United Seeds hired a soil testing laboratory to conduct a subsurface investigation and determine whether the soil structure was sufficient to support the load of a large grain bin. Pursuant to the testing laboratory's report, soil was removed from under the foundation excavation for the grain bin and replaced with soil capable of bearing the projected load.
United Seeds obtained the requisite building permits from the city of Ralston; however, it is unclear from the record what, if any, plans city officials reviewed prior to issuing the permits. The decision concerning precisely where to locate the grain bin on United Seeds' property was made by United Seeds' president, Richard Berry, and vice president, John Jones. The location ultimately selected caused the grain bin to be constructed less than 4 feet from the east wall of Omega's already existing building.
United Seeds hired a structural engineer, Eldon Schroder, to design the footing and foundation for the grain bin. Schroder was experienced in foundation design for grain bins. The record indicates that United Seeds did not supply Schroder with sufficient information concerning the site so as to allow Schroder to account for all relevant design considerations. Specifically, Schroder was unaware that Omega's building was located either on the property line or slightly encroaching onto United Seeds' property. However, Schroder was aware that United Seeds wanted the grain bin located as close as possible to its common property line with Omega. Schroder's foundation design included a footing flange that extended 4 feet beyond the circumference of the foundation which directly supported the grain bin. Thus, the closest Schroder could place the grain bin to the property line was 4 feet.
United Seeds hired Dale Wall of Wall Construction to construct the grain bin. Wall stated that placement of the grain bin was the decision of either Berry or Jones. Wall acknowledged that the foundation excavation directly supporting the grain bin was less than 4 feet from Omega's building; thus, the footing flange in the area of Omega's building was less than 4 feet wide, as required by the design specifications. Wall testified that the footing or wall of Omega's building and the grain bin footing flange were only 1 1/2 inches apart.
Construction of the grain bin was completed in December 1986. Berry testified that United Seeds began using the bin immediately upon completion. It took 6 weeks to fill the grain bin to capacity, and it remained full for the next 18 months. United Seeds emptied the bin in 1988 and has not used it since then for grain storage.
Omega's president, Alan Doub, testified that from 1985 until 1988, Omega leased its building adjacent to United Seeds to other businesses. It was not until Omega took over occupancy of the building, nearly 3 years after the construction of the grain bin, that Doub became concerned about the appearance of cracks in the east wall and basement floor of his building. In addition, Doub testified that he had no knowledge of United Seeds' plan to erect a grain bin until after the grain bin was constructed. Doub admitted that his building was in poor repair notwithstanding any damage allegedly caused by the grain bin.
The testimony of each party's expert witnesses was a focal point of the trial and will be discussed in conjunction with our analysis.
In its findings of fact and conclusions of law, the trial court found that United Seeds had constructed its grain bin in such close proximity to Omega's building that the grain bin's foundation was within inches of Omega's building's foundation.
The court determined that both Berry and Jones knew United Seeds' grain bin was to be constructed in close proximity to Omega's building and found United Seeds to be "negligent in allowing and/or authorizing the construction of the subject grain bin." The court further determined that the grain bin presented a fire or explosion hazard constituting an unreasonable risk to Omega.
The court issued its findings in letter form and provided United Seeds a choice of remedies. It could either pay $84,763 in damages and not remove its grain bin, or remove the grain bin and pay $13,000 in damages. When United Seeds failed to elect a remedy, the court granted the injunctive relief prayed for and ordered United Seeds to completely remove the grain bin, as well as to pay Omega $13,000 in damages plus court costs.
An action for injunction sounds in equity. Sid Dillon Chevrolet v. Sullivan, 251 Neb. 722, 559 N.W.2d 740 (1997); Latenser v. Intercessors of the Lamb, Inc., 250 Neb. 789, 553 N.W.2d 458 (1996). In an appeal from an equitable action, the reviewing court reviews the action de novo on the record and reaches a conclusion independent of the factual findings of the lower court, subject to the rule that where credible evidence is in conflict on material issues of fact, the reviewing court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. Sid Dillon Chevrolet v. Sullivan, supra; Engelhaupt v. Village of Butte, 248 Neb. 827, 539 N.W.2d 430 (1995).
Restated and summarized, United Seeds asserts that the district court erred in finding it was liable for the creation or continuance of a nuisance by (1) allowing evidence of building codes other than the particular code in effect at the time of construction, (2) finding that the construction of a grain bin placed Omega's building in a hazard zone, and (3) finding that grain storage presents an unreasonable risk of fire or explosion to Omega. In addition, United Seeds contends that the district court erred by granting Omega injunctive relief and in its application of the measure of damages.
Omega cross-appeals the...
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