Peters v. Langrehr

Decision Date19 May 1972
Docket NumberNo. 38280,38280
Citation197 N.W.2d 698,188 Neb. 480
PartiesWalter PETERS, Appellee, v. Harvey LANGREHR and Alice Langrehr, Appellants.
CourtNebraska Supreme Court

Syllabus by the Court

1. Waters which may be discharged into a natural depression, or draw, or watercourse without liability under the provisions of section 31--201, R.R.S.1943, do not include waste irrigation waters in quantities which are injurious to neighboring land.

2. Injunctive relief is a discretionary remedy dependent upon the circumstances of the case.

3. An easement for the discharge of waste irrigation waters into a natural depression, draw, or watercourse flowing through the land of another cannot be acquired until it has been freely exercised without material change under a claim of right for the full period of 10 years.

Cunningham & Blackburn, William G. Blackburn, Grand Island, for appellants.

Mayer & Mayer, Arthur C. Mayer, Grand Island, for appellee.

Heard before WHITE, C.J., BOSLAUGH, McCOWN, and CLINTON, JJ., and COLWELL, District Judge.

CLINTON, Justice.

This is an action to permanently enjoin the defendants from discharging upon the land of the plaintiff waste irrigation waters. Defendants denied generally, but they also pled the statute of limitations, section 25--502, R.R.S.1943, apparently claiming a prescriptive right to make the discharge, and also pled laches. After trial the court entered an order in which the defendants were 'permanently enjoined from permitting excess irrigation water from defendants' irrigation system from running upon any portion of the plaintiff's premises.' We modify the decree and remand the cause to the district court with directions.

The principal issues for decision on this appeal are: (1) The extent of the right, if any, of a landowner to discharge waste irrigation water into a drainway on his own land and through the drainway to neighboring land; and (2) whether the evidence justified relief by injunction.

We, of course, consider the matter de novo here. In so doing, however, where the evidence is in irreconcilable conflict we consider the fact that the trial court saw and heard the witnesses and must have accepted one version of the facts rather than the other. Town of Everett, Burt County v. Teigeler, 162 Neb. 769, 77 N.W.2d 467.

The defendants are the owners of the east half of the northwest quarter, and the southwest quarter of the northwest quarter of Section 26, Township 13 North, Range 9 West of the 6th P.M., in Howard County, Nebraska. The plaintiff owns most of the rest of Section 26 and his land abuts the entire boundary of the defendants' land on the south and east. Part of the southeast quarter of Section 26, owned by the plaintiff, is pastureland and it is the alleged ponding of waste irrigation waters at the outlet of a drain in this pastureland which gives rise to this litigation. The drain, ditch, or natural depression in the state of nature begins in the northwest quarter of Section 27, west of the defendants' tract, meanders easterly and southerly over the defendants' land, and enters the plaintiff's land on the northern boundary of the southwest quarter of Section 26. At that point, by reason of the improvements and changes made by the plaintiff, it flows straight south for a distance, then turns at a right angle to the east, passes through two culverts in the farmstead road, and empties into the pasture in question. Before the changes were made by the plaintiff 8 or 9 years before trial, the last portion of the drain, instead of turning at a right angle and going straight east, meandered southeasterly, passed under the farmstead road at a point further south through another culvert, and joined a meandering continuation of the drain which then ran northeasterly across the plaintiff's pasture where it joined a larger drain on adjacent land to the east.

We find that the drainway or depression in its natural state does not qualify as a watercourse as defined in section 31--202, R.R.S.1943, but does qualify as a natural depression or draw under the provisions of section 31--201, R.R.S.1943, and it appears that it does ultimately pass into a watercourse known as Prairie Creek and thence into the Platte River. It is such a natural depression or draw as would entitle the defendants to have surface waters empty from their land. See, Bussell v. McClellan, 155 Neb. 875, 880, 54 N.W.2d 81; Town of Everett, Burt County v. Teigeler, Supra, 162 Neb. at p. 776, 77 N.W.2d 467. One of the questions which we must answer here is whether the discharge of excess irrigation water into the drainway comes within the right when the water discharges on the plaintiff's land and ponds there.

The evidence justifies the following findings: The defendants drilled their first irrigation well in 1949 and used it until 1955 when they replaced it with another. During that period there was some discharge of waste irrigation water by defendants into the drain and onto the plaintiff's land, but there is nothing to justify any finding as to the quantity passing onto the plaintiff's land, or the frequency, or the effect thereof. It does appear, however, that such discharge would be into the draw in its natural state rather than ending in the pasture where it now does by reason of the change in direction of the drain made by the plaintiff 8 or 9 years before trial. In 1955 the defendants drilled and began to use a third irrigation well. Excess irrigation waters, from what are designated in the record as fields 2, 3, and 4, all run into the drainway on the defendants' land. The defendant Harvey Langrehr testified that this occurred every year from 1955 on and that the excess water went onto the plaintiff's land, but again there is nothing to justify any finding as to the frequency, quantity, or effect. In 1968 the defendant made some changes in his fields and in his irrigation methods. He straightened the natural drain where it passes through field 2 and placed the drain along the north edge of the field. He leveled a portion of this field, including the former site of the drainway, and began thereafter to irrigate by gravity irrigation the portion of field 2 which he had formerly watered by a sprinkler system. The evidence justifies a finding that these changes increased the quantity of waste irrigation water discharged into the drain.

The evidence justifies the finding that in the years 1969 and 1970 excess irrigation waters from fields 2, 3, and 4 passed into the drainway and onto the plaintiff's pastureland in quantities greater than ever before, resulting in the ponding of waters in the pastureland to the extent of an area of about 2 acres and up to a foot in depth; because his cattle stood in this water they developed a foot disease; and therefore he removed the cattle from the pasture for about 6 weeks in each of the years 1969 and...

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6 cases
  • Young v. Lacy, 84-705
    • United States
    • Nebraska Supreme Court
    • December 20, 1985
    ...the suit to quiet title. Injunctive relief is a discretionary remedy dependent upon the circumstances of the case. Peters v. Langrehr, 188 Neb. 480, 197 N.W.2d 698 (1972). Injunction will not lie unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to pr......
  • Jameson v. Nelson
    • United States
    • Nebraska Supreme Court
    • April 16, 1982
    ...or evidence is in irreconcilable conflict, take into consideration that the trial court observed the witnesses. Peters v. Langrehr, 188 Neb. 480, 197 N.W.2d 698 (1972). We also take into consideration the fact that the trial court did view the premises, and we will give appropriate weight t......
  • Barry v. Wittmersehouse, 81-576
    • United States
    • Nebraska Supreme Court
    • December 3, 1982
    ...consideration that the trial court observed the witnesses. Jameson v. Nelson, 211 Neb. 259, 318 N.W.2d 259 (1982); Peters v. Langrehr, 188 Neb. 480, 197 N.W.2d 698 (1972). We also take into consideration the fact that the trial court did view the premises, and we will give appropriate weigh......
  • Bittersweet Farms, Inc. v. Zimbelman, 97CA0339
    • United States
    • Colorado Court of Appeals
    • July 23, 1998
    ...199 Cal.App.3d 318, 244 Cal.Rptr. 795 (1988); Cheesman v. Odermott, 113 Cal.App.2d 26, 247 P.2d 594 (1952); but see Peters v. Langrehr, 188 Neb. 480, 197 N.W.2d 698 (1972); and Loosli v. Heseman, 66 Idaho 469, 162 P.2d 393 (1945) (holding that upper landowner had no right to discharge surpl......
  • Request a trial to view additional results

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