Rogers v. Petsch

• Decision Date: 09 November 1962
• Docket Number: No. 35193,35193
• Citation: 174 Neb. 313,117 N.W.2d 771
• Parties: Priscilla C. ROGERS, Appellee, v. Verl E. PETSCH, also known as Bus Petsch, Appellant, Lester M. Beck and Hattie M. Beck, Appellees.
• Court: Nebraska Supreme Court

Page 771

117 N.W.2d 771

174 Neb. 313

Priscilla C. ROGERS, Appellee, v. Verl E. PETSCH, also known as Bus Petsch, Appellant Lester M. Beck and Hattie M. Beck, Appellees.

No. 35193.

Supreme Court of Nebraska.

Nov. 9, 1962.

Syllabus by the Court

1. The owner of land upon which springs are located and from which waters

flow in a well-defined channel in the course of drainage through other lands does not have an exclusive right to control and use the waters to the injury of lower riparian owners or senior appropriators.

2. Waters flowing from springs which do not form a watercourse or lake are surface waters until they empty into and become part of a natural stream or lake.

3. The owner of land upon which surface waters arise may retain them for his own use and change their course upon his own land by a ditch or embankment.

Atkins, Ferguson & Nichols, Scottsbluff, for appellant.

Lovell & Raymond, Scottsbluff, for appellees.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BOSLAUGH, Justice.

This action was brought by Priscilla C. Rogers as plaintiff against Verl E. Petsch as defendant to enjoin interference with the natural flow of water from Nealy Springs and to require the defendant to remove certain structures on his land. By answer and cross-petition the defendant alleged that the flow of water from Nealy Springs did not exceed the volume necessary for his use for domestic purposes, and prayed that the plaintiff be enjoined from trespassing upon his property and interfering with his use of the water and that he recover damages.

The trial court found that the defendant was entitled to the use of the water from Nealy Springs for household purposes, the watering of his garden and lawn around the house, and the watering of all of his livestock; and that the maintenance of two dams or ponds and a lateral running east on the defendant's property was an unlawful interference with the flow of water from Nealy Springs. The trial court enjoined the use of the lateral and ordered the removal of the dams or ponds. The defendant's motion for new trial was overruled and he has appealed.

This being an action for equitable relief, we are required to try the issues of fact complained of de novo and reach an independent conclusion without reference to the findings of the district court. Section 25-1925, R.R.S.1943; Toelle v. Preuss, 172 Neb. 239, 109 N.W.2d 293.

The property involved in this action is all located within Section 11, Township 23 North, Range 58 West of the 6th P. M., in Scotts Bluff County, Nebraska. The defendant is the owner of that part of the east half of the southwest quarter of Section 11 which lies north of the right-of-way of the Chicago, Burlington & Quincy Railroad Company, except that part owned by the State of Nebraska and the right-of-way in favor of the State of Nebraska for highway purposes. The plaintiff is the owner of that part of Section 11 which lies between the north or left bank of the North Platte River and the south line of the right-of-way of the Tri-State (Farmers Irrigation District) Canal.

The north boundary of the plaintiff's land is the south line of the Tri-State Canal right-of-way. The railroad right-of-way is directly north of the canal right-of-way. Before 1956 the south boundary of the defendant's property was the north line of the railroad right-of-way. At that time U. S. Highway No. 26 ran parallel to and directly north of the railroad. In 1956 the defendant conveyed a strip of land across his property to the State of Nebraska for highway purposes. Part of the land conveyed had been previously occupied as the highway. As now constructed, U. S. Highway No. 26 curves to the north so that the south line of the highway right-of-way at the west line of the defendant's property is approximately 500 feet north of the north line of the railroad right-of-way. The effect of the 1956 conveyance by the defendant to the state was to sever a triangular tract lying between the railroad right-of-way and the highway right-of-way from the remainder of his property which is north of the highway right-of-way.

The defendant obtained title to his property in 1950 by conveyance from Leonard LaVerne Nealy and Mabel Nealy. The northern part of the defendant's property consists of level terrace farmland. The terrace is a rough bench of Brule clay which is a tight, impervious formation that does not hold or transfer water in large quantities. The Brule clay is covered by a layer of sand and gravel and then a layer of soil. Near the south end of the defendant's property the terrace is eroded. The soil there contains sand and gravel and is of a more porous nature. Nealy Springs flows out of a gully at an elevation 25 or 30 feet below that of the level terrace farmland. The source of the water flowing from Nealy Springs is return flow from irrigation and natural precipitation.

A concrete dam constructed across the gully impounds water flowing from the springs until it rises sufficiently to flow through a trough near the top of the dam. The trough is a section of round steel pipe 1.69 feet in diameter that has been split lengthwise. There was evidence that the water flowing through the trough was .21 feet deep at the deepest part and the volume of water flowing through the trough was from .059 to .092 cubic feet of water per second. Water flowing through the trough then flows into a pond described as the north pond.

The north pond is approximately one-fifth of an acre in area and from 5 to 8 feet deep. Water can be released from the north pond to the east through a spillway into a lateral which is from 700 to 800 feet long. The first 350 to 400 feet of the lateral is lined with concrete. Water flowing through the lateral eventually flows into a basin near the southeast corner of the defendant's property.

There is a second pond upon the defendant's property described as the south pond. The south pond is approximately one-fourth of an acre in area and is located south and west of the north pond. There was evidence that the volume of water flowing from the north pond to the south pond was 120 gallons per minute.

The plaintiff's rights are based upon two permits for the appropriation of water from Nealy Springs for the purpose of irrigation granted by the Department of Water Resources of the State of Nebraska and its predecessor, the Department of Roads and Irrigation. They are referred to as application No. 2311 and application No. 9777.

In 1933 the plaintiff's land was owned by Paul H. Covington. In that year Covington obtained a permit to appropriate .06 cubic feet of water per second from Nealy Springs to irrigate a 4-acre tract consisting of his yard and garden. Covington constructed a concrete dam upon the defendant's property just south of the north pond. He then installed a wooden pipeline running from the dam south of the north pond on the defendant's property to the plaintiff's property. Before the pipeline was constructed, water from the springs ran down under the old highway through a culvert and into the Farmers Irrigation Canal during the winter and before the irrigation season. After the pipeline was installed the water ran through the pipe onto the plaintiff's land. During the irrigation season Nealy took all of the water and...