Slusarski v. Platte County, 86-017

• Decision Date: 25 November 1987
• Docket Number: No. 86-017,86-017
• Citation: 416 N.W.2d 213,226 Neb. 889
• Parties: Marion SLUSARSKI and Conrad Slusarski, Appellants, v. COUNTY OF PLATTE, Nebraska, and County of Merrick, Nebraska, Appellees.
• Court: Nebraska Supreme Court

Page 213

416 N.W.2d 213

226 Neb. 889

Marion SLUSARSKI and Conrad Slusarski, Appellants, v. COUNTY OF PLATTE, Nebraska, and County of Merrick, Nebraska, Appellees.

No. 86-017.

Supreme Court of Nebraska.

Nov. 25, 1987.

Syllabus by the Court

1. Demurrer: Pleadings. Pleadings are to be liberally construed, and if so construed a petition states a cause of action, a demurrer thereto is to be overruled.

2. Demurrer: Pleadings. A demurrer which challenges the sufficiency of the allegations is a general one.

3. Demurrer: Pleadings. In ruling on a general demurrer, a court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.

4. Waters. Diffused surface waters which collect and concentrate in volume and velocity and flow into a natural depression, draw, swale, or other drainageway lose their character as diffused surface waters.

5. Waters. A lower landowner may not obstruct waters which have collected and concentrated in volume and velocity from flowing through a natural depression, draw, swale, or other drainageway.

6. Waters. The alteration of a natural drainageway for diffused surface waters is acceptable where the interests of good husbandry are served, circumstances are such that alteration is necessary, and the particular alteration is reasonable under all the circumstances presented.

7. Constitutional Law: Political Subdivisions Tort Claims Act: Eminent Domain: Damages: Actions. When a political subdivision with the power of eminent domain damages property for a public use, the property owner may seek damages in an action for tort, in an action for inverse condemnation under the provisions of Neb.Rev.Stat. §§ 76-701 to 76-725 (Reissue 1986), or in an action under the language of Neb. Const. art. I, § 21, which provides, inter alia, that the property of no person shall be damaged for a public use without just compensation.

8. Constitutional Law: Demurrer: Pleadings: Eminent Domain. As Neb. Const. art. I, § 21, is self-executory, a petition alleging that one's property was damaged for a public use is sufficient as against a general demurrer, notwithstanding the fact that the petition refers neither to the foregoing article and section numbers nor the pertinent constitutional language.

Raymond E. Baker of Law Offices of Raymond E. Baker, P.C., Columbus, for appellants.

William T. Wright of Jacobsen, Orr, Nelson & Wright, P.C., Kearney, for appellee Merrick County.

Daniel D. Jewell of Jewell, Gatz & Collins, Norfolk, for appellee Platte County.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired, and COLWELL, District Judge, Retired.

CAPORALE, Justice.

Plaintiffs-appellants, Marion Slusarski and Conrad Slusarski, challenge the dismissal of their petition following the sustainment of the separate demurrers of defendants-appellees, the Counties of Merrick and Platte. We reverse and remand for further proceedings.

The operative second amended petition asserts that Merrick and Platte Counties are "bodies politic," declares compliance with the relevant provisions of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), as a condition precedent to bringing suit, and alleges that the Slusarskis are the lessees of a certain section of land in Merrick County which they farm and on which they had planted and cultivated certain crops. The petition further avers that the counties "jointly own and are responsible for a public road" abutting the east edge of the Slusarski leasehold, which road "acted as a dike" and prevented the flow of waters resulting from "rains, springs, or melting snows" across the leasehold, thereby flooding and damaging the Slusarskis' crops. Additionally, the petition states the aforesaid waters were not part of a watercourse or lake, and charges that but for the road said waters were "wont to flow in an easterly direction" across the Slusarski leasehold. The petition alleges the conduct of the two counties was "intentional," "unnecessary," and "unreasonable."

The counties take the position that the Slusarskis' operative petition fails to state a cause of action. In resolving this appeal we are bound by the rule that pleadings are to be liberally construed, and if so construed a petition states a cause of action, a demurrer thereto is to be overruled. See Waite v. Samson Dev. Co., 217 Neb. 403, 348 N.W.2d 883 (1984). Moreover, a demurrer which challenges the sufficiency of the allegations is a general one, Stewart v. McCauley, 178 Neb. 412, 133 N.W.2d 921 (1965), in ruling on which a court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. See, Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 416 N.W.2d 510 (1987); Bard v. Cox Cable of Omaha, Inc., 226 Neb. 880, 416 N.W.2d 4 (1987); Standard Federal Savings & Loan Assn. v. Meins, 226 Neb. 853, 415 N.W.2d 462 (1987); Knoell v. Huff, 224 Neb. 90, 395 N.W.2d 749 (1986).

In Nichol v. Yocum, 173 Neb. 298, 113 N.W.2d 195 (1962), this court determined, on appeal following a trial on the merits, that an upper proprietor was entitled to a mandatory injunction compelling the lower proprietor to remove the earthen embankment the latter had erected along a boundary of his land, where waters collected and concentrated in volume and "flowed in a state of nature" through a depression or drainageway. Id. at 309, 113 N.W.2d at 201. In so holding, this court determined that the waters in question were not diffused surface waters and announced that

diffused surface waters may be dammed, diverted, or otherwise repelled, if necessary, and in the absence of negligence. But when diffused surface waters are concentrated in volume and velocity and flow into a natural depression, draw, swale, or other drainway, the rule as to diffused surface waters does not apply. The proper rule in such cases is generally stated in 56 Am.Jur., Waters, § 75, p. 562, as follows: "The great weight of authority, however, is to the effect that both under the civil-law rule as to surface waters and under the so-called 'common-law' or 'common enemy' rule, a natural drainway must be kept open to carry the water into the streams, and as against the rights of the upper proprietor, the lower proprietor cannot obstruct surface water when it has found its way to and is running in a natural drainage channel or depression. Thus, it has been held that it is the duty of a lower landowner who builds a structure across a natural drainway to provide for the natural passage through such obstruction of all the water which...