Wasserburger v. Coffee, 41588

• Decision Date: 19 July 1978
• Docket Number: No. 41588,41588
• Parties: George WASSERBURGER et al., Appellees, v. Bill B. COFFEE et al., Appellants, Gertrude Quintard and Merrill Quintard, Interveners-Appellees.
• Court: Nebraska Supreme Court

Page 760

267 N.W.2d 760

201 Neb. 416

George WASSERBURGER et al., Appellees, v. Bill B. COFFEE et al., Appellants Gertrude Quintard and Merrill Quintard, Interveners-Appellees.

No. 41588.

Supreme Court of Nebraska.

July 19, 1978.

Syllabus by the Court

1. When a question in controversy has been once finally decided it becomes the law of the case and is binding on the parties in all subsequent stages of the litigation.

2. When the circumstances and situation of the parties have changed so that it would be just and equitable to vacate or modify a permanent injunction, the court which granted the injunction may vacate or modify it upon motion.

3. Where a defendant seeks the vacation of a permanent injunction allowed against him after a trial in a civil action, the burden is on him to show that the threatened injury has been certainly overcome, not that it possibly may be.

4. On an appeal from a judgment in equity when credible evidence on material questions of fact is in conflict, the Supreme Court will consider the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the other.

Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellants.

Nichols, Meister & Winner, P. C., Scottsbluff, for appellees.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

McCOWN, Justice.

The defendants filed an application to vacate or modify a permanent injunction previously entered against them enjoining them from diverting more of the flow of certain streams than would allow a constant flow of water in sufficient quantity for domestic use and the watering of cattle on certain riparian lands of the plaintiffs. The plaintiffs answered praying that defendants' application be denied and that defendants be found to be in contempt for willful failure to comply with the permanent injunction. The District Court denied the defendants' application to vacate the permanent injunction; found that one of the defendants was in contempt of court for willful failure to comply with the provisions of the injunction; and taxed the costs of the action, including an attorney's fee, to that defendant. The defendants have appealed.

The injunction involved here was originally entered by the District Court for Sioux County, Nebraska, in 1965. Except for modifications immaterial here, this court affirmed the action of the District Court in granting the injunction in Wasserburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738. The factual situation out of which this water rights controversy arises is set out in detail in that opinion. Briefly summarized, the plaintiffs are the owners of lower riparian lands located along the waters of certain creeks and their tributaries which flow generally northerly in Sioux County, Nebraska, meandering along a course of some 60 miles to the South Dakota border. The defendants are holders of appropriative water rights on the upper portions of the streams who were diverting water for irrigation purposes. The natural flow of the streams is insufficient to meet the appropriative water rights held by the defendants without depriving plaintiffs of water necessary for domestic use and the watering of cattle.

On February 1, 1965, the District Court permanently enjoined the defendants from diverting more of the flow of the streams than would allow to plaintiffs a constant flow of water in sufficient quantity for domestic use and the watering of cattle and other livestock in the numbers normally pastured on plaintiffs' riparian land. Following the mandate of this court, the District Court, on April 24, 1967, identified the riparian lands entitled to the benefits of the 1965 injunction.

On November 30, 1974, the defendants commenced this proceeding to vacate the permanent injunction. Defendants alleged that the construction of various water pipelines since the entry of the injunction had given plaintiffs an additional adequate source of water other than the stream flow, and that this fact changed the balance of the equities and justified the lifting of the injunction.

A water pipeline known as the Montrose Line was completed in 1969. The water line was constructed under a government program, and 75 percent of the cost was paid by the government and 25 percent was paid by the landowners on the line. The line is of plastic pipe of varying dimensions, buried 5 feet beneath the surface. It extends over a 30-mile route, and serves all but one of the plaintiffs.

The defendants' evidence tended to prove that the pipeline was a new and dependable source of adequate water. The pipeline is capable of carrying approximately 30 gallons of water per minute but the two wells which currently supply the line are only producing 16 gallons a minute. The plaintiffs' evidence tended to show that the pipeline was inadequate and undependable. The lines broke down from time to time because of line breaks or equipment or electrical failure, and even without any line breaks, persons on the end of the line were often without water because of the production limit of the wells. Other pipeline users had similar complaints of outages. The farther plaintiffs were from the beginning of the pipeline, the more frequent and long-lasting were their outages. An expert witness for the plaintiffs testified as to the geological conditions underlying the area and the difficulty of predicting the reliability of the wells feeding the pipelines. He testified that the Montrose Line would be an unreliable source of water.

There was also considerable evidence presented as to the procedure which had been in use for...