Wiese v. Klassen, 35682

• Decision Date: 03 July 1964
• Docket Number: No. 35682,35682
• Citation: 129 N.W.2d 527,177 Neb. 496
• Parties: Henry WIESE and Rose Wiese, Appellees, v. Anton H. KLASSEN and Orvilleen Klassen, Appellants.
• Court: Nebraska Supreme Court

Page 527

129 N.W.2d 527

177 Neb. 496

Henry WIESE and Rose Wiese, Appellees, v. Anton H. KLASSEN and Orvilleen Klassen, Appellants.

No. 35682.

Supreme Court of Nebraska.

July 3, 1964.

Syllabus by the Court

1. In an instance where the waters of a stream are accustomed to spill over beyond its banks in times of high water, and flow over adjacent lands in its flood plain and to return to the stream at points farther downstream, such waters are floodwaters, and not diffused surface waters.

2. A riparian owner of land may not dam or dike against floodwaters to the injury of adjacent owners of land.

3. The trial court is required to consider any competent and relevant facts revealed by a view of premises as evidence in the case, and a duty is imposed upon this court on review of findings made by the trial court to give consideration to the fact that the trial court did view the premises, providing the record contains competent evidence to support the findings.

Walter, Albert, Leininger & Grant, Columbus, for appellants.

C. Thomas White, Columbus, for appellees.

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

YEAGER, Justice.

This is an action in equity wherein Henry Wiese and Rose Wiese, plaintiffs and owners of the southeast quarter of Section 29, Township 20 North, Range 3 West of the 6th P.M., in Platte County, Nebraska, seek an injunction enjoining Anton H. Klassen and Orvilleen Klassen, defendants and owners of the south half of the southwest quarter of Section 28, Township 20 North, Range 3 West of the 6th P.M., in Platte County, Nebraska, which lands of the defendants immediately adjoin the lands of the plaintiffs along the eastern line, from maintaining a dike along a meandering creek. The land of the defendants whereon the dike is maintained is an 80-acre tract immediately east of the south one-half of plaintiffs' land.

The case was tried to the court and at the conclusion of the trial a judgment was rendered in which the injunction sought was granted. A motion for new trial was filed and overruled. From the judgment and the order overruling the motion for new trial the defendants have appealed.

Involved in this action from a factual standpoint is a topographical consideration of a large area of land including the lands of the parties which has been described from the standpoint of elevations, the direction of the natural flow of water over it especially in times of heavy and extended periods of rain, speed of runoff, interference with flow, natural and artificial channels of flow, and effects of accumulation and disposition, particularly of delay.

In a consideration of these questions accuracy in detail is not possible since in the record accuracy is not found. Of necessity in this light generalities of information must be relied upon rather than authentic detailed information.

With this as background for a statement of what the case is about it will be stated that the lands involved in the action are in a valley and flood plain of a creek which is known as Shell Creek and which rises about 35 or 40 miles to the northwest near the village of Newman Grove and flows in a southeasterly direction to and through these lands. Apparently Shell Creek is a natural drainway from the source indicated to and through the lands of the parties here. There is no authentic information as to the elevations along or immediately adjacent to the way to the banks of the creek. Numerous elevations are indicated on exhibits but particular placements of these are not identified. It appears that the creek extends southeasterly through a flood plain of considerable width and that the lands involved here are within that plain. By reason of the elevations in the area involved, the lands of defendants are in progression of flow of water on a slightly lower level than those of the plaintiffs. In this light it appears that in case of the existence of more water than the creek was able to carry there would be an overflow which overflow would be controlled in direction by the adjacent natural elevations in the absence of artificial barriers. In truth the real question of concern attaches to this matter of overflow and its consequences.

The course of overflow under the record in this case, as will become apparent, would be in part at least over and upon the lands of the defendants. The extent of course would depend upon the extent and quantity of overflow.

Thus narrowed the following is disclosed by the record: Prior to 1961 there was no interference with or obstruction of overflow of water within or in the vicinity of the lands involved here. In that year the defendants constructed a dike across the most of their land lying to the east of plaintiffs' land which dike generally followed the creek channel. The distance was not equal at all points but generally it was not far from the creek channel and from the east line of the plaintiffs' land. This dike had a general elevation above the creek and the plaintiffs' east line of about 5 or 6 feet.

The design of the dike was to protect all of the land of defendants lying east of the creek channel except the narrow strip between the dike and the lands of the plaintiffs, in case of overflow in the flood plain and to cause the overflow to pass to the south on the west side of the dike and to prevent it from flowing naturally upon the land area east of the dike.

As to this the plaintiffs say an additional effect of this, as is made clear by the evidence, is that the flood plain at its crossing of the line between the lands of the plaintiffs and the defendants at the dike is reduced and narrowed.

The defendants' response to this substantially is that although there was this obstruction of overflow in the flood plain no damage did or could result to the plaintiffs. They make contentions as to this among which are that there would be such rapidity of overflow that no damage would ensue, and in addition that the channel or, as it is denominated in the record, the borrow pit created by the construction of the dike provided passage for the water which would have flowed normally in the flood plain in the absence of the dike.

As against this evidence of the defendants, the plaintiffs denied generally that there was no overflow damage to them after and because of the construction of the dike. Specifically they adduced evidence describing the topographical area of parts of their land all of which, before the dike was constructed, drained normally through the flood plain onto the lands of the defendants. There were 47 acres at the west edge and 13 acres toward the northeast corner which were used for raising of crops and between the 47 acres and the 13 acres there was an area of about 30 acres of pasture. This pasture land had an elevation slightly above...