Weber v. North Loup River Pub. Power ( 2014 )

Nebraska Advance Sheets
WEBER v. NORTH LOUP RIVER PUB. POWER 959
Cite as 288 Neb. 959
William Weber and Dixie Weber, husband and wife,
appellants, v. North L oup R iver P ublic Power
and I rrigation District, appellee.
___ N.W.2d ___
Filed August 29, 2014. No. S-13-808.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
2. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
3. Contracts: Judgments: Appeal and Error. The meaning of an unambiguous
contract is a question of law, in connection with which an appellate court has an
obligation to reach its conclusions independently of the determinations made by
the court below.
4. Breach of Contract: Words and Phrases. A breach of contract is the nonper­
formance of a duty, and performance of a duty subject to a condition cannot
become due unless the condition occurs or its nonoccurrence is excused.
5. Contracts: Words and Phrases. A condition precedent includes a condition
which must be fulfilled before a duty to perform an existing contract arises.
6. Contracts: Intent: Words and Phrases. Whether language in a contract is a
condition precedent depends on the parties’ intent as gathered from the language
of the contract. Where the parties’ intent is not clear, the language is generally
interpreted as promissory rather than conditional.
7. ____: ____: ____. Terms such as “if,” “provided that,” “when,” “after,” “as soon
as,” “subject to,” “on condition that,” or some similar phrase are evidence that
performance of a contractual provision is a condition.
8. ____: ____: ____. No particular form of language is necessary to make an event
a condition, although such words as “on condition that,” “provided that,” and
“if” are often used for this purpose. An intention to make a duty conditional may
be manifested by the general nature of an agreement, as well as by specific lan-
guage. Whether the parties have, by their agreement, made an event a condition
is determined by the process of interpretation.
9. Waiver: Words and Phrases. Waiver is a voluntary and intentional relinquish-
ment or abandonment of a known existing legal right or such conduct as warrants
an inference of the relinquishment of such right.
10. Waiver: Estoppel. In order to establish a waiver of a legal right, there must be
clear, unequivocal, and decisive action of a party showing such purpose, or acts
amounting to estoppel on his or her part.
11. Contracts: Waiver: Proof: Intent. A written contract may be waived in whole
or in part, either directly or inferentially, and the waiver may be proved by
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960 288 NEBRASKA REPORTS
express declarations manifesting the intent not to claim the advantage, or by
so neglecting and failing to act as to induce the belief that it was the intention
to waive.
12. Contracts: Waiver. Conditions precedent in a contract may be waived.
13. Breach of Contract: Intent: Words and Phrases. An anticipatory breach of a
contract is one committed before the time has come when there is a present duty
of performance and is the outcome of words or acts evidencing an intention to
refuse performance in the future.
14. Breach of Contract. The words or acts that form the basis of an anticipatory
breach must amount to an unequivocal repudiation of the contract.
15. ____. Where performances are to be exchanged under an exchange of promises,
one party’s repudiation of a duty to perform discharges the other party’s remain-
ing duties to perform.
16. ____. Generally, a party who has failed or refused to perform the terms and con-
ditions imposed upon him by a contract, or has not been ready, willing, and able
to perform the same, cannot recover for a breach thereof by the other party.
17. ____. A material breach will excuse the nonbreaching party from performing its
obligations under the contract.
18. Contracts: Words and Phrases. A term can be both the duty to be performed
under a contract and a condition precedent to a contractual counterparty’s duty.
19. Contracts: Liability: Damages. In general, the result of the nonfulfillment of
a condition is that the other party’s liability is discharged, whereas the nonper­
formance of a promise gives the other party a damages remedy.
20. Statutes: Appeal and Error. Statutory language is to be given its plain and
ordinary meaning, and interpretation will not be used to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
Appeal from the District Court for Loup County: Karin L.
Noakes, Judge. Affirmed.
Rodney J. Palmer, of Palmer Law Group, L.L.C., for
appellants.
Adam J. Prochaska, of Harding & Shultz, P.C., L.L.O.,
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
William Weber and Dixie Weber entered into contracts for
irrigation water with North Loup River Public Power and
Irrigation District (North Loup). The Webers did not make
payments due under the contracts prior to the 2010 irrigation
season. In June 2010, heavy rains destroyed a diversion dam
Nebraska Advance Sheets
WEBER v. NORTH LOUP RIVER PUB. POWER 961
Cite as 288 Neb. 959
which North Loup had utilized to deliver water to the Webers
and other irrigators. As a result, North Loup did not deliver
any water to the Webers during 2010. The Webers brought
this action against North Loup, alleging it breached its con-
tracts to provide irrigation water and was negligent in the per­
formance of those contracts. They claimed damages resulting
from decreased crop yields due to the absence of water. The
district court for Loup County sustained North Loup’s motion
for summary judgment, reasoning that the Webers had not
fulfilled a condition precedent to North Loup’s obligations on
the contracts, because the Webers failed to timely pay charges
due under the contracts for the 2010 crop year. The Webers
perfected this timely appeal. We affirm the judgment of the
district court.
I. BACKGROUND
1. Facts
North Loup was organized in 1933. It manages an irriga-
tion system that includes several diversion dams and canals in
Loup, Custer, Garfield, Valley, and Greeley Counties, serving
approximately 21,986 acres of farmland. Charges assessed to
users of the irrigation system generate all of the revenue col-
lected by North Loup.
The Taylor-Ord Canal (Canal) originates approximately 51⁄2
miles from Taylor, Nebraska, with the Taylor Diversion Dam
(Dam). The Dam redirects part of the streamflow of the North
Loup River into the Canal, which runs 34 miles to its termi-
nation near Ord, Nebraska. At mile 20.05, the Canal merges
with the Mirdan Canal, which draws water from the Calamus
Reservoir. The portion of the Canal above mile 20.05 is
referred to by the parties as the “upper” Taylor-Ord Canal.
Farmland along the Canal’s path is supplied with water through
“turnouts” and underground pipelines.
The Webers have farmed in central Nebraska since 1967.
They irrigate eight tracts with water from the upper Canal
under contracts with North Loup. The Webers are parties to
the contracts for five of the tracts. The contracts for the other
three tracts are in the name of Marlene Fuller. The Webers
lease these tracts from Fuller on a “share crop” basis, under
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which the crop is divided each fall and both parties pay half
the irrigation charges.
The terms of each of the contracts are identical except for
the description of the land. The following are the portions most
relevant to the Webers’ claims:
1. [North Loup], upon completion of the Project and
the availability of sufficient water, shall furnish water to
the Landowner from its system of canals for the purpose
of irrigating the irrigable portion or portions of the fol-
lowing described lands . . . during the irrigating season
beginning April 1st and ending October 31st in each year
. . . . [North Loup] agrees that the amount of water it will
make available and deliver to said lands at any one time
shall be the proportionate share the irrigable portions of
said lands shall be entitled to of all the water demanded
and available to [North Loup]. The distribution of such
proportionate shares to the Landowner during such year
shall constitute a complete performance in said year of
the obligations of [North Loup].
2. . . . [T]he Landowner shall pay annually to [North
Loup] the sum of $2.50 per acre for each irrigable acre
covered by this contract, which sum shall include all
charges to the Landowner of every nature, including
operating costs for the irrigation of the said lands and for
purchase of water rights . . . .
3. The Landowner shall pay to [North Loup] said
annual charge on the first day of December of each year
. . . . Such annual payment shall be made for the avail-
ability of water during the irrigation season immediately
succeeding the date of payment . . . .
4. . . . Every installment or other sum of money
required to be paid hereunder, which shall remain unpaid
for a period of 45 days after the same becomes due, shall
bear interest at the rate of six per cent per annum from the
date of the expiration of such period of grace.
....
9. [North Loup] shall withhold and stop the delivery
of water to the Landowner in the event a default of pay-
ments herein required occurs and such default continues
Nebraska Advance Sheets
WEBER v. NORTH LOUP RIVER PUB. POWER 963
Cite as 288 Neb. 959
for a period of four months following the due date. Such
refusal and withholding of delivery of water shall not
affect the Landowner’s liability for such overdue pay-
ments and all subsequent payments required to be made
by him hereunder.
The contracts create the only right the Webers have to water
from the Canal.
Irrigators pay an annual charge to North Loup in return for
access to water from the Canal. In 2010, the irrigation charge
was $32 per acre. This figure is the sum of the $2.50-per-
acre rate stated in the contracts and a “Special Emergency
Assessment charge” of $29.50 per acre.
The Webers’ dispute with North Loup arises from flood-
ing that occurred during June 2010. Beginning on June 7, the
area near the Dam began to experience heavy rains that con-
tinued throughout the week. By June 12, parts of Loup and
Garfield Counties had reported 6 to 10 inches of rainfall. North
Loup characterized the resulting deluge down the North Loup
River as “catastrophic,” “unprecedented,” and “a hundred year
flood.” Measurements approximately 41⁄2 miles downstream
from the Dam showed a volume of water more than 4 times
the previous high and nearly 30 times the median. Statistical
analysis performed by North Loup suggested that, based on
the previous 75 years of data, the probability of a similar event
occurring again was “much less than one tenth of one percent.”
On June 11, the flood destroyed the Dam and inflicted signifi-
cant damage on inlet structures to the Canal.
Due to the extent of the damage, North Loup quickly con-
cluded that water would not be provided to irrigators on the
upper Canal during 2010. At a special meeting held on June
15, 2010, North Loup found that it was “obvious the . . . Dam
structure is beyond repair or salvage” and that, as a result, it
would “not be able to provide service in 2010 to users above
the section of the . . . Canal which is combined with the . . .
Mirdan Canal.” North Loup determined that it would forgo
any temporary measures and focus on rebuilding a perma-
nent dam.
At the time of the flood, the Webers had not yet paid their
2010 irrigation charges. The Webers paid their 2010 bill
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964 288 NEBRASKA REPORTS
“under protest” on April 13, 2011. As to why they had not
paid earlier, William Weber explained that “I’ve never wrote
[sic] a check for $10,000 in my life that I didn’t get some-
thing for.”
The record indicates that North Loup considered mitigating
the burden of 2010 irrigation charges for users on the Canal.
Ultimately, however, it refused to waive 2010 charges except
for a single tract that had come under contract with North Loup
for the first time in April 2010.
2. P roceedings Below
The Webers commenced this action on December 29, 2011.
In the first count of their complaint, they alleged that North
Loup had breached its contracts with them and Fuller. The
second count alleged that North Loup had negligently failed
to supply water during the 2010 irrigation season. Specifically,
the Webers alleged that North Loup negligently failed to “pro-
vide irrigation water in any form,” “have a contingency plan
for irrigating and complying with the irrigation needs . . . in
the event of a loss of water at the . . . Dam,” “sufficiently
block the North Loup River at the . . . Dam in time to supply
irrigation water . . . for 2010,” and “provide either supple-
mental well irrigation or pumping stations out of the North
Loup River flows for the [Webers].” The complaint alleged
that the Webers had suffered $117,626.96 in damages, the
bulk of which consisted of reduced yields on their 2010 corn
and soybean crops. In its amended answer, North Loup denied
wrongdoing or breaching the relevant contracts. It also asserted
a number of affirmative defenses, including nonfulfillment of a
condition precedent in the contracts.
After conducting an evidentiary hearing on cross-motions
for summary judgment, the district court granted North Loup
judgment as a matter of law. The court determined that sec-
tion 3 of the contracts—which states that irrigation charges
must be paid by December 1 of the year preceding the irri-
gation season—created “a condition that must be fulfilled
prior to the delivery of water.” In addition, the court found
that “[s]ection 9 makes it completely clear that [North Loup]
was under no duty to deliver water to [the Webers]” and
Nebraska Advance Sheets
WEBER v. NORTH LOUP RIVER PUB. POWER 965
Cite as 288 Neb. 959
that, “[i]n fact, the contract[s] require[] [North Loup] [to]
stop delivery upon nonpayment.” The court concluded that
because it was undisputed that the Webers had not paid the
2010 irrigation charges until April 13, 2011, North Loup had
no duty under the contracts to deliver water to the Webers
during 2010. The court also decided that nonfulfillment of the
condition precedent was fatal to the Webers’ negligence claim,
because “[t]he only argument presented by [the Webers] in
support of their ‘right’ to the delivery of water is based on
the contract[s].” The Webers filed this timely appeal, which
we moved to our docket on our own motion pursuant to our
statutory authority to regulate the caseloads of the appellate
courts of this state.1
II. ASSIGNMENTS OF ERROR
The Webers assign, restated and consolidated, that the dis-
trict court erred in granting summary judgment in favor of
North Loup, because genuine issues of material fact exist
regarding (1) their obligation to make advance payment for
irrigation water for the 2010 growing season and (2) anticipa-
tory breach by North Loup.
III. STANDARD OF REVIEW
[1,2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
evidence.2 An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law.3
[3] The meaning of an unambiguous contract is a question
of law, in connection with which an appellate court has an
1
Neb. Rev. Stat. § 24-1106 (Reissue 2008).
2
Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).
3
Id.
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966 288 NEBRASKA REPORTS
obligation to reach its conclusions independently of the deter-
minations made by the court below.4
IV. ANALYSIS
1. Breach of Contract
North Loup’s obligations to the Webers arose from the con-
tracts. When irrigators obtain their water rights by contract,
“‘[s]uch agreements, generally speaking, are governed by the
same rules that pertain to other contracts . . . .’”5
(a) Condition Precedent Not Met
[4,5] The district court determined that North Loup did not
breach the contracts, because it had no duty to perform. A
breach is the nonperformance of a duty,6 and performance of a
duty subject to a condition cannot become due unless the con-
dition occurs or its nonoccurrence is excused.7 A “‘“condition
precedent”’” includes “‘a condition which must be fulfilled
before a duty to perform an existing contract arises.’”8
[6-8] Whether language in a contract is a condition prec-
edent depends on the parties’ intent as gathered from the lan-
guage of the contract.9 Where the parties’ intent is not clear,
the language is generally interpreted as promissory rather than
conditional.10 Terms such as “if,” “provided that,” “when,”
“after,” “as soon as,” “subject to,” “on condition that,” or some
4
See Braunger Foods v. Sears, 286 Neb. 29, 834 N.W.2d 779 (2013).
5
Faught v. Platte Valley Public Power & Irrigation Dist., 155 Neb. 141,
149, 51 N.W.2d 253, 258 (1952). See, also, 45 Am. Jur. 2d Irrigation § 37
(2007).
6
Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519
(2002).
7
Turbines Ltd. v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767 (2013).
8
Donaldson v. Farm Bureau Life Ins. Co., 232 Neb. 140, 145, 440 N.W.2d
187, 190 (1989), quoting Schmidt v. J. C. Robinson Seed Co., 220 Neb.
344, 370 N.W.2d 103 (1985).
9
See Estate of Stine v. Chambanco, Inc., 251 Neb. 867, 560 N.W.2d 424
(1997).
10
See Harmon Cable Communications v. Scope Cable Television, 237 Neb.
871, 468 N.W.2d 350 (1991).
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WEBER v. NORTH LOUP RIVER PUB. POWER 967
Cite as 288 Neb. 959
similar phrase are evidence that performance of a contractual
provision is a condition.11 However, the presence or absence of
these terms is not determinative:
No particular form of language is necessary to make an
event a condition, although such words as “on condition
that,” “provided that” and “if” are often used for this
purpose. An intention to make a duty conditional may
be manifested by the general nature of an agreement, as
well as by specific language. Whether the parties have, by
their agreement, made an event a condition is determined
by the process of interpretation.12
It is evident from the unambiguous language of the con-
tracts that the parties intended to condition North Loup’s
obligation to supply water in 2010 on the Webers’ payment of
irrigation charges by the start of the 2010 irrigation season.
Section 3 of the contracts provides: “The Landowner shall
pay to [North Loup] said annual charge on the first day of
December of each year . . . . Such annual payment shall be
made for the availability of water during the irrigation sea-
son immediately succeeding the date of payment . . . .” The
contracts further state that “[North Loup] shall withhold and
stop the delivery of water to the Landowner in the event a
default of payments herein required occurs and such default
continues for a period of four months following the due date.”
Four months from December 1 is April 1, which the contracts
define as the beginning of the irrigation season and the com-
mencement of North Loup’s performance. Thus, the contracts
required the Webers to perform first and conditioned North
Loup’s obligations on that prior performance.
The Webers admit that they made no payment to North Loup
in 2010. They did not pay the 2010 irrigation charges until
April 13, 2011. Payment by April 1, 2010, was a condition
precedent to North Loup’s contractual duty to supply water to
the Webers during the 2010 irrigation season. Because no such
payment was made, North Loup’s duty under the contracts
11
Id.
12
Restatement (Second) of Contracts § 226, comment a. at 170 (1981).
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never came to fruition during the 2010 season and, without
a duty to perform, it did not breach the contracts as a matter
of law.13
(b) Condition Precedent
Was Not Waived
The Webers argue that summary judgment was inappropriate
because there are genuine issues of material fact as to whether
North Loup waived the condition precedent. They argue that
North Loup never decided “whether the [2010] assessments
or interest would be waived” for all irrigators affected by the
2010 flood and that, therefore, it “was a question of fact to be
determined if the assessments were due where no irrigation
water was received.”14
[9-12] Waiver is a voluntary and intentional relinquishment
or abandonment of a known existing legal right or such conduct
as warrants an inference of the relinquishment of such right.15
In order to establish a waiver of a legal right, there must be
clear, unequivocal, and decisive action of a party showing
such purpose, or acts amounting to estoppel on his or her
part.16 A written contract may be waived in whole or in part,
either directly or inferentially, and the waiver may be proved
by express declarations manifesting the intent not to claim the
advantage, or by so neglecting and failing to act as to induce
the belief that it was the intention to waive.17 Conditions prec-
edent in a contract may be waived.18
The record reflects that during 2010 and 2011, North
Loup considered various requests and proposals to relieve
irrigators of 2010 irrigation charges and interest. But North
13
See, generally, Empfield v. Ainsworth Irr. Dist., 204 Neb. 827, 286 N.W.2d
94 (1979).
14
Brief for appellants at 19.
15
Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780
N.W.2d 416 (2010).
16
Id.
17
Id.
18
Pearce v. ELIC Corp., 213 Neb. 193, 329 N.W.2d 74 (1982).
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WEBER v. NORTH LOUP RIVER PUB. POWER 969
Cite as 288 Neb. 959
Loup waived the 2010 irrigation charges for only one irriga-
tor. That irrigator had signed a contract in April 2010 for
a tract that had not previously been under contract with
North Loup. The irrigator had paid a $15-per-acre “Debt
Retirement Assessment” and had spent $10,000 laying under-
ground irrigation pipe in anticipation of drawing water from
the Canal. Apparently in light of these circumstances, North
Loup agreed to waive this irrigator’s 2010 irrigation charges.
Even this irrigator, however, paid 2010 irrigation charges for
his other tracts of land that had previously been under con-
tract with North Loup.
Here, the contracts required the Webers and all water users
to pay before they received irrigation water. Section 3 of the
contracts makes payment of irrigation charges due December
1, and section 9 provides that North Loup will withhold deliv-
ery of water if a user has not paid by the start of the irriga-
tion season. William Weber admitted that even if rainfall was
plentiful and he did not draw any water from the Canal, he
was still obligated to pay the irrigation charges. North Loup
consistently referred to unpaid irrigation charges as “delin-
quent.” The isolated waiver of irrigation charges for the single
tract which was newly brought under contract does not create
a question of fact as to whether North Loup waived the condi-
tion precedent in its contract with the Webers.
(c) No Anticipatory Breach
[13-15] The Webers argue that North Loup anticipatorily
breached the contracts, “making the need for payment a ques-
tion of fact.” An anticipatory breach of a contract is one com-
mitted before the time has come when there is a present duty
of performance and is the outcome of words or acts evidenc-
ing an intention to refuse performance in the future.19 The
words or acts that form the basis of an anticipatory breach
must amount to an unequivocal repudiation of the contract.20
Where per­ormances are to be exchanged under an exchange
f
19
Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886 (2006).
20
See id.
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of ­ romises, one party’s repudiation of a duty to perform dis-
p
charges the other party’s remaining duties to perform.21
The Webers premise their claim of anticipatory breach upon
North Loup’s decision to rebuild a permanent diversion dam
without endeavoring to supply water to users on the upper
portion of the Canal during the 2010 season. They argue that
the district court “overlooked the fact that [North Loup] com-
mitted an anticipatory breach of contract on June 15, 2010
when it decided not to provide water to the irrigators but to
pursue building a new dam instead of a temporary one, even
though[] they had no assessment of the damages yet.”22 Thus,
the actions by North Loup which are alleged to constitute an
anticipatory breach occurred more than 2 months after the start
of the irrigation season. As noted, payment of 2010 irrigation
charges by April 1, 2010, was a condition precedent to North
Loup’s duty to deliver water.
[16,17] North Loup did not anticipatorily breach the con-
tracts because, by failing to pay the 2010 irrigation charges,
the Webers themselves breached the contracts prior to North
Loup’s purported anticipatory breach. Generally, a party who
has failed or refused to perform the terms and conditions
imposed upon him by a contract, or has not been ready, will-
ing, and able to perform the same, cannot recover for a breach
thereof by the other party.23 A material breach will excuse
the nonbreaching party from performing its obligations under
the contract.24
[18,19] A term can be both the duty to be performed under
a contract and a condition precedent to a contractual counter-
party’s duty. We have in the past distinguished “conditions”
from “promises.”25 In general, the result of the nonfulfillment
21
Anderson Excavating v. SID No. 177, 265 Neb. 61, 654 N.W.2d 376
(2002).
22
Brief for appellants at 20.
23
Chadd v. Midwest Franchise Corp., 226 Neb. 502, 412 N.W.2d 453
(1987).
24
Gary’s Implement v. Bridgeport Tractor Parts, 270 Neb. 286, 702 N.W.2d
355 (2005).
25
Harmon Cable Communications v. Scope Cable Television, supra note 10.
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of a condition is that the other party’s liability is discharged,
whereas the nonperformance of a promise gives the other party
a damages remedy.26 Section 225 of the Restatement (Second)
of Contracts, however, recognizes that a particular clause can
have a dual capacity: “Non-occurrence of a condition is not a
breach by a party unless he is under a duty that the condition
occur.”27 The commentary explains that “[t]he same term may
. . . be interpreted not only to make an event a condition of the
obligor’s duty, but also to impose a duty on the obligee that
it occur.”28
Payment of the 2010 irrigation charges by April 1 was both
the contractual performance required of the Webers and a con-
dition precedent to North Loup’s duty to perform. Nonpayment
cannot be considered an immaterial breach, because there
was little else the Webers were obligated to do. The contracts
required that the Webers perform first and conditioned North
Loup’s performance on the Webers’ payment. The Webers’
failure to pay was therefore both a nonfulfillment of a condi-
tion relieving North Loup of its duty to perform and a material
breach of contract that occurred prior to North Loup’s alleged
anticipatory breach and independently relieved North Loup of
any duty to perform. The Webers’ claim of anticipatory breach
is without merit as a matter of law.
2. Negligence
The contracts were the sole source of any duty on the part
of North Loup to supply water to the Webers. Assuming with-
out deciding that a negligence claim was ever viable under the
circumstances of this case,29 we agree that it failed as a matter
of law because North Loup owed no duty to the Webers. As
noted, the contractual duty to supply water never arose in 2010,
because the Webers failed to pay the 2010 irrigation charges
26
Id.
27
Restatement, supra note 12, § 225(3) at 165.
28
Id., § 225, comment d. at 168.
29
See Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67
(2012) (explaining doctrine of economic loss).
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prior to the growing season. If no duty existed, no duty could
have been breached.
The Webers argue that North Loup violated a criminal stat-
ute, Neb. Rev. Stat. § 46-263 (Reissue 2010), which provides:
Any person having charge of a ditch or canal used for
irrigation purposes, who shall neglect or refuse to deliver
water as herein provided, or any person or persons who
shall prevent or interfere with the proper delivery of water
to the person or persons having the right thereto, shall be
guilty of a Class III misdemeanor.
North Loup argues that § 46-263 is inapplicable, because it is
a criminal statute imposing a criminal penalty and it applies to
“‘persons’” rather than “public entities.”30 We have recognized
that a violation of a statute which imposes a criminal pen-
alty can be evidence of negligence,31 and although this court
has not addressed the question, other jurisdictions have held
that the term “person” in a criminal statute may be applied
to corporations.32
[20] But there could be no violation of § 46-263 by North
Loup here, because the statute does not apply to persons who
neglect or refuse to deliver water to those having no right to the
water. Statutory language is to be given its plain and ordinary
meaning, and interpretation will not be used to ascertain the
meaning of statutory words which are plain, direct, and unam-
biguous.33 Because North Loup had no duty to deliver water
to the Webers during the 2010 irrigation season, it did not
“prevent or interfere with the proper delivery of water to the
person or persons having the right thereto.” Similarly, North
Loup did not “neglect or refuse to deliver water” within the
meaning of § 46-263. We have recognized that the existence
of a statute may be relevant to duty in addition to breach,34 but
the construction urged upon this court by the Webers would
30
Brief for appellee at 43.
31
See, e.g., Schaefer v. McCreary, 216 Neb. 739, 345 N.W.2d 821 (1984).
32
See 18B Am. Jur. 2d Corporations § 1839 (2004).
33
See ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014).
34
See Kozicki v. Dragon, 255 Neb. 248, 583 N.W.2d 336 (1998).
Nebraska Advance Sheets
WEBER v. NORTH LOUP RIVER PUB. POWER 973
Cite as 288 Neb. 959
lead to absurd results. Due to their failure to fulfill a condition
precedent, the Webers were effectively in no different posi-
tion during the 2010 season than the area farmers who had no
contract at all with North Loup. It cannot be assumed that the
Legislature intended to impose criminal liability on persons
who refuse to deliver water to those who have no right to
receive it.
We conclude that the district court did not err in determining
that North Loup was entitled to judgment as a matter of law
with respect to the Webers’ claims.
V. CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
Affirmed.