Barthel v. Liermann ( 2014 )

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730 21 NEBRASKA APPELLATE REPORTS
releasing the funds became final and appealable. John has not
perfected an appeal from that order.
Because John has not separately appealed from the order
releasing nonexempt funds, we do not have jurisdiction to con-
sider his arguments related to that order.
V. CONCLUSION
For the reasons stated herein, we do not have jurisdiction
of John’s appeal as it relates to the modification order, due
to his failure to timely appeal from that order. We also find
that we are without jurisdiction to review John’s arguments
as they relate to the garnishment proceedings. Finally, we
affirm the district court’s decisions regarding John’s con-
tempt application.
Affirmed in part, and in part dismissed.
Craig Lynn Barthel et al., Copersonal R epresentatives of
the Estate of Dorothy Barthel, deceased, appellants,
v. Charles A. Liermann, individually and as
Successor Trustee of the Gene W. Liermann
Living R evocable Trust, and Erna E. Liermann,
Trustee of the Erna E. Liermann Living
R evocable Trust, appellees.
___ N.W.2d ___
Filed January 28, 2014. No. A-12-745.
1. Statutes. The meaning and interpretation of a statute are questions of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. Statutes: Appeal and Error. When an appellate court confronts a statute, it
gives statutory language its plain and ordinary meaning and will not resort to
interpretation to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
4. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When
judicial interpretation of a statute has not evoked a legislative amendment, it is
presumed that the Legislature has acquiesced in the court’s interpretation.
5. Real Estate: Waters: Time. Neb. Rev. Stat. § 31-224 (Reissue 2008) imposes
upon a landowner the duty to clean a drainage ditch once a year, between
March 1 and April 15.
Decisions of the Nebraska Court of Appeals
BARTHEL v. LIERMANN 731
Cite as 21 Neb. App. 7306. Real Estate: Waters: Time: Words and Phrases. In Neb. Rev. Stat. § 31-224(Reissue 2008), the phrase “at least” prior to “once a year” indicates that a land-
owner may have a duty to clear the ditch more than once during the specified
period of March 1 to April 15, if the flow of water again becomes obstructed
during this period.
7. Real Estate: Waters: Time. There is nothing in Neb. Rev. Stat. § 31-224(Reissue 2008) that can be interpreted to require a landowner to clean a drain-
age ditch outside the March 1 to April 15 period if the flow of water becomes
obstructed at any other time during the year.
Appeal from the District Court for Holt County: Mark D.
Kozisek, Judge. Affirmed.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellants.
Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, for
appellees.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
Moore, Judge.
INTRODUCTION
Craig Lynn Barthel, Keith Alan Barthel, and Kerry Louis
Barthel, as copersonal representatives of the estate of Dorothy
Barthel, deceased, and having been substituted as parties,
appeal from a judgment entered by the district court for Holt
County. Following a bench trial, the district court ruled that
the appellees, Charles A. Liermann and Erna E. Liermann,
had not breached their duty to clean a shared drainage ditch
and that Dorothy had not sufficiently proved her damages.
Finding no error in that decision, we affirm the district
court’s judgment.
FACTUAL BACKGROUND
The parties in this case are neighboring landowners in
Holt County, Nebraska. A drainage ditch that runs west to
east through the Barthels’ property and onto the Liermanns’
property before eventually joining the Elkhorn River forms
the center of this ongoing dispute. Dorothy claimed that the
Liermanns had failed to clear obstructions from this ditch,
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732 21 NEBRASKA APPELLATE REPORTS
causing her hay meadow to flood and thereby preventing sig-
nificant hay production.
This seemingly ordinary drainage ditch has been the subject
of significant litigation, in both state and federal courts, dur-
ing the past 20 years. While not all of the history is germane
to the present appeal, a short summary of the more important
events is necessary to give context to the current matter. This
court’s decision in Barthel v. Liermann, 2 Neb. App. 347, 509
N.W.2d 660 (1993), is the appropriate starting point. After that
decision, a series of events transpired that culminates with this
current appeal.
In the years preceding Barthel v. Liermann, supra, the
Liermanns had allowed Keith and Dorothy to bring a dragline
onto their property to dredge the ditch on the various occasions
when the waterflow in the ditch became obstructed. In 1988,
the Liermanns denied the Barthels’ request to dredge and the
Barthels filed suit, asking that an injunction issue requiring
the Liermanns to clear the ditch. The district court denied the
Barthels’ request for injunctive relief and damages, concluding
that they had not established that the Liermanns obstructed the
waterflow in the ditch. Id. The Barthels appealed that decision
to this court.
We reversed the district court’s decision. In so ruling, we
determined that the outcome of the case was dependent on
interpreting Neb. Rev. Stat. § 31-224 (Reissue 2008). Barthel
v. Liermann, supra. In interpreting § 31-224, we stated that
“it is the duty of a landowner to clean from this type of ditch
once a year all weeds or other substances obstructing the flow
of the water, provided the landowner knows of the obstruc-
tion.” Barthel v. Liermann, 2 Neb. App. at 356, 509 N.W.2d
at 665 (emphasis omitted). We concluded the statute obli-
gated the Barthels to show that the Liermanns’ acts caused
the ditch obstruction or that the obstruction occurred with the
Liermanns’ knowledge or consent. Barthel v. Liermann, supra.We also found that the evidence clearly established that the
obstruction occurred with the Liermanns’ knowledge or con-
sent. Therefore, we determined that the trial court erred when
it refused to grant the injunction, and we remanded the cause to
Decisions of the Nebraska Court of Appeals
BARTHEL v. LIERMANN 733
Cite as 21 Neb. App. 730the district court to issue a mandatory injunction requiring the
Liermanns to clean out the ditch. Id.On remand, the district court issued the mandated injunc-
tion. The injunction required the Liermanns to clean the ditch
of all substances obstructing waterflow beginning and ending
at specified stations. The Liermanns were also required to hire
a surveyor to establish a grade to which the ditch would be
excavated and to hire a dragline operator to excavate the ditch
according to the completed survey. The court specified that
the grade needed to be set at or below the level of the bot-
tom of the culvert installed by Holt County in the county road
in 1988.
Because the cleaning and maintenance of this ditch affected
a potential wetland area (the Barthels’ meadow), the fed-
eral government became involved. To maintain their eligibil-
ity for federal farm-assistance programs sponsored by the
U.S. Department of Agriculture (USDA), the Barthels were
required to comply with the “Swampbuster” provisions of
the federal Food Security Act (the Act). See Barthel v. U.S.
Dept. of Agriculture, 181 F.3d 934, 935 (8th Cir. 1999). The
relevant Swampbuster provisions, aimed at preserving wetland
areas, denied eligibility for these federal programs if wetlands
were converted to agricultural use. Id. However, the Act also
allowed exemptions for wetlands that had been converted
before the Act became effective in 1985. Barthel v. U.S. Dept.
of Agriculture, supra. The Barthel hay pasture was classified
as an “‘other wetland area’” under the Act because it season-
ally flooded or ponded but had been converted to agricultural
use prior to December 23, 1985. Barthel v. U.S. Dept. of
Agriculture, 181 F.3d at 936.
A dispute soon arose between the Barthels and the USDA
and the National Resources Conservation Service (NRCS), a
division of the USDA, as to how the Act affected the depth of
the ditch. The Barthels contended that the land had been used
for hay production and pasture prior to the Act and should be
maintained in that state. Thus, they argued the ditch should be
dredged to a depth that allowed the water to drain from the
meadow and permitted hay production. Barthel v. U.S. Dept.
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734 21 NEBRASKA APPELLATE REPORTS
of Agriculture, supra. The NRCS, however, determined that
the level of the ditch at the time of litigation should be pre-
served, no matter the effect on the Barthels’ land. Id.After making their way through the various administrative
reviews of this determination, the Barthels eventually initiated
suit in the U.S. District Court for the District of Nebraska. Id.In a memorandum opinion, the U.S. District Court affirmed
the USDA’s decision, concluding that the USDA appropriately
construed the law and made adequate findings of fact.
Following the adverse decision from the federal district
court, the Barthels appealed to the Eighth Circuit Court of
Appeals. Id. The Eighth Circuit reversed the decision of the
federal district court, finding that the USDA had misinter-
preted the focus of the Swampbuster provisions, namely that
the Act’s purpose is to preserve wetlands or, if wetlands were
altered, to preserve the altered conditions. Barthel v. U.S. Dept.
of Agriculture, supra. The court held that the Barthels were
entitled to utilize their land as they did before the Act, “‘so
long as the previously accomplished drainage or manipulation
is not significantly improved upon, so that wetland character-
istics are further degraded in a significant way.’” Barthel v.
U.S. Dept. of Agriculture, 181 F.3d at 939 (emphasis in origi-
nal), quoting Gunn v. U.S. Dept. of Agriculture, 118 F.3d 1233(8th Cir. 1997). The matter was then remanded to the district
court with directions that it remand the matter to the USDA for
a hearing and determination of the state of the Barthels’ land
prior to the Act and the necessary dredging and cleaning of the
ditch to maintain the land in its pre-Act state. Barthel v. U.S.
Dept. of Agriculture, supra.
When the matter returned to the NRCS after remand, it con-
ducted tests to determine the proper depth of the ditch. After
those tests were completed, the NRCS concluded that the ditch
could be dredged to the level directed by the 1994 injunction
entered by the district court for Holt County, which level was
at or below the level of the bottom of the culvert. This final
determination by the NRCS was not appealed. Since that time,
the Liermanns have used the USDA-commissioned survey
when cleaning the ditch to the allowed depth.
Decisions of the Nebraska Court of Appeals
BARTHEL v. LIERMANN 735
Cite as 21 Neb. App. 730In the time following the previous litigation, Keith,
Dorothy’s husband, died and Dorothy became sole owner of
the Barthels’ property. On December 16, 2011, Dorothy filed
her operative complaint in the district court for Holt County.
In her complaint, she alleged that the Liermanns failed to
properly clean the ditch as required by § 31-224, prevent-
ing the flow of water through the ditch and causing her hay
meadow to flood. Dorothy sought damages for lost hay prof-
its, lost milk production profits, and costs to repair the land.
Dorothy’s complaint also included an additional count entitled
“Interference With Easement” which related to a road that
Dorothy utilized for ingress onto and egress from her property.
This additional count is not at issue in this appeal and need not
be discussed further.
Trial was held on March 27 and 28, 2012. Dorothy testified
that her hay meadow had continued to experience consistent
flooding. She attributed this flooding to the Liermanns’ fail-
ure to properly clean their portion of the ditch. To support
this claim, Dorothy introduced a number of photographs from
various years which showed the flooded hay meadow. Dorothy
also introduced photographs which she alleged depicted vari-
ous obstructions to the waterflow at several locations in the
Liermanns’ portion of the ditch.
In addition to her own testimony, Dorothy also presented
expert witness testimony from Don Etler, an agricultural engi-
neer who specializes in agricultural drainage and wetlands.
According to Etler, the NRCS made a number of mistakes
when establishing the ditch grade that the Liermanns have
since followed when cleaning the ditch. These alleged mistakes
resulted in an irregular, sawtooth grade that, in Etler’s opin-
ion, an engineer would not produce in standard practice. Etler
testified that this inconsistent grade created standing water in
certain places. He proposed an alternative, gently sloping grade
for the ditch which he believed would provide better drainage
for the hay meadow.
On cross-examination, Etler conceded that he had not made
any inspection of the ditch that would allow him to determine
whether the Liermanns had been complying with cleaning the
Decisions of the Nebraska Court of Appeals
736 21 NEBRASKA APPELLATE REPORTS
ditch to the NRCS gradeline. In fact, Etler testified that he
last visited the Barthels’ property in 2000. When questioned
about the Liermanns’ cleaning of the ditch, Etler stated that
it was important that they clean the ditch as required, but he
also acknowledged that the entire drainage system, not just
that portion located on the Liermanns’ property, needed to be
addressed in order for the hay meadow to properly drain.
Charles testified to the procedures the Liermann family uti-
lized when cleaning the ditch. He stated that he cleans the ditch
to comply with the NRCS survey in its current form. When the
time comes to clean the ditch every year, Charles surveys the
ditch himself, performs the necessary calculations to determine
the depth, and then digs out or fills in the ditch accordingly. He
indicated that he makes an effort to ensure the ditch is 8 feet
wide to allow proper waterflow. Charles added that his family
has hired companies to excavate the ditch in certain years, but
that he has also done the cleaning himself in years where the
ditch does not require extensive attention.
Charles offered evidence to show the yearly schedule of
maintenance on the ditch since 1995. This document reflected
that the ditch was surveyed every year during the March 1 to
April 15 statutory period to determine whether maintenance
was necessary. If maintenance was necessary, it was completed
during the March 1 to April 15 statutory period, with the
exception of 2006 and 2008, when the maintenance was per-
formed on April 27 and April 22, respectively.
Following the parties’ introduction of evidence, and upon
agreement of the parties, the trial judge viewed the ditch in
question. After viewing the premises, the court noted on the
record that it had observed the ditch from the eastern end of
the Liermanns’ property to the northern part of the Barthels’
hay meadow.
On July 16, 2012, the district court entered judgment in
favor of the Liermanns on all counts. Among its findings, the
district court concluded that § 31-224 did not mandate a con-
tinuing, yearlong obligation to keep the ditch clean. The court
also concluded that Dorothy did not prove, by a preponderance
of the evidence, that the Liermanns failed to perform their
Decisions of the Nebraska Court of Appeals
BARTHEL v. LIERMANN 737
Cite as 21 Neb. App. 730statutory duty in cleaning the ditch. The court found that water
was flowing through the ditch based on the evidence adduced
at trial and its own observations of the ditch. For completeness,
the court also addressed the issue of damages and found that
Dorothy had not sufficiently proved any of her damage claims.
Dorothy timely appealed from this order.
On January 26, 2013, while this current appeal was pending,
Dorothy passed away. Craig, Keith, and Kerry have since been
appointed as copersonal representatives of Dorothy’s estate and
have been substituted as the party plaintiffs. They proceed with
the current appeal.
ASSIGNMENTS OF ERROR
The Barthels argue that the district court abused its discre-
tion by (1) finding that the Liermanns had complied with their
obligations under § 31-224, (2) determining that the Barthels
had failed to adequately prove damages, and (3) failing to
award damages to the Barthels.
STANDARD OF REVIEW
[1,2] The meaning and interpretation of a statute are ques-
tions of law. Pinnacle Enters. v. City of Papillion, 286 Neb.
322, 836 N.W.2d 588 (2013). An appellate court independently
reviews questions of law decided by a lower court. Fox v.
Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013).
ANALYSIS
Should § 31-224 Be Interpreted to Require
Landowner to Perform Year-Round
Cleaning of Drainage Ditch?
The Barthels claim that the Liermanns have failed to clean
the ditch in compliance with § 31-224. This statute provides:
It shall be the duty of landowners in this state, or ten-
ants of such landowners when in possession, owning or
occupying lands through which a watercourse, slough,
drainage ditch or drainage course lies, runs or has its
course, to clean such watercourse, slough, drainage ditch
or drainage course at least once a year, between March
1 and April 15, of all rubbish, weeds or other substance
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738 21 NEBRASKA APPELLATE REPORTS
blocking or otherwise obstructing the flow of the water
in such watercourse, slough, drainage ditch or drainage
course, whenever such obstruction is caused by any of
the acts of said owner or tenant, or with his knowledge or
consent; Provided, however, this and sections 31-225 and
31-226 shall not apply to drainage ditches under control
of any drainage company or corporation.
The Barthels interpret § 31-224 to require the Liermanns to
clean the ditch throughout the year on an “‘as needed’” basis
in order to ensure proper waterflow. Brief for appellants at 12.
The Barthels also argue that the district court erred in finding
that the Liermanns properly cleaned the ditch when they under-
took the yearly cleaning.
[3] When an appellate court confronts a statute, it gives
statutory language its plain and ordinary meaning and will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. See Blaser
v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013).
[4] As was the case for the parties’ first appearance before
this court, the outcome of this case hinges on our reading of
§ 31-224. The language of this statute has not been changed
since our decision in 1993. See Barthel v. Liermann, 2 Neb.
App. 347, 509 N.W.2d 660 (1993). When judicial interpreta-
tion of a statute has not evoked a legislative amendment, it
is presumed that the Legislature has acquiesced in the court’s
interpretation. State v. Policky, 285 Neb. 612, 828 N.W.2d
163 (2013).
[5-7] Based upon our independent review of § 31-224, we
reject the Barthels’ proposed interpretation. This section clearly
imposes upon a landowner the duty to clean a drainage ditch
once a year, between March 1 and April 15. In § 31-224, the
phrase “at least” prior to “once a year” indicates that a land-
owner may have a duty to clear the ditch more than once dur-
ing the specified period of March 1 to April 15, if the flow of
water again becomes obstructed during this period. However,
nothing in the statute can be interpreted to require a landowner
to clean a drainage ditch outside the March 1 to April 15 period
if the flow of water becomes obstructed at any other time dur-
ing the year.
Decisions of the Nebraska Court of Appeals
BARTHEL v. LIERMANN 739
Cite as 21 Neb. App. 730We agree with the district court’s finding that the statute
does not mandate a continuing, yearlong obligation to keep the
ditch clean. This assignment of error is without merit.
Did Liermanns Comply With Their
Obligation to Clean Ditch?
At trial, Charles gave extensive explanation of the pro-
cedures his family utilizes when cleaning out the ditch in
order to comply with the statute and the previous injunction.
He testified that every year, he surveys the ditch, calculates
the necessary depth, and then excavates or fills the ditch as
required according to the NRCS grade. Charles testified that
his family hires a professional excavator to handle the clean-
ing when extensive work is necessary. A yearly schedule of the
maintenance performed by the Liermanns on the ditch was also
received in evidence.
Although Dorothy contended that the Liermanns had not
properly cleaned the ditch, she failed to present evidence to
contradict the Liermanns’ evidence regarding their compliance
with the statute. Dorothy did not offer evidence of the actual
grade of the ditch after the Liermanns’ annual maintenance in
order to show whether they had complied with the statute or the
NRCS survey. While Dorothy’s photographic evidence showed
a flooded hay meadow, these photographs showed the condi-
tion of the ditch outside of the required March 1 to April 15
cleaning period. Furthermore, Etler’s testimony did not address
whether the Liermanns had complied with their statutory duty;
rather, his testimony focused on what he found to be problems
with the NRCS survey establishing the grade in 2000 and the
need for systemwide changes to the ditch. However, this issue
was not before the district court.
Based on our review of the evidence, we conclude that the
district court did not err when it determined that the Liermanns
had complied with their obligation to clean the ditch.
Damages.
Having found that the Liermanns complied with their obli-
gation to clean the ditch, we do not reach the Barthels’ dam-
ages arguments. An appellate court is not obligated to engage
Decisions of the Nebraska Court of Appeals
740 21 NEBRASKA APPELLATE REPORTS
in an analysis that is not necessary to adjudicate the case and
controversy before it. State v. Pangborn, 286 Neb. 363, 836
N.W.2d 790 (2013).
CONCLUSION
Having determined that the district court properly con-
strued § 31-224 and did not err when finding the Liermanns
had complied with this section, we affirm the district court’s
judgment.
Affirmed.