Kobza v. Bowers

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
Bernard J. Kobza Vickey L. Kobza, husband and wife,
and
appellants and cross-appellees, v. R honda Y. Bowers
and Melvin L. Bowers, Jr., wife and husband,
appellees and cross-appellants.
___ N.W.2d ___
Filed August 11, 2015. No. A-14-670.
1. Injunction: Equity. An action for injunction sounds in equity.
2. Equity: Appeal and Error. In an appeal of an action in equity, an
appellate court tries the factual issues raised by the appellant’s assign-
ments of error de novo on the record and reaches its conclusions
independent of the findings of the trial court; however, where credible
evidence is in conflict on material issues of fact, an appellate court
may consider and give weight to the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts rather
than another.
3. Waters: Injunction. Injunctive relief may be granted to an adjoining
landowner upon a proper showing that an obstruction in a drainageway
or natural watercourse constitutes a continuing and permanent injury to
that landowner.
4. Injunction: Proof: Appeal and Error. A party seeking an injunction
must establish by a preponderance of the evidence every controverted
fact necessary to entitle him or her to relief.
5. Waters: Words and Phrases. Diffused surface water is defined as water
which appears upon the surface of the ground in a diffused state, with no
permanent source of supply or regular course, which ordinarily results
from rainfall or melting snow.
6. ____: ____. When diffused surface waters are channeled into a well-
defined natural course, whether the course be ditch, swale, or draw in its
primitive condition, a natural drainageway is formed.
7. ____: ____. Ground water is defined as that water which occurs or
moves, seeps, filters, or percolates through the ground under the surface
of the land.
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KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
8. Waters. Diffused surface waters may be dammed, diverted, or otherwise
repelled, if necessary, and in the absence of negligence.
9. ____. When diffused surface waters are concentrated in volume and
velocity into a natural depression, draw, swale, or other drainageway, the
rule as to diffused surface waters does not apply.
10. ____. A natural drainageway must be kept open to carry the water into
the streams, and a lower proprietor cannot obstruct surface water when
it has found its way to and is running in a natural drainage channel
or depression.
11. ____. A lower landowner who builds a structure across a natural drain-
ageway has a continuing duty to provide for the natural passage through
such obstruction of all the waters which may be reasonably anticipated
to drain therein.
12. ____. Lower lands are under a natural servitude to receive the sur-
face water of higher lands flowing along accustomed and natural
drainageways.
13. ____. A lower estate is not under a natural servitude to receive dif-
fused surface waters which have not found their way into a natural
drainageway.
14. ____. It is essential that one seeking to prohibit a diversion of the flow
of surface water show some damage or injury resulting from it.
15. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
16. Injunction. An injunction is an extraordinary remedy and ordinarily
should not be granted except in a clear case where there is actual and
substantial injury.
17. ____. Injunctive relief should not be granted unless the right is clear,
the damage is irreparable, and the remedy at law is inadequate to pre-
vent a failure of justice.
18. ____. As an injunction is an extraordinary remedy, it is available in the
absence of an adequate remedy at law and where there is a real and
imminent danger of irreparable injury.
19. Injunction: Damages: Words and Phrases. An injury is irreparable
when it is of such a character or nature that the party injured cannot
be adequately compensated therefor in damages, or when the damages
which may result therefrom cannot be measured by any certain pecuni-
ary standard.
20. Costs. A prevailing plaintiff in actions for the recovery of money
only or for the recovery of specific real or personal property shall be
allowed costs.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Affirmed.
Paul F. Peters for appellants.
Brian J. Muench for appellees.
Irwin, Inbody, and R iedmann, Judges.
R iedmann, Judge.
I. INTRODUCTION
Bernard J. Kobza and Vickey L. Kobza, husband and wife,
appeal, and Rhonda Y. Bowers and Melvin L. Bowers, Jr.,
wife and husband, cross-appeal, from the order of the district
court for Sarpy County which denied the Kobzas’ request
for a permanent injunction and denied the Bowerses’ coun-
terclaim for money damages and an injunction. We find no
merit to the arguments on appeal or cross-appeal and there-
fore affirm.
II. BACKGROUND
The Kobzas commenced this action seeking injunctive relief
relating to the pooling of water on their property. In their
counterclaim, the Bowerses also sought an injunction against
the Kobzas as well as damages for the loss of trees on
their property.
The Kobzas and the Bowerses own adjacent residential lots
in Sarpy County, Nebraska. The Kobza property lies immedi-
ately south of the Bowers property. There are two drainage-
ways that pass through the properties. The primary issue in
this case involves what shall be referred to as “the western
drainageway.” This drainage path runs along the western
border of both properties and flows into a pond several
lots north of the Bowers property. The second drainageway
runs through the eastern portion of the Kobza property onto
the Bowers property, then turns westerly near the southern
edge of the Bowers property until it joins with the western
drainageway.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
The Kobzas allege that the Bowerses unlawfully built an
earthen berm which obstructs the flow of water in the western
drainageway, causing water to back up onto the northwest cor-
ner of the Kobza property. They also allege that the Bowerses
altered the natural course of the eastern drainageway by
adding dirt fill, which moved the drainageway closer to the
Kobza property line, endangering their property due to flood-
ing in the event of a major rainfall. In their counterclaim,
the Bowerses assert that the Kobzas unlawfully increased the
flow of water by pumping ground water resulting in damage
to the Bowers property. Thus, the Bowerses claim that the
Kobzas should be enjoined from pumping water onto their
property and be ordered to pay damages for the loss of the
Bowerses’ trees.
The Kobza residence was built in 1990. The Bowers resi-
dence was built in 1998 or 1999. After building their resi-
dence, the Kobzas started getting water in their basement. To
alleviate the problem, they installed a sump pump and, several
years later, an underground dewatering well. These structures
are activated by underground probes and pump water at a
rate of 30 to 40 gallons per minute through an underground
pipe. Initially, the outflow pipe was connected to another
piece of pipe running underneath the Bowers property, with
the Bowerses’ permission, and the water emptied into a cul-
vert under the Bowerses’ driveway where it continued to flow
north from there. In 2008, however, the piping system failed
on two occasions. After that, the Kobzas refused to repair the
pipes and began discharging water at the property line. This
resulted in water accumulating on the southwest corner of the
Bowers property.
There were no issues with the ponding of water on either
property while the piping system was in place. Bernard
Kobza conceded at trial that if he had allowed the original
piping system to be repaired and reattached, it would have
disposed of all of the water coming from his sump pump
and dewatering well. But he was unwilling to trust someone
else with control over potential flooding on his property,
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KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
because he blamed the Bowerses for the previous breaks in
the system.
In order to alleviate the flooding which was occurring on
their property after the piping system was no longer opera-
tional, the Bowerses obtained a permit from Sarpy County
and installed a second culvert in 2009. They also built an
earthen berm extending from the point where the dewatering
well discharges water to a point near the road at the west.
They installed a pipe at the western end of the berm through
the berm in order to facilitate the drainage of water from the
Kobza property, through the berm, and into the culvert. The
berm alleviated the flooding on the Bowers property, but water
began backing up and pooling in the northwest corner of the
Kobza property. The Kobzas discontinued use of their dewater-
ing well in November 2010, however, and there has been no
flooding on their property since then. The area has recovered
with grass growing, and as the district court observed, it now
has “a generally positive appearance.”
Paul Woodward, a civil engineer, testified for the Kobzas
at trial. He opined that the Bowerses’ berm obstructs the flow
of water, causing it to pond onto the Kobza property. He also
testified that the present location of the eastern drainageway
is different from its historic location. He could not say with
certainty how the location of the drainage path had changed
but believed it could be attributed to fill activities both at
the time the Bowerses’ residence was built and later within
their backyard. According to Woodward, the eastern drain-
ageway is also now more narrow and shallow than it used
to be, which means there is less area for water to flow. He
opined that in the event of a large rainfall, the result of these
changes could be that excess water could drain back onto the
Kobza property.
After trial, the district court entered an order denying the
Kobzas’ request for injunctive relief. The court found that
the ponding issues on both parties’ properties correlate with
the elimination of ground water from the Kobzas’ dewatering
system, as opposed to accumulation from rainfall or snowmelt
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KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
alone. The court noted that the Kobzas cite to no case law
which allows a landowner of an upper parcel to indiscrimi-
nately discharge ground water onto a lower parcel. The dis-
trict court concluded that the Bowerses’ action in building the
berm provided adequately for the drainage of water and was
therefore permissible. Similarly, the district court found that
the Bowerses’ actions with respect to the eastern drainageway
provided for the natural passage of water, and there was no
evidence to demonstrate that anything more than a de minimis
injury would occur in the event of heavy rainfall. The district
court also denied the Bowerses’ counterclaim for damages
for the loss of their trees and an injunction prohibiting the
Kobzas from discharging water from their dewatering well.
The Bowerses’ request for attorney fees and court costs was
also denied.
The Kobzas filed a motion for leave to file a fourth amended
complaint after all evidence had been presented at trial but
before written closing arguments had been submitted. The
motion was denied. The Bowerses then moved for new trial,
which was also denied. The Kobzas have now filed a timely
appeal, and the Bowerses cross-appeal.
III. ASSIGNMENTS OF ERROR
The Kobzas’ nine assignments of error on appeal may be
summarized as asserting that the district court erred in find-
ing that they are not entitled to injunctive relief and refusing
to allow them to amend their complaint after all evidence had
been presented.
On cross-appeal, the Bowerses assign that the district court
erred in (1) failing to award damages for the loss of their trees,
(2) failing to enjoin the Kobzas from pumping ground water,
and (3) failing to award costs.
IV. STANDARD OF REVIEW
[1,2] An action for injunction sounds in equity. Conley v.
Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009). In an appeal
of an action in equity, an appellate court tries the factual
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KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
issues raised by the appellant’s assignments of error de novo
on the record and reaches its conclusions independent of the
findings of the trial court; however, where credible evidence
is in conflict on material issues of fact, an appellate court may
consider and give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Romshek v. Osantowski, 237 Neb.
426, 466 N.W.2d 482 (1991).
V. ANALYSIS
1. A ppeal
The Kobzas assert that the district court erred in finding
that they failed to meet their burden of proof and are there-
fore not entitled to injunctive relief. For the reasons explained
below, we disagree.
[3,4] Injunctive relief may be granted to an adjoining land-
owner upon a proper showing that an obstruction in a drain-
ageway or natural watercourse constitutes a continuing and
permanent injury to that landowner. Romshek, supra. Under a
de novo review, we are guided by the rule that a party seeking
an injunction must establish by a preponderance of the evi-
dence every controverted fact necessary to entitle him or her
to relief. See id.
(a) Western Drainageway
With respect to the western drainageway, the Kobzas claim
that the Bowerses’ berm constitutes an unlawful obstruction of
a natural drainageway causing damage to their property and,
therefore, must be enjoined. We conclude that the Kobzas are
not entitled to an injunction, because the injury to their prop-
erty was caused by the increased volume of ground water they
pumped from their dewatering well, and the Bowerses’ diver-
sion of such ground water was not negligent.
[5,6] Diffused surface water is defined as water which
appears upon the surface of the ground in a diffused state,
with no permanent source of supply or regular course, which
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KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
ordinarily results from rainfall or melting snow. Id. When dif-
fused surface waters are channeled into a well-defined natural
course, whether the course be ditch, swale, or draw in its
primitive condition, a natural drainageway is formed. Id.
[7] In contrast, ground water is defined as that water which
occurs or moves, seeps, filters, or percolates through the ground
under the surface of the land. Spear T Ranch v. Knaub, 269
Neb. 177, 691 N.W.2d 116 (2005); Neb. Rev. Stat. § 46-635
(Reissue 2010).
[8-11] The current Nebraska rule regarding diffused surface
water was announced in Nichol v. Yocum, 173 Neb. 298, 113
N.W.2d 195 (1962). The court in Nichol held that diffused sur-
face waters may be dammed, diverted, or otherwise repelled, if
necessary, and in the absence of negligence. Id. But when dif-
fused surface waters are concentrated in volume and velocity
into a natural depression, draw, swale, or other drainageway,
the rule as to diffused surface waters does not apply. Id. A
natural drainageway must be kept open to carry the water into
the streams, and a lower proprietor cannot obstruct surface
water when it has found its way to and is running in a natural
drainage channel or depression. Id. Thus, a lower landowner
who builds a structure across a natural drainageway has a con-
tinuing duty to provide for the natural passage through such
obstruction of all the waters which may be reasonably antici-
pated to drain therein. Id.
In the present case, the water flowing from the Kobza prop-
erty to the Bowers property was composed of both surface
water in a natural drainageway and ground water. However,
the water which was pooling on the Kobza property causing
damage to the northwest corner was the result of ground water
that was pumped from the Kobzas’ sump pump and dewater-
ing well. It is undisputed that water stopped ponding on both
parties’ properties in 2010 after the Kobzas discontinued use
of their dewatering well, and thus, there was no evidence that
surface water alone was causing any problems. Accordingly,
the rule from Nichol, which would prohibit the Bowerses from
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KOBZA v. BOWERS
Cite as 23 Neb. Ct. App. 118
obstructing the flow of water in a natural drainageway, does
not apply.
[12,13] The rule announced in Nichol was concerned with
obstruction of naturally occurring water flowing in a natural
drainageway. This means that a landowner is prohibited from
impeding the flow of water as nature intended. In the instant
case, however, the Kobzas’ dewatering well altered the natural
flow of water by increasing its volume so that the water flowing
through the piping system inundated the Bowerses’ property in
an unnatural amount. In finding that the plaintiffs in Romshek
v. Osantowski, 237 Neb. 426, 466 N.W.2d 482 (1991), were
not negligent in the manner in which they drained water from
their field, the Supreme Court noted that the water from the
plaintiffs’ field was not forced upon the defendants’ land in
great volume, but, rather, it flowed at a natural pace. Further,
as explained in Nichol, supra, the common law recognized that
lower lands are under a natural servitude to receive the surface
water of higher lands flowing along accustomed and natural
drainageways. A lower estate is not, however, under a natural
servitude to receive diffused surface waters which have not
found their way into a natural drainageway. Nu-Dwarf Farms
v. Stratbucker Farms, 238 Neb. 395, 470 N.W.2d 772 (1991).
The Kobzas point to no case law supporting their position that
the Bowerses must accept the ground water that the Kobzas are
diverting on their land.
In essence, diffused surface waters are treated as a common
enemy, and we see no reason to treat ground water differently.
See id. This means that the Bowerses were free, as lower
proprietors, to dam it, provided that the interests of good hus-
bandry were served thereby, that it was necessary to do so, and
that it was reasonable under all the circumstances presented.
See Slusarski v. County of Platte, 226 Neb. 889, 416 N.W.2d
213 (1987). We find the Bowerses’ actions were reasonable
under the circumstances. They first attempted to control the
water by asking the Kobzas to repair the piping system, and
when the Kobzas refused, the Bowerses installed a second
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Cite as 23 Neb. Ct. App. 118
culvert. When this method did not alleviate the problem, they
built the berm, still providing for the flow of water through the
berm into the drainageway. Accordingly, the Kobzas failed to
establish that they are entitled to an injunction concerning the
western drainageway.
(b) Eastern Drainageway
[14] With respect to the water flowing in the eastern drain-
ageway, the Kobzas claim that the Bowerses unlawfully
altered the location of the drainageway and decreased its size.
Woodward, the civil engineer, testified that the location of the
eastern drainageway is different from its historic location, but
he could not say why. He further explained that the eastern
drainageway is more narrow and shallow than it was histori-
cally, and he believed that in the event of a major rainfall, it
could cause problems. There was no evidence that there were
any flooding problems resulting from the eastern ditch, how-
ever, and it is essential that one seeking to prohibit a diver-
sion of the flow of surface water show some damage or injury
resulting from it. See Nu-Dwarf Farms, supra. We therefore
find that the district court did not err in concluding that the
Kobzas failed to meet their burden of proof with respect to the
eastern drainageway as well.
(c) Amending Complaint
[15] After all the evidence had been submitted, but before
closing arguments were due, the Kobzas moved for leave to
file a fourth amended complaint. They wanted to amend their
complaint to add a paragraph stating that injunctive relief was
necessary because they have no adequate remedy at law. The
district court denied the motion, determining that because
the case had been submitted to the court, it was too late for
any further amendments. Because we have concluded that
the Kobzas failed to prove they were entitled to injunctive
relief, we need not address this assignment of error. An appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it.
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Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835
N.W.2d 30 (2013).
2. Cross-A ppeal
(a) Damages for Loss of Trees
The Bowerses argue that the district court erred in failing
to award damages for the loss of their trees. Melvin Bowers
testified that a willow tree, a spruce tree, and a bush died
after the southwest corner of their property was flooded by
water piped from the Kobzas’ dewatering well. A neighbor of
the parties who previously owned a tree business testified as
to the cost of replacing the trees. However, the district court
determined that there was no expert opinion as to the “‘cause
of death’” of the trees and noted that the only evidence as to
the reason for the trees’ demise was given by Melvin Bowers
himself. Because he is not qualified as an expert in order
to give a credible opinion, the district court found that the
Bowerses’ failure to present evidence as to the reason for
the loss of trees was fatal to their recovery. We agree that
expert testimony was required to establish the cause of the
trees’ death.
In Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808
N.W.2d 67 (2012), the Nebraska Supreme Court reversed the
trial court’s decision to direct a verdict in the defendant’s favor
on the basis that the plaintiff failed to prove causation and
damages. The plaintiff sued the defendant for damage to corn
crops and called an agronomist as an expert witness at trial.
The agronomist explained that he was able to determine the
cause of the damage from reviewing the crop residue and root
systems and explained his opinion that an improperly high rate
of application of herbicide was the cause of the damage. On
appeal, the Supreme Court concluded that the record contained
evidence explaining the biological mechanism by which the
damage could be caused and that thus, there was sufficient
evidence from which the jury could have found the defendant’s
actions caused the plaintiff’s damage. Id.
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In the present case, however, the Bowerses failed to present
any scientific evidence establishing the cause of the damage to
their trees. The only evidence regarding causation was Melvin
Bowers’ testimony that the trees “died from all the water.” This
was insufficient to establish the causal link between excessive
water and the loss of the trees.
Because the Bowerses failed to designate an expert wit-
ness to opine as to causation, they failed to present suffi-
cient evidence proving the cause of the loss of their trees.
Therefore, the district court did not err in denying their request
for damages.
(b) Injunction
The Bowerses claim that the district court erred in failing
to enjoin the Kobzas from pumping ground water onto the
Bowerses’ property. We disagree.
[16-19] An injunction is an extraordinary remedy and ordi-
narily should not be granted except in a clear case where there
is actual and substantial injury. Rath v. City of Sutton, 267
Neb. 265, 673 N.W.2d 869 (2004). Stated otherwise, injunc-
tive relief should not be granted unless the right is clear, the
damage is irreparable, and the remedy at law is inadequate to
prevent a failure of justice. Id. As an injunction is an extraor-
dinary remedy, it is available in the absence of an adequate
remedy at law and where there is a real and imminent dan-
ger of irreparable injury. Id. An injury is irreparable when it
is of such a character or nature that the party injured cannot
be adequately compensated therefor in damages, or when the
damages which may result therefrom cannot be measured by
any certain pecuniary standard. Id.
In the present case, the Bowerses argue that it is not the
prospect of damage to their land that requires the injunc-
tion, but, rather, it is the recurring waste of ground water by
the Kobzas in violation of the public policy of the State. See
Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb.
783, 799, 140 N.W.2d 626, 636 (1966) (underground waters
are part of waters referred to in Nebraska Constitution as
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“natural want,” and waste of such waters as natural resource
is against public policy). The Bowerses have failed to prove
that an injunction is appropriate, however, because there is no
real and imminent danger of irreparable damage. The Kobzas
have not pumped ground water via their dewatering well since
2010; thus, an injunction is not necessary to prohibit them
from doing something they have not done for several years.
Consequently, we find no error in the district court’s denial of
the Bowerses’ request for injunctive relief.
(c) Court Costs
[20] The Bowerses assert that the district court erred in
failing to award court costs as part of its judgment in their
favor. We agree that under Neb. Rev. Stat. § 25-1708 (Cum.
Supp. 2014), a prevailing plaintiff in actions for the recovery
of money only or for the recovery of specific real or personal
property shall be allowed costs. Likewise, Neb. Rev. Stat.
§ 25-1710 (Reissue 2008) provides for the recovery of costs
to a defendant upon a judgment in his favor for the actions
listed in § 25-1708. However, the Bowerses did not prevail
as plaintiffs in their counterclaim for money damages for the
loss of their trees and the Kobzas’ action was one for injunc-
tion, not for a monetary judgment or for the recovery of
real or personal property. Therefore, they are not entitled to
recover court costs, and the district court did not err in deny-
ing their request.
VI. CONCLUSION
For the foregoing reasons, we affirm the decision of the
district court.
A ffirmed.