- Ag Docket
(surface water drainage case involving adjacent landowners; plaintiff owned tract to immediate north of defendant that was situated higher than defendant’s property and drainage ditch ran on west side of both tracts; plaintiff’s property contained wetland that naturally drained into drainage ditch; plaintiff obstructed natural drainage with result that surface water diverted onto defendant’s property causing crop loss; defendant constructed dam to block water flow and protect crops; both parties sue for injunctive relief; court upholds trial court determination that defendant had right to construct dam to block flow of diverted water and that claim for injunctive relief timely filed; right to damages for flooding of land by surface water via ditch does not accrue until flooding actually occurs and damage results; while water flowing into a natural drainageway cannot be dammed, a lower estate is not under a servitude to receive diffused surface waters which have not found their way into a natural drainageway and owner of lower estate may defend their property against diffused surface water in any non-negligent manner; because road ditch not a natural drainageway, defendant entitled to dam waters flowing through it onto defendant’s land; plaintiff’s drainage activity found to be negligent; proper remedy in drainage disputes is an injunction and defendant entitled to injunction so as to bar need to bring action every time flooding damaged defendant’s land; based on evidence presented, defendant entitled to damages for crop loss, but not erosion; opinion written by judge intimately familiar with Nebraska drainage law and who handled historic Barthel case at state trial court level before being appointed to state Court of Appeals).
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