Miller, et al. v. Crooked Creek Farms, Inc., No. A-10-1031, 2011 Neb. App. LEXIS 178 (Neb. Ct. App. Nov. 29, 2011)

(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).

CALT does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. CALT's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.

RSS​ Facebook Twitter