landowners. In Barry v. Wittmersehouse, 212 Neb. 909, 327 N.W.2d 33 (1982), the Nebraska

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1 NEBRASKA DRAINAGE LAW: WATER DOESN T ALWAYS ROLL DOWNHILL By Don Blankenau Drainage disputes between landowners represent one of the most common water-related legal issues in Nebraska. While regional drainage issues are typically subject to statutory resolution, disputes between individual landowners are governed primarily by common law. The Nebraska Supreme Court has decided no fewer than 50 cases involving disputes between individual landowners dating back to In addition to disputes between individual landowners, disputes frequently arise when governmental subdivisions attempt to alter the drainage of a watercourse. Disputes of this nature are usually resolved pursuant to statutory law. The following discussion examines the guiding principles governing basic drainage disputes. The Rule of Diffuse Surface Water. Between individual landowners, drainage disputes usually concern diffuse surface water. Diffuse surface water must not be confused with the water of a natural stream. Diffuse surface water has been defined by the Nebraska Supreme Court as that [water] which is diffused over the surface of the ground, derived from falling rain or melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to and does flow with other waters. Morrissey v. Chicago, B & Q. R.R., 38 Neb. 406, 415, 56 N.W. 946, 948 (1893). See also Nu-Dwarf Farms, Inc. v. Stratbucker Farms Ltd., 238 Neb. 395, 470 N.W.2d 772 (1991). As will be discussed in the following section, diffuse surface water does not include waters that flow in a natural watercourse or other natural drainway that has as least some of the distinctive attributes of a natural watercourse. As a general matter, a landowner may take significant action to repel diffuse surface water from their property even if so doing results in harm to neighboring

2 landowners. In Barry v. Wittmersehouse, 212 Neb. 909, 327 N.W.2d 33 (1982), the Nebraska Supreme Court articulated the rule of diffuse surface water as follows: Id. at 913, 36. Surface water is a common enemy and the proprietor may by embankment or dike or otherwise defend himself against its encroachment, and he will not be liable in damages which may result from the deflection and repulsion defended against, provided that the proprietor in making defense on his own land himself exercises ordinary care, and provided he so uses his own property as not to unnecessarily and negligently injure others. The rule was more eloquently expressed by Professors Richard Harnsberger and Norm Thorson in their treatise, NEBRASKA WATER LAW & ADMINISTRATION (1984): The landowner is free... to treat diffused surface water as a common enemy, and to dike against it... Id Despite the apparent simplicity of the rule, there are several important components that are easily overlooked. First, and as previously stated, the water repelled must be diffuse surface water. Second, the rule requires that the defense against the diffuse surface water take place on the defending landowners own property. Stated differently, the rule does not permit a trespass to occur. Less obviously, the defensive effort must be undertaken with ordinary care to avoid the unnecessary or negligent injury to others. Exactly what constitutes ordinary care or even unnecessary or negligent injury has not been addressed by the Nebraska Appellate Courts at this time. At a minimum, it would appear that the defensive action was undertaken without a viable alternative available. The Exception to the Rule. If altering drainage is permitted only when the diffuse surface water has not yet entered a natural watercourse or natural drainway that possesses some of the distinctive attributes of a 2

3 natural watercourse, the question then becomes, what are the distinctive attributes of a natural watercourse? Nebraska Revised Statutes defines a watercourse as: Any depression or draw two feet below the surrounding lands and having a continuous outlet to a stream of water, or river or brook. Under this statutory definition, there are only two distinctive attributes of a watercourse: (1) That a draw or depression be two feet below the surrounding lands; and (2) That the depression or draw have a continuous outlet to a stream. The Supreme Court rejected the first attribute of the statutory definition that requires the depression to be at least two feet lower than the surrounding lands. In Nu-Dwarf Farms, Inc. v. Stratbucker Farms Ltd., supra, the Court stated: Unlike a statutory watercourse, a natural drainway need not be at least 2 feet below the surrounding land. The Court has, however, retained the requirement that the depression have a continuous outlet to a stream. In Nichol v. Yocum, 173 Neb. 298, 113 N.W.2d 195 (1962), the Court explained that one is prohibited from repelling diffuse surface water when such waters are concentrated in volume and velocity and flow into a natural depression, draw, swale or other drainway... a natural drainway must be kept open to carry the water into streams. Id. at 306, 200. Interestingly, the Court has indicated that the depression should have a defined bed and bank. In Shotkoski v. Prososki, 219 Neb. 213, 362 N.W.2d 59 (1985), the Court concluded that the evidence failed to show anything approaching a regular channel with bed, banks, and sides. Id. at 221, 64. The Nebraska Supreme Court had occasion to address the regular drainage of diffuse surface water to a low-lying area in Sullivan v. Hoffman, 207 Neb. 166, 296 N.W.2d 707 (1980). In that case, the Court held that waters draining in a depression straddling two properties can be repelled by the lower landowner by diking because there was no regular course and the drained 3

4 water did not form a permanent pond. Id. at 172, 712. Again, the decision appears to have required a depression that formed a defined drainway to a permanent source, be it a natural stream or, in this case, a lake. Lastly, and significantly, the Court has emphasized the requirement that the drainage be natural. In Barry v. Wittmersehouse, supra, the Court stated: The flow of surface water in any well-defined course, whether it be a ditch, swale, or draw in its primitive condition... cannot be arrested or interfered with to the injury of neighboring proprietors. Id. at 912, 35 (Emphasis Added). The Court offered even stronger language a few years later in Gruber v. County of Dawson, 232 Neb. 1, 439 N.W.2d 446 (1989). In Gruber, the Court stated: To prevail... the complaining landowner must prove... that the drainageway was formed and existed in a state of nature. Id. at 9, 452. See also Belsky v. County of Dodge, 220 Neb. 76, 369 N.W.2d 46 (1985). Accordingly, it appears that to preclude any defensive actions to repel the flow of diffuse surface water, the plaintiff would need to provide evidence to show: (1) The land topography in its natural state, allowed diffuse surface water to flow into a natural stream; (2) The natural topography demonstrates a depression that facilitates a concentration of flows within a distinctive drainway; and (3) Harm resulting from the proposed defense. In the alternative, a plaintiff would need to show that the defensive action resulted in unnecessary or negligent harm. Need For An Expert. Much of Nebraska has been under cultivation for over 100 years. Terraces, dams, and land-leveling have been widespread with many lands having undergone significant alterations. These alterations have caused changes to the natural drainage in many areas. Flow patterns and the natural topography are not readily discernable to the lay person. Accordingly, most cases will require the services of a drainage expert. The information relied upon by the expert will 4

5 include topographical maps and aerial photography. Much of the data and information will be limited in time, typically not prior to the 1930s. To better ascertain the natural condition of the drainage, the expert should be expected to personally view the property to search for any clues that indicate the land was altered prior to the earliest governmental surveys. Selected Drainage Cases. 1. Nichol v. Yocum, 173 Neb. 298, 113 N.W.2d 195 (1962). 2. Wilson Concrete Co. v. Sarpy County, 189 Neb. 312, 202 N.W.2d 597 (1972). 3. Barry v. Wittmershouse, 212 Neb. 909, 327 N.W.2d 33 (1982). 4. Arnold v. Huenefeld, 176 Neb. 683, 127 N.W.2d 196 (1964). 5. Sullivan v. Hoffman, 207 Neb. 166, 296 N.W.2d 707 (1980). 6. Eunice Harington Invs., Ltd. v. Wallace, 207 Neb. 373, 299 N.W.2d 174 (1980). 7. Jameson v. Nelson, 211 Neb. 259, 318 N.W.2d 259 (1982). 8. Nielsen v. Chappelear, 175 Neb. 381, 121 N.W.2d 809 (1963). 9. Wells v. Miller, 173 Neb. 780, 115 N.W.2d 137 (1962). 10. Jorgenson v. Stephens, 143 Neb. 528, 10 N.W.2d 337 (1943). Statutory Provisions Related to Drainage. Public drainage authority in Nebraska rests primarily with counties, cities, sanitary improvement districts and natural resources districts. These authorities are found in NEB. REV. STAT., Chapter 31, and are aimed at the facilitation of drainage in statutorily defined watercourses, ditches or drains. Although individuals are required to keep watercourses found on their property free of obstructions, county boards are responsible for ensuring compliance. See NEB. REV. STAT In addition, the county boards may take action to clear an obstructed watercourse and apportion the cost incurred among the property owners who are benefited. See NEB. REV. STAT Similarly, the city counsel of any metropolitan 5

6 city has concurrent jurisdiction with the county board to keep natural watercourses within three miles of their city limits free of obstructions. See NEB. REV. STAT With regard to city and county authorities, affected landowners may petition the council or board to undertake watercourse clearing efforts. See NEB. REV. STAT Rights-of-way for making approved drainage improvements are obtained through negotiation or through the exercise of eminent domain. See NEB. REV. STAT Any person who intentionally acts to frustrate the purposes of such a drainage project can be found guilty of a misdemeanor. See NEB. REV. STAT In addition, if the county board or city council orders an individual to remove an obstruction, failure to so do can lead to a misdemeanor violation. See NEB. REV. STAT Although counties and cities have an affirmative duty to undertake certain drainage measures, natural resources districts may also engage in drainage projects. Specifically, NEB. REV. STAT grants discretionary authority to natural resources districts to: Id. (1) build or construct, operate and maintain, any reservoir, dike or levee to prevent overflow of water, (2) drain any cropland subject to overflow by water, or drain wet land when desirable to make reasonable use of such land whether such condition is caused by surface water or ground water, or drain any land which will be improved by drainage, (3) locate and construct, straighten, widen, deepen, or alter and maintain any ditch, drain, stream, or watercourse, (4) riprap or otherwise protect the bank of any stream or ditch, and (5) construct, enlarge, extend, improve, or maintain any stream of drainage or system of control of surface water. Although natural resources districts routinely exercise this authority to construct flood control structures and large-scale drainage improvements, they do not typically assist with drainage projects for a limited number of beneficiaries. There is a considerable range of assistance provided depending upon the particular natural resources districts. 6

7 Whether the drainage project is undertaken by an individual or a public entity, all are required to obtain the necessary state and federal permits. Of particular interest is compliance with the Federal Water Pollution Control Act as Amended by the Clean Water Act of 1977, 33 U.S.C et seq., and the Endangered Species Act of 1973, 16 U.S.C et seq. Depending on the scope and location of a project, obtaining federal permits can significantly extend the time required to engage the project. Failure to comply with state and federal restrictions can result in the imposition of civil and criminal penalties. 7