Summary of a Recent
Judicial Development in
Landowner Liability

Subservient Landowner Must Prove Dominant Estate
Acted Negligently or Unreasonably

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Bihuniak v. Roberta Corrigan Farm, 757 N.W.2d 725 (Neb. Ct. App. 2008), the Nebraska Court of Appeals affirmed the ruling of the district court in favor of the upper landowners in a water law dispute. Lower landowner brought the instant action against upper landowner alleging that the development of the upper land caused an increased amount of surface water to flow onto lower landowner's land and crops. Lower landowners sought an injunction and money damages for the harm caused by the increased water flow. Because upper landowners did not act negligently in the dispersion of the surface water and lower landowners could not show irreparable harm, the court ruled in favor of upper landowners on both issues.

Background

Lower landowner ("lower") owned land located to the south of land owned by upper landowner ("upper"). Id. at 727. Lower's land had historically been subservient to the drainage of surface water from upper's land. Id. On July 16, 2003, upper began constructing a store which required upper to make improvements to the land, including developing plans for the drainage of diffused surface water. Id. After receiving approval from the city of Kearney, upper constructed a detention pond to handle the diffused surface water that would result. Id. at 728. The store was completed in 2005. Id. On January 10, 2008, lower filed a complaint against upper alleging that the construction of the store led to increased flow of surface water onto lower's land, thereby causing damages to lower's land and crops. Id. Lower sought an injunction ordering upper to refrain from causing more surface water to flow onto lower's land than would occur under natural conditions, as well as money damages for repairs and losses. Id. After hearing the evidence from each party, the district court held that lower had not adequately proved damages to the land or crops, and thus lower could not show irreparable harm. Id. at 729. In addition, lower failed to show that upper acted negligently or unreasonably during construction the store. Id.

Arguments

Upper argued that it was entitled to an injunction against lower because the construction had caused an increased flow of surface water over the southeast corner of lower's property, resulting in damages to lower's land and crops. Id. Upper contended that its land and crops would continue to sustain damage unless upper's activities were enjoined. Id.

Analysis and Holdings

In Nebraska, the right of an upper proprietor of water to discharge surface water is not absolute; it must be done in a reasonable and careful manner and without negligence. See id. at 730. In the instant action, upper would not be liable to lower for the increased surface water flow unless lower could prove that upper acted negligently. See id.

The court held that lower fail to plead or to prove that upper acted negligently. Id. Because upper failed to plead or prove negligence, the court held that there was no basis for an injunction. Id. Additionally, lower failed to show irreparable harm, one of the key characteristics of a prima facie injunction. Id.

The case was decided on November 4, 2008.