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Nebraska Court of Appeals Holds a Landowner Could Divert The Flow of Ground Water, if Necessary and Reasonable Under All the Circumstances

on Friday, 4 September 2015 in Dirt Alert: David C. Levy, Editor

Kobza v. Bowers, 23 Neb. App. 118 (2015).

The Kobzas (“Kobza”) and Bowerses (“Bowers”) owned adjacent residential lots, and a drainage way passed through the properties. Kobza’s basement flooded, and he installed a dewatering well with an outflow pipe connected to another pipe running underneath the Bowers property, discharging water into a culvert under the Bowers driveway, where the water continued to flow. After the piping system failed twice, Kobza refused to repair it and began discharging water at the property line, resulting in the accumulation of water on the Bowers property. To alleviate the flooding, Bowers installed a culvert, built an earthen berm, and installed a pipe to drain water from the Kobza property, through the berm, and into the culvert.

Kobza sued for injunctive relief, alleging Bowers unlawfully built the earthen berm, which obstructed the flow of surface water in the drainage way, causing water to back up onto the Kobza property. The district court denied Kobza’s claim, and Kobza appealed.

The Nebraska Court of Appeals affirmed. Kobza was not entitled to an injunction because the increased volume of ground water he pumped from the dewatering well caused the injury to the Kobza property, and Bowers was not negligent in diverting the ground water. Diffused surface water is water that appears on the surface of the ground in a diffused state, without a permanent source of supply or regular course, occurring primarily from rainfall or melting snow. In contrast, ground water is water that moves, seeps, filters, or percolates through the ground under the surface of the land. In Nebraska, a landowner may dam, divert, or otherwise repel diffused surface waters, if necessary, without negligence. However, when diffused surface waters concentrate in volume and velocity into a natural drainage way, the rule regarding diffused surface waters does not apply, and a landowner must keep the drainage way open to carry the water into streams. A landowner who builds a structure across a natural drainage way has a continuing duty to provide for the natural passage of water through the obstruction.

Here, the water on the Kobza property was surface water and ground water. Neither party disputed that water stopped ponding on both properties after Kobza stopped using the dewatering well and thus, there was no evidence surface water alone caused any problems. Accordingly, the rule that would prohibit Bowers from obstructing the flow of water in a natural drainage way did not apply.

Kobza’s dewatering well altered the natural flow of water by increasing its volume and inundating the Bowers property with an unnatural amount of water. Lower lands are under a natural servitude to receive surface water from higher lands flowing along natural drainage ways, but lower lands are not under a natural servitude to accept surface water that is not in a natural drainage way. Kobza pointed to no case law supporting the position that Bowers had to accept the ground water Kobza diverted onto the Bower property.

In essence, Nebraska law treats diffused surface waters as a common enemy, and the Nebraska Court of Appeals found no reason to treat ground water differently. Bowers, as the lower landowner, was free to dam the ground water, because it was necessary and reasonable under the circumstances. The court held, therefore, Kobza failed to establish he was entitled to an injunction.

A copy of the opinion is available here.

Pedro A. Salazar

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