Belsky v. County of Dodge
220 Neb. 76, 369 N.W.2d 46, 1985 Neb. LEXIS 1046 (1985)
Rule of Law:
A public authority has a continuing duty to provide for the natural passage of all water reasonably anticipated to move through a natural drainway when constructing a structure across it; however, liability for obstruction requires proof of a causal relationship between the structure's capacity and the alleged water problem.
Facts:
- Lawrence and Marie Belsky own an 80-acre farm, and their son Larry and his wife Kathleen own an adjacent 80-acre farm to the south, separated by an east-west county road.
- Pebble Creek, a drainway that is dry approximately 90% of the time, runs northeasterly through the Belsky farm.
- Before 1979, drainage collected in a depression near the southeast corner of Belsky’s farm and flowed eastward across an east-west township road, often rendering it impassable.
- Belsky complained to Dodge County about the drainage and road issues.
- In 1979, Dodge County undertook grade work on the township road, built a new bridge with a 313 square-foot opening (compared to the old bridge's 105 square feet, mostly clogged), and elevated the bridge approach of the road by 2.4 feet.
- The new bridge was constructed at an oblique angle, contemplating Belsky's promise to straighten a 'bow' in Pebble Creek across his farm to facilitate perpendicular water flow through the new bridge.
- Belsky never straightened the bow of Pebble Creek.
- After the road elevation, water collected at identical levels on both sides of the road, and previously eastward-draining water ran north on the west side of the road into Pebble Creek at the new bridge site.
- Expert witnesses agreed that the increased road elevation could contribute to increased depth and duration of standing water.
Procedural Posture:
- Lawrence and Marie Belsky (Belsky) requested an injunction in the district court for Dodge County against the County of Dodge, the county’s supervisors and highway superintendent, and Webster Township.
- Belsky asserted the defendants’ “negligent, wrongful and unlawful acts” caused irreparable injury by constructing an insufficient bridge opening and elevating the road, which obstructed a natural drainway and resulted in flooding and standing water on Belsky’s farm.
- The district court found that Belsky had failed to prove negligence or the existence of a watercourse and dismissed Belsky’s action.
- Belsky appealed to the Supreme Court of Nebraska, claiming the district court erred in determining a statutory watercourse did not exist, in applying the common enemy rule regarding surface waters, and in finding the county had provided sufficient passage of all waters reasonably anticipated to flow beneath the new bridge.
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Issue:
Does a county's construction of a bridge and elevation of a road across an area where surface waters previously drained constitute an unlawful obstruction of a natural drainway, thereby causing a property owner's farm to flood and entitling the owner to an injunction, when there is no proven causal link between the new construction's capacity and the alleged flooding?
Opinions:
Majority - Shanahan, J.
No, the county's construction of the new bridge and elevated road does not establish liability for obstruction of a natural drainway causing Belsky's farm to flood, because there is no causal relationship between the bridge's hydraulic capacity and the water problem on the Belsky farm. The court first determined that Pebble Creek, as described by Belsky, does not qualify as a statutory watercourse under Neb. Rev. Stat. § 31-202 because Belsky provided no evidence of the depression's depth or a continuous outlet. The court then characterized the waters in question as surface waters, not floodwaters, and applied the 'common law' rule from Nichol v. Yocum, which states that while diffused surface waters can be repelled, concentrated surface waters flowing into a natural drainway cannot be obstructed. A lower landowner, including public authorities, has a continuing duty to provide for the natural passage of reasonably anticipated water when building a structure across a natural drainway. However, the court found no evidence that a 'natural drainway' (defined as one formed and existing in a state of nature, carrying water from higher to lower estates) existed south of the new bridge where water historically crossed the township road. The prior drainage across the road was attributed to the artificial, unobstructed road surface and the clogged old bridge, not natural land characteristics. While Pebble Creek itself is a natural drainway, the evidence showed that out-of-bank flows from Pebble Creek occurred upstream of the new bridge and moved parallel to the creek, eventually passing beneath the new bridge without exceeding its capacity. Therefore, the court concluded there was no causal relationship between the new bridge's hydraulic capacity and any water problem on Belsky’s farm, thereby precluding liability on the part of the county.
Analysis:
This case clarifies the distinction between a 'statutory watercourse' and a 'natural drainway' under Nebraska law, emphasizing the evidentiary burden to prove each. It reiterates the continuing duty of public entities not to obstruct natural drainways but significantly limits liability by requiring a clear causal link between the obstruction and the alleged injury. The court's finding that an artificial component (like a maintained road surface) can prevent an area from being characterized as a 'natural drainway' in a state of nature is crucial, suggesting that historical drainage patterns influenced by man-made structures may not automatically trigger the duty of non-obstruction. Future cases must rigorously establish both the 'natural' character of the drainway and direct causation.
