Nichol v. Yocum
113 N.W.2d 195, 173 Neb. 298, 1962 Neb. LEXIS 25 (1962)
Rule of Law:
The true common law, as adopted in Nebraska, dictates that while diffused surface waters may be repelled without liability, a lower landowner cannot obstruct the natural flow of surface waters that have collected in volume and velocity and flow through a natural depression or drainway, as lower lands are under a natural servitude to receive such waters from higher lands.
Facts:
- William A. Nichol, Sr., and co-owners (plaintiffs), along with Arthur Pieper (intervener), own land in Scotts Bluff County, Nebraska, that shares a common eastern boundary with land owned by Ada A. Yocum, Arthur L. Yocum, and Maybelle Luxa (defendants).
- The lands of the plaintiffs, intervener, and defendants, and those to their south, generally slope to the north and west.
- For a distance of approximately 900 feet along the common boundary line, there is low ground through which surface waters naturally flowed from the higher lands of the plaintiffs and intervener onto the lower lands of the defendants.
- These surface waters would pond in a low area on the defendants' land, covering up to 40 acres, until they evaporated or percolated, often damaging the defendants' crops.
- Defendant Arthur L. Yocum began constructing an earthen embankment across this 900-foot natural low ground area on the eastern boundary of the defendants' land.
- On June 21, 1959, following a heavy rainfall, the partial embankment caused water to back up and pond on approximately 19 acres of the plaintiffs' land and 3.5 acres of the intervener's land.
- If completed, the embankment would cause 35 acres or more of the plaintiffs' land to be covered with water during heavy rains.
- Arthur L. Yocum admitted his purpose for the embankment was to ward off these surface waters for the benefit of his land, stating to plaintiff Nichol: 'I have taken this flood water for all of these years, and I’m going to let you take it now.'
Procedural Posture:
- Plaintiffs (William A. Nichol, Sr., et al.) initiated an action in the district court for Scotts Bluff County, Nebraska (the trial court/court of first instance).
- Arthur Pieper intervened in the action.
- The plaintiffs and intervener sought a mandatory injunction to compel defendants (Ada A. Yocum, et al.) to remove an earthen embankment and to permanently enjoin any interference with the natural flow of surface waters.
- The district court found in favor of the defendants.
- Plaintiffs and intervener appealed the district court's decision to the Supreme Court of Nebraska.
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Issue:
Does the 'common enemy' doctrine permit a lower landowner to obstruct the natural flow of surface waters that have collected in volume and velocity in a natural depression or drainway, thereby causing them to pond on the upper landowner's property?
Opinions:
Majority - Carter, J.
No, the 'common enemy' doctrine, as it has been historically misapplied, does not permit a lower landowner to obstruct the natural flow of surface waters that have collected in volume and velocity in a natural depression or drainway, as lower lands are under a natural servitude to receive such waters. The court clarified that the broad 'common enemy doctrine' is not the true common law in Nebraska, despite previous references to it. The true common law distinguishes between diffused surface waters and concentrated surface waters flowing in natural drainways. While landowners may defend against diffused surface waters (those appearing in a diffused state without a permanent source or regular course) without negligence, this right does not extend to waters that have gathered in volume and velocity and flow through an accustomed and natural drainway. Citing historical authorities like Farnham, Waters and Water Rights, the court established that lower lands have a natural servitude to receive such concentrated surface waters from higher lands. The court found that prior Nebraska cases, while appearing to treat this as an exception to the common enemy doctrine, were in fact consistent with the true common law. The evidence clearly demonstrated that the waters in this case were concentrated in a natural depression or drainway, not diffused, and thus the defendants were not permitted to obstruct their flow. The fact that the servient estate (defendants' land) had no natural outlet for the ponded water did not relieve it of the duty to receive these waters.
Analysis:
This case is profoundly significant for clarifying and correctly interpreting the common law regarding surface water rights in Nebraska, effectively rejecting the broad and often misapplied 'common enemy' doctrine. By establishing a clear distinction between diffused surface waters and those flowing in natural drainways, the court provides greater protection to upper landowners against arbitrary obstruction of natural drainage. This ruling promotes more equitable land use, particularly in agricultural and developing areas where proper drainage is crucial, and will undoubtedly influence how future disputes over water flow are adjudicated, ensuring natural servitudes are respected.
