Sullivan v. Hoffman
296 N.W.2d 707, 1980 Neb. LEXIS 944, 207 Neb. 166 (1980)
Rule of Law:
Diffuse surface waters, which result from rainfall and melting snow and have no permanent source or regular course, may be dammed, diverted, or repelled by an adjoining landowner without liability if done without negligence, provided the waters do not form a permanent pond or lake on the neighbor's land.
Facts:
- John P. Sullivan and Milrae Sullivan owned an 80-acre tract (Tract 1) since 1970 and purchased an adjoining 160-acre tract (Tract 2) in 1978, which they had farmed for five years prior.
- Arthur C. Hoffman owned 280 acres of farmland located directly east of and adjacent to the Sullivans' Tract 2, with a county road separating their properties.
- The terrain in the area is generally flat but has a sufficient elevation change that water naturally flows from west to east across Tract 2 and from south to the northeast corner of Tract 1, and into a low area around a culvert between the properties.
- Hoffman constructed a dike along the west boundary of his land, very close to the county road and a culvert that allows water to pass from the Sullivans' Tract 2.
- The Sullivans claimed that Hoffman's dike prevented the natural flow of winter thaws and heavy rains from their property into a 'lagoon or pond' on Hoffman's land, causing their land to flood.
- Hoffman testified that he farmed crops on his land every year since 1957, losing crops to water only once in 1967, and denying the existence of a permanent pond.
- Evidence indicated that any water ponding on Hoffman’s land near the culvert was, at most, seasonal, standing only from spring until fall, and disappeared through evaporation or percolation, rather than being a permanent body of water.
- The Sullivans had previously made changes to their land, including building dikes and leveling, which altered the natural drainage, and had an irrigation pit to collect surface waters but elected not to use it for waters accumulating near the south culvert.
Procedural Posture:
- John P. Sullivan and Milrae Sullivan (plaintiffs) filed an action in the District Court for Hall County, Nebraska, seeking an injunction to compel Arthur C. Hoffman (defendant) to remove a dike.
- Arthur C. Hoffman (defendant) filed a cross-petition in the District Court, seeking an injunction against the Sullivans for diverting water onto his land.
- The District Court for Hall County, Nebraska, conducted a trial, which included an inspection of the property by the trial judge.
- The District Court dismissed both the Sullivans' petition and Hoffman's cross-petition.
- The Sullivans filed a motion for a new trial in the District Court, which was overruled.
- The Sullivans (appellants) appealed the District Court's dismissal of their petition and the overruling of their motion for new trial to the Supreme Court of Nebraska; Hoffman (appellee) did not cross-appeal.
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Issue:
Does a landowner have the right to maintain a dike that obstructs the flow of surface water onto a neighboring property if the accumulated water on the neighbor's land is merely seasonal and disappears by evaporation or percolation, rather than forming a permanent lake?
Opinions:
Majority - Buckley, District Judge
No, a landowner does not prevent a neighbor from maintaining a dike that obstructs the flow of surface water onto their property, because the water accumulating on the neighbor's land is merely seasonal and disappears by evaporation or percolation, rather than forming a permanent lake. The court concluded that the waters involved are diffuse surface waters, not a permanent pond or lake. The court cited Kuta v. Flynn for the principle that diffuse surface waters, which result from rainfall and melting snow and have no permanent source of supply or regular course, may be dammed, diverted, or repelled by an adjoining landowner without liability, if it is necessary and done without negligence. The court distinguished this case from Block v. Franzen, where a permanent, landlocked pond lay across a common boundary, necessitating a different rule regarding permanent bodies of water. The evidence, including photographs and testimony, indicated that any ponding on Hoffman's land was seasonal and disappeared by natural processes. The court also noted that the Sullivans had altered their own land's drainage patterns and had an alternative means to manage their surface water. The court affirmed the trial court's dismissal of the Sullivans' petition and found no merit in their claim regarding newly discovered evidence, as it was post-trial and cumulative at best.
Analysis:
This case clarifies the critical distinction between diffuse surface waters and permanent bodies of water (lakes or ponds) in Nebraska property law. It reinforces the general right of landowners to defend against and repel diffuse surface waters without liability, provided the actions are not negligent. The ruling impacts agricultural landowners, emphasizing that seasonal accumulations of water that disappear naturally are considered diffuse surface waters, granting neighbors the right to manage drainage on their own property even if it obstructs such flow. This case sets a precedent for how courts will analyze the transient nature of water bodies when determining property rights related to water diversion.
