Koch v. Aupperle

737 N.W.2d 869

274 Neb. 52

Loren W. KOCH, Appellee and Cross-Appellant, v. Ronald E. AUPPERLE and Mary Ann Aupperle, Appellants, and Lower Platte South Natural Resources District, Intervenor-Appellant and Cross-Appellee.

No. S-06-264.

Supreme Court of Nebraska.

August 3, 2007.

Steven G. Seglin and Thomas E. Jeffers, of Crosby Guenzel, L.L.P., Lincoln, for appellants and intervenor-appellant.

Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Hickman, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

This case involves a water dispute between neighboring landowners. Ronald E. Aupperle and Mary Ann Aupperle, with the cooperation of the Lower Platte South Natural Resources District (LPSNRD), commenced construction of a small dam to create a farm pond along the banks of an unnamed tributary of Weeping Water Creek in Cass County, Nebraska. Loren W. Koch, a downstream user of the waters of the tributary, sought to enjoin the construction of the dam, and LPSNRD intervened. After a bench trial, the district court for Cass County enjoined the Aupperles from constructing the dam without a device to permit water to pass through the dam so as not to "appreciably diminish" the water which would naturally flow onto Koch's property or materially affect the continuity of such flow. The Aupperles and LPSNRD appeal. Based upon our de novo review, we conclude that Koch was not entitled to injunctive relief.

I. BACKGROUND

In June 2005, Koch filed an action to enjoin the Aupperles from constructing a dam to create a small farm pond on the unnamed tributary. In his verified complaint, Koch asserted that he is a downstream user of the tributary and that in 1989, he dammed the waters of the tributary and developed a pond of approximately 3 acres on his property. The pond is stocked with fish and is appurtenant to Koch's residence. Koch alleged that he also used the stream water to water cattle. He alleged that his pond had been reduced in size over the several years preceding the action due to drought conditions in Cass County. Koch alleged that the Aupperle dam would prevent his pond from filling and deprive him of the use of the stream water for livestock watering. On July 5, the district court entered a temporary injunction preventing the Aupperles from completing construction of their dam. On the same date, Koch posted a $1,000 cash bond.

On July 26, 2005, LPSNRD filed a complaint in intervention and an answer. Koch subsequently filed a motion to strike the complaint in intervention on the basis that LPSNRD lacked a direct and legal interest in the outcome of the controversy. After a hearing on the motion to strike, the district court determined that because LPSNRD had entered into a cost-share arrangement with the Aupperles to provide funds for the dam construction and had been involved in the design and construction stages of the proposed dam, it had a direct financial interest in the final construction of the dam and pond and was therefore entitled to intervene.

LPSNRD and the Aupperles then filed a motion to dismiss or, in the alternative, to transfer the matter to the Department of Natural Resources (DNR), alleging that that agency had "primary, exclusive, and original jurisdiction to adjudicate the respective surface water rights of the parties." In denying the motion, the district court concluded that it had jurisdiction to determine the action and that the doctrine of primary jurisdiction was not applicable.

At trial, Koch testified that he purchased his property in 1981 and that aside from two brief time periods in the previous 2 years, he had observed a constant flow of water in the tributary. His dam, built in 1989, impounded approximately 40 to 50 acre-feet of water. The pond took approximately a year and a half to fill and seal. In 1990, he stocked the pond with largemouth bass, bluegill, and catfish, and the pond, by the time of trial, had become "one of the best little fishing ponds around."

Koch testified that he used his pond to water his livestock from the time it was constructed until 1997. He had no livestock from 1997 until shortly before trial. He stated that he intended to have a small number of cattle on his property again and that he had recently obtained 7 head; he anticipated having a maximum of 45 head. Although he admitted that he had other water sources for cattle on his property, he testified that he preferred to use the running water from the tributary because "it's the most trouble-free watering you can get for livestock" and was the most convenient source of water for him.

Koch testified that the pond was also used for recreational boating. He also testified that he built his house in 1997 to overlook the pond and had made some improvements on the pond, including the installation of a boat dock. According to Koch, due to drought conditions in the 4 to 5 years preceding the trial, the water level in the pond was down 6 to 8 feet.

Koch testified that he did not obtain permits prior to constructing his dam, but that when he learned that permits were necessary, he made the required permit applications. He was concerned that if the drought continued and the Aupperles were allowed to construct their pond, no water would pass through to his pond and it would dry up and kill his fish. He requested that the court require a "six-inch draw down" in the Aupperle dam so that water could be passed through the Aupperle structure until Koch's pond was full.

On cross-examination, Koch conceded that he had no appropriative right to use the water in the tributary. He further testified that he wanted all the water in the tributary until his pond was full and that then, the court could authorize upstream impoundment by the Aupperles. He admitted that he had other sources of water that he could use for his livestock, including several other ponds, a well, rural water spigots, and stock tanks. He further admitted that he had not quantified the amount of water he would need for watering his livestock, nor had he analyzed at what point the fish in his pond would be endangered. Koch testified that his dam did not contain a drawdown device similar to the one he sought for the Aupperle dam.

Robert Kalinski testified as an expert on behalf of Koch. Kalinski is a licensed professional civil engineer with bachelor's and master's degrees in geology and a doctorate degree in engineering. Summarized, Kalinski testified that the rate of the ground water-based or spring-based flow in the tributary was greater above the proposed Aupperle dam than it was below the dam. He further testified that the Koch dam had a drainage basin of approximately 260 acres and that the Aupperle basin would take up 178, or approximately 69 percent, of those same acres. Drainage basins are relevant to determining how much precipitation-based runoff will flow into a stream.

Over a continuing foundational objection, Kalinski opined that "significant" spring flows would be eliminated by the construction of the Aupperle dam. He stated that with regard to runoff flows, "just reduction of the drainage basin, particularly during times during years of lower flows, below average precipitation, that that would again significantly reduce the amount of water that was available to flow into ... Koch's dam." Kalinski testified that during the time the Aupperle pond was filling, there would be little flow to the Koch property.

On cross-examination, Kalinski admitted that the flows in the stream could vary from day to day and location to location and that the variance could be quite significant. He clarified that his ultimate opinion was that "there's a potential reduction in water that's available to flow to ... Koch's dam."

The Aupperles and LPSNRD called Michael Jess as an expert witness. Jess has a master's degree in civil engineering and formerly served as the director and deputy director of the Department of Water Resources. Summarized, Jess agreed with Kalinski's calculations regarding drainage basins and streamflows, but disagreed as to the effect of the Aupperle dam. According to Jess, during average precipitation years, the Aupperle dam would not have a significant or substantial effect on the streamflow available to Koch. During times of drought, he opined that neither structure was likely to fill and that thus, the proposed Aupperle dam would not have an adverse effect on Koch's pond. Jess further testified that in times of abundant precipitation, both dams were likely to fill and that the Aupperle dam could serve as flood control. He clarified that his opinions were based solely on precipitation-based runoff and that any spring flows would produce an additional volume of water. Ultimately, Jess testified that based upon a comparison of flow to Koch's dam during drought years, both with the Aupperle dam in existence and without it, the difference in the flow would not be so significant as to make the installation of the Aupperle dam an unreasonable use of the stream water.

Paul Zillig, the assistant manager of LPSNRD, testified that based on data compiled by the Natural Resources Conservation Service, an entity that designed the Aupperle farm pond, there was sufficient water in the tributary to support both ponds. He stated that LPSNRD would not have participated in the Aupperle project had it thought that it would have prevented downstream flows. He testified that virtually all small ponds like the Aupperle pond would at some point reduce downstream flows. He also testified that farm ponds like the Aupperles' are customarily designed without auxiliary passthrough devices, because they are not subject to DNR permit requirements. He explained that the state requires a pass-through device because there is a legal requirement to be able to draw down a pond to 15 acre-feet.

Ronald Aupperle testified that he relied upon the expertise of LPSNRD and the...