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Barthel v. Liermann

Court of Appeals of Nebraska

January 28, 2014

Craig Lynn Barthel et al., Copersonal Representatives of the Estate of Dorothy Barthel, Deceased, Appellants,
v.
Charles A. Liermann, Individually and as Successor Trustee of the Gene W. Liermann Living Revocable Trust, and Erna E. Liermann, Trustee of the Erna E. Liermann Living Revocable Trust, Appellees.

Page 625

Appeal from the District Court for Holt County: MARK D. KOZISEK, Judge.

Affirmed.

Mark Porto, of Shamberg, Wolf, McDermott & Depue, for appellants.

Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, for appellees.

Inbody, Chief Judge, and Moore and Riedmann, Judges.

Syllabus

1. Statutes. The meaning and interpretation of a statute are questions of law.

2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

Page 626

3. Statutes: Appeal and Error. When an appellate court confronts a statute, it gives statutory language its plain and ordinary meaning and will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

4. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation.

5. Real Estate: Waters: Time. Neb.Rev.Stat. § 31-224 (Reissue 2008) imposes upon a landowner the duty to clean a drainage ditch once a year, between March 1 and April 15.

[21 Neb.App. 731] 6. Real Estate: Waters: Time: Words and Phrases. In Neb.Rev.Stat. § 31-224 (Reissue 2008), the phrase " at least" prior to " once a year" indicates that a landowner may have a duty to clear the ditch more than once during the specified period of March 1 to April 15, if the flow of water again becomes obstructed during this period.

7. Real Estate: Waters: Time.

There is nothing in Neb.Rev.Stat. § 31-224 (Reissue 2008) that can be interpreted to require a landowner to clean a drainage ditch outside the March 1 to April 15 period if the flow of water becomes obstructed at any other time during the year.

Moore, Judge.

INTRODUCTION

Craig Lynn Barthel, Keith Alan Barthel, and Kerry Louis Barthel, as copersonal representatives of the estate of Dorothy Barthel, deceased, and having been substituted as parties, appeal from a judgment entered by the district court for Holt County. Following a bench trial, the district court ruled that the appellees, Charles A. Liermann and Erna E. Liermann, had not breached their duty to clean a shared drainage ditch and that Dorothy had not sufficiently proved her damages. Finding no error in that decision, we affirm the district court's judgment.

FACTUAL BACKGROUND

The parties in this case are neighboring landowners in Holt County, Nebraska. A drainage ditch that runs west to east through the Barthels' property and onto the Liermanns' property before eventually joining the Elkhorn River forms the center of this ongoing dispute. Dorothy claimed that the Liermanns had failed to clear obstructions from this ditch, [21 ...


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