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Delaet v. Blue Creek Irrigation Dist.

Court of Appeals of Nebraska

August 4, 2015

DAVID DELAET ET AL., APPELLANTS,
v.
BLUE CREEK IRRIGATION DISTRICT, APPELLEE

Appeal from the District Court for Garden County: DEREK C. WEIMER, Judge.

Gregory J. Beal for appellants.

Steven C. Smith, of Smith, Snyder, Petitt, Hofmeister & Snyder, G.P., for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

OPINION

Page 484

[23 Neb.App. 107] Pirtle, Judge.

INTRODUCTION

David DeLaet, Gerrod Toepfer, and Allen Peterson (collectively appellants) appeal from an order of the district court for Garden County which granted summary judgment in favor of Blue Creek Irrigation District (Blue Creek) and denied appellants' motion for partial summary judgment. We conclude that summary judgment was properly granted in favor of Blue Creek based on the ground that appellants' causes of action are barred by the statute of limitations. Accordingly, we affirm.

BACKGROUND

Appellants are all longstanding property owners and irrigators in Garden County, Nebraska. They were all part of an entity called the Meeker Ditch Company, which was made up of private landowners who pooled resources to develop and manage an irrigation system for various irrigated areas in Garden County. Ultimately, the Meeker Ditch Company was dissolved and the members of that entity joined Blue Creek in 2002. The Meeker Ditch Company had been " served by the Graf Canal," which it abandoned upon joining Blue Creek.

Blue Creek is a political subdivision and an organized irrigation district pursuant to Neb. Rev. Stat. § 46-101 et seq. (Reissue 2010). Blue Creek has a board of directors and assesses taxes from the landowners.

Page 485

Blue Creek has 30 landowner members and covers approximately 3,500 acres of land. It is a small district by comparison to others in the immediate area and throughout Nebraska. Blue Creek is served by a district canal ditch from which the water is diverted and delivered to the individual landowners.

[23 Neb.App. 108] In preparation for the inclusion of the Meeker Ditch Company members into Blue Creek, additional pipelines had to be constructed to connect the Meeker Ditch Company members to the Blue Creek system. These pipelines were constructed in 2001 and paid for by the Meeker Ditch Company members. Three of the pipelines constructed are known as the East Meeker pipeline, the Middle or Central Meeker pipeline, and the West Meeker pipeline. Appellants DeLaet and Toepfer receive their water from the Middle Meeker pipeline and appellant Peterson is served by a pipeline which comes from the same turnout as the Middle Meeker pipeline. The Middle Meeker pipeline is the only system of water delivery to appellants' land, and there is no alternate system of ditches or canals or any other means of delivery of water to their property.

Since the inclusion of appellants' land into Blue Creek, there have been two occasions when the Middle Meeker pipeline has needed repair. For the first repair, Blue Creek reimbursed the landowners for the repair costs. It is not clear from the record before us when the first repair occurred. Appellants' brief states that it occurred in 2007, but there is nothing in the record to support that date. DeLaet's and Toepher's affidavits indicate only that the first repair was prior to August 2009, when the second repair occurred. When the second repair was made, the landowners paid for the repair and Blue Creek refused to reimburse the landowners.

On January 26, 2012, appellants filed a complaint alleging three causes of action against Blue Creek. The first cause of action was for declaratory relief to establish that Blue Creek is legally obligated to provide reasonable maintenance for the Meeker pipeline, as well as reasonable rules and regulations pertaining to its use and operation, or to provide an alternative means of delivery of water to the lands along the Meeker pipeline. The second cause of action was for a writ of mandamus to require Blue Creek to perform its duties under the law with respect to maintenance and operation of the Meeker pipeline, as well as reasonable rules and regulations pertaining to its use and operation. The third cause of action was for [23 Neb.App. 109] a mandatory injunction to require Blue Creek to perform its legal obligations with respect to the maintenance, use, and operation of the Meeker pipeline.

Blue Creek filed an answer and alleged several affirmative defenses: separation of powers; waiver, laches, and estoppel; consent to inclusion into Blue Creek and its terms and conditions; and statute of limitations. Blue Creek also made a counterclaim seeking declaratory relief confirming its long-held policies and practices regarding water deliveries.

Appellants filed a reply and answer relating to Blue Creek's affirmative defenses and counterclaim. The pleading also asserted affirmative defenses to Blue Creek's counterclaim: failure to state a claim upon which relief can be granted; failure to join all necessary parties; consent; statute of limitations; and waiver, estoppel, and laches.

Appellants subsequently filed a " Motion for Partial Summary Judgment," asking the court to " enter a Summary Judgment or Partial Summary Judgment on [appellants'] First Cause of Action; [appellants'] ...


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