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Kobza v. Bowers

Court of Appeals of Nebraska

August 11, 2015

BERNARD J. KOBZA AND VICKEY L. KOBZA, HUSBAND AND WIFE, APPELLANTS AND CROSS-APPELLEES,
v.
RHONDA Y. BOWERS AND MELVIN L. BOWERS, JR., WIFE AND HUSBAND, APPELLEES AND CROSS-APPELLANTS

Page 807

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Page 808

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Page 809

Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge.

Affirmed.

Paul F. Peters for appellants.

Brian J. Muench for appellees.

IRWIN, INBODY, and RIEDMANN, Judges.

OPINION

RIEDMANN, J.

Page 810

[23 Neb.App. 120] I. INTRODUCTION

Bernard J. Kobza and Vickey L. Kobza, husband and wife, appeal, and Rhonda Y. Bowers and Melvin L. Bowers, Jr., wife and husband, cross-appeal, from the order of the district court for Sarpy County which denied the Kobzas' request for a permanent injunction and denied the Bowerses' counterclaim for money damages and an injunction. We find no merit to the arguments on appeal or cross-appeal and therefore affirm.

Page 811

II. BACKGROUND

The Kobzas commenced this action seeking injunctive relief relating to the pooling of water on their property. In their counterclaim, the Bowerses also sought an injunction against the Kobzas as well as damages for the loss of trees on their property.

The Kobzas and the Bowerses own adjacent residential lots in Sarpy County, Nebraska. The Kobza property lies immediately south of the Bowers property. There are two drainageways that pass through the properties. The primary issue in this case involves what shall be referred to as " the western drainageway." This drainage path runs along the western border of both properties and flows into a pond several lots north of the Bowers property. The second drainageway runs through the eastern portion of the Kobza property onto the Bowers property, then turns westerly near the southern edge of the Bowers property until it joins with the western drainageway.

[23 Neb.App. 121] The Kobzas allege that the Bowerses unlawfully built an earthen berm which obstructs the flow of water in the western drainageway, causing water to back up onto the northwest corner of the Kobza property. They also allege that the Bowerses altered the natural course of the eastern drainageway by adding dirt fill, which moved the drainageway closer to the Kobza property line, endangering their property due to flooding in the event of a major rainfall. In their counterclaim, the Bowerses assert that the Kobzas unlawfully increased the flow of water by pumping ground water resulting in damage to the Bowers property. Thus, the Bowerses claim that the Kobzas should be enjoined from pumping water onto their property and be ordered to pay damages for the loss of the Bowerses' trees.

The Kobza residence was built in 1990. The Bowers residence was built in 1998 or 1999. After building their residence, the Kobzas started getting water in their basement. To alleviate the problem, they installed a sump pump and, several years later, an underground dewatering well. These structures are activated by underground probes and pump water at a rate of 30 to 40 gallons per minute through an underground pipe. Initially, the outflow pipe was connected to another piece of pipe running underneath the Bowers property, with the Bowerses' permission, and the water emptied into a culvert under the Bowerses' driveway where it continued to flow north from there. In 2008, however, the piping system failed on two occasions. After that, the Kobzas refused to repair the pipes and began discharging water at the property line. This resulted in water accumulating on the southwest corner of the Bowers property.

There were no issues with the ponding of water on either property while the piping system was in place. Bernard Kobza conceded at trial that if he had allowed the original piping system to be repaired and reattached, it would have disposed of all of the water coming from his sump pump and dewatering well. But he was unwilling to trust someone else with control over potential flooding on ...


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