Bihuniak v. Roberts Corrigan Farm

leasing agreement would have had, if any, on the outcome in
this case in the event ACT had made the required payments.
Second, and perhaps more important, we note that the record
shows that the election document signed by Nerison was never
forwarded to AMS, let alone CNA, and that by the time of
Nerison’s accident, AMS was no longer remitting lists of its
client companies to CNA. Clearly, from CNA’s point of view,
there had been no election or other document showing that
Nerison was covered as a self-employed individual or as a
coemployee of AMS.
[10] The record in this case contains sufficient evidence
to support the trial judge’s conclusion that Nerison was self-
employed and that Nerison did not comply with § 48-115(10).
Section 48-185 precludes an appellate court’s substitution of
its view of the facts for that of the Workers’ Compensation
Court if the record contains sufficient evidence to substantiate
the factual conclusions reached by the Workers’ Compensation
Court. Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683,
696 N.W.2d 142 (2005). Accordingly, we find no error with
respect to the trial judge’s rulings as to Nerison’s first theory
of liability or with respect to the review panel’s affirmance of
that portion of the order of dismissal.
VI. CONCLUSION
The review panel did not err in affirming the order of
dismissal.
A ffirmed .
mArilyn m. B ihuniAk et Al ., AppellAnts , v .
roBertA C orrigAn fArm , A limited
pArtnership , et Al ., Appellees .
757 N.W.2d 725
Filed November 4, 2008. 	No. A-07-989.
1. Injunction: Equity: Appeal and Error. An action for injunction sounds in
equity. In an appeal of an equity action, an appellate court tries the factual ques-
tions de novo on the record and reaches a conclusion independent of the findings
of the trial court.
bIhUNIAk v. rOberTA COrrIgAN FArM 	177
Cite as 17 Neb. App. 177
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

2. Waters: Negligence. With regard to surface water, one may protect his land from
surface water even to the damage of his neighbor and may only be held respon-
sible in case of negligence.
3. ____: ____. The proprietor of lands may, by proper use and improvement
thereon, deflect surface water, and will not be liable for consequent damage to his
neighbor in the absence of negligence.
4. ____: ____. A landowner, in the absence of negligence, may, in the interest of
good husbandry, accelerate surface water in the natural course of drainage with-
out liability to the lower proprietor.
5. ____: ____. If the flow of the water into a natural drain is increased over the
lower estate, it must be done in a reasonable and careful manner and with-
out negligence.
6. Waters. An owner’s right to discharge surface water from his premises does not
extend so far as to permit him to collect it in a volume, and by means of an arti-
ficial channel discharge it upon another’s land contrary to the natural course of
drainage to the latter’s damage and detriment.
7. Waters: Negligence. The right of the upper proprietor to discharge water is not
absolute. The discharge must be done in a reasonable and careful manner and
without negligence.
8. Injunction. An injunction is an extraordinary remedy that ordinarily should not
be granted except in a clear case where there is actual and substantial injury. Such
a remedy should not be granted unless the right is clear, the damage is irrepa-
rable, and the remedy at law is inadequate to prevent a failure of justice.
9. Injunction: Damages: Proof. In a suit for an injunction, a failure to show
damages, presently or in the future, operates to defeat an application for injunc-
tive relief.
Appeal from the District Court for buffalo County: John p.
iCenogle, Judge. Affirmed.
Loralea L. Frank and Jeffrey h. Jacobsen, of Jacobsen, Orr,
Nelson, Wright & Lindstrom, P.C., for appellants.
Larry W. beucke and Amy L. Parker, of Parker, grossart,
bahensky & beucke, L.L.P., for appellees roberta Corrigan
Farm and roberta Corrigan.
Jack W. besse, of knapp, Fangmeyer, Aschwege, besse &
Marsh, P.C., for appellee Menard, Inc.
irwin , sievers, and CArlson, Judges.
CArlson, Judge.
INTrODUCTION
Marilyn M. bihuniak; Thomas J. Wilson; e. Ardelle green,
trustee of the robert L. green and e. Ardelle green Family
178 	17 NebrASkA APPeLLATe rePOrTS

revocable Trust dated February 8, 1982; and Thomas h. Pratt,
Jr. (collectively appellants), brought an action against roberta
Corrigan Farm, a limited partnership; roberta Corrigan, trustee
of the Leroy Corrigan Trust; and Menard, Inc., also known
as Menard Cashway Lumber, a Wisconsin corporation (collec-
tively appellees), seeking money damages and injunctive relief.
The appellants allege that the development of appellees’ land
has caused an increase in the amount of surface water flowing
onto appellants’ land from appellees’ land, causing damage
to appellants’ land and crops. The district court for buffalo
County entered judgment in favor of appellees and dismissed
appellants’ amended complaint. based on the reasons that fol-
low, we affirm.
bACkgrOUND
bihuniak, Wilson, and the robert L. green and e. Ardelle
green Family revocable Trust own a quarter section of farm
ground in buffalo County. Pratt farmed the quarter section
under a crop-share arrangement for 15 years up to and includ-
ing 2005. roberta Corrigan Farm and the Leroy Corrigan
Trust (the Corrigans) own real estate immediately south of
appellants’ quarter section, which real estate they have been in
the process of commercially developing. The appellants’ prop-
erty has historically been subservient to the drainage of surface
waters from the appellees’ property.
On July 16, 2003, Menard, Inc. (hereinafter Menards), pur-
chased a portion of the Corrigans’ property for the purpose of
constructing a store. Subsequently, the Corrigans and Menards
entered into a development agreement which required the
Corrigans to make certain improvements to the land. As part
of that agreement, the Corrigans hired an engineer to develop
plans for the drainage of diffused surface water, which included
a detention pond. The agreement also provided that the plans
had to be approved by the city of kearney. The detention pond
was constructed in accordance with the plans designed by the
engineer and approved by the city. Menards began construction
of its store in 2004 and completed it sometime in 2005.
On January 10, 2005, appellants filed an amended complaint
against appellees alleging that the “dirt work” performed in
bIhUNIAk v. rOberTA COrrIgAN FArM 	179
Cite as 17 Neb. App. 177

developing appellees’ land and the construction of the Menards
store has caused greater amounts of diffused surface water
to drain onto appellants’ land, thereby causing damage to
appellants’ land and crops. The amended complaint requests
an injunction against appellees ordering them to refrain from
causing more diffused surface water to be drained onto their
land than would have reached the land by natural drainage.
The amended complaint also seeks damages for costs to repair
appellants’ land and damages for crop losses in 2004.
A bench trial was held on April 18 and 19, 2007. Pratt testi-
fied that he farmed the appellants’ land for 15 years, up to and
including 2005. Pratt testified that he was familiar with the flow
of surface water across appellees’ land and appellants’ land
before the Menards store was built. he testified that before the
store was built, surface water would always flow from appel-
lees’ land across appellants’ land along a natural drainage path.
Pratt testified that the natural drainage path across appellants’
property continues to be the same as it was before the store was
built. Specifically, Pratt testified that when the water leaves the
detention pond, it flows across a portion of appellees’ property
to the northeast, where it crosses the southeast corner of appel-
lants’ property in the same drainageway it always has, and then
drains into a large settling pond constructed by the local nat-
ural resources district.
Pratt testified that although the surface water drains along
the same path, the flow of water across appellants’ land cov-
ers a wider area. he testified that before the Menards store
was built, the drainage path across appellants’ property was 2
to 3 feet wide after it rained and that the path is now 25 to 30
feet wide. Pratt testified that the increased waterflow affects
approximately 11⁄2 acres in the southeast corner of appellants’
property. Photographs taken by Pratt after two rainfalls in May
2005 were entered into evidence showing the water flowing
across appellants’ land at various points downstream from the
detention pond. Pratt did not know how long or how much it
rained on either of the two occasions.
Pratt testified that as a result of the increased waterflow
across appellants’ property, he lost an estimated $618 in crops
for 2004. Pratt was not sure whether he had planted corn or
180 	17 NebrASkA APPeLLATe rePOrTS

soybeans that year. he testified that he was able to plant and
harvest some crops on the southeast corner of the quarter sec-
tion in 2004 and 2005, but could not always get to the area
when he needed to because it was too wet, and that weeds took
over the area.
kent Cordes, a civil engineer, also testified for appellants.
Cordes testified that he investigated the drainage system for
the Menards store site and the surrounding area, specifically
reviewing the design of the detention pond. Cordes testified
that the Menards store has created an increase in the flow of
surface water across appellants’ property. Cordes testified that
the increase in surface water was caused by the construction of
the store and that the creation of impervious areas, whereby less
water infiltrates into the ground and the water has to run off,
increased the total amount and volume of water discharged.
Cordes testified that the purpose of a detention pond is to
mitigate the increase in the flow of surface water by holding
back the water after a rainfall and gradually releasing it to
match the flow that existed predevelopment. he testified that
in his opinion, appellees’ detention pond does not serve that
purpose. he testified that it is undersized and that as a result,
the water is discharged at a greater rate than the flow of water
that naturally occurred before the store was built. Cordes testi-
fied that the detention pond does reduce the rate at which the
flow of water leaves the site and that the waterflow would be
even greater without the detention pond. Cordes testified that
the increased flow of water across appellants’ property will
continue if nothing further is done.
Cordes testified that the city of kearney requires that the
postdevelopment peak discharge from a detention pond not
exceed the predevelopment peak discharge of water. Cordes
testified that he did not know if this was a city code or a policy.
Cordes testified that in his opinion, the detention pond does
not meet this goal because of errors in appellees’ engineer’s
calculations and plans. however, on cross-examination, Cordes
agreed that the engineer’s calculations and plans meet the
city’s requirements.
Cordes also agreed with Pratt that when the surface water
leaves the detention pond, it flows along the same drainage
bIhUNIAk v. rOberTA COrrIgAN FArM 	181
Cite as 17 Neb. App. 177

path across appellants’ property as it did predevelopment of the
land. he testified that the building of the store did not alter the
natural flow of water.
The trial court found that appellants did not adequately
prove damages to the land or to the crops and that appellants
were not entitled to injunctive relief, because they did not show
that appellees acted negligently in causing an increase in sur-
face water across appellants’ property. The trial court entered
judgment in favor of appellees and against appellants.
ASSIgNMeNT OF errOr
Appellants assign that the trial court erred in rendering judg-
ment in favor of the appellees because such judgment was con-
trary to the law and the evidence presented at trial.
STANDArD OF reVIeW
[1] An action for injunction sounds in equity. In an appeal of
an equity action, an appellate court tries the factual questions
de novo on the record and reaches a conclusion independent of
the findings of the trial court. Hogelin v. City of Columbus, 274
Neb. 453, 741 N.W.2d 617 (2007).
ANALYSIS
Appellants argue that they are entitled to an injunction
against appellees because the construction of Menards has
caused an increase in the flow of surface water over the south-
east corner of appellants’ property, resulting in damage to
appellants’ land and crops. Appellants contend that their land
and crops will continue to be damaged unless appellees are
refrained from causing more surface water to flow onto appel-
lants’ land than occurred before the construction of Menards.
An examination of the law regarding surface waters is neces-
sary to determine the rights and duties of appellees, as upper
landowners, to appellants, as lower landowners.
[2-4] With regard to surface water, it has long been the rule
that one may protect his land from surface water even to the
damage of his neighbor and may only be held responsible in
case of negligence. See Jorgenson v. Stephens, 143 Neb. 528,
10 N.W.2d 337 (1943). Also, it has long been the rule that
the proprietor of lands may, by proper use and improvement
182 	17 NebrASkA APPeLLATe rePOrTS

thereon, deflect surface water, and will not be liable for con-
sequent damage to his neighbor in the absence of negligence.
Id. It has also been held that a landowner, in the absence of
negligence, may, in the interest of good husbandry, accelerate
surface water in the natural course of drainage without liability
to the lower proprietor. Id.
[5] If the flow of the water into such natural drain is
increased over the lower estate, it must be done in a reason-
able and careful manner and without negligence. Hickman
v. Hunkins, 1 Neb. App. 25, 509 N.W.2d 220 (1992), citing
Pospisil v. Jessen, 153 Neb. 346, 44 N.W.2d 600 (1950).
[6] An owner’s right to discharge surface water from his
premises does not extend so far as to permit him to collect it
in a volume, and by means of an artificial channel discharge
it upon another’s land contrary to the natural course of drain-
age to the latter’s damage and detriment. Hickman v. Hunkins,
supra, citing Todd v. York County, 72 Neb. 207, 100 N.W.
299 (1904).
In Jorgenson v. Stephens, supra, a lower landowner sought
injunctive relief and damages against an upper landowner,
alleging that the upper landowner’s development of his real
estate increased the flow of surface water onto the lower
landowner’s property. The lower landowner argued that the
upper landowner should be required to divert the water directly
into the city streets and sewers or employ artificial structures
to keep the additional water from flowing onto the lower
landowner’s land. The Nebraska Supreme Court found that
the evidence failed to show that the upper landowner had
been negligent in the dispersion of his surface waters upon
the land of the lower landowner or that he acted unreasonably
and, thus, that there was no liability on the part of the upper
landowner. The court further found that “the [lower landowner]
must be left to her own resources to, reasonably and without
negligence, protect her property from the surface water coming
from the property of the [upper landowner], if she would have
protection therefrom.” Jorgenson v. Stephens, 143 Neb. at 535,
10 N.W.2d at 340.
Similarly, in LaPuzza v. Sedlacek, 218 Neb. 285, 353 N.W.2d
17 (1984), a lower landowner sued an upper landowner because
bIhUNIAk v. rOberTA COrrIgAN FArM 	183
Cite as 17 Neb. App. 177

of water draining from the upper landowner’s residence to the
lower landowner’s residence. The lower landowner had rebuilt
a retaining wall in his backyard twice, and after it collapsed
a second time, he sued the upper landowner, arguing that the
upper landowner had a duty to divert the surface water flow-
ing down from his land. The Nebraska Supreme Court found
that no duty to divert existed under Nebraska law and fur-
ther explained:
An owner may collect surface water, change its course,
pond it, or cast it into a natural drain without liability. he
may not, however, collect such waters and divert them
onto the lands of another, except in depressions, draws,
swales, or other drainageways through which such water
is wont to flow in a state of nature. . . . Once a landowner
diverts surface water and upsets the natural flow, he has a
duty to do so reasonably and avoid damage to his neigh-
bor. however, there is no affirmative duty to divert the
natural flow away from one’s neighbor even if it is caus-
ing damage in its natural state.
Id. at 287, 353 N.W.2d at 18-19.
[7] Neb. rev. Stat. § 31-201 (reissue 2004) states:
Owners of land may drain the same in the general
course of natural drainage by constructing an open ditch
or tile drain, discharging the water therefrom into any
natural watercourse or into any natural depression or
draw, whereby such water may be carried into some nat-
ural watercourse; and when such drain or ditch is wholly
on the owner’s land, he shall not be liable in damages
therefor to any person or corporation.
however, the right of the upper proprietor to discharge such
water is not absolute. The discharge must be done in a reason-
able and careful manner and without negligence. Hickman v.
Hunkins, 1 Neb. App. 25, 489 N.W.2d 316 (1992).
based on the law in Nebraska, appellees are not liable to
appellants for damages caused by an increase in surface water
unless appellees were negligent in discharging the surface water.
We conclude that appellants not only failed to plead negligence
in their amended complaint, but they also failed to prove any
negligence. The evidence shows that there is an increase in the
184 	17 NebrASkA APPeLLATe rePOrTS

amount of surface water that flows across appellants’ property,
but the evidence also shows that the water follows the same
natural drainageway that it did before the construction of the
Menards store. both Pratt and Cordes testified that the surface
water flows out of the detention pond and across appellants’
property in the same natural drainageway that the water flowed
before the store was built.
Appellants allege on appeal that appellees are negligent in
the dispersion of surface water because the detention pond does
not reduce the flow of water to preconstruction rates. Cordes
testified that in his opinion, the detention cell is undersized
and, accordingly, does not reduce the waterflow to preconstruc-
tion rates. however, Cordes also testified that the detention
pond does function to slow the flow of water and that without
the detention pond, the water would flow onto appellants’ prop-
erty much faster. Further, appellees hired an engineer to design
the detention pond and, although Cordes testified that he did
not agree with the appellees’ expert’s calculations, the evidence
reflects that appellees’ expert followed the city’s requirements
in developing the detention pond and the city approved the
plans. Thus, as previously stated, the evidence does not reflect
that appellees acted negligently or unreasonably in the disper-
sion of surface water upon the land of appellants. Without
proof of negligence, there is no basis for an injunction.
[8] In addition to appellants’ failure to prove negligence,
appellants are not entitled to injunctive relief because they have
failed to show irreparable harm. An injunction is an extraor-
dinary remedy that ordinarily should not be granted except in
a clear case where there is actual and substantial injury. Such
a remedy should not be granted unless the right is clear, the
damage is irreparable, and the remedy at law is inadequate to
prevent a failure of justice. Hogelin v. City of Columbus, 274
Neb. 453, 741 N.W.2d 617 (2007).
[9] Appellants presented evidence to show that in 2004,
they lost crops valued at $618 as a result of the increased
surface water. however, there was no evidence of crop loss in
2005 or 2006, nor was there any evidence of damage to the
land. Appellants do not challenge the trial court’s finding that
they failed to adequately prove damages to crops in 2004 or
bIhUNIAk v. rOberTA COrrIgAN FArM 	185
Cite as 17 Neb. App. 177

damages to the land. Cordes testified that the increased flow
would continue into the future, but there was no evidence as to
whether that would cause damage to the land or crops in the
future. Thus, there was no evidence of irreparable damage. In
a suit for an injunction, a failure to show damages, presently
or in the future, operates to defeat an application for injunctive
relief. Muff v. Mahloch Farms Co., Inc., 184 Neb. 286, 167
N.W.2d 73 (1969). For this additional reason, an injunction
would be inappropriate.
CONCLUSION
We conclude that appellants are not entitled to an injunc-
tion against appellees because the evidence does not show that
appellees acted negligently or unreasonably in the dispersion
of surface water upon the land of appellants, and the evidence
does not show irreparable harm to appellants. Accordingly, the
judgment of the trial court is affirmed.
A ffirmed .
Jhk, inC., doing Business As fAst money , et Al .,
AppellAnts , v . neBrAskA depArtment of
BAnking And finAnCe , Appellee .
757 N.W.2d 515
Filed November 4, 2008. 	No. A-07-1317.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
3. Trial: Appeal and Error. The disposition of procedural motions is left to the
discretion of the trial court, and absent a showing of an abuse of that discretion,
an appellate court will affirm the trial court’s rulings regarding such motions.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrain
from action, but the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit-
ted for disposition through the judicial system.
186 	17 NebrASkA APPeLLATe rePOrTS