Opinion
No. A-10-1031
11-29-2011
LYNN A. MILLER AND QUALITY AG, INC., A NEBRASKA CORPORATION, APPELLANTS AND CROSS-APPELLEES, v. CROOKED CREEK FARMS, INC., A NEBRASKA CORPORATION, AND HELEN C. MANION, APPELLEES AND CROSS-APPELLANTS.
Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, for appellants. Austin L. McKillip, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.
MILLER V. CROOKED CREEK FARMS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Hamilton County: MICHAEL J. OWENS, Judge. Affirmed.
Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, for appellants.
Austin L. McKillip, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.
IRWIN, MOORE, and CASSEL, Judges.
CASSEL, Judge.
INTRODUCTION
This appeal concerns a surface water drainage dispute in which the owners of adjacent tracts of land each sought injunctive relief and damages against the other. Lynn A. Miller and Quality Ag, Inc. (collectively Miller), alleged that a dam on appellees' property blocked a natural drainage path while appellees claimed that Miller wrongfully diverted water onto their property. The district court granted appellees' requests for an injunction and damages for loss of growing crops. Because the surface water was diverted onto appellees' land through an unnatural drainageway, appellees were entitled to dam it, and the court did not err in enjoining Miller from continuing to divert the water onto appellees' land. We find no error in the court's award of damages to appellees for the loss of growing crops or in its denial of appellees' request for erosion damages. Accordingly, we affirm.
BACKGROUND
Miller and Helen C. Manion own adjacent tracts of property within the same section of land in Hamilton County, Nebraska. The Manion property is located directly south of the Miller property. County Road C runs north and south along the west border of the properties. The road ditch along County Road C is owned by Hamilton County. The Miller property contains a wetland. For some time, water from the wetland has been traveling west through a drainage ditch to the road ditch. On June 1, 2008, David Hoffman (Hoffman), the president of Crooked Creek Farms, Inc., which leases and farms Manion's land, constructed a dam at the road ditch on the north edge of Manion's land.
Miller sued Crooked Creek Farms, Gene Hoffman (who was subsequently dismissed as a party defendant upon the court's sustaining of a motion for directed verdict), and Manion (collectively Crooked Creek) for an injunction and damages. Miller alleged in the operative complaint that his property was higher in elevation than Manion's property, that water drained from his property into the road ditch along County Road C, that the water had drained in that manner for at least 30 years, and that extensive rains had not caused damage to Miller's property prior to Hoffman's obstruction of the drainage of water by adding dirt to the county ditch into which the water drained. Miller alleged that as a result, the surface water accumulating on his property had no way to drain, that it created ponds on his land, that it rendered the land useless for farming, and that loss of growing crops through flooding resulted in damages of $15,400. Miller also alleged that the obstruction of the ditch and resulting accumulation of water would prevent the raising of normal crops and that he would suffer irreparable damage unless the obstruction to the drainage was removed and that there was no adequate remedy at law. In addition to damages, Miller requested an injunction requiring Crooked Creek to remove all obstructions to the normal drainage of water from his land and restraining Crooked Creek from obstructing the drainage in the future.
Crooked Creek filed a counterclaim alleging that surface waters on Miller's property were naturally collected in the wetland; that water accumulating in the wetland did not naturally drain into any watercourse, drainageway, or ditch; and that there was no natural watercourse whereby water drained from Miller's property to Manion's property. Crooked Creek alleged that the ditch was not a natural surface water drainageway and that it was not located upon Miller's property. Crooked Creek alleged that a driveway initially located between County Road C and the southwestern corner of Miller's property was removed or otherwise failed due to Miller's actions or inactions, which resulted in the flooding of a portion of Manion's property. Crooked Creek alleged that Hoffman constructed a dam "[i]n an effort [to] mitigate and prevent damages to [Manion's] property resulting from said unnatural flow of water." Crooked Creek sought an injunction enjoining Miller from discharging and diverting surface water from Miller's property onto Manion's property. Crooked Creek further requested damages from Miller's negligence or improper diversion of water.
The court conducted a bench trial. Miller purchased his land in 1997, and at some point, Quality Ag--a corporation of which Miller is the president--began leasing and farming the property. Miller became familiar with the property in the 1970's, when it was owned by his wife's parents. Miller testified that in 1974 and 1975, the north part of the property was row crop farm ground, the wetland area was pasture, and the area to the south of the wetland area was dryland row crop ground. A ditch came from the wetland area and ran through the pasture from the wetlands west to the county road ditch. Miller testified that the wetlands always drained straight west into the road ditch. Water in the road ditch then proceeded south, running south and southeasterly under a fence line through the Manion property. The fence line was east of the county road ditch. Based on the elevations shown on a topographical map and on his personal observations, Miller determined that water flowed to the south off of the Miller property and onto the Manion property.
In 1994, Miller sought to farm the wetland and to clean out the existing ditch in the wetland. A conservationist with the Natural Resources Conservation Service (NRCS) informed Miller that he could break up and farm the wetland, but that if he broke up the grass, he could not maintain the ditch or perform any new or additional drainage. Specifically, the conservationist stated, "To clean out any part of the field ditch the wetland must stay in grass. All county road ditch elevations must remain the same, including the wetland ditch entrance to the county road ditch." In January 1995, the conservationist informed Miller via letter that "Field #6" could be farmed, but that if it was, "no wetland maintenance may be performed" and "[n]o county road ditch or field drainage ditches can be cleaned." The letter further stated that the trees and the fence around the field could be removed but that "[l]ow areas with dirt removed [cannot] have fill placed back in." Miller cleaned out the fence lines, removed trees, and requested to build pivot berms. Miller testified in his deposition that he got the soil to create the berms for pivot crossings from the area between the wetland and the road ditch. Since 1995, Miller has periodically built the berms back up by adding soil to the top.
In 1995, Miller removed a culvert which was approximately one-third of the way up from the county road ditch. He also removed dirt at the south end of the county road ditch. After that work was completed, Miller received a letter from NRCS telling him to put everything back the way it was, which Miller did. He denied doing anything involving the drainage of the property.
Hoffman testified that between 1988 and 1995, he did not observe any drainage problems. Miller began farming the property in 1995 and removed some fence lines and did some dirt work. In 1997, "There was a ditch dug from the center of the wetland to the road ditch." Hoffman testified that the ditch was dug with a tractor and scraper from the center of the wetland to the road ditch.
In 1997, Miller performed maintenance on the ditch, but he denied doing anything to alter the drainage on the property. Miller testified that in the process of getting permission to perform maintenance work on the drainage ditch, he learned that it was first constructed in the 1960's. In 2007, Miller again approached NRCS about performing maintenance on the ditch because "[o]ver time it fills in from farming across it." NRCS responded:
The drain you wish to maintain was last discussed for maintenance in 1998. At that time, the maintenance was based on the "lip" which is where the drain empties into the road ditch. . . . So anything [within] 7 f[ee]t wide and close to the elevation of the "lip" would not be a violation.Miller performed the maintenance work in March or April 2008 when he "[j]ust went in and cleaned the ditch . . . all the way across . . . and sloped the sides so that we could farm through it." He denied doing anything to alter the drainage on his property. In December, Miller obtained permission from NRCS to clean out the bottom of the ditch, but was instructed not to change the level of the "lip" at the road.
On June 1, 2008, Hoffman used a tractor with a loader bucket to put dirt in the road ditch at the northwest corner of the Manion tract, which was to the southwest of Miller's property. Hoffman testified that he did so in order to stop the drainage that was coming across Manion's property. He testified that he placed the dam on the property after a trench was dug across the driveway on the Miller property on June 1. Miller denied digging a trench. Miller was concerned about the placement of dirt because it would block water from flowing down the road ditch.
Miller testified that in June 2008, the soil on his land was full or saturated, which meant that there would be more water that would run off rather than soak in. Miller testified that over 6 inches of rain fell in June, that he observed less drainage on his property, and that the water kept backing up into his property and the property on the east half of the same quarter section of land. Where there was standing water, Miller's corn crop eventually died. Miller adduced evidence relating to the lost 2008 growing crop and to support his requested damages of $15,577.71. Miller believed that the standing water was a result of the dam. He testified that there was less rainfall in 2009 and that he did not observe any backing up of water due to the dam.
Crooked Creek retained Carter Hubbard, a certified flood plain manager and a registered professional engineer, to use historical evidence to ascertain the natural drainage pattern in the area of the Miller and Manion properties. Hubbard gathered a quadrangle or topographic map for the area, a soils map for Hamilton County, and aerial photographs of the region from 1968 and 1976. He also personally visited the site for approximately 2 hours on the day before trial. Hubbard testified that the drainage pattern in existence was different from the drainage pattern reflected on the 1967 quadrangle map. He testified that the road ditch appeared to be a constructed feature and not a natural drainage feature. Based upon the topographic map, the soils evidence, and the aerial imagery, Hubbard concluded that overflow from the wetland area "would be to the east-southeast under natural conditions." Hubbard further testified that the road ditch allowed overflow to collect and travel to the south. He testified that the earliest piece of evidence that he had available (the 1967 quadrangle map) indicated that the Miller property south of the wetland was at or above the elevation at the property line of the Miller and Manion properties and that there was "a drainage divide that runs through there." Hubbard admitted that the 1968 aerial imagery showed a darker area that went from the wetland area west to the ditch and that darker areas typically indicate soil saturation and ponding.
On September 28, 2010, the district court entered its decree, styled as an order. The court stated that it found Hubbard's testimony to be credible, and it concluded that "the water flowing from the Miller [wetland] would naturally flow to the east-south, and not over the Manion property." The court dismissed Miller's amended complaint with prejudice. It found that Crooked Creek would suffer irreparable harm if Miller were allowed to discharge and divert water from the Miller property over the Manion property; thus, it enjoined Miller from continuing to do so. The court awarded Crooked Creek damages of $4,651.21 for the loss of crops for 2008.
Miller timely appeals, and Crooked Creek cross-appeals.
ASSIGNMENTS OF ERROR
Miller alleges, restated and reordered, that the district court erred in (1) failing to find that Crooked Creek's claims for damages and injunctive relief were barred by the statute of limitations, (2) accepting the expert testimony of Crooked Creek's expert, (3) finding that the water flowing from the wetland would naturally flow to the east-south rather than over the Manion property, (4) finding that water draining from the wetland into the road ditch would not naturally flow onto the Manion property, (5) dismissing the amended complaint, (6) finding that Crooked Creek would suffer irreparable harm should Miller be allowed to discharge and divert water from the Miller property to the Manion property, (7) issuing an injunction that did not meet the statutory requirements of Neb. Rev. Stat. § 25-1064.01 (Reissue 2008), (8) failing to order injunctive relief against Crooked Creek to remove the dam, and (9) awarding Crooked Creek money damages for the loss of growing crops and failing to award Miller damages for his loss of growing crops.
On cross-appeal, Crooked Creek alleges that the court erred in failing to award damages for erosion.
STANDARD OF REVIEW
A trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion. Village of Hallam v. L.G. Barcus & Sons, 281 Neb. 516, 798 N.W.2d 109 (2011).
An action for injunction sounds in equity. Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009). On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the trial court's determination. Newman v. Liebig, 282 Neb. 609, ___ N.W.2d ___ (2011). But when credible evidence is in conflict on material issues of fact, an appellate court considers and may give weight to the fact the trial court observed the witnesses and accepted one version of the facts over another. Schauer v. Grooms, 280 Neb. 426, 786 N.W.2d 909 (2010).
In actions seeking both injunctive relief and damages, the standard of review applicable in reviewing questions of fact is de novo. Hong's, Inc. v. Grand China Buffet, 19 Neb. App. 331, ____ N.W.2d ____ (2011).
ANALYSIS
Statute of Limitations.
Miller argues that Crooked Creek's counterclaim for both damages and injunctive relief is barred by the 4-year statute of limitations contained in Neb. Rev. Stat. § 25-207 (Reissue 2008). The counterclaim was filed with an amended answer on April 27, 2009. Miller adduced evidence at trial that Manion's attorney sent a letter to the attorney for Miller's mother-in-law in 1995 stating that Miller attempted to drain a pond or drainageway on the property to Manion's detriment. This letter, however, did not elaborate on the nature or extent of the "detriment," and Hoffman testified that he "would not have known" what Miller did in that referenced attempt to drain. Further, Hoffman testified that 2006 was the first year that he recalled having crop loss, although he admitted that he prepared a document in the discovery phase concerning damages to Manion's land and Hoffman's crop that dated back to 2004.
The Nebraska Supreme Court stated long ago that the right to damages for the flooding of land by surface water by means of a ditch does not accrue when the ditch is dug, but when the flooding actually results. See Shavlik v. Walla, 86 Neb. 768, 126 N.W. 376 (1910). The parties each cite to Fremont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698, 70 N.W. 263 (1897), but come to opposite conclusions about whether each flooding event triggered a new cause of action. In that case, the Nebraska Supreme Court cited with apparent approval a Texas case for the proposition that "the statute of limitations does not begin to run from the construction of the road, but from the occurrence of each overflow, since each overflow constitutes a separate cause of action." Id. at 711-12, 70 N.W. at 267-68. In the instant case, Crooked Creek sought damages for crop loss suffered in 2008 and for erosion which occurred in 2006 and 2008. Damages claimed as a result of injuries suffered in 2006 and 2008 are all within the 4-year statute of limitations. Crooked Creek's counterclaim for damages is not barred.
We similarly conclude that Crooked Creek's counterclaim for injunctive relief is not barred by the statute of limitations. In Compton v. Elkhorn Valley Drainage Dist., 120 Neb. 94, 231 N.W. 685 (1930), the Nebraska Supreme Court recognized that at times an injunction is the appropriate remedy and at other times it is damages and then stated without differentiating between the type of remedy requested that the statute of limitations does not begin to run until the damage occurs. Because the evidence does not establish that Crooked Creek suffered any significant damage due to the flooding prior to 2006, the counterclaim for injunctive relief was not barred.
Expert Testimony.
Miller argues that the district court should not have admitted or relied upon Hubbard's testimony. Miller claims that Hubbard lacked foundation to offer his opinion. It is within the trial court's discretion to determine whether there is sufficient foundation for an expert witness to give his opinion about an issue in question. Village of Hallam v. L.G. Barcus & Sons, 281 Neb. 516, 798 N.W.2d 109 (2011). An expert's opinion is ordinarily admissible under Neb. Rev. Stat. § 27-702 (Reissue 2008) if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination. Village of Hallam v. L.G. Barcus & Sons, supra.
Miller does not appear to dispute, and we agree, that Hubbard qualified as an expert. Hubbard obtained a bachelor's degree in biological systems engineering and a master's degree in civil engineering. He is a certified flood plain manager and a registered professional engineer in Nebraska. In his job as the water resources group leader for such groups in Lincoln and Omaha, Nebraska, he supervises numerous engineers and they handle a wide variety of engineering projects related to water resources, drainage, flood control, flood plain mapping, and sediment and erosion control. Although Hubbard had no formal education in soils, he testified that soil types are always taken into consideration with regard to drainage issues and that soil information is something that he relies upon in his area of expertise as a drainage engineer. Further, Hubbard's opinion as to the historical natural course of drainage was relevant and helpful.
Hubbard based his opinion on the quadrangle map, aerial imagery, and the soil survey. Miller argues that these items do not support Hubbard's opinion and that the 2 hours Hubbard spent at the site prior to trial did not provide him with sufficient foundation.
First, Miller contends that the quadrangle map showed the elevations around the wetland area were higher than the Manion property. Hubbard testified that the 1967 quadrangle map indicated to him that there was a ridge which ran approximately parallel to the boundary of the two properties. According to the map, the elevation was constant at 1,890 feet. The map showed that the wetland area was below 1,890 feet. Hubbard testified that the ground between the wetland and the boundary of the properties was "at or about that 1,890 contour." He further testified that "as you go to the east southeast direction across the Miller property, you don't cross the 1,890 contour as you go in that direction, so that would indicate that the elevation of that ground does not rise above 1,890 feet." Thus, overflow would travel down to the east and southeast.
Second, Miller argues that the soil survey evidence did not support Hubbard's conclusion. Hubbard testified that the soil survey showed that the wetland area is a "Scott soil type." He explained that Scott soil is "a soil type that occurs on uplands in ponded areas . . . that don't naturally drain out until they overflow." The soil survey showed that the area leading to the south and southeast of the Scott soil area was "Butler soils." Hubbard testified that Butler soils are "soils that are on uplands" and that they were usually concave in shape "which indicates there would be a sag where the Butler soils [are], which is consistent with the topographic work map." Hubbard testified that south of the wetland is "Crete soil" which, in terms of elevation, is slightly above the Butler layer of soil. Miller points out that the survey showed that Butler soils also existed north and west of the Miller wetland. While the map shows Butler soil west of the Scott soil, it also shows "Hastings soil" to the west of the Butler soil. This Hastings soil is on the west edge of Miller's property as it moves toward Manion's property. Hubbard testified that the Hastings formation shown on the map "is generally found on the divide between drainage areas" and would generally be a higher area than Crete soil. Water generally does not flow to a higher elevation.
Finally, Miller directs our attention to the "1968 USDA historic aerial imagery" that showed saturated soil, which Miller asserts indicated a drainage area moving west from the wetland toward the fence line. But Hubbard pointed to the wetland area and testified that "based upon this darker line of soils heading to the east-southeast, there appears to be an area of overflow across the Miller property."
It appears that Miller is attacking the factual basis for Hubbard's opinion, which goes to its weight rather than its admissibility. See Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626 (2008). Determining the weight that should be given expert testimony is uniquely the province of the fact finder. Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009). Under our standard of review, where credible evidence is in conflict on a material issue of fact, we consider and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. See R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011). The district court specifically found Hubbard's testimony to be credible. We cannot say that the court abused its discretion in admitting and relying upon Hubbard's expert testimony.
Injunctive Relief.
The parties sought to enjoin one another from certain acts: Miller desired to have Crooked Creek's dam removed and to restrain future obstructions to drainage from the Miller property while Crooked Creek wished to stop the drainage coming from the Miller property onto the Manion property. The district court granted Crooked Creek's request for an injunction and denied Miller's request. Miller focuses on his compliance with directives from the NRCS with regard to drainage from the wetland, but such reliance is misplaced. The critical inquiry, as the district court observed, is whether the water from the wetland would naturally flow onto the Manion property.
Generally, water flowing in a natural drainageway may not be dammed, but a lower estate is not under a natural servitude to receive diffused surface waters which have not found their way into a natural drainageway. Nu-Dwarf Farms v. Stratbucker Farms, 238 Neb. 395, 470 N.W.2d 772 (1991). A lower proprietor may defend his or her land against diffused surface waters, so long as that defense does not negligently or unnecessarily injure another, while an upper proprietor has a right to drain surface waters through a natural drainageway, and the flow of that drainageway cannot be arrested or interfered with to the injury of neighboring proprietors. Id.
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 neighbor. However, there is no affirmative duty to divert the natural flow away from one's neighbor even if it is causing damage in its natural state.LaPuzza v. Sedlacek, 218 Neb. 285, 287, 353 N.W.2d 17, 18-19 (1984).
We first must determine whether Miller diverted water into a natural course of drainage. A natural drainageway is formed when diffused surface waters are channeled into a well-defined natural course, whether the course be ditch, swale, or draw in its primitive condition. Nu-Dwarf Farms v. Stratbucker Farms, supra. According to Miller, water from the wetlands travels west in a drainage ditch to the road ditch. Miller testified that he learned the drainage ditch was constructed in the 1960's. Miller has at times performed maintenance on the drainage ditch because it "fills in from farming across it." The maintenance consisted of cleaning the ditch and sloping the sides. Crooked Creek adduced testimony from Hubbard that water from the wetland would naturally flow to the east and southeast and not over Manion's property. Further, Hubbard testified that the road ditch was not a natural drainageway. Because the drainage ditch was not the natural path of drainage from the wetland and the road ditch is not a natural drainageway, Crooked Creek was entitled to dam the waters flowing through it onto Manion's land.
Next, we consider whether Miller negligently diverted surface water. Miller claims that there was no evidence he acted with negligence and that the claimed negligent acts were routine maintenance. The draining of ponds or basins which have no natural outlet by discharging the waters through an artificial channel must be done in a reasonable and careful manner and without negligence. See Nickman v. Kirschner, 202 Neb. 78, 273 N.W.2d 675 (1979). Hoffman testified that on June 1, 2008, he observed a trench that had been shoveled out of the driveway at the southwest corner of the Miller property, which allowed pooled water to run across the Manion property. Further, Miller admitted to disking the driveway, which Hoffman testified had the effect of lowering the elevation of the driveway. Hoffman also testified that Miller made the drainage ditch deeper at times. These acts could all be perceived as negligent because they assisted the water's flowing onto Manion's land.
The proper remedy in water drainage disputes is an injunction. Riha v. FirsTier Bank, 248 Neb. 785, 539 N.W.2d 632 (1995). Crooked Creek established that flooding of Manion's land in 2008--a particularly wet year--caused it damages. Where the evidence establishes that the injury will be either continuous or repetitive, the granting of an injunction is an appropriate remedy. Delp v. Laier, 205 Neb. 417, 288 N.W.2d 265 (1980). Hoffman testified that flooding on the Manion property would occur in the future when there are wet years and that he did not expect that to stop without an injunction. Without an injunction, Crooked Creek would be required to bring an action every time flooding damaged Manion's land. Accordingly, the district court did not err in granting Crooked Creek an injunction, nor did it err in rejecting Miller's request for injunctive relief.
Specificity of Injunction.
Miller claims that the district court's holding regarding the injunction violates § 25-1064.01. The district court found that Crooked Creek "will suffer irreparable harm should [Miller] be allowed to discharge and divert water from the Miller property over the Manion property. [Miller is] hereby enjoined from continuing to do so." Crooked Creek responds that the order complies with the statute in all respects. Section 25-1064.01 provides:
Every order granting an injunction . . . shall: (1) Set forth the reasons for its issuance; (2) be specific in terms; (3) describe in reasonable detail, and not by reference to the pleading or other document, the act or acts sought to be restrained; and (4) be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
The district court's order is sufficiently specific. First, the reason for the issuance of the injunction was the court's finding that water from the wetland would naturally flow to the east and south and not over the Manion property and, as set forth in the analysis above, a landowner may not divert water over a neighboring property if it does not follow a natural drainageway. The order enjoined Miller from continuing to discharge and divert water from the wetland over the Manion property--this is sufficiently specific as to the acts sought to be enjoined. Finally, the injunction is binding only upon the parties to the action. This assignment of error is without merit.
Damages for Lost Crops.
Miller claims that the district court erred in denying its claim for damages. As discussed above, Crooked Creek was entitled to dam against the surface water that Miller was diverting into an unnatural drainageway. And because Crooked Creek did not obstruct a natural drainageway, the court did not err in declining to award Miller damages for lost crops.
Miller also argues that the district court erred in awarding Crooked Creek damages because Crooked Creek did not establish grounds for monetary damages. To the extent that Miller's argument is premised upon Miller's belief that he was entitled to divert water onto Manion's land, we reject it for the reasons discussed above.
Evidence of damages may not be speculative or conjectural and must provide a reasonably certain basis for calculating damages. Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003). The general rule is that uncertainty as to the fact of whether damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not if the evidence furnishes a reasonably certain factual basis for computation of the probable loss. Id. The measure of damages for the destruction of an unmatured growing crop is the value the crop would have had if it had matured, minus any savings in the costs of producing, harvesting, and transporting the crop to market. Id.
Hoffman established damages relating to his loss of crop in 2008 as a result of flooding caused by drainage from the Miller property. Hoffman testified that the actual yield of corn in 2008 was 178 bushels per acre. He testified that 8.11 acres were flooded. Thus, he calculated 1,443.58 bushels were lost. Hoffman adjusted that amount by 10 percent, for an adjusted amount of 1,299.22 bushels lost, to account for cost savings in drying and transportation. The cash price at harvest was $3.71, which Hoffman testified was a "spot price" if he had extra bushels to sell. He used the spot price rather than a contract price "[b]ecause this would have been corn that would have been above and beyond those contracts." Hoffman then subtracted out cost savings of $0.03 per bushel for drying ($38.98) and $0.10 per bushel for transportation ($129.92). Hoffman testified that he conservatively estimated his crop loss in 2008 to be $4,651.21. We conclude that there was sufficient evidence to support the district court's award of $4,651.21 in damages.
Damages for Erosion.
On cross-appeal, Crooked Creek contends that the district court erred in failing to award it damages for erosion. Where the land damaged can be returned to its prior condition by treatment, grading, or otherwise, the damage is temporary and the landowner is entitled to such expenses as part of his or her damages. Kula v. Prososki, 228 Neb. 692, 424 N.W.2d 117 (1988). The burden of proof was on Crooked Creek to establish the damage and the extent thereof. See Seibold v. Whipple, 143 Neb. 167, 9 N.W.2d 154 (1943). Judgments of the court should not be based on conjecture or speculation, and it was incumbent upon Crooked Creek to establish and allocate the damage to Manion's land from the waters diverted by Miller. See id.
Hoffman testified that 5.13 acres of Manion's property suffered erosion in the northwest corner and that some areas were eroded by 6 inches but that other areas were eroded to a lesser extent. Hoffman figured the damage for the area at "half-inch per acre eroded." He obtained a quote showing the cost of topsoil to be $12 per ton and the delivery of topsoil to be $88 per ton. Hoffman figured that he needed approximately 465 tons of soil, and he determined that the cost of soil to remedy the erosion problem was $6,994.57. However, Hoffman's testimony about when the erosion occurred was not particularly clear. He testified that he had "proof of the water going across from 2006 and then 2008" and that he thought the erosion occurred during a combination of 2006 and 2008. But Miller produced a 2003 geological photograph which showed an eroded area in the same northwest corner. We cannot say that the district court erred in declining to award damages for erosion.
CONCLUSION
Crooked Creek's counterclaim for damages and injunction for events occurring in 2006 and 2008 was not barred by the 4-year statute of limitations. The district court did not abuse its discretion in admitting and relying upon the expert testimony of Hubbard. Upon our de novo review, we conclude that historically, overflow from the wetland would flow to the east and southeast over Miller's property rather than flowing west through the constructed drainage ditch and south through the road ditch onto Manion's property. Accordingly, Crooked Creek was entitled to dam the unnaturally diverted water and the district court did not err in enjoining Miller from continuing to divert the water onto Manion's land. We further find no error in the court's award of damages to Crooked Creek for the loss of crops in 2008 or in its decision to deny Crooked Creek's request for erosion damages. Accordingly, we affirm.
AFFIRMED.