Wednesday, April 26, 2006
Trespassing sewer lines were too "imperceptibly" stinky to merit injunctive relief: Justce Stephan, Nebraska Supreme Court finds that property owners who connected their sewer line to public that that was then connected to another private sewer trespassed against the end owners but the Plaintiffs would not win an injunction against the plaintiffsLambert v. Holmberg, 271 Neb. 443 Filed April 21, 2006. No. S-04-1334. although the trespass in this case was repeated and continuous, we conclude that equity requires a balancing of the degree to which it impaired the Lamberts' property rights against the public interest in proper disposition of sewage in order to determine whether the trespass should be enjoined. The trespass, while real, was largely imperceptible. Unlike the circumstances in Atkinson Trust & Sav. Bank and Kittrell, there is no proof that the infusion of the Holmbergs' sewage comingled with that originating in the two sanitary and improvement districts would overload or even threaten the capacity of the private sewerline. Also, the record reflects that the Holmbergs have always stood ready to pay connection fees and a proportionate share of future maintenance costs on the same basis as homeowners in SID's 5 and 9, a pledge repeated by their counsel during oral argument of this appeal. Thus, the nature of the trespass at issue here results in only minimal interference with the Lamberts' possessory interest in their property. On the unique facts of this case, we conclude on de novo review that injunctive relief for the continuous and repeated trespass is not proper. Any failure of the Holmbergs to pay connection fees and a proportionate share of future maintenance costs can be adequately remedied by an action at law. The same is true with respect to the Lamberts' allegations that the Holmbergs' connection reduces by one the number of currently undeveloped lots which can eventually be connected to the sewer system. Here, the legal remedy available to the Lamberts is at least as "plain and complete and as practical and efficient to the ends of justice and its prompt administration" as the remedy of injunctive relief. Standard Oil Co. v. O'Hare, 122 Neb. 89, 93, 239 N.W. 467, 469 (1931).
Posted by stan_sipple at 3:04 PM