## Facts

- Loren W. Koch owned downstream property in Cass County, Nebraska, where an unnamed tributary flowed from Ronald E. and Mary Ann Aupperle’s upstream land onto Koch’s land.
- In 1989, Koch constructed a dam on the tributary and created an approximately 3-acre pond used for fish and livestock watering.
- Koch did not obtain required state permits for his 1989 dam.
- In the years before suit, Koch’s pond decreased in size due to drought conditions.
- In 2005, the Aupperles, with financial and design assistance from the Lower Platte South Natural Resources District (LPSNRD), began constructing a small, low-hazard dam to create a farm pond on the tributary.
- The Aupperles’ proposed dam was small enough to be exempt from state permitting requirements.
- Koch sued to stop construction, alleging the upstream dam would prevent his pond from filling and reduce water available for livestock.

## Issues

1. Whether a downstream landowner proved real, irreparable, or reasonably certain injury sufficient to obtain a permanent injunction against an upstream landowner’s construction of a small dam and pond.
2. Whether, given drought conditions and limited proof of causation, the evidence showed the upstream dam would appreciably diminish the quantity or continuity of flow onto the downstream property.

## Decision

- The Nebraska Supreme Court reviewed the equitable action de novo on the record, giving weight to the trial court’s credibility assessments.
- The court reversed the district court’s judgment and vacated the permanent injunction.
- The court held Koch failed to meet his burden to show actual, substantial, or reasonably certain future harm attributable to the Aupperles’ proposed dam, rather than to drought.
- The case was remanded for further proceedings consistent with the reversal.

## Legal Principles

- A permanent injunction is an extraordinary remedy; the proponent must prove a protectable right and real and irreparable injury, or a threat of injury that is reasonably certain rather than speculative.
- In surface-water disputes between neighboring landowners, relief depends on whether the challenged use unreasonably interferes with another lawful use by materially or appreciably diminishing the quantity or continuity of natural flow.
- Courts consider causation and may deny injunctive relief where the claimed injury is attributable to independent natural conditions rather than the defendant’s conduct.
- Equitable relief requires balancing hardships; substantial restrictions on a defendant’s land use are not justified when the plaintiff’s benefit is minimal or uncertain.

## Conclusion

The court vacated the injunction because the downstream owner did not prove, with the certainty required for permanent equitable relief, that the upstream farm-pond dam would materially reduce downstream flow as opposed to effects already caused by drought, and the balance of equities did not support enjoining construction.


Koch v. Aupperle, 737 N.W.2d 869 (Neb. 2007)