Appeals panel questions whether Trigg precedent shields drainage work in Necker v. Bernhardt

Attorney Jeff Wykell, representing appellants Stan Bernhardt and Craig Bernhardt, told the court the North Lot dispute turns on the Trigg decision and that the trial court erred in applying different law to the swale and drainage work. "The Trigg decision is important for 2 significant..." Wykell told the panel, framing his argument that the water continued to discharge at the same natural point and that there was "no change in the quantity" of flow.

A judge on the three-judge panel repeatedly pressed that point, asking, "How is that not altering the natural flow of the water?" The judge noted that concentrating flow into a ditch could carry additional sediment downhill and asked counsel to explain how digging an east-west ditch in a swale does not alter the natural, broader flow pattern.

Responding, Wykell said the ditches at issue were small, preexisting to the Bernhardts' ownership in part, and resulted from removal of damaged drain pipe; he argued the swale's central flow remained the same and that Trigg—which involved redirecting collected water back to its natural discharge—controls here. Opposing counsel told the court that the trial court found otherwise, creating a factual distinction the respondent says defeats Trigg's application.

The panel focused on whether the factual findings (including a trial-court finding that the ditches "were collecting and discharging the waters... in an unnatural way") are uncontested and whether any marginal increase in sediment alone is legally material. The court took the arguments and then moved to other issues; no disposition was announced from the bench during the argument.