The truncated version of the story (as told by Cathleen Van Winkle) is that the City of Nebraska City has systematically destroyed the Mayhew Cabin site by the following voluntary and negligent actions:
- Directing many acres/massive amounts of water into a ravine on the Mayhew Cabin Museum site via storm sewer inlets (amounts outside of normal practice/industry standards). The drainage was negligent because the ravine was NOT connected to a watercourse. The ravine was DRY when Highway 2 was constructed (just south of the Mayhew Cabin) in 1938, so dry in fact, that the ravine was simply filled for construction of the highway, and no culvert under the highway was deemed necessary. The City of Nebraska City is also negligently draining their entire east adjacent "city shop" property onto the Mayhew Cabin site either through tubing into the ravine or directly over the bank of the ravine, causing massive amounts of erosion.
- Failure to maintain a drainage tube (known as the "active tube") that starts at the end of the ravine on the Mayhew Cabin site. The active tube runs under the museum building and connects to a junction under the front sidewalk, just north of 4th Corso. As a result of a lack of routine maintenance (and because the city never installed a grate over the opening to the tube) soil, street debris dropped onto the site from the storm sewer inlets, and plant material clog the tube periodically which caused flooding on several occasions, damaging the tunnel and destroying the walkway that leads from the tunnel exit enclosure.
- Not filing an easement and never implementing any type of erosion protection measures to prevent erosion. The Mayhew Cabin property has lost over one-half acre of property due to erosion. Widening of the ravine now threatens the school, depot, and church located along the west bank of the ravine.
- Unabated erosion has caused trees to fall out of the ravine (which destroyed the little cemetery and caused a dead tree to fall onto the church), and has caused the tunnel exit enclosure to become structurally unsound and fail. All of the soil under the tunnel exit enclosure is gone - the concrete enclosure is hanging out over open air with nothing left to support it.
- Failure in drainage design: Per a UNO Civil Engineering Professor, the active tube and junction are significantly undersized which was a failure of the City of Nebraska to design the system properly. Although the system was already undersized, they added another drainage tube (known as "the 1995 tube" that runs along the west edge of the museum site) to the already overtaxed system. Additionally, they allowed four new houses along 2nd Corso to connect their sewer lines to the 1995 tube! This has resulted in a series of raw sewage backups in the museum building, which the City of Nebraska City ultimately denied responsibly for.
- Abandoning another drainage tube (known as the "abandoned tube"). The abandoned tube failed, and the 1995 tube was probably installed as a result. However, the city did not follow best practices and cap off both ends and fill the tube with soil and/or concrete. Rather, the city just left the tube to continue to collapse which caused a sinkhole on the museum site. However, more importantly, the abandoned tube connects to the active tube under the Mayhew Cabin museum building. It is filled with soil – soil that supports the museum building. Because the active tube becomes overwhelmed because it is undersized (and because the later junction is undersized), when water backs up in the active tube, it also backs up into the abandoned tube. When water eventually flows successfully down the active tube to the junction, the water leaving the abandoned tube pulls soil out of the abandoned tube and carries it to the junction. That lost soil is replaced with more soil from above. This continual movement and removal of soil has caused the museum building to sink significantly to the northeast (14 inches at one point!), and possibly become structurally unsound. The museum building has sunk to such a degree from its original elevation that the building takes on water and can flood during rain events. Because the building flooded during the Memorial Day 2019 weekend rain event, the flooring is damaged beyond repair, and the building has significant mold growth. Because of the presence of mold, the building can no longer be utilized for its intended purpose as a museum because it is unsafe for employees and patrons.
When confronted with these allegations, the City of Nebraska City denied ALL responsibility and refused to help the Mayhew Cabin. A city representative even claimed that the drainage on the Mayhew Cabin site belonged to the Mayhew Cabin Foundation and NOT the city when the drainage is CLEARLY part of the city's infrastructure. The city denied responsibility again when a PSTC claim was filed. Therefore, the Mayhew Cabin Foundation had no choice but to file a lawsuit, which was filed in February of 2020 by a pro bono attorney (because the Mayhew Cabin is a foundation and cannot represent itself). The city refused to supply any useful information during the Discovery process, claiming to have no knowledge of the drainage on the Mayhew Cabin site, no drainage maps, and no drainage maintenance plan. How can you responsibly maintain drainage in the city if you don't know what you have? Sadly, Mayhew lost its lawyer late in 2021 due to health issues. A search ensued for a new lawyer, but we could not find another lawyer to take the case. Therefore, the case was dismissed by Judge Smith due to lack of representation. We can't file another lawsuit because the statute of limitations will not allow it. The Mayhew Cabin Foundation cannot re-open due to significant damage and unsafe conditions, has lost its revenue source, and is facing permanent closure as a result. Without the city removing or updating the drainage on the Mayhew Cabin site to industry standards, there is no point in attempting to repair any damaged structures because flooding and erosion will continue. It is an utter tragedy. Rather than supporting what was the second most visited museum in Nebraska City, Nebraska City turned its back, refused to take responsibility, and effectively killed an important, unique, and treasured historic site.
During the long process, I discovered that before I became a board member, similar destructive flooding occurred on the site in the spring of 2007. The city was contacted by a previous Director of the museum site. Mayor Adelung put Dan Giitinger in charge of the issue, and the city helped the Mayhew Cabin Foundation file a FEMA claim to pay for the damage. Mr. Giitinger signed a FEMA document stating that the "active tube" is a "city maintained tube." This document proves that the city lied to us by denying ownership of their infrastructure. The flooding situation also gave constructive notice to the city that there was a serious drainage issue on the Mayhew Cabin site, but chose to do nothing to rectify it other than filing documents with FEMA to pay for the mess they actually created. Unfortunately, the previous Director did not realize, nor did FEMA, that the "creek" in the ravine was not natural, it was artificial drainage.
I also discovered that the City of Nebraska City sold an irregular parcel of property where the brick building (now the museum building) is located to George Rowe in 1962. An easement was written into the deed for ALL utility services, including drainage. Therefore, the active tube and the now abandoned tube were already on the site when the city sold it to Rowe. Yet the city now claims to know nothing of the drainage on the site. Subsequent to the purchase, Rowe constructed the brick building a few years later.
When the city constructed the 1995 tube, they filed an easement for it which includes the junction where the 1995 tube and the active tube meet. Even though there is an easement for the 1995 tube and junction, the city claims to have no knowledge and no responsibility.
Alas, without our day in court, we won't have the opportunity to present this evidence to a judge. We need public support to pressure the City of Nebraska City to do the right and responsible thing and fix the drainage on the Mayhew Cabin site and help us repair the damage that they caused!
The following is a detailed accounting of the damage to the Mayhew Cabin museum site over the decades, and the lawsuit ultimately deemed necessary against the City of Nebraska City as recollected by Cathleen Van Winkle.
In 2013, the tunnel exit enclosure started collapsing. The ceiling and walls of the enclosure were caving in, and the approach to the stairwell that leads you up and out of the tunnel was covered with thick slippery mud. The board had no choice but to close off the dangerous end of the tunnel to tourists. Museum patrons were allowed to walk down the tunnel just past the cross-wings portion of the tunnel, but they then had to turn back around and exit out through the cellar entrance rather than exiting the tunnel near the ravine.
I remember sitting through that board meeting when the tunnel exit issue was discussed. I, and everyone else, was quite baffled as to why the tunnel exit had suffered so much damage. Our patrons were outwardly disappointed. The tunnel is one of the most valued and memorable portions of the site.
In response to the crisis, former director, Bill Hayes took action. He reached out to an architectural firm in search of answers about the failing tunnel exit. They, in turn, reached out to an engineering firm to gain further perspective. In November of 2013, the engineering firm inspected the tunnel. In the spring of 2014, the architectural firm presented the Mayhew Cabin board a Preliminary Condition Assessment and Recommendations. This report also included a preliminary cost estimate for repairs to the tunnel exit enclosure. It was over $200,000!
In October of 2014, small portions of the top of the tunnel were uncovered by the engineers to allow further assessment of the tunnel’s structural integrity. The architectural firm then drew up construction plans for a complete replacement of the tunnel exit enclosure and a new walkway. The proposed walkway was designed to be installed several inches over the current walkway so that it could not be damaged by the continual stream of water that flows through the ravine. The dollar amount of the estimate to perform this work was staggering - the cost had nearly doubled from the preliminary estimate. It was an impressive plan, and would be the responsibility of a construction company familiar with working on historic sites. But the board was faced with having to raise nearly a half million dollars!
Simultaneously (and seemingly unrelated to anything going on with the tunnel exit), the board was dealing with a settling museum building. The foundation acquired the museum building in 2010 with a generous donation from the Wirth Foundation, and we were able to remodel the building with a generous donation from Marlene Ricketts. The former office building was revamped to include open museum space, a media room, office space, and conference/meeting room. Shortly after the ribbon cutting, we noticed warning signs that the building was moving. More and more cracks appeared in the drywall, some of them severe. The newly installed laminate flooring moved to create large gaps. Former director, Bill Hayes, had to fill in and along a large crack in the conference room floor before he could install carpeting because the gap/crack posed a tripping hazard otherwise. As time went by, it continued to get worse. We could only speculate as to why. Bill Hayes suspected that there might be issue with a drainage tube that ran under the museum building. Having been with the organization several years before I ever came along, I realized that Bill had some understanding of the overall situation that I didn't have. Therefore, the board let him take the lead to deal with the issue. Bill contacted the City of Nebraska and reportedly had a conversation with Dan Giittinger (the former Nebraska City Public Properties Director). Mr. Giitinger suggested that Bill contact the Nebraska Department of Roads since, Giitinger said, the state would have installed the tube when business Highway 2 was constructed decades before. When Bill contacted the state, the state representative denied that assertion and suggested that Bill contact foundation experts for repair estimates. Thrasher Foundation Repair was contacted and they provided an estimate.
Facing two major concerns, the board decided to combine the tunnel exit cost estimate and the museum building foundation estimate together and raise all of the money needed to perform all of the necessary repairs. Initial fundraising efforts were successful, but the foundation ultimately only managed to get pledged about half the money needed to repair the tunnel and build a new walkway. To bring money into the foundation, the board sold off the north edge of the property along 2nd Corso (legally described as Lot B-1).
In 2016, two new homes were constructed on Lots 1-C and 1-D of Deer Trail Subdivision just northwest of the museum site . The Mayhew Cabin museum building experienced its first sewer back-up in February of 2017. The City of Nebraska City took responsibility for its over-taxed sewer line and repaid the museum for the cost of the cleanup. Again, that was the extent of my knowledge at the time, and I was clueless as to what was really happening.
In the summer of 2018, I was nominated to be President. At that time, I was working on grant applications for the tunnel exit & walkway project. Once the long applications were submitted, I had high hopes because of the museum’s true and real need for repairs. I felt certain that the foundation would be awarded the money to fix the tunnel. But sadly, the applications were turned down.
Two more new homes were constructed northwest of the Mayhew property in 2018. The museum building experienced another sewer backup in March of 2019. Once again, the City of Nebraska City took responsibility for its over-taxed sewer line and repaid the museum for the cleanup. However, Bill Hayes did not receive the same apologetic attitude about the unfortunate event. The city seemed to be growing tired of cleaning up the museum.
Then tragedy struck. Over Memorial Day weekend of 2019, the Nebraska City area experienced a typical rain event. Afterward, a very concerned Bill Hayes called me and asked me to come to the site. I was only told was that the site had experienced flooding. When I met Bill at the museum on May 28, 2019, I walked into a pungent museum building that had also been flooded over the previous weekend. The building had been so wet that the laminate flooring had buckled. Even though it had only been a few days since water came in, the building already smelled like mildew. The stench was overpowering. Mayhew's docent, while on duty at her post over the weekend, had collapsed due to the odor. Then we walked outside and I saw a completely full (flooded) ravine. The water was so high that it had not only filled the entire ravine, but water had ran up and into the tunnel exit enclosure which resulted in flooding the entire length of the tunnel AND the cellar under the cabin
The drainage tube at the end of the ravine had obviously become plugged. The location of the opening to this drainage tube is just a few feet northwest of the tunnel exit enclosure.
After what I saw and heard, I decided that the damage was so severe that the overall museum site had to be closed indefinitely. The site and museum building were too dangerous for staff and patrons.
First thing the next morning, I called the street department at the City of Nebraska City. Because it was a flooding issue caused by the city's infrastructure, it seemed logical to me to reach out to that department. No one answered and no one returned my voicemail message. Desperate, I called City Hall and spoke with the properties manager, Marty Stovall. Mr. Stovall was quite concerned and said that he would be at the site first thing the next morning to investigate.
Mr. Stovall, along with the Street Commissioner, Vic Johns, visited the site early the next morning. Afterward, Mr. Stovall spoke with Bill Hayes. He commented that the tube was obviously not large enough to accommodate the water coming into the ravine. He added that there was nothing that his city crew could do until some of the water managed to recede. Until then, it was far too dangerous to perform any work on the tube.
I was aware of the existence of the drainage tube. But up until that point in time, I had only had one experience of flooding on the site. It had nothing to do with the tube, but rather included water running into the northeast corner of the museum building during a rain event during a flea market held at the site. It never occurred to me that the ravine could flood. I knew that the tube began at the end of the ravine, and I was told by Bill Hayes previously that it ran under the museum building before connecting with other city drainage tubes south of the site. As you will recall, the tube had been a topic of discussion in board meetings several years before due to the museum building settling issues.
On June 3rd, it rained again. Bill texted me that the ravine had flooded again. The walkway leading from the tunnel exit had been destroyed.
I was exasperated! Ever since 2013, the board had received nothing but bad news. It had been six years since the tunnel had first started to collapse. We’d been turned down for funding to make repairs time and time again. Then, the site suffered severe flooding damage. I needed something good to happen, but things would only get worse. On June 18th and June 22nd, the area experienced more rain events, and the ravine flooded both times. By the last rainfall event, the tunnel and cellar under the historic cabin had been soaking in water for weeks. We could only begin to speculate what damage may have been caused.
My priority was (and is) saving the cabin. I was worried about the cellar flooding yet again. Because I was still unaware of the source of the water in the ravine, my thoughts went to the best way to save the delicate limestone cellar under the cabin in order to save the cabin above it. It seemed to me that since the tunnel exit was already in such bad shape and we couldn’t raise the money to repair it, maybe we needed to sacrifice the tunnel exit and tunnel. That is, of course, if worse came to worse. If the tunnel was collapsed and filled in, there would be a substantial 60-foot +/- soil barrier against water.
Because the cabin and tunnel are on the National Register of Historic Places, I met with a representative for the Preservation Society in Lincoln on June 4, 2019. I asked for the Preservation Society’s permission to collapse the tunnel if we couldn’t raise the money to repair the tunnel exit. I also asked for funding. I received a negative answer to any funding, and a positive answer to collapsing the tunnel. I was told that my plan seemed quite logical in light of flooding likely occurring in the future. The cabin, after all, was and had to continue to be the priority.
However, there was no way that the Mayhew Foundation could afford to hire a construction crew to collapse and fill the tunnel. I felt that the City of Nebraska City should be responsible for it since their plugged tube was the reason for the flooding in the first place. I intended to ask them to do it. But we began to discover little by little that the city was responsible for FAR more. By early June, my husband helped me to discover that the source of the water in the ravine was storm sewer inlets owned by the City of Nebraska City. Surface water emptied into a culvert at the north edge of the ravine, just below 2nd Corso.
Up until June of 2019 when the weeks of flooding killed off all vegetation in the ravine, the ravine had always been so full of foliage and trees that it was almost impossible to even see into the ravine, let alone make out any distinguishing features. I knew that there was water flowing in the ravine. I had witnessed a beaver making its way across the site when I was painting the depot around 2008 or 2009. So I knew that there was enough water in the ravine for a beaver to feel at home. I also witnessed deer frequenting the site. But having never experienced ravine water issues since I’d been involved at the site, the source of the water in the ravine had been the furthest thing from my mind. From that point on, however, the source of the water in the ravine would be at the center of my life.
Having been involved in real estate for 20 years, once I knew the source of the water, I immediately started putting two and two together. I suspected that drainage of that type and magnitude onto personal property was not legal. We knew that the inlets and the tube were parts of the city’s infrastructure. As my husband put it, the city owned Point A (the north culvert which is used to drain city property, i.e. city streets) and they owned Point B (the drainage tube), therefore, the city should be responsible for what lies between the two points. The city was using the ravine as a thoroughfare to drain surface water from city property. However, there was no known easement ever put in place. I studied the survey that had been done prior to the north lot sale, but I didn’t see any notation of any sewer or electrical easements, nor had I come across an easement on the many surveys of the Mayhew property that I'd studied for prior research purposes. Draining without filing an easement was wrong (at best) and negligent (at worst). Worse, the city had been draining in that capacity for decades, but had never implemented any erosion-protection measures. There were no rocks in the ravine to prevent erosion. Further, there was no cover over the opening of the tube to prevent soil, tree branches, and random street debris dropped into the ravine from the storm sewer inlets from flowing into the tube. The lack of a covering had allowed massive amounts of debris (and Mayhew soil) to clog the tube, which resulted in all of the 2019 flooding events.
Feeling completely justified, I wanted reparations for the museum site from the City of Nebraska City. In order to plead my case, I contacted City Hall and requested to be put on the agenda for the June 17th city council meeting. The City Administrator at the time, Grayson Path, reached out to me immediately after I faxed the request. He asked if I could meet him at the museum site to talk about the situation. Since he wanted to meet at the site, I assumed that Mr. Path wanted to have a look at the flooding damage in order to advise the city council of the situation and/or to better help Mayhew. But he wanted nothing of the kind. I arrived at the site and opened up the doors to the museum building in order to air it out. The stench was still overwhelming. I waited near the back door because Mr. Path was late to the meeting. I had never met the man, so I wasn’t quite sure what to expect and I began to pace. When Mr. Path finally arrived, he saw that the back door was open and entered. Without introducing himself, he said something to effect of, “The city’s not responsible for any damage. Rainfall is an act of God. Nebraska State Statute Number 31-201 protects the city." I stood there aghast and attempted to say something. He concluded with, "Other people have tried to make similar claims and I’ve told them the same thing.”
I was flabbergasted and angered to the point that I began to shake. He then tried to discourage me from attending the upcoming city council meeting because, in his mind, there was no point. He left shortly thereafter. Angry, I was determined to attend the June 17th council meeting, no matter what. I prepared a packet of information to show the city commissioners that the city was indeed responsible. When it was my turn to address the council, the mayor and commissioners listened and followed along with the informational packet I had made available to all of them. Once I presented the facts as I knew them up to that point, I asked for the city to make reparations to the site and to help us collapse the tunnel in order to save the cabin from any future flooding. Once I was finished speaking, Mr. Path advised the council that the city, per statute, was not responsible for the damage. The commissioners appeared relieved.
David Van Winkle, seeing that we were about to be completely dismissed, asked permission to address the council. With permission granted, David spoke quite passionately about the importance of the museum site and how it’s presence benefits the community financially since the site is the second most visited museum in Nebraska City (a city with 10 museums). With some sympathy and kind words, the mayor acknowledged the importance of the site, but dismissed our pleas for help. No one on the council had anything to add to that. The mayor said that the only thing that he could do for us was to turn the matter over to the city’s insurance company and that I should expect a call from an agent.
Too disappointed and upset to stay, I grabbed my things and headed toward the door. We were followed out of the council chamber by a Nebraska City Utilities employee. He stopped us and volunteered that, “no one from the city knows where that water goes once it leave the museum site. Don’t let them tell you that they know, because they don’t.” I found that to be an interesting and provocative comment. It would also prove to be true.
The day after the city council meeting, the last two June rain events occurred and the site flooded.
On June 23rd, I met a KMTV3 reporter and camera man at the site and did a taped interview about the damage to the site. I placed the blame for the damage on the city. The ravine was still full of water and the tunnel was still flooded. The camera man and the reporter took the risk of going down into the cellar to capture video.
Because the site was still flooding, I sent an email to the City Commissioner who responded that he would forward my concern to the City Administrator. However, I heard nothing back from the City Administrator. The only communication I received during that period was from Bill Hayes. He had received an email from a fellow museum director (a Lewis & Clark Center employee who also happened to be the father-in-law of the Nebraska City Utilities employee who followed us out of the city council meeting). In the email, he told Bill that the city had found an obstruction once they’d lifted the manhole cover south of Mayhew’s museum building.
I was furious that communications were taking place between community members about findings affecting Mayhew, but no communication was taking place between the city and me. I was essentially having to learn things affecting Mayhew through the grapevine. I sent an email to the Lewis & Clark employee, Grayson Path, and the Street Commissioner expressing my outrage and disappointment that the city was not communicating with me about the things that they were doing in regard to the Mayhew property. It was becoming evident to Grayson Path that I was not going to relieve the city from responsibility for the flooding and that I was not going to go away quietly. Mr. Path got in touch with me on June 25th. What he told me let me know that not only had city employees found an obstruction after lifting the manhole cover south of the site in the city’s sidewalk. It was a railroad tie! The water had been so high in the ravine, and moving with such force, that it had managed to not only pick up a railroad tie that had been abandoned in the ravine decades ago, but maneuvered it down the tube. I remembered catching glimpses of railroad ties, wagon wheels, and concrete steps in the ravine years earlier when I was out doing work on the site. The ravine had been so overgrown with vegetation that glimpses were all I could actually catch. I came to learn later that George Rowe had walking paths in the ravine during his time there. I also learned while doing research for this book that Rowe once had a bridge spanning the ravine. All of the materials used for the bridge and walkways were abandoned and left to decay in their places. Nothing had moved until water filled the ravine and forced these items from their shallow graves.
Mr. Path also told me that he and another city employee had been touring the Mayhew Cabin site. He said that he and Marty Stovall had walked the site noting manhole covers in an attempt to determine where drainage tubes are located on the site. I asked him why he didn’t just rely on a drainage map, and then I expressed my desire to have a copy of a drainage map for the area. He replied that no maps existed and I expressed my disappointment. He said that he could use the information that he had gathered during the walk of the site to draw something up for me. He joked that it would be much like a "napkin sketch." He eventually attached his sketch to a subsequent email.
Once he had the “napkin sketch” from Grayson Path, David drew up a map of his own using Google Earth in an attempt to figure out where exactly the drainage tube is located on the site and the trajectory of all of the drainage. He noted the storm sewer inlets, and drew in possible trajectories for the drainage tube under the museum building. He did this in order to question Mr. Path about it in order to discover the tube's true path.
I couldn't believe that a community the size of Nebraska City did not maintain drainage maps. How can a city maintain drainage tubes if they didn’t know where the tubes are? Then I remembered the comment from the utilities employee. Maybe they really didn’t know where their drainage was! It seemed to me that not knowing where your drainage tube were located was a breach of duty to local residents and negligent.
In regard to drainage in the area, what I would come to learn was that under the manhole cover south of the museum building is a junction point of two drainage tubes, the "active tube" under the Mayhew museum building and a tube that comes in from the west (now known as the 1995 tube). The junction is made of concrete and measures approximately four feet by four feet. The two tubes meet at the junction at generally a 90 degree angle. The tube under the Mayhew property runs generally north to south and the other tube runs from north to south near the west edge of the site, takes nearly a 90 degree turn and generally runs from west to east until it reaches the junction. The 1995 tube carries surface water from a storm sewer inlet on 2nd Corso and is a closed tube, so there is no known erosion caused by the presence of this tube. Once water reaches the junction, it falls downward a distance of about a dozen feet (per Grayson Path and the eventual photos and videos he provided to us).
Because the railroad tie in the tube that runs under the Mayhew property was several feet in length, it reached the end of the tube but could not fall downward. It spanned the depth of the junction and was stuck in that position. Other debris carried into the tube by water could not get past the railroad tie. Eventually, debris and soil built up and created a well-packed jam. The end of the tube became so jammed with debris and soil that water could only barely pass. Behind the clog was a massive amount of water in the tube and ravine. Therefore, per Mr. Path, it would be like popping the cork of a champagne bottle to just quickly remove the obstruction. Mr. Path said that he would have a city crew work on it, but it might take some time due to the high degree of danger involved.
However, between June 25th and June 27th, a city crew did work to remove the railroad tie and other debris. Once it was removed, they left the railroad tie in Mayhew’s front yard for us to see and/or dispose of. Mr. Path let me know via email when the railroad tie been removed. He said that he’d captured photographs and video of the railroad tie extraction, but he failed to attach them to the email. I responded that I’d certainly like to see them.
Grayson Path then suggested to me that the city, on behalf of the Mayhew Cabin, could apply for a grant from NEMA to aid in paying for new drainage on the site. The grant would only pay for one-half of the cost and Mayhew would have to come up with the other half. The plan was to abandon the old tube and install a new tube along the east edge of the south portion of the site, east of the cabin. A large old tree east of the cabin would have to be removed in the process. The proposed new larger tube would be connected to drainage south of the museum site near 4th Corso. I had no idea where the other half of the money would come from, but I felt I had no choice but to agree to apply for the grant. At that point in time, I wasn’t sure of anything or which direction to go. So I let the city draw up the cost estimate and apply to NEMA for the grant.
David was installed as a Mayhew Cabin board member on July 2, 2019. Once he was officially a board member, he opened communications of his own with Grayson Path. David asked Mr. Path for several things: to tell us how the insurance claim process was progressing; if we could have access to the reported photographs and video of the railroad tie extraction; the exact location of the extraction; and if we could have access to city records in regard to drainage on the Mayhew site (to determine when the tube was installed, when the culvert was installed, etc.). David attached the map he’d drawn up in order to determine the trajectory of drainage on the site and asked for Mr. Path’s opinion of it since he’d recently been on the site attempting to make such determinations.
Mr. Path replied via email that we would soon be hearing from the insurance company. He included a link to a Google Drive that he’d created that contained all the photographs and video of the railroad tie extraction and his napkin sketch. He claimed that they “scoured our various vaults” for information relating to the Mayhew Cabin site and could not locate anything. In regard to David’s map, Mr. Path gave his opinion of the drainage trajectories. He then reiterated that the city has done as much as it can, that the city was not responsible for any damage to the site, and that help from the city was at an end. He suggested that we put a cover over the opening of our tube to prevent debris from going down the tube and causing another clog, and that we clean up all the street debris in the ravine that had been washed onto the site by the storm sewer inlets. He further stated that the city did all they could to open back up the tube, but that the tube still had some areas of blockage. He suggested that we hire a commercial company to come finish cleaning out the tube.
Knowing that the tube belonged to the city and that these were all the city’s responsibilities, I found all of these comments very condescending and insulting. I also felt like I’d just been dismissed and left on my own to find a way to repair a museum that had been unfairly destroyed. I became overwhelmed with the need to prove that the city was responsible for the damage and to hold the city accountable. David was right there beside me feeling the exact same thing.
David, who holds a PhD in biology, was able to develop other, more scientific, theories about what was happening at the museum site. He surmised that soil loss from the ravine has likely been immense. He also proposed that the museum building might be sinking toward the northeast (the direction of the ravine) due to hydraulic erosion or subsidence. He was adamant that the city had been taking advantage of the Mayhew property for years by not draining onto the site responsibly.
Due to David’s schooling and experience, he drew further conclusions. A large oak tree had fallen out of the ravine south of the depot building during or shortly after the Memorial Day weekend rain event. As it fell, it knocked the electrical hook-up off the depot. David explained that as the ravine has eroded the west bank of the ravine, it exposed tree roots located to the east. As the eastern roots weakened and failed, it left only the western roots to support the tree. Once the west roots got to the point where they could not hold on any longer, the tree fell to the west and out of the ravine. Many other ravine trees had (or will) suffer the same fate.
David also knew that since the vegetation in and along the banks of the ravine had been killed off because of weeks of standing water, the banks of the ravine would erode even faster. The other historic buildings on the site (the AME Church, the schoolhouse, and the depot) are located so near the west edge of the ravine that they are now in danger of falling into the ravine if the erosion is not abated! The overall situation was becoming desperate.
I got online and tried to find a pro bono lawyer to represent Mayhew in a lawsuit. I emailed law firms, subscribed to free legal services online, and emailed law professors at colleges and universities. I couldn’t find anyone willing to volunteer help, so I realized that it was up to me to represent Mayhew in court. During July, I researched online how to file a lawsuit pro se in Otoe County.
On July 5, 2019, David and I searched county records for any records of easements pertaining to the Mayhew Cabin site. I knew that if we found an easement, it would point directly to the city’s responsibility for maintenance for the tube. The only thing we found was an easement for the 1995 tube that was filed back in 1995 when Larry Shepard still owned the site. As stated, the “1995 tube” runs from north to south near the west edge of the Mayhew Cabin site. Why the sewer easement was never noted on any subsequent surveys of the Mayhew Cabin property was beyond me. In my real estate experience, all easements were noted on surveys.
On July 7, 2019, David installed a cover over the opening of the tube as Grayson Path had suggested. Even though we knew the city owned the tube and should have been responsible for taking such measures, we wanted to show good faith. Plus, we didn’t want any more large debris getting lodged in the tube and cause another flooding event! If the city wasn't going to take care of the situation, we had to.
Also on July 7th, we studied the storm sewer inlets along 2nd Corso. I took pictures of the inside of the inlets in order to see the tubes that were visible. All of this was in an attempt to ascertain exactly where the water being drained onto Mayhew was coming from. David added this information to the map he’d drawn up to make a watershed estimate.
By July 11th, I had done enough research online about drainage law that I had two pages worth of case law to locate for research. I went to the law library within the state capitol building. While there, I also gathered drainage laws that I found within American Jurisprudence. Once I studied what I had found, I was convinced that if we managed to file a lawsuit against the city, we would have a very strong case.
The lawsuit in Otoe County was filed in late July. It was immediately rejected by the judge. The reason given was that foundations, like corporations, are not allowed to represent themselves in court. But we couldn’t afford to hire a lawyer! Without one, Mayhew would never have its day in court!
This was a particularly difficult blow to us because in July, David and I had recently become aware of even more evidence of the city’s negligence: The city owns all of the property east of the Mayhew property. This property is improved with various buildings, a brick building that serves as an office, metal service building that are used to store city equipment, and various other storage buildings. The site also has piles of sand used to sand streets during ice storms. The majority of the site is enclosed with a tall chain link fence. The western edge of the city’s property is basically the east edge of the J-shaped ravine. What I would come to learn is that the property used to belong to the State of Nebraska and was used as a road shop before it was sold to the city for generally the same usage. This was all likely done around the same time the state relinquished Highway 2 to the city. On July 14, 2019, I inspected the south end of the ravine. I took photos of the southeast edge of the ravine where I could see that the erosion caused by the city draining their street shop property parking lot directly down into the ravine. I suspected that this erosion was more proof of negligent drainage.
While I was doing that, David walked the entire ravine. As he walked along, he took video and photos. What David found was even more shocking. About halfway up the ravine, he found two drainage tubes that emptied into the east edge of the ravine. The tubes run generally east to west under the city’s property to the east and ended at the ravine. The amount of erosion around one of the tubes was immense. So immense was it that the water had created something of a cave. The other tube appeared to be dry; possibly the tube had been abandoned or it had collapsed at an unknown point in time. Finding these two tubes just added insult to injury. Again, the city had not implemented erosion-protection measures. Erosion of the east edge of the ravine was so bad that the city’s chain link fence (that was once, per a survey, several feet from the edge of the ravine) was teetering on the edge of the east edge of the ravine. What has transpired is that the erosion is not only affecting the Mayhew Cabin property, but washing away city property as well.
My thoughts were that the city had to know of the existence of these two east tubes. After all, it was their property and they purchased it from the state. At the very least, the “city engineer,” contracted out to the firm JEO Consulting, had to know of the existence of these drainage tubes. It was JEO Consulting who had drawn up the cost estimate for the larger proposed drainage for the NEMA grant. If JEO knew that the proposed tube was going to join up with drainage south of the Mayhew Cabin property near 4th Corso, then they had to have a drainage map.
I emailed JEO for a drainage map, and the reply was that no drainage maps existed.
David became very worried after he discovered the two new drainage tubes coming into the ravine from the east. He contacted NDEQ to take water samples. He wanted to know if the ravine water tested positive for E-coli.
During that July of 2019, I ventured down into the ravine on several occasions. I had avoided the greater ravine (and other areas of the museum site) due to my tendency of developing a rash caused by poison ivy. Evidence of soil erosion became overwhelmingly obvious to me. The soil around the base of the tunnel exit enclosure is gone - the concrete along the base of the tunnel exit enclosure juts out into the open air with nothing left underneath to support it. As a result of having no support, the enclosure leans to the northwest. Because the enclosure is moving in such a fashion, rainwater was (and is) able to penetrate from above. We now know that that water penetration is what caused the tunnel exit enclosure to fail and begin to collapse years ago. The floor of the ravine had deep grooves and channels. Sheet erosion was obvious along the banks and large tree roots are exposed along the length of the ravine. The roots of one large tree are the only thing keeping one east portion of the bank in place.
At generally that same time, I realized that we would need expert witnesses for the eventual trial. I contacted a Civil Engineering professor with UN-O, Dr. George Hunt. He agreed to meet me at the site on August 13, 2019. I explained the situation and he understood fully. He said that he could help us by having his students use the site as a case study. Once the study was completed, we would be given a report of their findings. I wholeheartedly agreed to that. I felt the tide turning. Something good had just happened, and I felt more good things coming.
The next good thing was a lawyer who happened to see my still-posted online pleas for a lawyer. He said that although he couldn’t take on the case, he could provide me with some valuable information. He said that we would have to go through the PSTC (Political Subdivision Tort Claim) process before filing a lawsuit. So I set about researching the process and gathered up my evidence. I mailed a PSTC claim letter to the city on August 19, 2019. The majority of the letter is below:
Dear Mr. Graham:
As required by Nebraska Statute 13-905, this tort claim under the Political Subdivision Tort Claims Act is being submitted on behalf of the Mayhew Cabin Foundation.
Mayhew Cabin with John Brown’s Cave is located at 2012 4th Corso in Nebraska City, and interprets the history of the Underground Railroad in Nebraska. The museum site is recognized by the National Park Service’s Network to Freedom due to its historical significance. The museum site includes historic structures that are on the national register of historic places including an underground tunnel and the original 1855 Mayhew Cabin.
The structures and real estate relative to this PSTC claim include a 1964 museum building, a depot building, the original 1855 Mayhew Cabin, the limestone cellar beneath the cabin, an underground tunnel, and a walkway with a handrail that leads from the tunnel exit enclosure to a stairwell that leads back up to the grade of the remainder of the museum site. These structures are located within the south portion of the Mayhew Cabin museum property. For clarification purposes, it should be noted that a J-shaped treed ravine runs from north to south through the northeast portion of the Mayhew Cabin property. At the terminus of the ravine is a drainage tube that runs under the museum building and reportedly connects with city drainage tubes south of museum site.
The City of Nebraska City has been acting in an unreasonable manner by draining city surface water via artificial means (storm sewer inlets) directly into the ravine located on the Mayhew Cabin property along the north, directing surface water from city-owned property located adjacent to the east directly into the southeast portion of the ravine, and draining unknown water via artificial means (two drainage tubes) directly into the mid portion of the ravine from city-owned property located adjacent to the east. In doing so, the City of Nebraska City is acting in violation of the law. I would like to bring to your attention the following:
American Jurisprudence Section 198: Generally, what would be illegal in the drainage of surface waters in the case of a private individual is likewise illegal when attempted by the public authorities.
American Jurisprudence Section 194: Under the modified “civil law rule,” when a landowner diverts surface waters in an unnatural manner and damages a lower property, the upper landowner is liable in tort to the extent it failed to take reasonable care in the use of the upper property.
Hickman v. Hunkins, 1 Neb. App. 25: However, the right of the upper proprietor to discharge such water is not absolute. The discharge must be done in a reasonable and careful manner without negligence.
The City of Nebraska City has been and continues to use the ravine located on the Mayhew Cabin property as a constituent of the city’s wastewater system as if the ravine were part of a watercourse. However, there is no evidence to show that the ravine on the Mayhew Cabin property was part of a watercourse after Nebraska City was platted. It is more likely that the ravine on the Mayhew Cabin property is merely a remnant of a dry creek bed. A map from the 1800’s shows no watercourse in the area of the Mayhew Cabin.
State Statute 31-202 defines a watercourse as: Any depression or draw two feet below the surrounding lands and having a continuous outlet to a stream of water, or river or brook shall be deemed a watercourse.
Case Law Skolil v. Kokes, 151 Neb. 392, 37 N.W. 2d 616 (1949): To constitute a watercourse, a depression must have an outlet into a stream.
Case Law Miksch v. Tassler, 108 Neb. 208, 187 N.W. 796 (1922): Watercourse must be a stream in fact as distinguished from mere temporary surface drainage.
In the event that the ravine was once part of a previous watercourse and was connected to a stream of water, the ravine’s connection to any stream was permanently severed when Highway 2 was constructed in approximately 1938. Any city-owned infrastructure (including storm sewer inlets or drainage tubes, etc.) in regard to this PSTC claim was developed decades after 1938 and years after the case law noted above, indicating that the City of Nebraska City acted in violation of the law.
The collective unreasonable routing of water through the Mayhew Cabin property for decades has resulted in severe and continuous erosion of the site and systematic damage to the tunnel exit enclosure and other museum structures.
Additionally, continual, iterative, and forceful hydraulic action of vast amounts of the city’s surface and sewer water draining onto the museum site from multiple sources and the washing out of the existing earth, sediments, and vegetation into the ravine and out through the piped remainder of the city’s sewer system, have caused severe erosion for years, has caused subsidence of the adjacent portions of the Mayhew Cabin site toward the ravine area, widening of the ravine, and unknown amounts of the museum site’s foundational earth to be washed into the city’s drainage system to the south. The shifting of the ground has caused the museum building and the tunnel exit to sink northeasterly to the extent that the museum building and the tunnel exit are structurally unsound. The widening of the ravine threatens other structures located on the museum site near the ravine including an A.M.E. church, a log schoolhouse, and a depot.
The City of Nebraska City has also failed to maintain and keep clear a drainage tube located on Mayhew Cabin property that is part of the city’s drainage system. The city’s failure to keep the tube clear of sediment and debris resulted in severe damage to the Mayhew Cabin site and historic structures. The damaging flooding events occurred approximately four to five times, particularly noted over Memorial Day Weekend of 2019 (May 28, 2019 – water receded several days later), from June 3, 2019 to approximately June 5, 2019, and from June 18, 2019 to June 24, 2019.
As a result of these flooding events, the museum property suffered extensive erosion, vegetation die-off, destruction of a walkway and handrail, and structural damage to historic structures. Erosion to the ravine has caused a live large tree to fall onto the museum grounds and damaged the electrical connection to another historic structure. Due to damage, the overall museum site has been closed since May 28, 2019 cutting off the museum’s revenue source.
The Mayhew Cabin Foundation asserts that the City of Nebraska City has been overtly negligent in its duties. The City of Nebraska City passed ordinances creating a Board of Public Works in May of 1944 and October of 1945. The Board of Public Works has the public trust to operate, manage, and maintain the city electric, natural gas, water works, and sanitary sewerage systems and any and all property owned by the city and used in connection with the operation and maintenance of such public utilities, including the erection and construction of additions, extensions, and improvements in and to such systems.
Despite a Board of Public Works being in place for the last 74 years, by the city’s own admission over the last several weeks, the city has failed to implement a drainage management plan for the City of Nebraska City and failed to draw up and keep current drainage maps like most every other community in the State of Nebraska. When the city was pressed for this information, it was not provided, nor could any city employee tell us where the water that is routed through the Mayhew Cabin property goes after it passes through the museum site. Further, the city could not tell us if the water travels west, east, or south or by what conduit. Even the city’s engineering consultant, JEO Consulting, could not provide drainage information. The Mayhew Cabin asserts that in regard to drainage in the area of Mayhew Cabin, the city is guilty of negligent mismanagement.
The City of Nebraska City has an implied easement on the Mayhew Cabin property by using the ravine on the Mayhew Cabin property as a conduit for its drainage system. However, the city has continuously failed to formally file an easement, has continuously failed to maintain the ravine on the museum property as part of the city’s drainage system, and has continuously failed to implement appropriate erosion prevention measures for the past 74 years. These failures resulted in severe damage to the site, damage to museum structures including historic structures, and sewage backup in the museum building.
The city previously cleared the drainage tube of debris at the direction of a former city employee, Mr. Dan Giitinger, approximately 12 to 13 years ago. This previous maintenance sets a precedent of ownership and maintenance responsibility. However, the city has since failed to keep the tube clear which is in violation of the city’s mandate.
I would like to bring your attention to: American Jurisprudence Section 349 under municipal corporations: A municipality has a duty to refrain from discharging sewage or drain water onto private property, and a municipal corporation may be held liable for wrongfully permitting water to flow from its sewers onto abutting property or for damages from sewage that percolates to private property from its sewers. A municipality’s decision not to maintain and repair a sewer or drainage system so that flooding results, is not an exercise of a discretionary function, particularly with respect to a failure to inspect, learn, repair, and otherwise ensure that the installed system is operating property; rather, this is a proprietary function for which the municipality may be held liable. If a sewer, whatever its plan, is constructed so as to cause a positive and direct invasion of the plaintiff’s private property to his or her damage, such as by collecting and throwing water upon it, that was would not otherwise have flowed or found its way there, the corporation is liable. It is immaterial whether the contents of the sewer are discharged directly on the property of an individual or at such a point that the sewage and other refuse taken along with it must necessarily be carried there by a conduit or gravity.
I would also like to cite the following: American Jurisprudence Section 324 under municipal corporations: “A municipality has been held to have a duty to exercise reasonable care or diligence in the maintenance of a sewer, its failure in this respect makes it liable for damages caused by its negligence in the same manner and to the same extent as a private person. Even if a municipality has not duty to provide for or to maintain the proper drainage of surface waters, once a municipality undertakes to either construct or maintain a drainage system, a duty of care exists, and the municipality may be liable for damages to a landowner whose property is damaged as a result of the municipality’s negligent maintenance of the drainage system.
As a result of the damages to the Mayhew Cabin museum property and structures due to the city’s negligence and unreasonable actions/inactions, the Mayhew Cabin Foundation demands the following reparations:
The reasons for punitive damages are listed below.
It is incumbent upon the Board of Public Works and the City of Nebraska City to determine the optimal drainage system for the benefit of its citizens in order to protect its citizen’s properties. Yet, as Nebraska City grew and residential development increased, the city did not alter or update its drainage systems in the area of the Mayhew Cabin.
Despite the fact that Nebraska City has a consulting engineer firm and other professionals at its disposal, the city continued to use the Mayhew Cabin site and the ravine in an unreasonable manner and against common law, failed to readdress drainage in the area as the city grew, failed to file easements, failed to maintain its drainage system, and failed to implement any erosion prevention measures. The city has failed to maintain drainage maps of the area and failed to implement a drainage management policy for the city which indicates general negligent mismanagement.
The City of Nebraska City was informed of a drainage problem in the area in 2017 which resulted in the sewer backing up in to the Mayhew Cabin museum building. The city took responsibility for the problem, reimbursed the foundation for damage, yet failed to investigate the underlying drainage issue. When the city was again informed of a drainage problem and backup in March of 2019, it denied any responsibility and did nothing. Again, no investigation of the drainage issue took place which is in violation of the city’s mandate. This failure to act resulted in not only sewer back-ups into the museum, but the eventual flooding of the Mayhew Cabin site and damage to historic structures.
I would like to cite: American Jurisprudence Section 338 under municipal corporations: If a municipality has actual or constructive notice of a defect in its sewer sufficiently long to enable it to remedy the condition prior to the act resulting in the damage complained of, that is sufficient notice upon which to predicate liability for damages resulting from its failure to exercise ordinary and reasonable care to keep them in repair and free from obstructions, and this is true even if the obstruction was created by third persons.
Subsequent to the damaging flooding events, the City of Nebraska City denied and evaded accountability, verbally and in writing denied ownership of the drainage tube without evidence, and relied upon an irrelevant Nebraska State Statute (31-201) to continue draining onto the Mayhew Cabin site in an unreasonable manner. The City Administrator claimed to have no records of any kind relating to the Mayhew Cabin property, yet claimed that the drainage tube was owned by the Mayhew Cabin Foundation with no evidence to support that claim. The drainage tube on the Mayhew Cabin site is clearly part of the city’s drainage system as it is a constituent in the city’s own wastewater system. The city’s denials, lack of record keeping, mismanagement, and negligence is considered even more astounding considering how the city’s actions or inactions negatively affected a unique and significant historic site – a site that benefits the whole of Nebraska City as well as the State of Nebraska with tourism dollars.
The closure of the Mayhew Cabin is unprecedented. Even when the Mayhew Cabin Museum lost its museum space due to the closure of Engle and Schuster several years ago, the site continued to operate without a building or restrooms. The foundation rented a porta potty and our docent sat on a rock near the front gate with a metal cash box and welcomed visitors who wanted to learn about the Underground Railroad history of Nebraska. Even with crude facilities, the foundation continued its mission to educate the public about the pivotal history associated with the site.
The general public heard about Ms. Engle and thought that the Mayhew Cabin Museum had closed. As a result of the bad publicity and rumors, it took years to educate the public about these misconceptions, remove the stigma, and regain our patronage.
This current closure due to flooding is devastating to the museum. The museum had to be closed, and therefore, has lost its revenue source. Our docent had to be laid off and lost her only source of income. Nebraska City lost one of its most popular museums right before Applejack. Even if repairs are made and reparation demands are satisfied, it will similarly take years to inform the public of the site’s reopening and to regain our patronage. This setback and the time and effort that have gone into trying to hold Nebraska City accountable have already been enormous. I don’t think it can be emphasized enough: The Mayhew Cabin Foundation is fighting to save a beloved and unique historic site that benefits everyone!
In summary, the city’s failures reach the point of negligence and possible malfeasance, and the City of Nebraska City should be held financially accountable and responsible for punitive damages.
I am prepared to submit exhibits, photographs, and other information to support this claim.
While the city stewed on our claim, the greatest thing happened: a lawyer reached out to me in order to offer his services to Mayhew! His name was Joshua Christolear.
The Nebraska City City Council considered the PSTC letter at its regular meeting on September 16, 2019. At expected, the city denied all responsibility for the damage to the Mayhew property. I did not attend the meeting because Joshua said it would make no difference. The city had caught wind that we had retained counsel, and emailed me to inform me that any further communications would be through our respective lawyers.
Dr. Hunt and his students toured the site on October 9, 2019. Afterward, he sent me photos that the students had taken of the ravine and the drainage tubes from the east.
Joshua filed the lawsuit on February 13, 2020.
Then Covid-19 happened. But Joshua, David, and I moved forward and continued to work on the details of the case throughout the year, putting it into high gear in the Fall.
During the summer of 2020, I mourned for the family of George Floyd and the country as a whole. Black Lives Matter protests filled the news. Considering what the Mayhew Cabin museum interprets – the history of a time when black lives mattered more than anything else to John Brown, John Kagi, and the rest of John Brown’s men – I found the closure of the museum a travesty, and more painful to me personally.
Dr. Hunt delivered his student’s report to us in October of 2020. It was an incredibly detailed scientific report. The major take-aways from the report were the estimate of the area that the city was draining onto the site and the inadequacies of the infrastructure. The estimate was that the city is draining over 50 acres of land onto the Mayhew site. This was far more area than David had realized in his initial assessment of the water shed. The report indicated that the tube was about half the size it should have been to drain that much area. Dr. Hunt’s students had to make some estimates. The report was deemed to be conservative by David’ standards. Had the student’s had the information that David and I had gathered by that time, the report would have been even more damning.
By October of 2020, we were well into the Discovery Phase.
Unfortunately, we were unable to secure an expert witness to agree that hydraulic erosion was causing the museum building to sink toward the northeast as David has proposed. So, in order to prove that the building was sinking due to the city’s negligence, we had to gather proof that the tube that ran under the museum building was failing.
Early in the morning of October 7, 2020, I met two plumbers at the museum site. They came equipped with a generator and a camera that they used to run down pipes in order to detect blockages or breakages. The plumbers were young, but did not lack experience. They didn’t blink an eye when I showed them the tube opening and the muddy conditions that would have to work in. They set up their equipment and attempted to run the camera down the tube. But because the 24-inch drainage tube is much wider than the narrower residential piping the camera was designed for, the heavy camera apparatus couldn’t traverse the pipe. I expressed my disappointment because we really needed to get pictures of the interior of the tube. After attempting it several times, the larger plumber looked up at me and said that the smaller plumber would just crawl down the tube. I objected as if I was the man’s mother. That sounded far too dangerous (and disgusting) for me to allow. But the man insisted, and he disappeared into the tube before I could object any further. The two men talked to each other often as the one crawled along. Within a few minutes, I heard the man inside the yelling some information which was relayed to me, “The tube is failing.” This was confirmed several times with the plumber outside the tube relaying information that the man inside the tube was capturing images of a cracking tube. I was overjoyed! We would have our proof.
Once the plumber emerged safely from the tube, I thanked both of them profusely. Once they were packed up and ready to leave the site, I gave them my email address to send the pictures of the inside of the tube. By that afternoon, I had them. What we saw was a concrete tube that had wide cracks on the top. Over time, however, my excitement over the cracks began to wane. The defense would be able to claim that the cracks weren’t significant enough to cause an entire building to move. Then I had an idea. Since the smaller plumber was roughly my size, I knew that I could crawl the tube and take more pictures. Plus, if I went farther in, maybe I would see something more damning.
On October 17, David and I drove to Mayhew. Our mission that day was two-fold. I would crawl the tube and take pictures in order to prove that the tube was collapsing, and David would walk the perimeter of the ravine to determine it’s current size.
David brought a headlamp for me to wear as I crawled through the dark tube. I put the headlamp, hung my camera case around my neck, and made my way inside the tube. There was only a narrow stream of water running through the ravine and through the tube that day. Nevertheless, in order to stay dry, I had to widen my legs substantially to avoid the stream of water. In such fashion, I started making my way down the tube.
The first thing I noticed was that the pipe was not one long pipe. It was a series of pipes joined together. I yelled back to David that each segment appeared to be around ten feet in length. As I crawled, I felt specks of dirt hitting me on the head. I looked up and saw the cracks in the pipe that the plumber had photographed and took several pictures of my own.
I had been in the pipe for several minutes when I came upon a curve in the trajectory. To fill the gaps between the pipe segments along the curve, the installers had used limestone. I crawled onward. Then I came to something more substantial. It was a junction area that had been constructed of bricks on the sides, and brick and wooden timbers along the top. One of the support timbers had rotted and given way. I captured several pictures. Once my headlamp hit the west edge of the pipe, I realized that I was looking at another pipe. I immediately yelled to David, “There’s another pipe!” I was thrilled at the discovery. I made my way to the other side of the junction and turned my body around in order to take several pictures. I saw that the newly-discovered pipe was almost completely filled with soil. The angle of the pipe suggested that the soil-filled tube ran to the northwest. In doing so, it also ran under the building.
This is one of the photos I captured while inside the active tube. Looking generally northward,
the “abandoned tube” is on the left (filled with soil) and the “active tube” is on the right.
Immediately, I knew that it was this newly-discovered collapsing tube that had caused the building to sink to the northeast. It also explained the large crack in the concrete floor of the conference room because the crack followed the trajectory of the tube. I also realized that in time, the still active tube would also likely collapse in the same fashion. Being inside the tube when I had that realization caused me some angst. It was then that I began to get nervous for my safety. Nevertheless, I turned around and crawled on. When the sound of dropping water became very loud, I realized that I was near the end of the tube. The water had grown deeper and it was impossible to me to move forward without becoming completely soaked. So I turned around and yelled to David that I was making my way back out. I took a few more pictures on my way back.
As soon as David realized that I was completely safe, he set out on his mission to measure the ravine. He traversed along the treacherous edge of the ravine all the way around. When he was done and found me, one of his arms was covered in blood. He had lost his footing and slid into a sharp branch that pierced his arm.
David had used the SW Maps application on his phone. The goal was to begin to estimate soil loss in the ravine. Luckily, I had discovered months earlier (through happenstance) a survey of the ravine when it was sold to George Rowe by the State of Nebraska (that was prior to the state deeding the property to the city). Conveniently, the surveyor had noted that the ravine included .45 acres at that time. David used the app to draw the ravine on the computer, and it calculated that the ravine had widened by .63 acres. In other words, well over a half acre had been lost to erosion. And that included only the width of the ravine, not the depth (or deepening) of the ravine.
David studied the photos of the newly-found tube and we discussed its trajectory. I chimed in that the 1995 drainage tube that runs near the west edge of the museum site was likely considered necessary because this newly-discovered tube had failed. The tubes were then dubbed the "1995 tube" and the "abandoned tube." David surmised that subduction had indeed been taking place in the abandoned tube. Whenever the "active tube" is over-filled with water, water is forced back up into the failing, soiled-filled, abandoned tube. Once water is able to travel down the length of the tube, it draws soil out of the abandoned tube with it, which is replaced by soil from above. That process was causing the building to sink. Because the abandoned tube had failed, the 1995 tube was necessary. The abandoned tube had once carried surface water from 2nd Corso via a storm sewer inlet. The 1995 tube, rather than traversing the body of the museum site, was installed near the west edge of the site, fed by the same storm sewer inlet along 2nd Corso, and connected to the same junction that the active tube connects to south of the museum building. That junction was determined to be nearly half the capacity needed by Dr. Hunt. When the four new houses were constructed northwest of the museum site in 2016 and 2018, sewer lines were added to the 1995 tube with the city filing an easement for this. When the 1995 tube became overtaxed by rain water (and because the overall system is undersized), sewage would back up into the museum building.
It all then became very obvious what had been transpiring on the museum site for decades. It also tied into a report from Bill Hayes many years before that a sink hole had developed in the site up by the barn. If we were right about the trajectory of the abandoned tube, it would explain the site of the sinkhole. Upon questioning Bill about that, he showed me the area of the site where the sinkhole had been discovered, and mentioned that the hole was deep enough to see a drainage tube of some sort underneath. We knew at that point that that had to be the abandoned tube. Upon questioning a sewer line expert with the City of Lincoln, best practices for an abandoned tube are to fill them with concrete and cap them off. The City of Nebraska City did not follow best practices. Yes, they may have capped off the very north end of the abandoned tube when creating the 1995 tube within the storm sewer inlet enclosure, but they did not cap off the end that connects with the active tube. Because the abandoned tube is filled with the very “fill” soil that is supposed to serve as a base under the museum building, that failure is directly damaging the museum building.
This is a map of the general area of the Mayhew Cabin property. The current boundary of the ravine on the Mayhew Cabin property is shaded with light green. The city’s storm sewer inlets along 2nd Corso are noted with purple markers. The two discovered tubes that empty into the east side of the ravine from the city property to the east are noted with red markers. The current trajectory of the flow of all water dumped onto the site is noted with the thick blue line. The “active tube” entrance is noted with another purple marker. Water flows through the active tube that is noted with a yellow line. As you can see, the active tube runs under the east portion of the museum building. The projected trajectory of the “abandoned tube” is noted with a green line. As you can see, the abandoned tube is also located under the building. The crack in the conference room floor is located over (or very near where) the abandoned tube lies underneath. The “1995 tube” is noted with a purple line. As stated, we believe the 1995 was considered to be necessary because the abandoned tube failed. The city filed an easement on the 1995 tube when Larry Shepard owned the property. The newer sewer connection into the 1995 tube from the four houses constructed between 2016 and 2018 within the Deer Trail Subdivision is noted with a red line. This line becomes overtaxed and sewer backups into the museum building have occurred on multiple occasions. All of the tubes meet at a junction just south of the museum building under the sidewalk. The active tube, the 1995 tube, and the junction are all significantly undersized, therefore, this system will continue to cause significant water issues for the museum site.
Also in October of 2020, our director, Bill Hayes, gave the board notice of his leaving the organization. A few weeks later, I started to clean out Bill’s office at the museum. I gathered up the Mayhew files stored in various filing cabinets and many piles of loose documents. I spent several days and weekends sorting and organizing thousands of loose papers in my garage. It was in the loose documents that I made a discovery that I was certain would help us win the case. As you will recall, immediately after the first flooding event, the city said that Mayhew owned the tube. They had effectively denied ownership of their own infrastructure.
Bill had told me very early on in our investigation of the entire matter, that the city had once had a local contractor come to the site to clean out the tube. I had let our lawyer know that fact when I met him for the first time. In that, I knew that we had a good precedent of the city showing ownership of the tube by using tax dollars to pay someone to clean out the tube on their behalf. But what I didn’t know was that the museum site had experienced a similar flood event back in 2007. I became a board member in 2009. Therefore, I was completely unaware of the previous flooding issue a few years before, and no one ever had any reason to fill me in on the matter since it had deemed resolved.
Apparently, in May of 2007, the ravine filled with water because the drainage tube had become plugged with debris. As a result, the tunnel had become flooded, leaving several inches of mud within the tunnel exit enclosure. Deb Haveman, the director of the site at the time, contacted the city. The city hired a local man to clean out the tube. Deb’s brother suggested that she contact FEMA for financial assistance to clean out the tunnel and make other reparations. A FEMA claim was completed in cooperation with Nebraska City officials. Luckily, Ms. Haveman retained the FEMA file. On one of the documents filed with FEMA, the former properties manager for the city (Dan Giitinger) stated that the drainage tube belonged to the city. . . .
Several unfortunate points became obvious. First, the city was on the site in 2007, saw and understood the damage, and yet did nothing to prevent it from happening again . . . which it did. No erosion prevention measures were implemented and no cover was installed over the tube opening. Second, no one realized that the source of the water was also a huge issue that needed to be addressed . . . even the FEMA officials who were on the site. Third, that in 2019, the city was not willing to work with the board of a popular historic site that alone drew thousands of tourists to Nebraska City each year that ultimately spent money, positively impacting the economy of the city. Instead, the city denied all responsibility for the damage.
Since the museum has closed, the site and buildings have become neglected. During the fall of 2020, David and I went to the site many times to work. We worked day after day, weekend after weekend, clearing out large areas of overgrowth, trimming mature trees, and cutting out hundreds of volunteer trees of all sizes. Exhausted, we realized that two people trying to maintain such a large and challenging site is not feasible. Yet what do we do?
The museum building has been determined to be a total loss. All of the walls are likely filled will mold, it is slowly sinking into the ground to the northeast (and severely takes on water during rain events as a result), and it is becoming structurally unsound. We decided that the barn located on the site needed to be rehabbed and cleaned out in order to house the artifacts, displays, panels, etc. from the museum building. Therefore, much work went into cleaning out a portion of the barn that could be used for that purpose.
The case against the city is strong, and I am certain – unless there is some legal technicality that we can’t avoid – that we will win. The question is: how much will the foundation be awarded? If all goes as planned, we will be able to repair the tunnel exit, build a new museum building, and make reparations to the site. If that is not the case, we will have to fundraise in order to make these things happen.
On December 13, 2020, David and I took subduction measurements along several transects within the museum building in order to eventually prove that the museum building is sinking. As suspected (due to the existence of the abandoned tube), the east portion of the building is sinking the worst . . . by 14.50 inches! Based on our measurements, the building is sinking between 4.5 inches to 14.50 inches.
The Discovery Phase took place in the fall and winter of 2020 and is still taking place as of September of 2021. Subsequent to that will be the Deposition Phase.
It occurred to me in March of 2021 that I had research county records for a portion of the Mayhew property, but I had not researched Bartling Subdivision, nor had I pulled the deeds from when George Rowe has purchased the property from Edward Bartling decades ago. I went to the courthouse and took pictures of all records that I could find and pulled the photos up on my computer. I already had in my possession several plat maps, cadastral maps, and surveys prepared over the many decades. Using legal descriptions, I made a timeline and map detailing the parcels Mr. Rowe had purchased over the years to make the site into "John Brown's Cave" both north and south of 4th Corso. Upon reading one of the many documents, which happened to be a 1962 deed for the parcel that is now improved with the museum building, I discovered that George Rowe purchased that parcel from none other than the City of Nebraska City. Mr. Rowe subsequently constructed the building that is now Mayhew's museum building (more than likely over the existing "active tube" and what is now the "abandoned tube"). Within the deed verbiage is a perpetual utility easement for gas, electrical, and sewer. With that, the city will some day no longer be able to deny ownership of their infrastructure and they will no longer be able to deny their responsibility for maintenance.
Juneteenth was officially made a federal holiday in June of 2021. Again, I mourned. Juneteenth celebrations at the Mayhew Cabin had taken place for many years. But not in 2021. In 2021, the site was closed. If ever there was a reason to celebrate, it was in 2021. At last, there was the important and long overdue recognition and acknowledgement of our nation's history. The real end to the barbarity of slavery. But alas.
We lost our lawyer late in 2021. Even though I contacted hundreds of attorneys, we could find no one willing to take the case. Therefore, the case was dismissed due to lack of representation. Mayhew has lost its opportunity to be heard in court because of statutes of limitations . . . an utter tragedy.
The Mayhew Cabin is expected to be closed permanently unless a miracle occurs.