we've been asserting a block that deals with you know we're not changing the natural flow of the water of course and then there's the position it's been taken by the plaintiffs here which is that an upstream landowner can direct her in any situation as a matter of law the increase but the rate or amount of water going to servia to state but only within a range of reasonable yes and that is the standard that they came up with now the boli case is a case that came out in two thousand and four by the second district that actually applied that standard and it both ways my expert on dresser who was also the expert in that case who incidentally and then the case his testimon calculation showed you're going to increase the amount of water make it two percent in a one year flood and thirty six percent in a hundred year flood on the serbian estate and the court said yeah that's too much that's not if in the range of reasonable here mr dresses calculations say when you compare the amount of water that fills up that late compared to the two hundred fifty two square miles of river that volume of water when you're talking about the birth that's being proposed here in a hundred year flood you're only talking about two point three percent of an increase in water in a five hundred year flood you're talking about a one point four percent increase in water so i would argue that if fifty thirty six percent design reasonable why the down a steep can can apply and can go ahead and do what they want to do years because the defendants here are not changing the natural flow of the surface water are not causing it to go back up on the land that's what we're doing we're not changing the natural flow the surface water the surface water over flow of the river comes over hits our will hit our berm and it will go back right back we're belongs right back into the river now on the plains tend to gloss over that fact they say well two hundred fifty two square miles from that point so in comparison the mouth of the volume in the lake is minimal you also have to look at and i'm getting a little ahead of myself that's are you also have to look at the  needs he's done it at least twenty times energy no dispute over the calculations here but i'm getting off air if you look at when the river switches after only fills up then goes into our those standards i touched upon a few of these points before but i think the brief bring out the testimony that they clearly did not hear we're dealing with a situation where instead we have or the plane is coming out and saying well ever since that september two thousand a flood on the river has caused us additional flooding that's caused additional we've lost additional land we're not going to channel here there's a case said by the plaintiffs about putting a new channel we're not putting in a channel it's it's water that's going back into the river and they're saying they're losing the land because the room but are they out as the saying that that one week period where we see in big three years ago has caused all this erosion they have no proof  part of the granting of the poor mary injunction in this case there is no argument that there's a statute involved which requires some type of staged construction or argument is a matter of law this is a fact case based on a clearly established elements over probably heard injunction in the cable fish case the stage that was that issue was a service animal act and whether or not a child could use a service dog in a school in form or credit case it was whether the uniform arbitration act  claim based on a prior lawsuit and in both those cases the facts were in dispute the court was the poster was reviewing whether or not the tryout work is a matter of law that made the correct conclusions based on the undisputed facts in this case we have the exact opposite situation because of that i would suggest that the use of discretion standard is the proper stream of review for these kids the first are human i'd like to address is the adequate remedy a law it was briefly brought upon or argued by my in his argument agree with the court in that the standard when you're looking at a train case like this or any ever will case is whether or not there's going to be continuing harm and in this case with the propensity as alleged by the plaintiffs for continuing harm it's not it's just a simple question of whether or not there is a monetary award that can be received it's a question of whether or not a continuing arm is going to continue and the the older events articulated through the cases when deciding whether or not there is an cases that i cited in my response brief the courts have found that you are not precluded simply because you did have a damage from also seeking to enjoying the person who damaged you from creating further damage and one of the specific cases is the myers is in th next to the side for a second and addressing it substantively we cited in our response brief the testimony from our expert which said each and every one of them have suffered damage and the basis for their damage and the court in the court's decision also  river so he had no basis to say where any of them went so based on evidence i would suggest that the plaintiff's expert's testimony with respect to the image of each of the plaintiffs was certainly not contradicted by the defense it was rely upon by the court and something to prove respect for that aren't you building in a catch basin that's exactly what they were trying to do in one thousand nine hundred six that's exactly what was happening so what they want to do now is say well we don't want to have a million dollars worth of damage so we want to stop all the water from coming onto our property and we'll send that billion dollars of damage w of channel in our case we say it's rude but they would be prevented from doing it and this isn't a situation mike you were there putting scene base versus at the back of their door to prevent water from actually coming into their house this person water there was he didn't know it certainly in excess of four hundred millions which is the amount of water that he said would go into the lake itself so it's in excess of four hundred million gallons the testimon it took approximately twenty four hours that while it was a five hundred year flood and it took about twenty four hours for his property to start to see some flooding in one thousand nine hundred eighty two thousand and eight which was the source of the  car right who lives a few doors down from him based on the man lived there for forty four years he's observe the same thing karen reviewer who lives downstream testified country mr o person suggesting that it was her feelings she saw the way the river flo success on the merits and each one of the other elements that i spoke about with respect specifically to the amounts of water that we're talking about in this case it's an it's a situation where the  what they see is well you get flooded and we get flooded we don't want to be flooded and because we don't want to be flooded the amount of water that we're going to turn back on your property isn't going to make a difference and we object to that and that's those are the facts were in dispute in this case the judge  found that we have proven our case we've proven each one of the elements and the reason that i would suggest to you that this is important is when mr all from was going through his recitation of what he thought the sneakers were i would suggest you have the overriding standard is the reasonable standard the point is of ever taken t waters when there there was a mile of water there was a lot of for the compensatory storage there's a certain amount of floodwater lee goes on your property and you have to allow that amount of water onto the property and you can't turn it back to the plaintiffs causing damage with this piece really what it comes right down to it this is an expert case and that's the key testimony right there that's undisputed moreover to the extent you're losing discretion i think you have it here because there is no proof whatsoever of if you will where they need their residence relocated and they were all downstream that's all you need to know at this point first back to the balance of the hardships you know he mentioned something about how  examination these even mention the base flood elevations well we're talking about compensatory storage here to talk you know that's one of those totally one of those numbers you need and i asked mr anal he said well you know you don't know the projects before i said if somebody submitted would you be presenting edition proofs then and again i don't want to get your work i understand i mean i my expert testimony is pretty clear i mean i might clarify of the supplemental and hear from them but it's pretty straightforward  obviously i'll depose the plaintiffs but i don't see how the how the proof here is going to change much the plaintiffs are downstream we're upstream we've got the numbers that show how much water is diverted i don't see how the facts are going to change all that much i think it's pretty clear breeze it's like thirteen or fourteen inches up and we left water comes down the river we're feeling came directly from the play this testimony finally with respect to the reasonable standard what standard to apply he says well of course we never said you can't do it entirely that's