BURLINGTON NORTHERN & SANTA FE v. Chaulk

• Decision Date: 20 July 2001
• Docket Number: No. S-00-212.,S-00-212.
• Citation: 262 Neb. 235,631 N.W.2d 131
• Parties: The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Appellant, v. Sue H. CHAULK and Kevin L. Blehm, wife and Husband, et al., Appellees.
• Court: Nebraska Supreme Court

631 N.W.2d 131

262 Neb. 235

The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Appellant, v. Sue H. CHAULK and Kevin L. Blehm, wife and Husband, et al., Appellees.

No. S-00-212.

Supreme Court of Nebraska.

July 20, 2001.

Rodney M. Confer, Trev E. Peterson, and Corey L. Stull, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellant.

Howard P. Olsen, Jr., of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, and Thomas D. Oliver, for appellees Sue H. Chaulk, Kevin L. Blehm, et al.

Terry Curtiss, of Curtiss, Moravek, Curtiss & Margheim, Alliance, for appellees Daniel N. Dailey and Janet K. Dailey.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, Justice.

NATURE OF CASE

The Burlington Northern and Santa Fe Railway Company (BNSF) filed an action in the district court for Morrill County. The sole remedy BNSF sought in the district court was injunctive relief permitting it to conduct surveys and tests on the land of property owners who had refused access for such purposes (defendant property owners). BNSF appeals from the order of the district court entered on February 9, 2000, which denied the preliminary and permanent injunctions sought by BNSF and dismissed BNSF's second amended petition. For reasons set forth below, which differ from those articulated by the district court, we affirm.

STATEMENT OF FACTS

The facts essential to our decision are not in dispute. BNSF operates a railroad in Nebraska. A portion of BNSF's railroad track is located in Morrill County, Nebraska. Eastbound trains on this track carry coal from mines near Guernsey, Wyoming, to Northport, Nebraska. At Northport, the BNSF track intersects with track operated by the Union Pacific Railroad, whose dispatchers control the movement of trains through the intersection. The train traffic through this intersection is heavy. BNSF trains are frequently backed up in their efforts to use the intersection, in part because Union Pacific trains are given priority.

From the Northport intersection, the BNSF railroad track runs north and south. The northbound track leads to Alliance, Nebraska. On this route, trains must transverse a steep incline north of Bridgeport, Nebraska, known as the Angora Hill. The track up the Angora Hill has a 1-percent grade, meaning it rises 1 foot for every 100 linear feet of track. As a result of this incline, BNSF utilizes additional locomotives, referred to as "helper consists" or "helpers," to assist loaded coal trains in climbing the Angora Hill. The helpers are added to the back of the loaded trains and push the trains up the 13 1/2-mile hill. In addition to the extra equipment, additional time and personnel are needed to add and remove the helpers from the loaded coal trains, resulting in additional costs to BNSF.

In October 1997, BNSF began to consider laying a new line of track in order to avoid the Angora Hill's steep grade. BNSF contacted Jerry Helm, a railroad consultant who had previously worked for BNSF. Helm was directed to investigate the possibility of a bypass or connection to reduce the grade to .5 percent or less. Helm developed a proposal to bypass the Northport intersection by laying a cutoff track which would run from just east of Bayard, near Prinz, Nebraska, to Angora, Nebraska (bypass route). The new track would be approximately 25½ miles long.

The proposed bypass route had the advantages of avoiding the Northport intersection and the Angora Hill. The proposed bypass route would have only a .5 percent grade, or a rise of 6 inches for every 100 linear feet of track. The land on which BNSF proposed to build the bypass route included land which was owned by the defendant property owners.

BNSF decided to investigate the possibility of constructing the proposed bypass route. To gauge the feasibility of this alternative, BNSF sought to determine whether the land could support the tracks and whether the construction was cost effective. In the fall of 1998, BNSF, through its agent H.C. Peck & Associates, began contacting the owners of the land on which the proposed bypass route would be built (property owners) to gain right-of-entry permits that would allow BNSF to enter upon the property owners' land to conduct certain surveys and tests. Among the surveys and tests that BNSF proposed to conduct on the property owners' land were as follows: an alignment survey; cultural surveys to locate any Native American burial grounds or artifacts; biological and environmental surveys to identify endangered plant and animal species; hydraulic surveys to determine water runoff patterns and wetlands; and geotechnical tests which involved drilling and gathering core soil samples, 2 inches in diameter and approximately 50 feet deep, which samples would need to be drilled and gathered approximately every quarter of a mile. These samples would then be taken to a lab for analysis.

Initially, BNSF sought access to the property owners' land without any compensation. Later, BNSF offered each property owner $500 as an incentive to gain the necessary right-of-entry permits. The defendant property owners refused to grant BNSF the permits which would allow BNSF to conduct its investigations.

On January 14, 1999, as a result of the defendant property owners' refusal to give BNSF the necessary permits, BNSF initiated the instant action seeking injunctive relief as its sole remedy. The second amended petition filed on April 14 is the operative petition for purposes of the present appeal. In its petition filed pursuant to Neb.Rev.Stat. § 76-702 (Reissue 1996), BNSF sought preliminary and permanent injunctions granting BNSF entry to the defendant property owners' land in order to conduct the above-described surveys and tests. On or about July 7, the defendant property owners answered BNSF's petition, denying, inter alia, that BNSF was entitled to the relief it sought and affirmatively alleging that BNSF had failed to allege a public use which would result from its proposed project.

On December 8 and 9, 1999, a bench trial was had on BNSF's petition. A total of 13 witnesses testified, and 16 exhibits were received in evidence. The evidence included testimony by the following BNSF witnesses: Helm; Robert Patton, a former BNSF employee who is the vice president for Mainline Management, Inc., a railroad consulting firm; Kenneth Girodo, a BNSF employee; Gregg Larsen, an employee of H.C. Peck & Associates, BNSF's agent responsible for gaining the right-of-way permits from the property owners; and Jack Moy, a BNSF employee. BNSF's exhibits included maps of the proposed bypass route and a report developed by a team of BNSF personnel headed by Patton, which report "updat[ed] the information in the five-year horizon" plan for coal transportation requirements along BNSF's railroad tracks, including the Morrill County area in question.

In its memorandum order entered February 9, 2000, the district court denied BNSF the relief it requested and dismissed the petition. The district court concluded that although BNSF possessed the requisite statutory authority to condemn property under Nebraska's eminent domain statutes, Neb.Rev.Stat. § 76-701 et seq. (Reissue 1996 & Supp.1999), it could enter upon the defendant property owners' land pursuant to § 76-702, which permits condemnors to conduct precondemnation surveys and examinations, only after it had sustained its burden of proving that its proposed bypass constituted a "public use" rather than a private benefit. Reviewing the evidence, the district court found that BNSF had failed to carry its burden of proof. The district court stated:

By the greater weight of the evidence BNSF's overwhelming purpose for the contemplated bypass route was to eliminate the helper [consists] thereby saving on crews and expensive equipment to increase profits and better compete with the Union Pacific Railroad. The desire to construct the by-pass track was a business decision, an economic decision similar to economic decisions made daily by private businesses to cut costs and increase profits....

Inasmuch as BNSF has failed [to] prove that its contemplated condemnation proceedings would satisfy the "public use" requirement it has no authority under Section 76-702 to enter upon private lands for testing purposes.

The district court denied BNSF's application for preliminary and permanent injunctions and dismissed BNSF's petition.

BNSF appeals.

ASSIGNMENTS OF ERROR

On appeal, BNSF has assigned four errors. BNSF claims, restated, that the district court erred (1) in requiring BNSF to prove its proposed bypass was for a public use before it could enter the defendant property owners' land for the purpose of conducting investigations pursuant to § 76-702; (2) in failing to find that condemnation of land for a rail line is per se condemnation for a public use; (3) in failing to find that BNSF had offered sufficient evidence to prove the proposed bypass was for a public use; and (4) in failing to find that BNSF had negotiated in good faith pursuant to § 76-702. In view of our disposition of this appeal based on resolution of the first assignment of error, we do not reach the second through fourth assignments of error.

STANDARDS OF REVIEW

An action for injunction sounds in equity. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court. White v. Board of Regents, 260 Neb. 26, 614 N.W.2d 330 (2000). Interpretation of a statute presents a question of law. Affiliated Foods Co-op. v. State, 259 Neb. 549, 611 N.W.2d 105 (2000).

The power of eminent domain may be exercised only on the occasion, and in the mode and manner, prescribed by the Legislature. SID No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917, 573 N.W.2d 460 (1998). Statutes conferring and circumscribing...