Central Electric & Gas Co. v. City of Stromsburg, Neb.

• Decision Date: 21 July 1960
• Docket Number: Civ. No. 35 L.
• Parties: CENTRAL ELECTRIC & GAS COMPANY, a corporation, Plaintiff, v. CITY OF STROMSBURG, NEBRASKA, a Municipal corporation, and The Court of Condemnation, composed of Edmund Nuss, John M. Dierks and Dayton R. Mounts, Defendants.
• Court: U.S. District Court — District of Nebraska

192 F. Supp. 280

CENTRAL ELECTRIC & GAS COMPANY, a corporation, Plaintiff, v. CITY OF STROMSBURG, NEBRASKA, a Municipal corporation, and The Court of Condemnation, composed of Edmund Nuss, John M. Dierks and Dayton R. Mounts, Defendants.

Civ. No. 35 L.

United States District Court D. Nebraska.

July 21, 1960.

Lloyd J. Marti and Warren K. Dalton, Marti, O'Gara, Dalton & Sheldon, Lincoln, Neb., for plaintiff.

Thomas M. Davies and Robert E. Johnson, Jr., Healey, Davies, Wilson & Barlow, Lincoln, Neb., and J. T. Stanton, Stromsburg, Neb., for defendants.

DELEHANT, District Judge.

The plaintiff instituted this action in this court, and by it sought and seeks to obtain a judgment or decree enjoining "the defendants and each of them from further proceedings for the condemnation of plaintiff's gas distribution system located in the city of Stromsburg, Nebraska, or any property used in connection therewith; and from any further actions or proceedings as or before the Court of Condemnation appointed by the Supreme Court of Nebraska on April 14, 1956 * * *; and from any further actions or proceedings leading to the acquisition by the City of Stromsburg, Nebraska of plaintiff's property located in said city or any part thereof through the exercise of authority purportedly arising out of the election held in said city on the 3rd day of April, 1956;" and for general relief incidental to such principal prayer.

To plaintiff's complaint, defendants made timely answer, admitting many of the complaint's contentions, professing a want of information adequate for a response to certain of its allegations, and denying all others. And the answer also asserted in separate further paragraphs sundry matters which the defendants appear in each instance to advance as a "separate defense." Without any approval of the technique of pleading thus pursued—which has lately been followed in some quarters more commonly than should be the case—the court has considered the tendered facts thus asserted and the legal positions thereby—although in some instances obscurely—advanced.

During the progress of the action, the court considered and denied a motion in plaintiff's behalf for a summary judgment (filings 31 and 32). But, in furtherance of an extemporaneous, though considered, oral announcement (filings 29 and 30), the court, in then acknowledged doubt concerning the merits of, and its eventual decision in, the case, and in order to preserve the status quo pending the litigation, entered an order granting a preliminary injunction holding in abeyance, until the further order of the court, the pursuit of the steps admittedly contemplated by the defendants for the taking by defendant, City of Stromsburg, Nebraska, of the plaintiff's gas distribution system which is here involved (filing 27).

In view of the manner in which the action has been submitted for final determination, an extended analysis of the pleadings at this point would serve no practical purpose, but would rather initiate needless repetition. Nearly all, if not actually all, of the pleadings, because of their very nature, are reflected either in the findings of fact, or in the conclusions of law shortly to be set out. So, the court will depart from its ordinary practice and refrain from the formal and extended restatement of the pleadings.

Through the conspicuous diligence of counsel, and after a pretrial conference, the case was submitted to the court upon the pleadings, certain discovery proceedings which are parts of the files in the action, and several factually informative stipulations between the parties. Exhaustive typewritten briefs of counsel have been submitted to, and appreciatively considered by, the court. The court now sets out the facts which it has found, and now finds, to exist. It may be understood that, so far as these findings reflect actual events and primary facts, they are not seriously in dispute. Concerning the implications to be collected from some of them, there is manifest disagreement.

The plaintiff is, and at all times material has been, a corporation organized under the laws of Delaware, but lawfully doing business in Nebraska. City of Stromsburg, Nebraska, is a City of the Second Class, and as such a municipal corporation, incorporated under the laws of Nebraska. Each of the defendants, Edmund Nuss, John M. Dierks and Dayton R. Mounts is a resident and citizen of Nebraska. Paragraph 1 of complaint, admitted.

Plaintiff owns and operates a gas distribution system within the limits of the defendant City of Stromsburg, Nebraska, the value of which is very largely in excess of $3,000. Paragraph 2 of complaint, admitted. This finding is to be understood in association with, and not at all in disregard of, a later finding touching the location of a part or segment of such system actually situated beyond the limits of the city.

At a general election held in the City of Stromsburg, Nebraska on April 3, 1956, a question was presented to the electors of the City of Stromsburg pursuant to the requirements of Section 19-701 R.S.Neb.1943, relative to the acquisition by defendant, City of Stromsburg, of the gas distribution system owned by plaintiff, and located in such city. Paragraph 3 of complaint, insofar as it is admitted.

The ballot containing the question presented to the electors referred to in the last preceding paragraph was in the following form and language:

"Official Ballot "City of Stromsburg, Nebraska "General City Election "Tuesday, April 3, 1956

"Shall the City of Stromsburg, Nebraska, by the exercise of the power of eminent domain acquire and appropriate for the public use, the gas system of Central Electric & Gas Company located within the City of Stromsburg, Nebraska, including the gas distribution system and gas pipelines, and consisting of pressure regulating stations, gas mains, service connections, meters, and other equipment, the franchise under which said Company is now operating, its contract for the purchase of natural gas sold and used within the City of Stromsburg, Nebraska, and all parts, tangible and intangible, of said gas system, used and useful in the distribution and sale of natural gas and the rendering of gas service within the City of Stromsburg, Nebraska?

"Yes "No . . . . . . . .

Paragraph 4 of complaint, admitted.

At such election 644 electors voted on the question above referred to, of whom 390 electors voted, "Yes," and 254 electors voted, "No," upon such question. (Paragraph 5 of complaint, admitted).

On March 13, 1956, Ordinance No. 164 of the City of Stromsburg, Nebraska providing for the submission of the question hereinbefore identified, to the electors of the City of Stromsburg, was adopted, of which Ordinance a copy is set out in a footnote hereto.¹ Such Ordinance was published as required by law on March 22, 1956, and became effective on that date under the provisions of Section 17-613 R.S.Neb.1943. Such Ordinance, in its section 4, provided for one notice of election to be published not less than ten nor more than twenty days prior to the date of the election contemplated therein. (Paragraph 6 of complaint, admitted.)

Notice of the submission of the foregoing question at such election, in language set out in a footnote hereto,² was published in "The Headlight," a newspaper published at Stromsburg, Nebraska, on March 15, 1956 and on March 22, 1956, and was not otherwise published. Paragraph 7 of complaint, admitted. No other notice of such submission was published by the City of Stromsburg, Nebraska, or at its order or direction.

At the election in the City of Stromsburg, Nebraska, held on April 3, 1956, no special question, aside from that reflected in the official ballot, copy of which is incorporated herein (supra) was presented or submitted to the electors of such city; but such election was the annual general election held within the City of Stromsburg for 1956, at which the officers of such municipality were regularly elected.

After the general municipal election held in the City of Stromsburg, Nebraska on April 3, 1956, the Mayor and Council of such city canvassed the returns of such election and, thereupon, certified to the Supreme Court of Nebraska that the question presented in and by the official ballot already copied herein had been carried.

Upon receipt of the certificate mentioned in the last preceding paragraph hereof, the Supreme Court of Nebraska appointed Edmund Nuss, John M. Dierks and Dayton R. Mounts, of whom each was and is a District Judge of the State of Nebraska, as members of a Court of Condemnation to fix the value of plaintiff's property located in the City of Stromsburg, Nebraska.

Pursuant to the order of the Supreme Court of Nebraska, the Court of Condemnation, thus constituted, met and organized on May 26, 1956. On May 26, 1956, such Court of Condemnation fixed June 26, 1956 as the date for the filing of the petition of the City of Stromsburg, Nebraska in such condemnation proceedings, and fixed August 4, 1956 as the date for the next meeting of such Court of Condemnation, and fixed, in accordance with the requirements of the laws of Nebraska, both the time for service and the time within which to plead in such condemnation proceeding. The complaint in this action was filed on June 16, 1956, which was prior both to the expiration of the time for service and to the time within which to plead thus fixed by the Court of Condemnation.

Of the property by the plaintiff owned and used as a part of, and physically connected to, its gas distribution system at Stromsburg, Nebraska, the following items and each of them are, and is physically located outside of the city limits of the City of Stromsburg, Nebraska, and were and was so located both on March 13, 1956 and on April 3, 1956:

A. The gas pressure station referred to in the ballot (supra) and in the notice of election, and also in Ordinance No. 164 (of which a copy is attached to the...