Brodine v. State, Dept. of Roads

• Decision Date: 17 June 1966
• Docket Number: No. 36249,36249
• Citation: 143 N.W.2d 361,180 Neb. 433
• Parties: Frank A. BRODINE and Mamie Brodine, Appellants, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.
• Court: Nebraska Supreme Court

Page 361

143 N.W.2d 361

180 Neb. 433

Frank A. BRODINE and Mamie Brodine, Appellants, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.

No. 36249.

Supreme Court of Nebraska.

June 17, 1966.

Syllabus by the Court

1. The petition by which proceedings for condemnation of rights of ingress and egress over land are instituted must accurately describe the property and such a description is necessary to confer jurisdiction.

2. The property must be described, not with meticulous exactness, but with a reasonable degree of accuracy, or substantial accuracy--that certainty by means of which a reasonably competent person could take the description and any accompanying map to which it refers, and locate the identical property.

O. A. Drake, Kearney, for appellants.

Clarence A. H. Meyer, Atty. Gen., Harold S. Salter, Asst. Atty. Gen., Warren D. Lichty, Jr., Thomas H. Dorwart, Sp. Asst. Attys. Gen., Lincoln, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and SCHEELE, District Judge.

SCHEELE, District Judge.

The defendant, State of Nebraska, Department of Roads, instituted condemnation proceedings before the county judge of Buffalo County to condemn and prohibit all rights of ingress and egress over a line located in certain land owned by the plaintiffs as joint tenants and located in Section 28, Township 9 North, Range 18 West of the 6th P.M. in Buffalo County, Nebraska. Plaintiffs admit that they own a tract of about 5 acres in said section which they had acquired by warranty deed in 1944, which deed used a metes and bounds description.

Instead of using the metes and bounds description by which plaintiffs acquired title to the tract, defendant in the condemnation proceedings described a portion of 'Tax Lot 42' located in the west half of said section. A map or diagram accompanied this description.

In their amended petition in the district court the plaintiffs alleged that they were the owners of the property described by the metes and bounds description by which they acquired title and that no Tax Lot 42 was ever established, platted, or dedicated of record to the public in said Section 28 by an original government survey, by any owner or by any person who was legally authorized to do so.

In its amended answer defendant alleged that the plaintiffs were the owners of the property described by metes and bounds as alleged by plaintiffs and further alleged that this property so described is also known as Tax Lot 42 located in the southeast quarter of the northwest quarter of said section. Defendant further alleged that on February 27, 1964, the plaintiffs conveyed by warranty deed to the State of Nebraska a tract of land located in Tax Lot 42 in the west half of said section consisting of .71 acres for right-of-way purposes which was also a part of the same property owned by plaintiffs.

On the foregoing issue a hearing was had to the court alone, jury trial having been waived. The trial court held that the description used by the defendant was sufficient for the purpose as between the parties and descriptive enough to locate the land in question for the purpose of this action. The case was set for jury trial on the question of damages.

The plaintiffs filed objections to proceeding to jury trial on this issue and moved to dismiss the condemnation proceedings. On the date set for jury trial the plaintiffs refused to adduce any evidence on the issue of damages and renewed their objection to trial and motion to dismiss. The trial court thereupon overruled plaintiffs' objection and motion and entered judgment affirming the award of the appraisers in the county court.

The sole question raised in this appeal is whether or not the description of the plaintiffs' property used in the condemnation proceedings is sufficient to confer jurisdiction. Plaintiffs claim that it is not and that the entire proceedings are void.

It is contended by the plaintiffs that the original government survey made in 1868 and recorded in the office of the register of deeds of Buffalo County contains no reference to Tax Lot 42 and is the only plat involving Section 28 that has been recorded, and that Tax Lot 42 does not exist.

At the hearing in the trial court on the issue of the sufficiency of the description, the deputy county surveyor testified that tax lot numbers have appeared on the surveyor's records since prior to 1912. A map which was prepared by him in 1963 from records on file in his office, which showed various tax lots, including Tax Lot 42, was received in evidence. This map was based in part on a plat and attached field notes taken from the original surveyor's record book. The witness located on the map the place of beginning of the metes and bounds description contained in the deed by which plaintiffs acquired title to the land and traced out the metes and bounds description contained in said deed on the map. He then testified that the legal description as given in the deed and Tax Lot...