Burnett v. Power

• Court: Supreme Court of Nebraska
• Citation: 147 Neb. 458,23 N.W.2d 661
• Decision Date: 28 June 1946
• Docket Number: No. 32016.,32016.
• Parties: BURNETT v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

147 Neb. 458
23 N.W.2d 661

BURNETT
v.
CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

No. 32016.

Supreme Court of Nebraska.

June 28, 1946.

Appeal to District Court, Keith County; Tewell, Judge.

Action by Jesse M. Burnett against the Central Nebraska Public Power & Irrigation District for a judgment declaring the rights of the parties in certain lands, wherein the defendant filed a cross-petition. From a judgment for defendant, the plaintiff appeals.

Judgment affirmed.

[23 N.W.2d 662]

Syllabus by the Court.

1. Eminent domain is an attribute of sovereignty, inherent in a sovereign state whether or not reference is made to it in the Constitution of the state. The power exists independent of the Constitution, the provision of the Constitution with reference thereto being a limitation on the exercise of the power and in no sense of the word a grant of the power. The exercise thereof in this state has been limited only insofar as the Constitution requires just compensation shall be paid for all property taken or damaged.

2. The right to exercise the power of eminent domain rests in the Legislature.

3. The Legislature has the right to delegate the power of eminent domain and to restrict or limit the extent of its use.

4. Where the statute specifically limits the extent of the taking both the parties and the court are bound thereby and the condemnor can take no greater interest than the statute authorizes. Any taking in excess thereof is without authority and of no force and effect.

5. If the statute expressly authorizes the taking of a fee, the condemnor, if he finds it necessary to do so, may take the whole of the fee since the authorization as to the extent of the taking is a matter of legislative and not judicial concern.

6. However, where a statute confers the power of eminent domain but does not specifically provide for the extent of the taking, such as a fee or a lesser interest,

[23 N.W.2d 663]

then, when the power is sought to be exercised by the taking of the fee or an interest therein, it becomes a question for the courts to determine what part of the freehold is reasonably necessary to satisfy the public purpose for which the power has been granted.

7. The district having been granted the power of eminent domain with no specific restriction as to the extent of its right to take, the Legislature thereby delegated to it the right to exercise such power to whatever extent was reasonably necessary to carry out the purpose for which the power was delegated.

8. When the district brought the condemnation proceedings and thereby exercised the power of eminent domain and therein designated the extent of the interest in the lands that it required then, on appeal to the district court, the question of the reasonable necessity of the extent of the taking for the use intended was in issue and if objected to by the owner could and should have been raised therein. The owner having failed to do so in that proceeding cannot raise the question here.

9. Where lands are taken and paid for by the district for the purpose of creating a reservoir in order to establish a water supply, exclusive possession thereof is one of the necessary rights acquired.

CARTER, SIMMONS, and YAEGER, JJ., dissenting.

Mothersead & Wright, of Scottsbluff, and G. J. McGinley, of Ogallala, for appellant.

R. O. Canaday and P. E. Boslaugh, both of Hastings, and Beatty & Clarke, of North Platte, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE, Justice.

Jesse M. Burnett, as plaintiff, brought this action in the district court for Keith County against The Central Nebraska Public Power and Irrigation District, a public corporation, as defendant. The purpose and object of the action is to obtain a judgment declaring the rights of the parties in and to the lands involved. The plaintiff prayed he be decreed to be the owner in fee thereof, that the defendant be found to have only an easement over the lands for the purpose of storing water for irrigation and power purposes, that he be declared entitled to use said lands in every way consistent with such easement and which does not interfere therewith, and for a judgment for damages for the use thereof for the years 1941 and 1942.

Other than the prayer for damages, the nature of the plaintiff's action is set forth in the seventh paragraph of his petition as follows: ‘That the plaintiff is still the owner of the fee title to the said lands and that the defendant has only a right of way, or easement, over the said land for the purpose of storing water for power and irrigation purposes and that the plaintiff is entitled to every use and profit which can be derived from such land which is consistent with the defendants easement and which does not in any way interfere with the enjoyment of said right of way or easement by the defendant, but that the defendant claims to be the owner in fee of said lands and claims to be entitled to its possession for all purposes and refuses to permit the plaintiff to make use of the said land not inconsistent with the defendants easement.’

Among the several issues raised by the defendant's answer and cross-petition the fifth paragraph raises the issue that the defendant is the owner of said premises in fee and denies that the plaintiff has any right in or to the same. This paragraph is as follows: ‘This defendant specifically denies that the plaintiff now has any right, title or interest, either legal or

[23 N.W.2d 664]

equitable, in and to the real estate described in plaintiff's petition or in and to the use or possession thereof, but alleges that this defendant is now the sole, absolute, fee simple, title owner of said real estate and all of the incidents and rights appurtenant to such ownership.’

The trial court found generally for the defendant and against the plaintiff; found that the defendant, by virtue of the condemnation proceedings, acquired an absolute fee simple title to the lands therein taken and to the immediate and exclusive possession thereof; that the plaintiff has no right, title, or interest therein; quieted the defendant's title thereto and dismissed plaintiff's action. From this judgment, after motion for a new trial had been overruled, the plaintiff appeals.

The appellee is a public power and irrigation district organized under Senate File 310, Laws of 1933, ch. 86, p. 337, which is now chapter 70, sections 601 to 679, inclusive, R.S.1943, and will be referred to as the district.

Under the provisions of section 21 of the Federal Power Act, 16 U.S.C.A. § 814, the district filed its application in the United States District Court for the District of Nebraska, North Platte Division, to acquire lands necessary for its on-river reservoir, which included the lands of the appellant that are in this action involved. This condemnation proceeding was instituted on April 22, 1940. The district in said application set forth that it was necessary to acquire said lands for the construction of its on-river reservoir on the North Platte River and described the reason therefor as follows: ‘That the real estate above described is required by the applicant as incident to and necessary for the construction of applicant's works of internal improvement, in that applicant as a part of its works of internal improvement is required to construct a dam across the North Platte River at a point to the east of the above described land, which will thereby create an on-river reservoir westward from said dam, thereby requiring applicant to acquire all of the land the subject of these proceedings and that the above described real estate, the subject of these proceedings, is absolutely necessary and essential to the use of the applicant in the construction of its said works of internal improvement and said land will be inundated and flooded by the waters stored in said reservoir and that all of said lands above described will be completely taken and utilized by the applicant in its works of internal improvement.’

The prayer of said application included the following: ‘That your applicant be authorized to enter upon and take such lands for such purposes and that said applicant may be fully vested with full right, title, and interest in and to said lands sought to be condemned herein and have immediate possession thereof, upon payment into this court of the amount of the award made by the appraisers and for such other relief as may be just and equitable.’

On May 16, 1940, the appraisers determined the damage for the taking and appropriation of said real estate and from such award both the district and appellant appealed to the federal district court. On August 2, 1940, the appellant filed his petition in the federal district court, wherein he alleged as follows: ‘The plaintiffs therefore allege that the fair and reasonable market value of the lands and improvements appropriated for the use of the defendant in the construction of said dam and reservoir is * * * that the property remaining in plaintiffs' possession after said appropriation by the defendant is damaged by reason of the severance and destruction of the property so taken in the amount of * * * that with said lands appropriated, taken out and severed from said ranch, the value of the remaining portion of said ranch, * * *.’

The district's answer filed thereto on August 17, 1940, contains the following: ‘* * * that said lands so taken, and the whole thereof, are essential and necessary for the construction and operation of the works of internal improvement of the said defendant, and that said defendant now requires all of said lands so condemned and the whole thereof and that the same are absolutely necessary for defendant's uses and purposes of internal improvement.’

[23 N.W.2d 665]

The following is part of the court's instruction to the jury in determining the value of the land taken: ‘Now, as to the matter of your allowance. You are to allow the fair, reasonable market...