CENTRAL NEBRASKA PUBLIC P. AND IRR. DIST. v. Fairchild

• Decision Date: 27 February 1942
• Docket Number: No. 12028-12030.,12028-12030.
• Citation: 126 F.2d 302
• Parties: CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DIST. v. FAIRCHILD et al. (three cases).
• Court: U.S. Court of Appeals — Eighth Circuit

126 F.2d 302 (1942)

CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DIST. v. FAIRCHILD et al. (three cases).

Nos. 12028-12030.

Circuit Court of Appeals, Eighth Circuit.

February 27, 1942.

M. M. Maupin, of Ogallala, Neb. (R. O. Canaday and P. E. Boslaugh, both of Hastings, Neb., and R. H. Beatty, of North Platte, Neb., on the brief), for appellant.

William H. Wright, of Omaha, Neb. (Fred A. Wright, of Omaha, Neb., and G. J. McGinley, of Ogallala, Neb., on the brief), for appellees.

Before STONE, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

These are three separate appeals taken by The Central Nebraska Public Power and Irrigation District from judgments against it in condemnation proceedings which it prosecuted to obtain three tracts of land necessary for its public project. There is but one Transcript of Record and the appeals were submitted at the same hearing.

No. 12,028.

This appeal is from the judgment for damages direct and consequential on account of the taking by the District of land known and referred to as the Clarence H. Fairchild land. The judgment provides that the owners of said land recover from the District the sum of $65,011.01 (being the amount of the jury's verdict) with interest thereon at the rate of six percent from the date of the filing of the District's petition for condemnation and that the judgment shall continue to draw interest until said judgment and the funds deposited in the court for the payment of the same is finally disbursed to the landowners as their interest therein may subsequently be determined by a court of competent jurisdiction. The judgment further provides that the court retains jurisdiction for determination of the manner of disposition of the proceeds of the judgment and of the ownership and interest therein of the parties to the action.

In this appeal the appellant District does not complain against the principal amount of the judgment rendered against it. Its complaint is against that part of the judgment which requires it to continue to pay interest until the respective interests of the parties in and to the proceeds of the judgment are determined by a court of competent jurisdiction and until distribution is finally made to them; and against that part of the judgment which awards interest from the date of the petition for condemnation.

It appears that the Power and Irrigation District filed its petition for condemnation in the District Court on October 1, 1938, setting up its corporate capacity as a licensee and its authority under the Federal Power Act, 16 U.S.C.A. § 791a et seq., to condemn lands necessary for the construction in which it is engaged of the on-river dam and reservoir on the North Platte river near Keystone, Nebraska. It described the Clarence H. Fairchild land specifically and named the parties having or claiming to have interests therein and prayed for notice to be given such parties and for the appointment by the court of appraisers to assess the damages. The appraisers were appointed and in due course assessed the damages in respect to the Clarence H. Fairchild land at the sum of $52,238. The owners of the land being dissatisfied with the award of damages joined in taking an appeal from the award to the federal District Court. Although copy of the notice of appeal is not included in the record, it is not questioned that all parties having any interest in the land were joined. The District also appealed from the appraisers' award.

After the docketing of the appeals in the District Court a pre-trial hearing was had before the judge at which time the judge directed that the parties who had taken the appeal as owners of the land should be designated plaintiffs and the District should be designated defendant and that the parties should file pleadings and make up issues in the case. It was ordered that the only issue to be tried to the jury was the question of damages by reason of the condemnation proceedings. It was further ordered that the interests of the various parties in and to the proceeds of the judgment to be recovered be subsequently determined by the court and that distribution be ordered by it accordingly. The pretrial proceedings are not included in the record verbatim and there may be ambiguity in the narrative account as to whether all that was ordered was "in compliance with the requests of the respective plaintiffs", but the record shows no objection to any of the orders made at the pre-trial hearing.

Pursuant to the pre-trial orders the landowners filed their petition in which they described with particularity the nature of the interests in and to the land of the respective parties plaintiff and also plead at length various elements of damage for which they prayed recovery far in excess of the appraisers' award. The District in its answer "admitted the nature, kind and character of plaintiffs' ownership of title to the lands involved as alleged" and denied certain allegations relative to elements of damage. The amount of the jury's verdict was as stated $65,011.01, being considerably more than the appraisers' award of $52,238 appealed from.

Upon the return of the jury verdict the court directed the entry of judgment thereon, but thereafter a hearing was had on the question whether an allowance of interest should be included in said judgment. Evidence was offered and received in respect to that issue and findings of fact were made as to the times when the District took possession of particular parts of the land and as to the use the landowners had made, pending the appeal, of the parts not entered upon. It was found generally that the landowners had profited from such use. The District had deposited the amount of the appraisers' award with the Clerk of the Court upon the filing of the report of the appraisers and after the verdict of the jury on the appeal the deposit was increased to equal the amount of the verdict and the court made findings to that effect. It also found "that the title to the premises, because of the manner in which they were conveyed to the plaintiffs is in a condition that makes it necessary for the court to * * * determine the respective rights of the various plaintiffs in and to the proceeds of said judgment." So far as disclosed by the record, the title remains in the same condition. The entry of the final judgment complained of followed after the return of the verdict and the findings and conclusions subsequently made by the court.

We turn first to the conclusion of the court embodied in the judgment that the landowners were entitled to recover interest upon the amount of the verdict. Nebraska law is controlling and we observed in Feltz v. Central Nebraska Public Power & Irrigation Dist., 8 Cir., 124 F.2d 578, decided January 15, 1942, that such law must be deduced from Section 74-307 Compiled Statutes of Nebraska for 1929, and the state decisions which have proceeded from it. It appeared in the Feltz case that the landowners had appealed from an award of appraisers and that on their appeal they had obtained a less favorable judgment and award than was given them by the appraisers and it was decided that they were not entitled to have interest on the amount of the jury verdict included in their judgment for damages. The converse of that situation is presented here in that these landowners have obtained a verdict on their appeal which is for a larger amount than the appraisers' award. The Nebraska cases to be considered are the same cases cited in the Feltz case, and we conclude from reconsidering them in relation to the facts in this case that the landowners here were entitled to have interest added to the amount of the jury's verdict included in their judgment.

The appellant District does not seriously dispute that the Nebraska decisions are generally to the effect that a landowner who appeals from an appraiser's award in a condemnation case is entitled to have interest included in the judgment on appeal where he has obtained a larger award than that of the appraisers, but it contends that there is an exception when it is affirmatively shown that the landowner retained the possession and use of his land, or a substantial part of it, and derives gains and profit from it during the pendency of the condemnation proceedings. It contends that in such a case the Nebraska decisions do not justify the addition of interest upon the entire amount of the jury's verdict from the date of the commencement of the condemnation. It contends that interest should not commence until the time of entry into possession by the condemnor.

It argues that expressions in the opinions of the Nebraska court from which an inference contrary to their contention may be drawn were made in cases where there was no affirmative showing, like in this case, that the landowner had retained and profited by the use of a part of the land pending the condemnation proceedings. The Nebraska cases discussed for the District on this point are: Sioux City R. R. v. Brown, 13 Neb. 317, 14 N.W. 407; Berggren v. Fremont, E. & M. V. R. Co., 23 Neb. 620, 37 N.W. 470; Atchison & N. R. R. Co. v. Plant, 24 Neb. 127, 38 N.W. 33; Burlington & M. R. Co. v. White, 28 Neb. 166, 44 N.W. 95; Chicago, R. I. & P. R. Co. v. Buel, 56 Neb. 205, 76 N.W. 571; Grimm v. Elkhorn Valley Drainage District, 98 Neb. 260, 152 N.W. 374; Ehlers v. Chicago, B. & Q. R. Co., 118 Neb. 477, 225 N.W. 468; Swygert v. Platte Valley Public Power & Irrigation District, 133 Neb. 194, 274 N.W. 492. We think that the only inference which can fairly be drawn from the course of Nebraska decision is that the rule of law embodied in the instruction which the court gave to the jury in Sioux City, etc., v. Brown, supra, has been adhered to and remains the law to be applied in the trial of appeals from appraisers' awards, to-wit, "in case the value of the lands taken in condemnation was found by them to exceed the award appealed from, they should allow interest on...