Chimney Rock Irr. Dist. v. Fawcus Springs Irr. Dist.

• Decision Date: 07 December 1984
• Docket Number: No. 83-832,83-832
• Citation: 359 N.W.2d 100,218 Neb. 777
• Parties: CHIMNEY ROCK IRRIGATION DISTRICT, a public corporation, Appellee and Cross-Appellant, v. FAWCUS SPRINGS IRRIGATION DISTRICT, a public corporation, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 100

359 N.W.2d 100

218 Neb. 777

CHIMNEY ROCK IRRIGATION DISTRICT, a public corporation, Appellee and Cross-Appellant, v. FAWCUS SPRINGS IRRIGATION DISTRICT, a public corporation, Appellant and Cross-Appellee.

No. 83-832.

Supreme Court of Nebraska.

Dec. 7, 1984.

Syllabus by the Court

1. Eminent Domain. The power of eminent domain is to be exercised only where the taking is for a public use, just compensation is paid, and due process of law has been observed.

2. Eminent Domain. Whether the use for which property is taken is public or private in nature is a judicial question and not a legislative one.

3. Eminent Domain. In determining whether a taking by eminent domain is for a public or private use, the concern is with the use for which the property is taken, not the agency or instrumentality through which the taking is accomplished.

4. Quo Warranto. Quo warranto is the exclusive means of challenging the legal existence of a public entity.

5. Quo Warranto. Generally, quo warranto will not lie to challenge an improper exercise of a conferred power, although such irregularity may be sufficient, when tested by other means, to void the act done.

Steven C. Smith of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Gering, for appellant.

Clark G. Nichols of Winner, Nichols, Douglas & Kelly, Scottsbluff, for appellee.

KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, District Judge, Retired.

CAPORALE, Justice.

Defendant-appellant, Fawcus Springs Irrigation District, instituted a proceeding in the county court to condemn certain land owned by plaintiff-appellee, Chimney Rock Irrigation District. On appeal by Chimney Rock the district court dismissed the proceeding. Fawcus Springs appeals that judgment of dismissal to this court, assigning as error the district court's finding that the taking was for a private rather than a public use, and further claiming that, in any event, the district court lacked jurisdiction to adjudicate the matter. Chimney Rock cross-appeals with respect to certain of the district court's other specific findings of fact. We affirm.

This case was spawned by our holding in Schmidt v. Chimney Rock Irrigation Dist., 209 Neb. 1, 305 N.W.2d 888 (1981), that Robert L. Schmidt had no right to flow water "under or over or across" land owned by Chimney Rock in fee simple and on which Chimney Rock maintains an irrigation canal. Following that decision, Schmidt conveyed, without consideration, approximately 15 acres each of land owned by him to his sister, father, and son. Schmidt retained the remainder of his land. Schmidt's grantees then duly formed Fawcus Springs Irrigation District under the provisions of Neb.Rev.Stat. §§ 46-101 through 46-128 (Reissue 1978), which district also encompasses the land retained by Schmidt. Thereafter, Schmidt's father, as one of the directors of Fawcus Springs, appeared before Chimney Rock seeking a right-of-way across a strip of land containing Chimney Rock's irrigation canal, which canal separates the land in Fawcus Springs from its water supply.

After Chimney Rock refused to deal with Fawcus Springs, Fawcus Springs exercised its power of eminent domain to acquire Chimney Rock's land in order to build its right-of-way. After an award of damages to Chimney Rock by the condemnation appraisers, Chimney Rock appealed to the district court, claiming, among other things, that the taking was not for a public use but, rather, for the private benefit of Schmidt.

Constitutional limitations permit the power of eminent domain to be exercised only where the taking is for a public use, just compensation is paid, and due process of law has been observed. Father Flanagan's Boys' Home v. Millard School Dist., 196 Neb. 299, 242 N.W.2d 637 (1976).

The core of Fawcus Springs' argument that the taking was for a public use is that § 46-128 declares it to have been such and that this court has recognized that fact in Vetter v. Broadhurst, 100 Neb. 356, 160 N.W. 109 (1916). Section 46-128 provides:

The use of all water required for the irrigation of lands of any district formed under the provisions of sections 46-101 to 46-128, together with canals and ditches already constructed, the rights-of-way for canals and ditches, sites for reservoirs and pumping plants, and all other property required in fully carrying out the provisions of sections 46-101 to 46-1,111, is hereby declared to be a public use, subject to the regulation and control of the state in the manner prescribed by law.

In Vetter this court refused to permit a landowner to condemn his neighbor's land in order that the condemnor might store water from a creek to irrigate his own ground. The court held that the condemnation statutes concerning impounding water could not, "with due regard to the right of private property, be applied to circumstances in which a merely private interest is subserved." Id. at 363, 160 N.W. at 112. In so holding, however, the court observed:

It may be thought to be rather an artificial distinction to say that an irrigation district, or a canal company created to furnish water to landowners for agricultural purposes for compensation, may exercise the right of eminent domain, but that a private owner of a single tract of land may not have such a privilege. But this difficulty rests on the nature of the matter. Such agencies are in a sense common carriers of water, and the right of control and of regulation of rates exists in the public, so that all courts would agree that such agencies are formed for a public purpose. If a carrier of goods only carries one package of goods, but offers to carry for all, the public is interested, but if he carries for himself alone the public has no concern with his business.

Id.

Fawcus Springs takes a great deal more comfort from § 46-128 and the above-quoted obiter dictum of Vetter than is warranted by the facts of this case. Section 46-128 does no more than provide that land necessarily taken to benefit an irrigation district is taken for a public use. The statute does not undertake to adjudicate under what circumstances land has been taken to benefit an irrigation district and under what circumstances land has been taken to benefit a private interest. Indeed, this court has previously held that whether the use for which property is taken is public or private in nature is a judicial question and not a legislative one. Burger v. City of Beatrice, 181 Neb. 213, 147 N.W.2d 784 (1967). In making that determination "the facts of the particular case must be subjected to close examination." Id. at 222, 147 N.W.2d at 790. Although the Vetter dictum does imply that an irrigation district might, under some circumstances, do what an individual would not be able to do, the court was not adjudicating, as it must in this case, whether an irrigation district had improperly exercised its power of eminent domain.

It is clear from the evidence, and was conceded by Fawcus Springs in oral argument, that the sole purpose of forming Fawcus Springs was to obtain and exercise the power of eminent domain for Schmidt's own benefit. One of Schmidt's neighbors testified Schmidt told him that he (Schmidt) would have no problem getting water over or under Chimney Rock's canal, since he was going to "form a ditch company and condemn a right-of-way through there...." The neighbor also testified that at meetings of the county commissioners and before the Board of Educational Lands and Funds, Schmidt was either the primary spokesman for Fawcus Springs or was the person with whom Fawcus Springs' attorney consulted. Also, when Schmidt's father no longer wanted to be on the Fawcus Springs board, he conveyed, without consideration, the tract of land previously given to him by Schmidt to Schmidt's sister's father-in-law. Schmidt's father did not list the land with a realtor "because nobody would want 15 acres by itself." The reason given by Schmidt's father for not giving the land back to Schmidt was that Schmidt "couldn't be on the ditch board and we had to have three people on the ditch board."

This jurisdiction has long been committed to the principle that a private use is not converted into a public one merely because a number of individuals band together to do what a single individual could not do. Jenal v. Green Island Draining Co., 12 Neb. 163, 10 N.W. 547 (1881), struck down a statute allowing three or more individuals to form a corporation which would have the power to construct structures across lands owned by others for the purpose of reclaiming wet or overflowed lands without reference to whether the public welfare, as contrasted with the private benefit of the organizers of the corporation, would be served. The Jenal court stressed that

[t]he legislature possesses no authority, however, to take the property of one citizen and transfer it to another, even where full compensation is made.... The statute in question authorizes the entry upon lands and construction of drains, whenever the private interest of the corporation requires it, and without reference to the public welfare.... Three individuals, by forming a corporation, may locate and open a drain across the property of others without their consent, and compel them to bear the burden of constructing the same. This is an infringement of the right of private property, and is unauthorized and void.

Id. at 166-67, 10 N.W. at 548.

The real issue in this case, therefore, is whether form is to triumph over substance. That substance is the controlling consideration is established by Burger v. City of Beatrice, supra, wherein we quoted from State ex rel. Dominick v. Superior Court, 52 Wash. 196, 100 P. 317 (1909): " 'Courts look to the substance rather than the form, to the end rather than to the means. If in the end the property is devoted to a public use, the mere agency or instrumentality through which that result is accomplished is a matter of no concern.' " Burger v. City of...