Dishman v. Nebraska Public Power Dist.

• Decision Date: 10 April 1992
• Docket Number: No. S-89-850,S-89-850
• Citation: Dishman v. Nebraska Public Power Dist., 482 N.W.2d 580, 240 Neb. 452 (Neb. 1992)
• Parties: David DISHMAN and Barbara Dishman, Appellants, v. NEBRASKA PUBLIC POWER DISTRICT, Appellee.
• Court: Nebraska Supreme Court

Page 580

482 N.W.2d 580

240 Neb. 452

David DISHMAN and Barbara Dishman, Appellants, v. NEBRASKA PUBLIC POWER DISTRICT, Appellee.

No. S-89-850.

Supreme Court of Nebraska.

April 10, 1992.

Syllabus by the Court

1. Constitutional Law: Property: Damages. Neb. Const. art. I, § 21, which prohibits the state from taking or damaging property without just compensation, is self-executing.

2. Constitutional Law: Property: Damages: Actions. A cause of action under the provisions of Neb. Const. art. I, § 21, can be stated without specifically mentioning the provision; a litigant need only allege and prove facts constituting a cause of action under the constitutional language.

3. Constitutional Law: Property: Damages: Political Subdivisions Tort Claims Act: Actions. That a landowner could have sued under the Political Subdivisions Tort Claims Act does not prevent the landowner from suing under Neb. Const. art. I, § 21.

4. Constitutional Law: Property: Damages: Eminent Domain: Political Subdivisions Tort Claims Act: Actions. When a political subdivision with the power of eminent domain damages property for a public use, the property owner may seek damages in an action for tort, in a statutory action for inverse condemnation, or in a constitutional action for inverse condemnation.

Claude E. Berreckman of Berreckman & Berreckman, P.C., Cozad, for appellants.

Gary L. Scritsmier and Lori J. Siewert of Kelley, Scritsmier & Byrne, P.C., North Platte, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

The appellants, David and Barbara Dishman, husband and wife, brought an action seeking to enjoin the appellee, Nebraska Public Power District, from flooding the basement of their home in the future and to recover damages for the flooding it had caused in the past. The trial court dismissed the action in its entirety. The Dishmans complain only of the trial court's failure to award them damages, asserting, in summary, that the court erred in concluding they had not complied with the notice requirement of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-905 (Reissue 1991). For the reasons detailed hereinafter, we remand for further proceedings consistent with this opinion.

While the parties focus on the notice requirement of the tort claims act, we do not concern ourselves with that issue, for the Dishmans' petition states an action for inverse condemnation, which is not subject to the act.

The applicable law is found in Kula v. Prososki, 219 Neb. 626, 365 N.W.2d 441 (1985). Therein, a landowner brought an action seeking to enjoin Nance County and others from flooding his land in the future and to recover damages from the county for the past flooding. The district court enjoined the county from flooding the land in the future but concluded the landowner could not recover damages from the county because he had complied neither with the provisions of the tort claims act nor with the requirements of the inverse condemnation statute, Neb.Rev.Stat. § 76-705 (Reissue 1990). The Kula court reversed the denial of damages, noting that the constitutional provision which prohibits the state from taking or damaging property without just compensation, Neb. Const. art. I, § 21, was self-executing. The court further ruled that a cause of action under the provision could be stated without specifically mentioning the provision, declaring that a litigant need only "allege...