Engelhaupt v. Village of Butte

• Decision Date: 17 November 1995
• Docket Number: No. S-95-425,S-95-425
• Parties: Alphons M. ENGELHAUPT and Laurina E. Engelhaupt, Appellees, v. VILLAGE OF BUTTE, Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 430

539 N.W.2d 430

248 Neb. 827

Alphons M. ENGELHAUPT and Laurina E. Engelhaupt, Appellees, v. VILLAGE OF BUTTE, Nebraska, Appellant.

No. S-95-425.

Supreme Court of Nebraska.

Nov. 17, 1995.

Syllabus by the Court

1. Pretrial Procedure: Pleadings. The issues set out in a pretrial order supplant those raised in the pleadings.

2. Eminent Domain: Legislature. The power of eminent domain may be exercised only on the occasion, and in the mode or manner, prescribed by the Legislature.

3. Eminent Domain: Statutes. Statutes conferring and circumscribing the power of eminent domain must be strictly construed.

4. Eminent Domain. In a condemnation proceeding, the amount of property needed and the estate or interest in such property are questions of fact for the court.

5. Equity: Appeal and Error. In an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided that where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

Gary J. Nedved, of Bruckner, O'Gara, Keating, Hendry, Davis & Nedved, P.C., Lincoln, for appellant.

Shelley A. Horak, of Baron, Sar, Goodwin, Gill, Lohr & Horak, Sioux City, for appellees.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CAPORALE, Justice.

Finding, among other things, that the defendant-appellant condemner, Village of Butte, sought to take more land than it presently required for the expansion of its water system, the district court, on the petition of the plaintiffs-appellees condemnees, Alphons M. Engelhaupt and Laurina E. Engelhaupt, entered a decree enjoining the village from acquiring the portion of the Engelhaupts' land it sought. Asserting a number of errors, including that the district court wrongly found the attempted taking to be excessive, the village undertook an appeal to the Nebraska Court of Appeals. To equalize the caseloads of the two courts, we, on our own motion, removed the matter to this court. We now affirm the decree of the district court.

In general, Neb.Rev.Stat. § 17-531 (Reissue 1991) grants villages the power to provide water for the "purpose of fire protection and public use and for the use of the inhabitants...." Neb.Rev.Stat. § 17-535 (Reissue 1991) further empowers villages to, among other things, "condemn any and all necessary property" for said purpose.

Alleging that it needed to expand its present water system, the village filed a petition seeking to condemn 11.92 acres of the Engelhaupts' land. Although the Engelhaupts did not plead that the proposed taking was excessive, the district court's pretrial order listed the scope of the taking as one of the trial issues. Since the issues set out in a pretrial order supplant those raised in the pleadings, Malerbi v. Central Reserve Life, 225 Neb. 543, 407 N.W.2d 157 (1987), the scope of the taking, contrary to the position of the village, was an issue in the trial court and is thus a proper issue before us.

In that regard, the engineer testifying on behalf of the village said that the existing water treatment plant, located on an easement on the Engelhaupts' land, is beyond its original service life; that the condition of the plant contributes to the poor quality of...