Feltz v. Central Nebraska Public Power & Irr. Dist.

• Decision Date: 15 January 1942
• Docket Number: No. 11975,11976.,11975
• Citation: 124 F.2d 578
• Parties: FELTZ et ux. v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST. v. FELTZ et ux.
• Court: U.S. Court of Appeals — Eighth Circuit

124 F.2d 578 (1942)

FELTZ et ux. v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST. v. FELTZ et ux.

Nos. 11975, 11976.

Circuit Court of Appeals, Eighth Circuit.

January 15, 1942.

V. H. Halligan, of North Platte, Neb. (J. G. McIntosh, of North Platte, Neb., and F. Q. Feltz, Jr., of Ogallala, Neb., on the brief), for Eugene Feltz and others.

Paul E. Boslaugh, of Hastings, Neb. (R. O. Canaday, of Hastings, Neb., R. H. Beatty, of North Platte, Neb., and M. M. Maupin, of Ogallala, Neb., on the brief), for Central Nebraska Public Power & Irrigation Dist.

Before STONE, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is prosecuted by the owners of land taken in condemnation proceedings in the District Court by the Central Nebraska Public Power and Irrigation District, a public corporation organized under Nebraska law (Senate File 310 of the Session Laws of 1933, also known as Sections 70-701 to 70-715, inclusive, Cumulative Supplement to Compiled Statutes 1939), having its office and principal place of business at Hastings, Adams County, Nebraska.

It appears that the District is a duly qualified licensee under the Federal Power Act, 16 U.S.C.A. § 791a et seq., and is engaged in the construction of a dam and on-river reservoir of approximately 2,000,000 acre feet storage capacity upon the North Platte River near Keystone, Keith County, Nebraska, for power and irrigation purposes. In its petition for condemnation it described with particularity the project upon which it is engaged and asserted the necessity of acquiring the described lands of the appellants to carry out the project and that its endeavors to obtain the same by purchase had failed. It specified the provisions of law from which it had derived its powers to institute and maintain the proceedings to condemn the described lands and prayed that notice be given the landowners and that appraisers be appointed to assess the value and to assess damages.

It appeared from the petition, however, that the lands of these appellants were not lands which would be within the area of the dam or of the reservoir which was to be constructed, but that the lands were required "as incident to and necessary to the construction project" "in that the condemnor as a part of its work of internal improvement in the construction of the dam and creation of the on-river reservoir, as above set forth, will necessarily be required to acquire the right of way for United States Highway No. 26 as located within said reservoir site and the applicant has heretofore entered into a contract to acquire the right of way and to locate and construct a relocation of said highway, which relocated highway will be used to serve the purposes formerly served by the present United States Highway No. 26, and the applicant has bound and obligated itself to procure a new right of way for the construction of said relocated United States Highway No. 26; 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 performance of its said contract and the construction of its said work."

The appraisers appointed by the court pursuant to the petition assessed the appellants' damages for the taking at the sum of $2,473.80, their report being filed May 19, 1939. On June 2, 1939, the appellant landowners filed their bond on appeal from the appraisers' award in the District Court, and on June 14, 1939, the Power District also filed its exceptions to the award and notice of appeal. On the latter date, June 14, 1939, the District also paid in the amount of the appraisers' award to the Clerk of the District Court, but in the same instrument by which it declared that the payment was in the amount of the appraisers' award and was made in connection therewith, it notified the Clerk to withhold disbursement until the final determination of the appeals.

The parties thereafter appeared before the District Court in a pre-trial investigation and certain agreements were made by the parties and directions given by the court to enable the parties to define and simplify the issues and obtain prompt determination of the controversy. To that end, among other things, these land owners were directed to file a petition which the condemnor was required to answer.

In their petition filed pursuant to the court's direction, these land owners alleged that "the existence of the condemnor is wholly dependent upon the laws of the State of Nebraska for its organization and power to do business." They described two half sections of land owned by them and alleged that the land sought to be taken from them in the condemnation proceedings was situated within the same and consisted of a strip across the south side of one half section and a strip passing diagonally across the other half section from approximately the middle of the west line of the northeast quarter to the south east corner of the half section. They raised no issue as to the jurisdiction of the court but alleged that "the District required the strips of land for carrying out the purposes of the project" and that "said lands are essential and necessary for the construction of the highway (United States Highway No. 26 referred to in the petition for condemnation)". They also alleged that the taking of the strips of land prevented the operation of their tract of land as a unit and necessitated fencing off triangular tracts which would be difficult to farm. It was further alleged:

"Plaintiffs further allege that prior to the commencement of the works of improvement undertaken by said defendant, there was located in the North Platte valley the Union Pacific Railroad Company, with the railroad facilities located at Belmar, Nebraska, which was approximately seven miles from the property owned by said plaintiffs. That said highway was a gravelled highway going from Belmar to Brule, Nebraska, and that by virtue of the location of said Belmar that the same was a shipping point of said plaintiffs for the purpose of marketing produce raised upon said property, and it was a ready market within said valley to cattlemen feeding cattle for the produce raised by said plaintiffs. That by virtue of the construction of said works of public improvement by the said defendant, the entire North Platte valley has been taken by said defendant and the Union Pacific Railroad has been moved to the North of said valley, and that upon the operation of said Project by said defendant, the plaintiffs' land will be entirely cut off from railroad facilities and marketing facilities, and that the cost of marketing said produce will be greatly increased and that said land will now be separated from the market by approximately twice as far as prior to the time of the construction of said works of internal improvement by said defendant, and that said lands will now be located approximately fourteen miles from the nearest railroad and market place, which will greatly increase the cost of marketing said produce raised upon said property, and places said land at a great distance from any marketing point, and by reason thereof has greatly depreciated the value of said property by virtue of said construction of the works of internal improvement to be carried on by said defendant, and that said plaintiffs herein have been damaged by virtue of the taking of said lands as heretofore described in the reasonable value of said lands so taken, and the damage to the remaining part of said lands not taken, in the total sum of $16,000.00, no part of which has been paid."

In its answer the District denied that its existence is wholly dependent upon the laws of the State of Nebraska "but that said District corporation has some powers and rights conferred upon it under and by virtue of the laws of the United States." The District admitted that the taking of the land of the appellants which was actually taken divided their property into two tracts, but alleged that each of the tracts was of sufficient size to be conveniently operated and the tracts remain adjacent to each other, convenient for use as an operating unit. That the highway to be constructed is a hard surface road of the latest type of construction, being a part of the United States Government System of Highways known as U. S. Highway No. 26. That there were special benefits to appellants' property exceeding any consequential damages occasioned by the taking. The allegations of paragraph 5 of the petition above set forth were denied.

On the trial to the court and jury the jury returned a verdict for the total damage on account of the taking in the sum of $1,914.12. It answered in response to special interrogatories that the value of the 8.15 acres taken from Section 1 was $343.75; that the value of the 11.18 acres taken from Section 7 was $279.50, and that the consequential damages accruing to appellants' remaining 308.82 acres was $1,290.87. The court found that the amount of the verdict ($1,914.12) was less than the amount of the award of the appraisers ($2,473.80); that the District had taken possession of the appellants' strips of land at the date of the institution of the action (April 29, 1939); that interest should therefore run from that date, and it entered judgment on the verdict for $1,914.12 together with interest from April, 1939.

The landowners have appealed in No. 11,975 and the District in No. 11,976. There is a single transcript of record and the appeals were submitted and considered together.

No. 11,975.

On this appeal the appellant landowners contend (1) that the federal District Court had no jurisdiction to entertain the petition for condemnation because the lands were not required for the dam site or for the reservoir of the project but were required only for the new relocated United States Highway No. 26 agreed to be substituted for old United States Highway No. 26 taken by...