Gruntorad v. Hughes Bros., Inc.

• Decision Date: 09 December 1955
• Docket Number: No. 33764,33764
• Parties: Louis E. GRUNTORAD and Lillian Gruntorad, Appellants, v. HUGHES BROTHERS, Inc., a Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 700

73 N.W.2d 700

161 Neb. 358

Louis E. GRUNTORAD and Lillian Gruntorad, Appellants, v. HUGHES BROTHERS, Inc., a Corporation, et al., Appellees.

No. 33764.

Supreme Court of Nebraska.

Dec. 9, 1955.

Syllabus by the Court.

1. The mere fact that the taking of property for a public use will result in greater benefit to some persons than others or that private persons contribute to the expense of such taking or to the cost of the public improvement for which the taking was had does not affect the character of the use or render it any less public.

2. A person whose connection with a public improvement is that he assisted in securing it, made contributions to the construction, and as a member of the public enjoys its benefits is not liable for damages caused by its existence and operation.

3. A municipality which invades the right conferred upon a property owner by the Constitution which assures him that his property will not be taken for a public purpose without compensation is liable for any damages caused thereby.

4. Negligence or a wrongful act is immaterial to a cause of action based on the constitutional provision to the effect that the property of no person shall be taken or damaged for public use without just compensation therefor.

5. A landowner who fails to appeal from the award of appraisers in a condemnation proceeding is conclusively bound by it.

6. A final award in a condemnation proceeding for the acquisition of a right-of-way is conclusive upon the parties thereto as to all matters necessarily within the issue or issues of the proceeding.

7. All damages, immediate and prospective, which result from the taking of property by the exercise of eminent domain or on account of proper construction and future operation of the improvement for which the taking is had must be compensated in the condemnation proceeding.

8. In a condemnation proceeding, the owner of property taken or damaged is entitled to have all proper elements of damage considered by the appraisers, and, if they fail to do so, he cannot afterwards maintain an action to recover damages omitted which were necessarily involved in the condemnation proceeding.

9. A litigant may not predicate error on any action of the court which he procured to be taken or to which he consented.

William L. Walker, Earl Ludlam, Lincoln, for appellants.

Harry L. Norval, Seward, Flansburg & Flansburg, Lincoln, Paul H. Bek, Seward, J. W. Weingarten, W. P. Loomis, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an action in equity brought by appellants to enjoin and to compel the removal and abatement of a nuisance created, as they allege, by appellees' erecting dams, dikes, and obstructions and excavating a diversion ditch in the flood plane of the Big Blue River and thereby diverting floodwaters from the river and Bayou Creek from their natural course of drainage upon and over the land of appellants and to recover the damages they claim they have sustained as a result thereof.

The land owned by appellants is in the Big Blue River valley upstream from the city of Seward. It is described in detail in the record and its quite lengthy and involved description will not be repeated. The allegations made concerning P. H. Wiegardt, named as one of the appellees, are that he is the judge of the county court of Seward County and that he has the custody of the amount of the award in a condemnation proceeding by which there was appropriated a part of the land of appellants. There will be no further mention of him.

There are several causes of action alleged in the amended petition of appellants none of which are separately stated and numbered. The causes of action for claimed loss of crops by water flooding small areas of the land of appellants in each of the years 1948 to 1951 inclusive and for the loss of personal property and damage to improvements on the land by the flood of June 1 and 2, 1951, were expressly excluded by the court from the adjudication from which this appeal is prosecuted and they are each preserved to appellants for trial in the district court. There are, therefore, none of these causes of action involved in this appeal.

The cause of action concerned in this appeal is one for injunctive relief in which claim is made by appellants for permanent damages caused by the existence and future maintenance of the flood control project around the city of Seward to the construction of which appellees consented, gave approval, and made contribution. It is described by appellants as an action '* * * in equity for abatement and removal of a nuisance created by defendants in placing dams, dikes, structures and obstructions in the flood plane of the Big Blue River and diverting Bayou Creek into Big Blue River * * *' and causing permanent, irreparable damage and detriment to the farm of appellants amounting to $100,000.

There are two legal defenses interposed by appellees to the claim of appellants for permanent damages and injunctive relief as follows:

1. That the flood control project, described at considerable length in the amended petition of appellants, which was completed in 1953 and because of which permanent damages are claimed, is a public project built according to the surveys and plans of the Corps of Engineers of the United States Army as authorized by the Federal Flood Control Act; that it was sponsored by the city of Seward; that the city obligated itself to secure rights-of-way for it; that the city would maintain the works when constructed and would save the government of the United States harmless from any liability that might result from the construction and operation of the project; and that the purpose of it was to relieve a large area of the city from floods caused by the Big Blue River.

2. That the city of Seward had exercised the right of eminent domain granted it by the State of Nebraska and had by condemnation proceeding taken a part of the land of appellants for the construction of a diversion canal required as a part of the project and as a borrow pit for dirt necessary to erect and complete the dams and dikes of the project; that an award for damages to appellants was made in and as a part of the proceeding as provided and required by law; that the award had become final and was conclusive as to all damages for the land taken and all incidental and consequential damages which had or could result from the construction, continuance, or operation of the project; and that the condemnation proceeding and the award therein to appellants was res judicata of their claim made in this cause for damages to their land and property.

Appellants denied the allegations of fact made by appellees in presenting their defenses.

Appellees advised the court at the commencement of the trial of the cause that they had pleaded and had two legal defenses to the claim of appellants for permanent damages as stated in their amended petition which prevented liability of any of the appellees notwithstanding they approved, consented to, and contributed to the construction of the project complained of by appellants and even though the works of the project should cause flooding of their land. It was suggested to the court that it would be advantageous to have a ruling on the sufficiency of the legal defenses pleaded by appellees before doing the work and consuming the time inherent in producing evidence by appellants in an attempt to sustain their claim of permanent damages and their right to injunctive relief. Counsel for appellants thereupon offered and there was received on behalf of appellants evidence establishing the facts claimed by appellees to be a bar to the granting of an injunction or to the recovery of permanent damages by appellants. The evidence introduced included the surveys, the reports, the maps, the plans, and the operation and maintenance manual of the Corps of Engineers of the United States Army for the flood control project in and around the city of Seward; resolutions of the city consisting of one sponsoring the project and another accepting it and obligating the city to maintain and operate it at the expense of the city; and the record of the condemnation proceeding referred to above and evidence of the fact that the award made to appellants had become final and that the amount thereof had been paid by the city to the county court of Seward County. The parties to the litigation by their statements and conduct invited and urged the court in that condition of the record to then accept a submission of the case to the extent of the alleged cause of action for permanent damages and for the abatement and removal of the nuisance as described and alleged by appellants in their amended petition. The court acceded to the desire and request of the parties. It found that appellees except the city of Seward were not liable for the existence and maintenance of the flood control project because it was a public one erected by virtue of an act of Congress and statutes of the state and was required to be continued and maintained by the city by its agreement with the government of the United States and the mandate of the act of Congress and the statutes; that the project could not be abated or enjoined; and that the award made in the condemnation proceeding had the effect of a final judgment; that it was res judicata of any claim of appellants for permanent damages caused by the existence or operation of the flood control project; and that it was a bar to the recovery by appellants of any permanent damages in this cause from any of the appellees. The court dismissed the case as to the matters comprehended within the findings. This is an appeal from that action of the court.

The record indicates that persons affected by flood conditions that had occurred at Seward had made efforts in 1949 to interest the government of the United States and...