Harris v. CENTRAL NEBRASKA PUBLIC POWER & IRR. DIST., 312.

• Decision Date: 12 December 1938
• Docket Number: No. 312.,312.
• Citation: 29 F. Supp. 425
• Parties: HARRIS v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.
• Court: U.S. District Court — District of Nebraska

29 F. Supp. 425

HARRIS v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

No. 312.

District Court, D. Nebraska, North Platte Division.

December 12, 1938.

E. H. Evans and Halligan, McIntosh & Halligan, all of North Platte, Neb., G. J. McGinley, of Ogallala, Neb., and Robert E. Hamer, of Omaha, Neb., for plaintiff.

Beatty, Maupin, Murphy & Davis, of North Platte, Neb., and Paul E. Boslaugh, of Hastings, Neb., for the Power & Irrigation District.

DONOHOE, District Judge.

The defendant, as its name indicates, is a public power and irrigation district, created and chartered under the laws of the State of Nebraska, and will be referred to hereafter as the "Power & Irrigation District". In keeping with the provisions of its organization, the Power & Irrigation District commenced the construction of a project on a large scale on the North Platte River. The construction work was started on March 9, 1936, and has progressed continuously until the present time with marked progress and with a total expenditure to date of $11,478,954.48.

In the course of its progress, it made application in due form to the Federal Power Commission for the purpose of obtaining a federal license under the provisions of The Federal Power Act, section 817, title 16, U.S.C.A. From the report and showing in support thereof submitted with the application, it appeared and the Commission so found that "the operation of the project, as proposed and planned, will result in the storage of flood waters, and the release of impounded waters at a gradual rate, thus reducing flood flows in the North Platte and Platte Rivers below the project works, and increase low water flows, the result of which will be to make the flows in the Platte River more nearly uniform" and "the operation of the project will result in a reduction of the discharge of sediment from the Platte River into the Missouri River, thus facilitating the maintenance of navigation channels in the Missouri River" and "the licensee may not operate the project in a manner that would adversely affect the interests of interstate commerce except in direct violation of the express terms of the license". From the foregoing showing and the supporting evidence, the Commission made and entered its Findings that "the construction and operation of the project, No. 1417, is in the judgment of the Commission, desirable and justified in the public interest for the purpose of improving or developing the North Platte and Platte Rivers for the use and benefit of interstate commerce on the navigable rivers to which the Platte River is tributory, namely, the Missouri and Mississippi Rivers".

In accordance with this showing and the finding of the Commission, a license in due form was issued to the Power & Irrigation Company, and ever since it has been and is now proceeding with its work in keeping with the terms of the license.

This present action is an action brought by the Power & Irrigation Company for the condemnation of certain lands lying within the bed of the reservoir, which is in process of construction, under the provisions of Section 814, title 16, U.S.C.A. of the Federal Power Act. Appraisers were heretofore appointed, as by law provided, and from their appraisal an appeal has been prosecuted to this Court. The landowner has filed his motion to dismiss, among other things, challenging the jurisdiction of the Court, and setting up some twenty-one grounds of objection, many of which objections, to our mind, might only be raised by the sovereign state from whom the Power & Irrigation Company derived its charter, and seemingly upon which the landowner is placing little if any reliance in view of the statement of counsel for the landowner made upon the opening of the oral argument and after the hearing, which I quote:

"I think at the outset, it perhaps would be well and would tend to clarify the issues if it is made clear that the landowners in this proceedings are not in this Court seeking to annul, set aside or suspend the license granted by the Federal Power Commission to the Tri-County project, except insofar as that license confers the right to institute eminent domain proceedings in this Court, and insofar as that license, as such, confers the right of eminent domain on this District. (meaning the Power & Irrigation District) The Federal Power Commission and the United States are not parties to this proceeding. They do not represent the parties. They are not necessary parties. The only thing we are seeking here is an adjudication of the right of this District (meaning the Power & Irrigation District) to condemn under that license. We are not seeking an adjudication with respect to the validity of any of the conditions or provisions of this license, but merely with respect to a right, which this District (meaning the Power & Irrigation District) has asserted, growing out of that license, to-wit: the right to institute eminent domain proceedings by virtue of being a licensee."

Then the following colloquy with the presiding judge took place:

"The Court: Are you questioning the right of eminent domain proceedings in the State Court?

"Mr. Hamer: No, your Honor, we concede that the District has a right to institute eminent domain proceedings in the State Court, but not by virtue of its license but by virtue of the express conditions and provisions of the statute under which it was created — a right given them by the Legislature of the State of Nebraska.

"The Court: Then the only question involved here is whether or not proceedings shall be instituted in the Federal Court or the State Court?

"Mr. Hamer: That is right, your Honor."

From this statement of the objection, as defined by counsel, we are first confronted with the proposition of what jurisdiction this Court has to review the evidence presented to the Federal Power Commission on the application for license. If the license is valid for any purpose, it would seem that it must be valid for all purposes, while if the license is void for any purpose, then it would likewise seem to be void for all purposes. This is an action between the landowner and the Power & Irrigation District. The United States and the Federal Power Commission are not made parties. Counsel says they are not necessary parties. How may we determine whether the license is void without their presence? Before we might hold that we are without jurisdiction in this case to decide the condemnation suit, we must first set aside and annul the license granted by the Federal Power Commission, and to annul and set aside an Order of a Commission of the United States requires the presence of the United States — that is, the action must be brought against the United States. This principle is so well recognized and has been...