Kansas-Nebraska Nat. Gas Co. v. Village of Deshler, Neb., Civ. No. 0376.

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: DELEHANT
• Citation: 192 F. Supp. 303
• Parties: KANSAS-NEBRASKA NATURAL GAS COMPANY, a Kansas Corporation, Plaintiff, v. VILLAGE OF DESHLER, NEBRASKA, a Municipal Corporation, and E. C. Hornbostel, Chairman of the Board of Trustees of the Village of Deshler, Nebraska, and William Posvar, Erwin Uphoff, Ed. F. Smith and John Malpert, members of the Board of Trustees of the Village of Deshler, Nebraska, and the Court of Condemnation, composed of Cloyde B. Ellis, Fay H. Pollock and Edmund Nuss, Defendants.
• Docket Number: Civ. No. 0376.
• Decision Date: 12 August 1960

192 F. Supp. 303

KANSAS-NEBRASKA NATURAL GAS COMPANY, a Kansas Corporation, Plaintiff, v. VILLAGE OF DESHLER, NEBRASKA, a Municipal Corporation, and E. C. Hornbostel, Chairman of the Board of Trustees of the Village of Deshler, Nebraska, and William Posvar, Erwin Uphoff, Ed. F. Smith and John Malpert, members of the Board of Trustees of the Village of Deshler, Nebraska, and the Court of Condemnation, composed of Cloyde B. Ellis, Fay H. Pollock and Edmund Nuss, Defendants.

Civ. No. 0376.

United States District Court D. Nebraska.

August 12, 1960.

COPYRIGHT MATERIAL OMITTED

James D. Conway, Conway & Irons, and Elmer J. Jackson, Hastings, Neb., for plaintiff.

W. O. Baldwin, Hebron, Neb., Herman Ginsburg, Ginsburg, Rosenberg & Ginsburg, Lincoln, Neb., for defendants, except Court of Condemnation and its members.

DELEHANT, District Judge.

It may be understood that, of the identified defendants, those named as, "the Court of Condemnation, composed of Cloyde B. Ellis, Fay H. Pollock and Edmund Nuss," have taken no active part in this proceeding, and filed no pleadings herein, in relation to the controversy upon which ruling is being announced. Thus far, the litigation has been conducted, as the nature of the case suggests, between the plaintiff on the one hand, and, on the other, the defendants, The Village of Deshler, Nebraska, a Municipal Corporation, and E. C. Hornbostel, Chairman of the Board of Trustees of the Village of Deshler, Nebraska, and William Posvar, Erwin Uphoff, Ed. F. Smith and John Malport, members of the Board of Trustees of the Village of Deshler, Nebraska. It is, therefore, to those parties respectively that the court will refer herein by the employment of the several designations, "plaintiff" and "defendants," without further particularization respecting the "defendants."

Observed by the court, but accorded no practical consideration, are two irregularities in the names of certain defendants. Erwin Uphoff is declared in the Marshal's return to have been served with process under the name of Edwin Uphoff. Any irregularity thus disclosed is obviated by his joining in the answer as Erwin Uphoff. Then, another defendant member of the Board of Trustees of the Village of Deshler, Nebraska, is both designated in the complaint and served with process as Ed. F. Smith. But no such name is given by anyone joining in the signature of the answer. Rather, a person designated as S. F. Smith appears among the defendants in behalf of whom the answer is made, despite a recital in the opening paragraph of that pleading that Ed. F. Smith joins with others in tendering it. It may be assumed that the reference to S. F. Smith is mistaken. If counsel desire to pursue any steps in the way of clarification of the confusion, they may do so. On its part, the court does not even suggest that any such step is necessary.

Preliminary mention is also made that within the court's awareness, during the pendency of the case, the Honorable Cloyde B. Ellis, one of the members of the Court of Condemnation, has died. His death poses no problem in the present ruling. It is contemplated as a possibility, and provision is made for a substitution in his stead, by Section 19-703, R.S. Neb.1943.

Regard being had to the course of the pleading in, and to the manner of submission of, the case, it is considered to be appropriate that the pleadings be recalled at substantial length. That effort will allow a corresponding abbreviation, through the elimination of much repetition, in the statement of the facts.

By its complaint, the plaintiff makes the following allegations, which by the defendants' answer, are unequivocally admitted.¹

"I. The defendant, Village of Deshler, Nebraska, is a village, organized and existing as a municipal corporation under the laws of Nebraska.

Defendant, E. C. Hornbostel, is the duly elected, qualified and acting Chairman of the Board of Trustees of the Village of Deshler, Nebraska, and defendants, William Posvar, Erwin Uphoff, Ed. F. Smith and John Halpert, are the duly elected, qualified and acting members of the Board of Trustees of such village, and each of such individual defendants is a resident of such village. The amount in controversy is in excess of $3,000.00² exclusive of interest and costs.

"II. Plaintiff is a Kansas corporation, qualified to do business in Nebraska, with its principal place of business at Phillipsburg, Kansas, and is engaged in the purchase, production, transmission, distribution and sale, both wholesale and retail, of natural gas in the states of Kansas, Nebraska and Colorado. Plaintiff is a Natural Gas Company, as defined in the Natural Gas Act, 15 U.S. C.A. §§ 717-717w, as amended, and its transmission, operations and sales of gas at wholesale in the State of Nebraska are subject to the jurisdiction of Federal Power Commission. Plaintiff owns and operates a gas distribution system within the limits of defendant, Village of Deshler, which system has a value in excess of $3,000.00.

"III. Plaintiff in the course of its business is servicing gas customers from its distribution system in the defendant Village of Deshler, under the terms of a franchise dated March 2, 1954, a copy of which is set out in detail as a part of the complaint. Plaintiff accepted the terms of such franchise by a written instrument dated April 7, 1954, by filing such instrument with the Village Clerk of Deshler, and a copy of such instrument with the information touching the filing thereof is set out in, and made a part of, the complaint."

"VII. At the regular election held for and within the Village of Deshler on April 2, 1957, (at which the electors within such village voted upon the question then and there submitted to them, vide infra, whether the Village of Deshler should, by the exercise of the power of eminent domain, under the provisions of Chapter 19, Article 7, Reissue, Revised Statutes of Nebraska for 1943, as amended, appropriate and acquire the complete gas system of the plaintiff then serving the Village of Deshler) 460 electors voted on such question, of whom 272 voted `yes' and 188 voted `no' upon the question of such appropriation and acquisition.

"VIII. On April 22, 1957, the Village of Deshler certified the result of such election to the Supreme Court of the State of Nebraska. Thereupon, and on April 27, 1957, the Supreme Court of the State of Nebraska appointed Cloyde B. Ellis, Fay H. Pollock and Edmund Nuss, being District Judges of the State of Nebraska, as members of a Court of Condemnation to fix the value of plaintiff's property located in the Village of Deshler. The Court of Condemnation, thus designated, met and organized in the court house of Thayer County, Nebraska³, on May 31, 1957, and thereupon directed defendant, Village of Deshler, to file its Petition in Condemnation of plaintiff's property. Prior to the institution of this proceeding, the defendant, Village of Deshler, had filed with and before such Court of Condemnation its petition to condemn the plaintiff's property in manner and form identical with a copy thereof attached to, and made a part of, plaintiff's complaint herein. Plaintiff was duly served with a copy of such Petition in Condemnation, and with notice requiring it to answer such Petition in Condemnation on or before July 22, 1957. And such Court of Condemnation had fixed August 19, 1957 as the date for the holding of hearing to ascertain and find the value of plaintiff's gas distribution system in the Village of Deshler, Nebraska.

"IX. The Petition in Condemnation so filed by defendant, Village of Deshler, Nebraska, with and before the Court of Condemnation, had and has attached to it a description of the property to be condemned, which is identical in content with the description of property contained in the notice of condemnation upon which such election of April 2, 1937 was held."

"XI. In addition to providing service to the gas customers in the defendant Village of Deshler, Nebraska, under its franchise already referred to herein, plaintiff has been and is selling gas to the Electric Generating Plant owned by defendant, Village of Deshler, Nebraska, under the terms of a contract for such service in writing between the plaintiff and the Village of Deshler, Nebraska, bearing date February 20, 1953, but initially effective as of April 1, 1953, of which contract a true copy is set out in and as a part of the complaint herein."

In addition to those unequivocally and unreservedly admitted allegations, the plaintiff, in its complaint, makes other allegations, which in their answer, the defendants either deny categorically, or admit only partially or with express reservation. Again resorting to the numbering of paragraphs in the complaint, those further allegations are now summarized. And in the summary which immediately follows, the allegations of the several paragraphs of the complaint are first set out in the way either of summary or of reflection by copy; and, immediately after that reflection of the content of each paragraph of the complaint, the response to the allegations of such paragraph of the complaint, made by defendants in their answer is disclosed. This device is resorted to in an effort to bring into the closest practicable proximity the factual declarations of the several parties in respect of each point discussed in their pleadings.

IV. The Chairman and Board of Trustees of the Village of Deshler, Nebraska, on March 5, 1957, passed a resolution, providing for the submission of a purported "notice of condemnation" of the gas distribution system of plaintiff in the Village of Deshler, Nebraska, and certain other property, to the electors of the Village of Deshler, Nebraska, allegedly pursuant to the requirements of Section 19-701, R.S.Neb.1943, of which resolution a true copy is attached to, and incorporated into, the complaint. Thereafter, on March 13, 20 and 27, 1957, Notice of Election on the "adoption of the purported Notice of...