Krambeck v. City of Gretna, 40997

• Decision Date: 08 June 1977
• Docket Number: No. 40997,40997
• Citation: 198 Neb. 608,254 N.W.2d 691
• Parties: Howard KRAMBECK and James Schram, Appellants, Cross-Appellees, v. CITY OF GRETNA, Appellee, Cross-Appellant.
• Court: Nebraska Supreme Court

Page 691

254 N.W.2d 691

198 Neb. 608

Howard KRAMBECK and James Schram, Appellants, Cross-Appellees, v. CITY OF GRETNA, Appellee, Cross-Appellant.

No. 40997.

Supreme Court of Nebraska.

June 8, 1977.

Syllabus by the Court

1. Under section 76-705, R.R.S.1943, if any condemnor shall have taken or damaged property for public use without instituting condemnation proceedings, the condemnee, in addition to any other available remedy, may file a petition with the county judge of the county where the property or some part thereof is situated to have the damages ascertained and determined.

2. Section 25-206, R.R.S.1943, provides that an action upon a contract, not in writing, expressed or implied, or an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within 4 years.

3. Section 25-202, R.R.S.1943, provides that an action for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages thereon, can only be brought within 10 years after the cause of action shall have accrued.

4. Inverse condemnation is analogous to an action by a private landowner against another private individual or entity to recover the title to or possession of property. While the property owner cannot compel the return of the taken property, because of the eminent domain power of the condemner, he has a constitutional right, as a substitute, to just compensation for what was taken.

5. Where a party having a lawful right to enter and take lands by eminent domain for public use by paying just compensation therefor does not enter in conformity to law, but the owner waives this feature and treats it as if the law had been followed, with only the question of compensation to be settled, then the law of compensation under eminent domain applies. It is as if condemnation proceedings were begun and not yet completed. In such cases the action for just compensation is not barred except by adverse possession of the land taken for 10 years, the requisite period to establish title by prescription.

Peterson, Bowman, Coffman & Larsen, Lincoln, for appellants.

Hosford & Hosford, Omaha, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, BRODKEY, and WHITE, JJ., and KUNS, Retired District Judge.

WHITE, Chief Justice.

This case involves an inverse condemnation proceeding brought by the plaintiffs, Howard Krambeck and James Schram, owners of real estate in Sarpy County, Nebraska, against the defendant, City of Gretna. The plaintiffs alleged in their petition that the defendant appropriated certain of the plaintiffs' land to public use by causing effluent from a sewerage treatment plant to flow across the plaintiffs' land.

Following the filing of the plaintiffs' petition, the county court of Sarpy County appointed three freeholders of the county to serve as appraisers in the case. The appraisers viewed the plaintiffs' land and held a hearing for all interested parties. On July 11, 1975, the appraisers filed their report with the county court, assessing damages suffered by the plaintiffs at $30,000.

The defendant appealed the determination of the appraisers to the District Court. The plaintiffs filed a motion to dismiss the appeal, a petition on appeal, and an amended petition. The amended petition alleged the date of the original taking to be September 12, 1967. Thereafter the defendant filed a demurrer, alleging that the plaintiffs' cause of action was barred by the statute of limitations. On July 12, 1976, the District Court entered an order finding that the applicable statute of limitations on an action of condemnation, when instituted by a condemnee was a period of 4 years and sustained the demurrer. Plaintiffs were granted leave to amend their petition, but elected to stand on it, and the petition was dismissed. This appeal followed. We reverse the judgment of the District Court.

The factual background of this litigation is as follows: The plaintiffs are owners as tenants in common of land located approximately 1 1/2 miles west of the City of Gretna, Nebraska. A depression runs across their land in approximately an east-west direction. At the west edge of the City of Gretna, a new sewerage plant was constructed and went into operation after September 1967. This plant discharges treated effluent from a concrete culvert approximately 300 yards west of the treatment plant into the depression which crosses the plaintiffs' land. The plaintiffs contended that after September 1967, there was a continuous flow through the depression resulting in substantial erosion. In addition, there have been times when untreated sewage has been discharged, causing nauseous and offensive odors in the vicinity of the plaintiffs' land.

The plaintiffs' action was brought under section 76-705, R.R.S.1943, which provides: "If any condemner shall have taken or damaged property for public use without instituting condemnation proceedings, the condemnee, in addition to any other available remedy, may file a petition with the county judge of the county where the property or some part thereof is situated to have the damages ascertained and determined."

The sole issue on appeal is a determination of the applicable statute of limitations to an inverse condemnation proceeding. The eminent domain statutes, sections 76-701 et seq., R.R.S.1943, do not provide a special statute of limitations. "Where the statute provides a remedy and fixes the time within which the owner must move, a failure to move within such period is ordinarily a complete defense. In the absence of special statutory provisions regulating the time within which an owner must pursue his remedy, the time prescribed by the general statutes of limitations will ordinarily apply * * *." 30 C.J.S. Eminent Domain § 415, p. 528.

The plaintiffs contend that the applicable statute of limitations is the 10-year period found in section 25-202, R.R.S.1943, and that it was error for the District Court to sustain the defendant's demurrer. The defendant contends that the 4-year statute of limitations found in section 25-206, R.R.S.1943, is applicable and that plaintiffs' claim for damages was thus barred and the demurrer properly sustained by the District Court.

Section 25-206, R.R.S.1943, provides: "An action upon a contract, not in writing, expressed or implied, or an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within four years." (Emphasis supplied.) The defendant draws our attention specifically to the emphasized...