Sanitary & Imp. Dist. No. 1 of Fillmore County, Neb. v. Nebraska Public Power Dist.

• Decision Date: 06 February 1998
• Docket Number: S-96-386,Nos. S-96-385,s. S-96-385
• Citation: 253 Neb. 917,573 N.W.2d 460
• Parties: SANITARY AND IMPROVEMENT DISTRICT NO. 1 OF FILLMORE COUNTY, NEBRASKA, a political subdivision of the State of Nebraska, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, a public corporation and political subdivision of the State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 460

573 N.W.2d 460

253 Neb. 917

SANITARY AND IMPROVEMENT DISTRICT NO. 1 OF FILLMORE COUNTY, NEBRASKA, a political subdivision of the State of Nebraska, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, a public corporation and political subdivision of the State of Nebraska, Appellee.

Nos. S-96-385, S-96-386.

Supreme Court of Nebraska.

Feb. 6, 1998.

Syllabus by the Court

1. Final Orders: Appeal and Error. The three types of orders which may be reviewed on appeal are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered.

2. Actions: Statutes. Special proceedings entail civil statutory remedies not encompassed in chapter 25 of the Nebraska Revised Statutes.

3. Eminent Domain. A condemnation action is a special proceeding within the meaning of Neb.Rev.Stat. § 25-1902 (Reissue 1995).

4. Final Orders: Words and Phrases: Appeal and Error. A substantial right is an essential legal right, not a mere technical right. A substantial right is affected if the order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which the appeal is taken.

5. Eminent Domain: Legislature: Statutes. The power of eminent domain may be exercised only on the occasion and in the mode or manner prescribed by the Legislature. Statutes conferring and circumscribing the power of eminent domain must be strictly construed.

6. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. Specifically, a court must attempt to give effect to all of its parts, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless; it is not within the province of a court to read anything plain, direct, and unambiguous out of a statute.

7. Statutes. In general, a court will construe statutes relating to the same subject matter together so as to maintain a consistent and sensible scheme. However, to the extent there is conflict between two statutes on the same subject, the specific statute controls over the general statute.

8. Statutes: Legislature: Presumptions: Judicial Construction. When legislation is enacted which makes related preexisting law applicable thereto, it is presumed that the Legislature acted with full knowledge of the preexisting law and judicial decisions of the Supreme Court construing and applying it.

9. Statutes. Where one statute refers to another and the latter is subsequently repealed, the statute repealed, absent contrary legislative intent, becomes a part of the one making the reference and remains in force so far as the adopting statute is concerned.

10. Eminent Domain: Public Utilities: Sanitary and Improvement Districts. Under Neb.Rev.Stat. § 70-301 (Reissue 1996), a public power district has the power of eminent domain to acquire right-of-way over lands owned by a sanitary and improvement district.

Donald Pepperl, of Pepperl, McMahon-Boies, Lincoln, and Jerry D. Anderson, Geneva, for appellant.

James A. Eske, of Barlow, Johnson, Flodman, Sutter, Guenzel & Eske, Lincoln, and Bonnie J. Hostetler, Columbus, for appellee.

CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

STEPHAN, Justice.

These consolidated appeals present a single question of law: Does a public power district have the power of eminent domain to acquire right-of-way over lands owned by a sanitary and improvement district for the purpose of constructing transmission lines and related structures? We hold that such power is conferred by Neb.Rev.Stat. § 70-301 (Reissue 1996) and, therefore, affirm the judgments of the district court for Fillmore County as modified, and remand the causes for further proceedings.

BACKGROUND

Appellee Nebraska Public Power District (NPPD) is a public corporation and political subdivision of the State of Nebraska. See Neb.Rev.Stat. § 70-601 et seq. (Reissue 1996). Appellant Sanitary and Improvement District No. 1 of Fillmore County, Nebraska (S.I.D.1), is a public corporation and political subdivision of the State of Nebraska. See, Neb.Rev.Stat. § 31-727 et seq. (Reissue 1993); S.I.D. No. 95 v. City of Omaha, 221 Neb. 272, 376 N.W.2d 767 (1985). Sanitary and improvement districts have been characterized as quasi-municipal corporations. See Rexroad, Inc. v. S.I.D. No. 66, 222 Neb. 618, 386 N.W.2d 433 (1986).

In 1993, NPPD obtained approval from the Nebraska Power Review Board to construct and operate a 345,000-volt electric transmission line, known as the Pauline-Moore line, extending from a substation south of Hastings, Nebraska, to NPPD's Sheldon Power Plant north of Hallam, Nebraska, a distance of approximately 96 miles. In 1995, NPPD commenced separate condemnation actions in the county court for Fillmore County, Nebraska, for the purpose of acquiring "easement right-of-way" over two irregular tracts of land in Fillmore County for the construction of a portion of the Pauline-Moore line. NPPD contended that it possessed the power of eminent domain to acquire this right-of-way pursuant to §§ 70-301 and 70-670. NPPD alleged that S.I.D. 1 claimed an interest In its amended petitions on appeal, S.I.D. 1 alleged that it owned the parcels of land which are the subject of the condemnation and asserted several defenses which are referred to in its petitions as separately numbered "causes of action." In the third cause of action of each amended petition, S.I.D. 1 alleged that the subject parcels were public property over which NPPD had no statutory power of eminent domain and prayed that the court declare the attempted condemnation void and quiet title to the property in its name. In its answers, NPPD denied these allegations and reasserted its authority to acquire the right-of-way by condemnation under §§ 70-301 and 70-670. The district court consolidated the cases for separate trial on this issue, reserving for later determination other issues, including the adequacy of damages awarded by the appraisers.

in the land by reason of certain quitclaim deeds recorded in 1994. Court-appointed appraisers awarded damages to S.I.D. 1 in the amount of $7,724 for one parcel and $2,974 for the other. S.I.D. 1 appealed both awards to the district court for Fillmore County. See Neb.Rev.Stat. § 76-715 (Reissue 1996).

On April 5, 1996, following a bench trial at which no testimony was offered and exhibits were received without objection, the district court entered an order finding that NPPD "does have the authority under Neb.Rev.Stat. Sections 70-301 and 70-670 to acquire an easement over [property owned by S.I.D. 1] through the exercise of the power of eminent domain" and dismissing the third cause of action in each case. S.I.D. 1 filed a timely notice of appeal in each case. Pursuant to our authority to regulate the caseloads of the Nebraska Court of Appeals and this court, we removed the cases to our docket on our own motion and ordered them consolidated for argument and disposition.

ASSIGNMENT OF ERROR

Restated, S.I.D. 1 contends that in each of these cases the district court erred in determining that NPPD possessed statutory power of eminent domain to acquire right-of-way over property to which S.I.D. 1 held title.

SCOPE OF REVIEW

Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. Bank of Papillion v. Nguyen, 252 Neb. 926, 567 N.W.2d 166 (1997); State ex rel. City of Elkhorn v. Haney, 252 Neb. 788, 566 N.W.2d 771 (1997); Brown v. Wilson, 252 Neb. 782, 567 N.W.2d 124 (1997).

ANALYSIS

While these cases were pending before the Court of Appeals, NPPD filed motions to dismiss for lack of jurisdiction pursuant to Neb. Ct. R. of Prac. 7B(1) (rev.1996), based upon its contention that the orders of the district court were not final and appealable because of the pendency of other issues in each case. The motions were overruled without prejudice to briefing and argument on the subject of jurisdiction. Because the jurisdictional issue was raised during oral argument, we examine it here pursuant to our power and duty to determine whether appellate jurisdiction exists. See City of Lincoln v. Twin Platte NRD, 250 Neb. 452, 551 N.W.2d 6 (1996).

The three types of orders which may be reviewed on appeal are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered. Neb.Rev.Stat. § 25-1902 (Reissue 1995); State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997); Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997); Tess v. Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696 (1997). Special proceedings entail civil statutory remedies not encompassed in chapter 25 of the Nebraska Revised Statutes. Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995). A condemnation action is a special proceeding within the meaning of § 25-1902. See Webber v. City of Scottsbluff, 155 Neb. 48, 50 N.W.2d 533 (1951).

In a special proceeding, an order is final and appealable if it affects a substantial right of the aggrieved party. City of Lincoln v. Twin Platte NRD, supra; Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993). A substantial right is an essential legal right, not a mere technical right. A substantial right is affected if the order...