Scheer v. Kansas-Nebraska Natural Gas Co.

• Decision Date: 14 May 1954
• Docket Number: No. 33516,KANSAS-NEBRASKA,33516
• Citation: 64 N.W.2d 333,158 Neb. 668
• Parties: SCHEER et al. v.NATURAL GAS CO., Inc.
• Court: Nebraska Supreme Court

Page 333

64 N.W.2d 333

158 Neb. 668

SCHEER et al. v. KANSAS-NEBRASKA NATURAL GAS CO., Inc.

No. 33516.

Supreme Court of Nebraska.

May 14, 1954.

Syllabus by the Court

1. A petition for condemnation of an easement for a pipeline which specifically sets forth its course across condemnee's land and describes its extent as that which is necessary and required for the laying, relaying, maintaining, and operating of the pipeline and appurtenances thereto, is sufficient as against a collateral attack.

2. A judgment on the merits in the trial of a civil action constitutes an effective bar and estoppel in a subsequent action upon the same claim or demand, not only as to every matter offered and received to sustain or defeat the claim or demand, but also as to any other admissible matter which might have been offered for that purpose.

3. The rule of res judicata applies to judgments in actions and proceedings relating to the taking or injury of property under the power of eminent domain.

4. If an easement, however it may have been created, is specific in its terms it is decisive of the limits of the easement. If an easement is not specifically defined, the rule is that the easement is such as is reasonably necessary and convenient of the purpose for which it was created.

5. An appeal in a condemnation proceeding under the provisions of section 76-717, R.S.Supp., 1953, contemplates the filing of pleadings and a framing of issues in a judicial proceeding in the district court.

6. The extent and quantity of lands sought to be taken by condemnation under the power of eminent domain are legislative and not judicial questions. A determination of the question as to whether or not the requirements of the statute have been met is judicial in character and does not encroach upon the legislative power.

Brogan & Brogan, Madison, Conway & Irons, Hastings, for appellant.

R. J. Shurtleff, Norfolk, for appellee.

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

CARTER, Justice.

This is a suit to quiet title to all the real estate described in the petition, except a right-of-way across said real estate 3 1/2 inches wide and 4,046 feet long obtained for pipeline purposes in a condemnation proceeding. The trial court quieted the title to the real estate in accordance with the prayer of plaintiff's petition and enjoined the defendant from using more than the 3 1/2 inch strip for the laying, relaying, operation, maintenance, and repair of its pipeline. The defendant appeals.

The plaintiff is the owner in fee simple of the land across which the right-of-way was obtained. On August 23, 1951, the defendant filed its petition with the county judge of Madison County to obtain a right-of-way by condemnation for a pipeline pursuant to the provisions of section 75-601, R.S.Supp., 1953. A map was attached to the petition showing the course of the pipeline across plaintiff's land. The petition alleged that the gas pipeline will be of metal construction, 3 1/2 inches in diameter, and will be placed at least 30 inches below normal ground level in such a manner that the ground surface above such pipeline may be farmed and worked over without inconvenience, interference, or damage to farming operations or crops. The extent of the easement is described as that which is necessary and required for the laying, relaying, maintaining, and operating of said pipeline and appurtenances thereto for the transportation of natural gas upon and through plaintiff's premises. The county judge appointed three appraisers as required by law, who made an award of damages and filed the same as required by the statute. The plaintiff Scheer appealed to the district court for Madison County. On the appeal plaintiff recovered a judgment on the same issues as were raised by the proceedings in the county court.

In the present case plaintiff alleges that defendant acquired by condemnation an easement over his land not exceeding 3 1/2 inches wide and 4,046 feet in length as shown by the map attached to the petition for condemnation filed by this defendant with the county judge. He asserts that defendant claims the right to enter upon and use all of plaintiff's land, or a part thereof in excess of 3 1/2 inches in width, for the purpose of laying, relaying, maintaining, and operating its gas pipeline and appurtenances thereto for the transportation of natural gas, unless the defendant be enjoined from so doing.

The defendant by answer alleges that it acquired an easement and right-of-way across plaintiff's land for so much of it as was reasonably necessary for the laying, relaying, operating, repair, and maintenance of the pipeline. It asserts further that an easement 3 1/2 inches in width defeats one of the main purposes of the easement and unduly restricts its extent. It also alleges that the claims of the plaintiff have or should have been adjudicated in the condemnation suit tried in the district court and that the defense of res judicata applies in the present case.

Plaintiff asserts in his reply that sections 75-601, 75-606, 75-609, and 75-610, R.S.Supp.1953, are invalid as a taking without due process of law insofar as they authorize the defendant to condemn plaintiff's real estate without describing the extent, amount, or portion of his real estate reasonably necessary to be appropriated for condemner's purpose. It is also alleged that any attempt to have the judicial department of the state determine what is reasonably necessary for the laying, relaying, and maintaining of its pipeline constitutes an attempt to delegate to the judicial department powers which are reserved to the legislative department.

The petition for condemnation describes the extent of the easement in the language of the statute. Sections 75-601 and 75-606, R.S.Supp., 1953. It is the rule that a condemner is required to allege the portion of condemnee's land he deems necessary for his purposes, and to describe in his petition the portion sought to be taken in that proceeding. In the absence of an appeal to the district court the condemner is bound by the description set forth in his petition, and if it be indefinite or inaccurate in description it is subject to collateral attack.

In the present case an appeal was taken to the district court by plaintiff, the condemnee in the original proceeding. It was there stipulated that no new pleadings need be filed and that the case would be tried on appeal on the same issue as in the court below, namely, damages only. A jury was waived and the trial court entered a judgment for the damages sustained by the first laying of the pipeline. The judgment was fully satisfied.

It is a fundamental rule in this state that if new issues other than the assessment of damages are to be raised on appeal in a condemnation proceeding, they must be pleaded. On appeal the proceeding is judicial as distinguished from the administrative proceeding before the county judge. A condemnee is required to raise any and all issues in the district court and, if he does not, he is bound by the rule of res judicata in a collateral attack.

We think the petition filed with the county judge was sufficient as against a collateral attack. In Fremont, E. & M. V. R. R. Co. v. Mattheis, 39 Neb. 98, 57 N.W. 987, 988, this point was discussed in the following language: 'Assuming the above description to be less specific than contemplated by law, objection on that ground comes too late when made for the first time...