Scully v. Central Nebraska Public Power & Irrigation Dist.

• Citation: 9 N.W.2d 207,143 Neb. 184
• Decision Date: 09 April 1943
• Docket Number: 31480.
• Court: Supreme Court of Nebraska
• Parties: SCULLY v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

9 N.W.2d 207

143 Neb. 184

SCULLY v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

No. 31480.

Supreme Court of Nebraska

April 9, 1943

Syllabus by the Court.

1. General ill-defined fears of property owners that a dam impounding large quantities of water may break at some future time and damage their property cannot be shown as evidence of a reduced market value in suit for damages.

2. Damages suffered by the public generally on account of the construction of a lawful public improvement cannot be made the basis of an action in tort.

3. Damages resulting from the relocation of a branch railroad cannot be recovered by property owners in proximity thereto since their damages, though different in degree, are not different in kind from those suffered by the public generally.

4. If the injury suffered by a private property owner, resulting from the removal of a railroad line or station, is not a special damage, even though it be greater in degree than that suffered by the general public no cause of action arises, for such damage is damnum absque injuria.

Halligan McIntosh & Feltz, of Ogallala, for appellant.

R. O. Canaday and P. E. Boslaugh, both of Hastings, R. H. Beatty, of North Platte, and M. M. Maupin, of Ogallala, for appellee.

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

PAINE Justice.

An amended petition was filed by the plaintiff, Sarah C. Scully, which set out 41 separate causes of action, 40 of said causes of action being assigned to her for the purpose of collection. All of the causes of action involved the right to recover damages for property located in the town of Keystone, Keith county, Nebraska, resulting from the construction of a dam and reservoir by the defendant district, four miles west of the town, and the condemnation and removal by the defendant of the Union Pacific railroad tracks from the town of Keystone, thereby entirely depriving the town of its railroad services. To this amended petition, defendant district filed a demurrer, which was submitted to the trial court. Demurrer sustained. Plaintiff appeals.

The allegations upon which the cause of action is based are set forth in paragraphs 1 to 6 of the first cause of action, which may be condensed as follows:

(1) The defendant is a public corporation, duly organized under the laws of Nebraska, with its principal place of business in Hastings, Adams county. It is engaged in constructing works of internal improvement necessary to develop electric power. A dam has been built across the North Platte river at a point four miles west of Keystone, which will impound waters, making a reservoir which will have a capacity of two million acre feet of water, which stored water will be used to generate electric power, as well as to irrigate certain lands in the Platte valley approximately 100 miles east of said dam and reservoir.

(2) The town of Keystone, Keith county, Nebraska, was located by the Union Pacific Railroad Company in 1906, when it built a branch line up the North Platte river from O'Fallons, Nebraska, into Wyoming. The said railroad company constructed a depot, section house, stockyards, water tank, and thereafter the general public constructed a post office, church, hotel, and various business properties, and the town attained a population of some 200 people. In addition to the railroad facilities, state and county highways connected the town with other towns and with farming and ranching enterprises located in that territory, all of which created a special value in the property in said town.

(3) Plaintiff alleged that the defendant has constructed an on-river dam, approximately two miles in width and 160 feet in height, which dam creates a reservoir in the river which will reach back 20 miles west from said dam, and the water just above the dam will be about 150 feet in depth; that the defendant district has appropriated to its own use all of said railroad facilities from a point more than five miles east of the town of Keystone to 30 miles west of the town of Keystone, as well as all highways leading to Keystone; that such appropriation by the district was by right of eminent domain.

The district entered into a contract with the Union Pacific Railroad Company to remove the entire railroad line for a distance of more than 30 miles and to construct a new railroad line being located approximately two miles north of the town of Keystone. It is alleged that the depot of the present Keystone and its railroad facilities, as now located on the new line some two miles north of the old town, are in a location entirely unfit for the establishment of a townsite; that the removal of said railroad has destroyed all of the public uses and facilities appurtenant to said real estate, including the state and federal highways, and has thus destroyed the business and wholly cut off the accessibility of the town of Keystone to its former trade territory, thus creating a special damages to the property therein.

(4) Plaintiff alleged that above the dam aforesaid there will be stored some two million acre feet of water in a reservoir; that by danger of breakage, leaks, and floods therefrom, a hazard is created, but that plaintiff had no cause of action to enjoin the construction of said dam and reservoir, the same being for a public use, and therefore the landowners were relegated to an action at law to recover damages by reason of the depreciation and damage to the value of their property; that prior to 1940 Keystone was a thriving business locality, with no vacant buildings or residences; that in Keystone there were lumber yards, warehouse, furniture, grocery, clothing and other stores customary in such a town, but that these lines of business have been removed from the town, or abandoned, as they could not exist cut off from railroad facilities and public highways.

(5) Plaintiff alleges that all of the property had a special value, as it abutted on the streets in the town of Keystone which connected with the railroad facilities, and the public use thereof, which have been taken away, thereby causing a special damage to said property.

(6) Plaintiff alleges that, by reason of the construction of said dam and reservoir, Keystone has been changed from a village, with property therein of considerable value, to an abandoned village, and the special value of property therein has been depreciated until there is no market value thereof, its only value being the salvage value of the improvements upon said real estate for removal to another locality.

The plaintiff then described in paragraph 7 the lots and blocks which she owned, together with a two-story dwelling-house, garage, cement sidewalk, foundation, trees, shrubbery, and certain other property on block 2 in the town of Keystone, upon which was constructed a store building, a hotel building, rooming-house, and dance hall, also certain vacant lots, all of which were of the value of $14,350, with a salvage value of $750, leaving the net damages due from the defendant district $13,600 on the first cause of action. The amount due on the other 40 causes of action is alleged to be $147,090.30, making total amount of damages claimed by plaintiff from defendant of $160,690.30.

There is attached to the petition a map, prepared by the engineers of the Union Pacific Railroad Company, showing the old line of 32.37 miles which is to be abandoned, and the new line of 33.16 miles to be built. There is also attached a photostatic copy, of 14 pages of the agreement entered into between the Union Pacific Railroad Company and the defendant district, and also agreed to by the Western Union Telegraph Company, said agreement being signed by W. M. Jeffers, president of the Union Pacific Railroad Company, D. W. Kingsley, president of the defendant district, and A. D. Bradley, general manager of the Western Union Telegraph Company, which agreement provides generally that the district shall buy a new right of way and convey the same by warranty deed to the railroad company, with abstract showing good title thereto, free from encumbrance, and shall furnish all material and construct to the satisfaction of the railroad company the new line of railroad, including bridges, culverts, signals, boundary fences, railroad crossings, cattle guards, sand fences, snow fences, and warning signals, and according to approved plans and specifications, removing and repairing certain station buildings, and other buildings now located on its present line of railroad, at the towns of Keystone, Martin, Lemoyne, Belmar and Ruthton, to their new locations on the relocated line between mileposts 23.58 and 55.95 and all placed in proper condition for use in a manner satisfactory to the railroad company, including the complete reconstruction of the Western Union Telegraph Company line along said new line, all to be done at the cost and expense of said defendant district, free and clear of all claims, liens and encumbrances.

It is further provided in said agreement that, after construction and completion of the new railroad line and its acceptance by said company, the district shall and will pay to the railroad company, in addition to the cost thereof, the sum of $229,101, which said company will accept as full payment for the additional expense of maintenance and operation of the new line, and thereupon the old right of way of the railroad line shall be conveyed to the district by quitclaim deed, free of mortgages and liens.

It is further set out in said agreement that the district will indemnify and hold harmless said railroad company from all claims demands, damages, judgments, costs, and expenses of whatever nature sustained by others than the railroad company, resulting from the...