Stunkel v. County of Dawson ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STUNKEL V. COUNTY OF DAWSON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
DOUGLAS A. STUNKEL AND 4-S, LLC, A NEBRASKA LIMITED LIABILITY COMPANY, APPELLANTS,
V.
COUNTY OF DAWSON, NEBRASKA, ET AL., APPELLEES.
Filed December 8, 2020. No. A-19-1143.
Appeal from the District Court for Dawson County, JAMES E. DOYLE IV, Judge, on appeal
thereto from the County Court for Dawson County, JEFFREY M. WIGHTMAN, Judge. Judgment of
District Court affirmed.
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellants.
Katherine Kellogg Kühn, Deputy Dawson County Attorney, for appellee County of
Dawson.
Shawn R. Eatherton, Buffalo County Attorney, and Andrew W. Hoffmeister for appellee
County of Buffalo.
Michael J. Henry, Phelps County Attorney, for appellee County of Phelps.
PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.
MOORE, Judge.
INTRODUCTION
Douglas A. Stunkel and 4-S, LLC (collectively the Appellants) filed an action against the
counties of Dawson, Phelps, and Buffalo, alleging claims of inverse condemnation and
constitutional taking and seeking declaratory and injunctive relief. The Dawson County Court
dismissed the Appellants’ second amended complaint for lack of subject matter jurisdiction and
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for failure to state a claim upon which relief could be granted. The Appellants appealed from the
county court to the district court for Dawson County, which sustained the counties’ objections to
discovery requests by the Appellants and affirmed the decision of the county court. The Appellants
have appealed to this court from that decision. For the reasons set forth herein, we affirm the
decision of the district court, which affirmed the county court’s order of dismissal.
BACKGROUND
On April 27, 2016, the Appellants filed an action for statutory inverse condemnation
pursuant to Neb. Rev. Stat. § 76-705 (Reissue 2018) in the county court, claiming that a regulatory
taking occurred as a result of the defendants’ failure to properly regulate land use. In addition to
the counties, the complaint included as defendants John and Jane Doe 1 through 10, sued in their
official and in their individual capacities, as agents and/or employees of the respective counties.
These defendants were alleged to include, at least, the county commissioners, county surveyors,
county engineers, county assessors, and county treasurers. We have referred to the various
defendants collectively as “the Appellees.”
The complaint was amended twice following motions to dismiss by the counties. The
second amended complaint (the operative complaint) alleged that the Appellants owned real
property in Dawson and Buffalo Counties, which included Platte River accretion ground. The
Appellants alleged that the northern boundary of Phelps County, and the southern boundaries of
Dawson and Buffalo Counties, have all historically been defined by the waters of the Platte River.
The Appellants alleged that the counties failed to make boundary reviews and surveys in order to
enforce the integrity of their boundaries, and failed to maintain proper records and accurately
assess taxes on the properties situated adjacent to the boundaries of the respective counties,
including the Appellants’ property, as required by Neb. Rev. Stat. § 77-1306.01 (Reissue 2018).
(The operative complaint also listed numerous other statutes not at issue in this appeal.) The
Appellants alleged that the counties adopted, de facto, regulatory schemes with regard to the
preservation, maintenance, and protection of each of their boundaries, allowing their boundaries
to be essentially unregulated for the supposed public benefit by avoiding the monetary expense of
conducting surveys.
The Appellants alleged that the actions and inactions of the Appellees severely restricted
the use, ownership, extent, and value of their property. Specifically, the Appellants alleged that
they have lost the equivalent of 347 acres of unimproved lands along the southern boundaries of
their property, and that their lender required them to sell the property as the loan collateral (the
real property) had become insufficient. The Appellants alleged that these actions amounted to a
taking under § 76-705 and Neb. Const. art. I, § 21. The Appellants sought a declaration pursuant
to the Nebraska Declaratory Judgment Act that the Appellees’ actions are ultra vires, void and in
excess or derogation of their authority; temporary and final injunctive relief; an order requiring the
Appellees to properly determine and maintain proper county boundaries and tax rolls; damages for
the loss of value and harm to the Appellants’ real property and business operations; and other relief
including reasonable attorney fees.
Each of the defendant counties filed motions to dismiss the second amended complaint
under Neb. Ct. R. Pldg. § 6-1112(b)(1) and (6).
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On January 12, 2018, the county court entered its final order dismissing the second
amended complaint with prejudice. The court first addressed the lack of subject matter jurisdiction
under § 6-1112(b)(1). The court referred to its August 11, 2017, order (which dismissed the
amended complaint with leave to amend) and reiterated its holdings therein. In the August 2017
order, the court held that it lacked subject matter jurisdiction over matters relating to the
assessment, valuation, and levying of taxes, and/or refunding taxes. The court held that “[t]hese
matters and other matters related to taxes, found within Chapter 77 of the Nebraska Revised
Statutes, are reserved for the county board of equalization, the Property Tax Administrator, and
the Nebraska Tax Equalization Commission (TERC).” The county court further held that neither
the county court nor the district court had subject matter jurisdiction over the allegations made
under § 77-1306.01 regarding the counties’ obligation to conduct surveys and maintain tax rolls,
and neither court could enforce those obligations.
The county court, in the final order, further found that the second amended complaint again
failed to state a claim for relief for inverse condemnation as the allegations were conclusory and
did not allege that the Appellants’ property was “taken or damaged for public use.” The court
concluded that any further attempts to amend the complaint would be futile and determined that
the Appellants would not be allowed to further amend their complaint. The Appellants filed a
motion to alter or amend the order, which was overruled on April 23.
On April 24, 2018, the Appellants filed a notice of appeal from the orders of the county
court. On June 13, the Appellants filed a “Petition On Appeal” in the district court. After setting
forth the procedural history of the inverse condemnation action, the petition alleged that the county
court should have proceeded according to the condemnation statutes by appointing a board of
appraisers to fix damages, as opposed to making determinations about whether a taking had
occurred for public use or purpose. The petition then set forth virtually identical statutory claims,
allegations, and claims for relief as contained in the operative complaint which had been dismissed.
Thereafter, the Appellants propounded discovery requests to the Appellees, who each
moved for a protective order. At the hearing on the motions, the Appellants asserted that the appeal
was governed by the condemnation statutes, specifically Neb. Rev. Stat. § 76-715 (Reissue 2018),
such that they were entitled to a trial “de novo in the district court.” In its order entered on May
30, 2019, the district court disagreed, finding that the case was decided in the county court on the
Appellees’ motions to dismiss for failure to state a claim for relief, not on the merits of the
condemnation claim. The district court found that, as an appellate court, it was to review the case
for error appearing on the record of the county court, pursuant to Neb. Rev. Stat. § 25-2733(Reissue 2016). Finding that discovery is not a part of such a proceeding, the court granted the
motions for protective orders and quashed the discovery propounded by the Appellants. The
district court went on to find that the Appellants did not file a statement of errors within 10 days
of the filing of the bill of exceptions in the district court as required by Neb. Ct. R. § 6-1452(A)(7)
(rev. 2011). Therefore, it determined that its review of the appeal would be limited to “plain error
not assigned” with such review conducted pursuant to § 25-2733.
On October 31, 2019, the district court entered a judgment affirming the county court’s
order of dismissal. The district court also dismissed the petition on appeal. In the judgment, the
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court noted that it had considered all errors the Appellants claimed were committed by the county
court and found none of those claims to have merit.
ASSIGNMENTS OF ERROR
The Appellants’ brief includes 11 assigned errors; however, they separately argue only four
of those errors. An alleged error must be both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an appellate court. Cinatl v. Prososki, 307
Neb. 477, 949 N.W.2d 505 (2020). The errors specifically assigned and specifically argued by the
Appellants, as restated, are: (1) the county court erred in declining certification of the action to the
district court, (2) the county court erred in failing to observe the statutory requirements for
condemnation actions, (3) the district court erred in determining the appeal was to proceed
pursuant to Neb. Rev. Stat. §§ 25-2728 to 25-2739 (Reissue 2016, Cum. Supp. 2018) instead of
through § 76-715, and (4) the district court erred in finding that the Appellants were not entitled
to conduct discovery on appeal to the district court.
STANDARD OF REVIEW
The district court and higher appellate courts generally review appeals from the county
court for error appearing on the record. Schaefer Shapiro v. Ball, 305 Neb. 669, 941 N.W.2d 755(2020). When reviewing a judgment for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. Id.In this case, the district court determined in its May 2019 order that the Appellants did not
file a statement of errors as required by § 6-1452(A)(7). See, also, Neb. Ct. R. § 6-1518. Ordinarily,
in cases where no statement of errors was filed and the district court reviewed for plain error, the
higher appellate court likewise reviews for plain error only. TransCanada Keystone Pipeline v.
Tanderup, 305 Neb. 493, 941 N.W.2d 145 (2020). The purpose of § 6-1452(A)(7) is to specifically
direct the attention of the reviewing court to precisely what error was allegedly committed by the
lower court and to advise the nonappealing party of what is specifically at issue in the appeal. State
v. Zimmerman, 19 Neb. App. 451, 810 N.W.2d 167 (2012).
The Appellants argue that they did comply with this rule and note that they filed their notice
of appeal in the county court on April 24, 2018. Their notice of appeal included a list of eight
separately numbered and paragraphed errors. This notice of appeal was included in the county
court transcript filed in the district court on May 2. In support of their argument, the Appellants
cite State v. Nelson, 2 Neb. App. 289, 509 N.W.2d 232 (1993), wherein this court determined that
the version of § 6-1452(A)(7) then in effect (differing primarily in requiring statement of errors to
be filed within 10 days of notice of appeal as opposed to 10 days of filing of bill of exceptions)
did not require the appellant to file two separate pieces of paper, i.e., both a notice of appeal and a
separate statement of errors. We noted that in an appeal to the district court from a judgment of
the county court, the clerk of the county court was statutorily required to transmit a certified copy
of the transcript to the district court within 10 days of the perfection of the appeal and that court
rules required the notice of appeal to be included in the transcript. See Neb. Rev. Stat. § 25-2731(Cum. Supp. 2018); § 6-1452(A)(1)(b). Accordingly, we held that an appellant who has
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incorporated a properly drafted statement of errors directly into a notice of appeal from a judgment
of the county court has satisfied the requirement in § 6-1452(A)(7) concerning the timely filing of
a statement of errors with the district court.
Here, despite its statement in the May 2019 order concerning a plain error review and
regardless of whether the Appellants’ notice of appeal complied with § 6-1452(A)(7), the record
shows that the district court did consider the Appellants’ claimed errors. When an appellant fails
to file a statement of errors in the district court, an appellate court may at its discretion consider
errors assigned in the appellate court, provided that the record shows that those errors were also
assigned in the district court. Id. See, also, Houser v. American Paving Asphalt, 299 Neb. 1, 907
N.W.2d 16 (2018) (in cases where no statement of errors was filed, but record showed district
court considered issue that was also assigned to higher appellate court, higher appellate court may
consider that issue); State v. Scherbarth, 24 Neb. App. 897, 900 N.W.2d 213 (2017) (despite failure
to file particular statement of error in district court, higher appellate court may still consider errors
actually considered by district court).
As noted above, a review of the record shows that the district court considered all errors
the Appellants claimed were committed by the county court. Accordingly, we elect to consider the
four assignments of error identified above as they were specifically assigned and specifically
argued to this court and are either claimed county court errors considered by the district court or
claimed errors by the district court with respect to the proceedings in district court.
A district court’s grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of
the nonmoving party. Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020). Aside from factual
findings, which are reviewed for clear error, the granting of a motion to dismiss for lack of subject
matter jurisdiction under § 6-1112(b)(1) is subject to de novo review. Skyline Manor v. Rynard,
288 Neb. 602, 852 N.W.2d 303 (2014).
ANALYSIS
Relevant Statutory Provisions.
Before turning to the Appellants’ arguments, it is helpful to set out here the relevant
statutory provisions pertinent to this appeal.
Both the county court and district court determined that they did not have subject matter
jurisdiction over claims grounded on a failure to comply with § 77-1306.01. This statute provides
as follows:
In all counties where land ownership may from time to time be altered to add new
lands to the tax rolls due to the activity of any river, stream, or other body of water along
or bordering state lines, whether by accretion or avulsion, it shall be the duty of the county
surveyor prior to June 1, 1960, and at least once within each five-year period thereafter
either to cause to be surveyed any lands believed to have been altered in such manner or to
certify in writing that it is his or her opinion that no alteration of ownership of any land in
the county from that shown by the then current tax rolls has occurred due to the action of
any river, stream, or other body of water along or bordering state lines. . . . In all counties
where land ownership may from time to time be altered due to the activity of any river,
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stream, or other body of water not along or bordering state lines, whether by accretion or
avulsion, it shall be the duty of the county surveyor to cause to be surveyed any lands
believed to have been altered when directed by the county board of equalization or when
requested by the Property Tax Administrator.
Also relevant is § 76-705, 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.
Finally, we note § 76-715, which provides:
Either condemner or condemnee may appeal from the assessment of damages by
the appraisers to the district court of the county where the petition to initiate proceedings
was filed. Such appeal shall be taken by filing a notice of appeal with the county judge
within thirty days from the date of filing of the report of appraisers as provided in section
76-710.
Failure of County Court to Certify Action to District Court.
The Appellants contend that the county court should have certified those portions of their
claims that sought injunctive and declaratory relief to the district court rather than dismissing them
for lack of subject matter jurisdiction. In its August 2017 order, the county court noted that the
Appellants admitted that most of the relief requested in their amended complaint (which was the
same as the operative complaint) was outside the jurisdiction of the county court. The court noted
the Appellants’ contention that the inverse condemnation proceeding, which is within the exclusive
jurisdiction of the county court, should take place there, and then the remaining issues should be
certified to the district court pursuant to Neb. Rev. Stat. § 25-2706 (Cum. Supp. 2018). The county
court went on to determine that the inverse condemnation claim failed to state a claim for relief
under § 76-705 as the amended complaint did not allege facts that the Appellants’ property had
been “taken or damaged” or that the property was taken or damaged for “public use.” Presumably,
with dismissing the amended complaint, the county court determined it unnecessary to address the
certification issue further.
Section 25-2706 provides, in relevant part, that “[t]he county court shall certify
proceedings to the district court of the county in which an action is pending . . . when the relief
requested is exclusively within the jurisdiction of the district court.”
Here, the Appellants argue that part of the proceeding should have been certified to the
district court and part retained in the county court. We do not read the statute to allow such parsing
of a complaint. We agree with the county court’s declination to certify any claims for relief which
were beyond the jurisdiction of the county court to the district court. In deciding that the inverse
condemnation action failed to state a claim for relief, there was no need to address the related
claims for relief over which the county court did not have jurisdiction as those claims derived from
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the inverse condemnation claim that the Appellants’ land had been taken or damaged. Further, the
Appellants can show no harm by any failure to certify these issues to the district court since the
county court’s decision was appealed to the district court, which affirmed the determinations
regarding lack of subject matter jurisdiction and failure to state a claim for relief. This assigned
error fails.
Failure of County Court to Observe Statutory Requirements.
The Appellants argue that the county court erred in failing to observe its ministerial duties
under the condemnation statutes, including the appointment of appraisers, serving notice of the
appraisers’ meeting, approving the qualifications of the appraisers, and receiving the report of the
appraisers. See Neb. Rev. Stat. §§ 76-704 to 76-724 (Reissue 2018). The Appellants argue that the
county court had no power to determine anything extraneous to convening appraisers as it is not a
judicial process at that stage. The Appellants assert that only when the report of appraisers is
appealed to the district court does the proceeding become judicial. The Appellants argue that the
county court committed error in failing to fulfill its role under the condemnation statutes and that
the district court erred in failing to proceed under the petition on appeal pursuant to § 76-715.
In support of their arguments, the Appellants cite City of Waverly v. Hedrick, 283 Neb.
464, 810 N.W.2d 706 (2012), a case involving a condemnation action brought by the City. After
the county court appointed appraisers, who returned a fee taking valuation of the property, the City
filed a motion to setoff the amount of a preexisting lien from the condemnation award. Before the
county court ruled on the setoff motion, the landowner appealed to the district court, asserting that
the valuation was inadequate. The City filed another motion for setoff in the district court, which
the district court declined to address, ordering that any setoff would occur on remand to the county
court after a jury trial in the district court to determine the proper valuation of the property.
Following a jury trial, the district court entered judgment in favor of the landowner. On remand,
the county court granted the city’s motion for setoff, and the landowner again appealed to the
district court, which affirmed.
On appeal to the Nebraska Supreme Court, the landowners’ assignments of error included
an assertion that the county court lacked subject matter jurisdiction to hear the city’s motion for
setoff. The Supreme Court ultimately determined that because the eminent domain statutes do not
confer upon county courts the power to hear motions for setoff, they lack jurisdiction to do so, and
the district court had the inherent power under the statutes to determine judicial matters beyond
the valuation of land, including the issue of setoff. Id. In reaching this conclusion, the Supreme
Court observed that the powers conferred upon the county court judge by the condemnation
statutes are not judicial powers or duties, but are instead purely ministerial in character. Id. The
court stated that only when the appraiser’s report is appealed to the district court do condemnation
proceedings become judicial. Id.The Appellants also cite Papio-Missouri River NRD v. Willie Arp Farms, 15 Neb. App.
984, 739 N.W.2d 776 (2007). That case involved an appeal to the district court from the county
court after certain leased land became part of an eminent domain proceeding, appraisers were
appointed, and the appraisers filed their report in the county court awarding sums to the property
owner and the purported tenant of the property due to the taking. The NRD appealed to the district
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court, alleging that the appraisers’ award exceeded the damages sustained by the property owner
and purported tenant. The appeal from the award to the property owner was settled without trial,
but the purported tenant answered, seeking damages arising out of the taking and attorney fees. At
issue in the appeal was whether the district court properly allowed the tenant to be substituted as
the condemnee, which we determined was error. In reviewing the case, we set out the process for
appeal from an award of appraisers in a condemnation proceeding, including noting that the
securing of an appraisal of damages by appraisers appointed by the county judge is an
administrative act as distinguished from a judicial proceeding. Id.Both of the cases cited by the Appellants are distinguishable from the situation presented
in this case. Neither case involved a party raising the issue of the sufficiency of the condemnation
petition or a lack of subject matter jurisdiction in the county court. Rather, they involve appeals to
district court after an appraisers’ award.
The Appellees assert that the county court had the authority to determine whether the
pleadings before it were sufficient to set forth a condemnation claim. In support of their assertions,
the Appellees cite to Platte Valley Public Power and Irrigation District v. Feltz, 132 Neb. 227,
271 N.W. 787 (1937), and Scheer v. Kansas-Nebraska Natural Gas Co., 158 Neb. 668, 64 N.W.2d
333 (1954). Platte Valley Public Power and Irrigation District involved an action in district court
to enjoin the defendant from interfering with the plaintiff’s possession of certain real property the
plaintiff claimed to have acquired through condemnation proceedings. The defendant also sought
injunctive relief and to have title to the property quieted against the plaintiff’s claims based on the
condemnation proceedings. Following trial, the district court granted the defendant a permanent
injunction until the plaintiff was able to acquire title or right of possession to the property involved,
by a proper and legal condemnation proceeding. On appeal to the Nebraska Supreme Court, the
Supreme Court discussed the underlying condemnation action observing that the defendant had
filed objections in the county court condemnation proceeding, challenging the sufficiency of the
plaintiff’s petition (based on the sufficiency of the description of the land sought to be condemned),
which objections were overruled by the county court. Subsequently, the appraisal was conducted,
damages assessed, and the parties appealed to the district court from the appraiser’s award. The
defendant also challenged the sufficiency of the condemnation petition in his answer and
cross-petition filed in the district court action for injunctive relief. On appeal, the Nebraska
Supreme Court considered the sufficiency of the petition in the condemnation proceedings and
whether the appeal taken from the award of the appraisers had waived any defects in the petition.
The court determined that the petition in the underlying condemnation action had been insufficient
to vest the county court with jurisdiction to appoint appraisers. It also determined that an appeal
by a landowner from the award of appraisers does not waive objections to the jurisdiction of the
appraisal court. Id. The court observed that proceedings in condemnation under a petition which
fails to set forth the jurisdictional facts required by statute are null and void. Id.The other case cited by the Appellees, Scheer v. Kansas-Nebraska Natural Gas Co., supra,involved a quiet title action in which the Nebraska Supreme Court determined whether the petition
in an underlying condemnation action was sufficient as against a collateral attack. In determining
that it was, the court noted the authority of county courts to address whether the allegations of a
condemnation petition are indefinite.
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While neither of the above cases involve an appeal from the dismissal of a case by the
county court for failure to state a claim for relief or lack of subject matter jurisdiction, they suggest
that the sufficiency of the condemnation pleading is a matter that may be addressed by the county
court prior to appointing appraisers. As relevant to this case, we observe that the Nebraska
Supreme Court characterized the challenge to the sufficiency of the condemnation petition in
Platte Valley Public Power and Irrigation District as having been made by “proper objections
filed in the county court,” which were then overruled by the county court prior to the appraisal and
assessment of damages by the appraisers. That was the procedure followed in the present case, and
we find no error in the county court’s determination that it had authority to rule on the
§ 6-1112(b)(6) motions filed by the counties. We note that the uniform county court rules define
the word “motion” to include § 6-1112(b) motions, implying that such motions are allowed in
county courts and that county courts have the authority to rule on such motions. See Neb. Ct. R.
§ 6-1417. We have addressed the correctness of its dismissal for failure to state a claim further
below.
The county court determined that neither it nor the district court had subject matter
jurisdiction over the allegations made under § 77-1306.01 and that neither court could enforce the
counties’ obligation under that section to conduct surveys and maintain tax rolls. Subject matter
jurisdiction includes a court’s power to hear and determine a case in the general class or category
to which the proceedings in question belong, but it also includes a court’s power to determine
whether it has the authority to address a particular question within a general class or category that
it assumes to decide or to grant the particular relief requested. Midwest Renewable Energy v.
American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017). See, also, Anderson v. A & R Ag
Spraying & Trucking, 306 Neb. 484, 946 N.W.2d 435 (2020) (court may have subject matter
jurisdiction in matter over certain class of case, but it may nonetheless lack authority to address
particular question or grant particular relief requested). Lack of subject matter jurisdiction may be
raised at any time by any party or by the court sua sponte. In re Estate of Adelung, 306 Neb. 646,
947 N.W.2d 269 (2020). The county court had the power to determine whether it lacked
jurisdiction. We have addressed the correctness of its jurisdictional determination further below.
Turning to the Appellants’ argument that that the district court erred in failing to proceed
under the petition on appeal pursuant to § 76-715, we again observe that this section provides for
appeals by condemners or condemnees from an assessment of damages by appraisers to the district
court. The Nebraska Supreme Court has stated, “The appeal authorized by § 76-715 is not a
conventional civil appeal from county court to district court. Under § 76-715, the property owner
or public entity appeals from the assessment of damages by the appraisers rather than from an
order or ruling of the county court.” Village of Memphis v. Frahm, 287 Neb. 427, 435, 843 N.W.2d
608, 616 (2014). Conventional civil appeals from county court to district court are governed by
§§ 25-2728 to 25-2738, and § 25-2728(2)(a) specifically provides that such sections shall not apply
to “[a]ppeals in eminent domain proceedings as provided in sections 76-715 to 76-723.” See
Armstrong v. County of Dixon, 282 Neb. 623, 808 N.W.2d 37 (2011). Here, the appeal from county
court to district court was not from an assessment of damages by appraisers, but was from the
county court’s dismissal following its rulings on the motions to dismiss. The district court did not
err in failing to proceed pursuant to § 76-715.
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We conclude that the county court properly determined whether the pleadings were
sufficient to confer subject matter jurisdiction on the court and whether the pleadings stated a claim
for relief before commencing the condemnation process. Likewise, the district court properly
dismissed the petition on appeal under § 76-715 as there had not been a determination of
condemnation damages in the county court. We find no error by the county court or the district
court in determining the threshold jurisdiction issues before addressing the merits of the
condemnation claim.
Failure of District Court to Determine Appeal
Under Eminent Domain Statutes.
The Appellants challenged the decision of the district court to review the appeal from the
county court under the general appeal provisions contained in §§ 25-2728 to 25-2739. This
argument is similar to the preceding argument in that the Appellants argue that the question before
the district court was whether the county court erred in refusing to convene the appraisers. The
Appellants assert that the decision of the district court should be reversed and remanded with
directions to the county court to conduct its ministerial function of appraisement.
As we concluded above, the county court was correct in determining whether the operative
complaint conferred subject matter jurisdiction upon the court and whether it stated a claim for
relief before addressing the functions required in a condemnation action. The issue before the
district court was not a review of the award of damages from the report of appraisers in the county
court proceeding; rather, it was a review of the preliminary pleading questions. Review under the
general statutes governing appeals from the county court to the district court was appropriate, and
the district court did not err in doing so.
District Court’s Grant of Protective Orders.
The Appellants argue that the district court erred in granting the motions for protective
orders following the service of discovery requests upon the Appellees. The Appellants admit that
there is no statutory authority that discovery rules apply to a district court appeal in a statutory
taking case. However, the Appellants argue that it appears to be the “custom” in such cases. The
Appellants cite to Neb. Rev. Stat. § 76-717 (Reissue 2018) which provides that in statutory takings
cases, the appeal is tried de novo in the district court.
Because this was not an appeal from the determination of damages in the report of
appraisers, the appeal was not governed by § 76-717 and as such, there was no de novo trial to be
held. Rather, the only issue before the district court was whether the county court erred in
dismissing the operative complaint under the pleading rules. The district court did not err in
granting the protective orders.
Conclusion.
While this appeal has a convoluted procedural history, resolution of this appeal boils down
to a singular question: Did the district court err in affirming the county court’s dismissal of the
second amended complaint for lack of subject matter jurisdiction and for failure to state a claim
upon which relief may be granted? The Appellants did not separately argue this question.
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Nevertheless, we find that the district court did not err in affirming the decision of the county court
to dismiss the Appellants’ operative complaint with prejudice.
The initial premise for the Appellants’ claim is that the Appellees failed to survey lands
bordering the Platte River, which the Appellants claim was required by § 77-1306.01. The
Appellants then claim that such failure, and the resulting failure to alter the tax rolls, diminished
the value of their land and business enterprises, and caused them to lose several acres of
unimproved land. Finally, The Appellants assert that such failures resulted in a taking of their
property for which they sought relief for inverse condemnation under § 76-705.
The county court determined that it did not have subject matter jurisdiction over claims
grounded on a failure to comply with § 77-1306.01.
The district court agreed that the county court did not have subject matter jurisdiction under
§ 77-1306.01. The district court first noted that unlike other provisions in Article 13 of Chapter 77
of the statutes, there is no provision by which a landowner or taxpayer can invoke the action of the
surveyor described in § 77-1306.01 or appeal from any determination made by the surveyor
pursuant to that section. The district court went on to review the plain language of the statute,
noting that the actions required of the county surveyors relating to rivers, streams, or other bodies
of water along or bordering state lines did not apply as the Appellants’ land was not along a river
on a boundary of the state lines but was entirely in Nebraska. For that reason, the district court
concluded that there was no duty owed by the Appellees under § 77-1306.01. Because no duty was
owed to the Appellants under that statute, the district court found the Appellants did not have
standing to assert the takings claim. The district court did not address the portion of the statute
relating to rivers, streams, or other bodies of water not along or bordering state lines.
Aside from any factual findings, the trial court’s ruling on subject matter jurisdiction is
reviewed de novo, because it presents a question of law. Valley Boys v. American Family Ins. Co.,
306 Neb. 928, 947 N.W.2d 856 (2020). See, also, Skyline Manor v. Rynard, 288 Neb. 602, 852
N.W.2d 303 (2014) (aside from factual findings, which are reviewed for clear error, granting of
motion to dismiss for lack of subject matter jurisdiction under § 6-1112(b)(1) is subject to de novo
review).
We find as a matter of law that the Appellants’ claim under § 77-1306.01 in the second
amended complaint sought relief for matters outside of the courts’ subject matter jurisdiction. The
Appellants have not cited to any other statute or case law, nor are we aware of any authority, that
indicates that this section provides a private claim for relief by a landowner to compel the county
to take the required actions or to indicate that failure to perform the duties provides a remedy to a
landowner for damages.
We further find as a matter of law that the Appellants’ operative complaint failed to state
a claim for relief for inverse condemnation. The Appellants do not allege that the Appellees took
their land for public use as required by § 76-705. The Appellants’ allegation that they were forced
to sell their property to a third party is not sufficient to satisfy the element of a taking, nor does the
allegation that the Appellees benefited from the failure to conduct a survey and adjust the tax rolls
amount to a taking for public use as plainly contemplated in the statute.
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CONCLUSION
The order of the district court affirming the county court’s order of dismissal is affirmed.
AFFIRMED.
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