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A Public Power District May Enter Property to Conduct a Survey Prior to Condemnation

on Friday, 2 September 2016 in Dirt Alert: David C. Levy, Editor

Brush Creek Ranch, LLC v. Neb. Pub. Power Dist., Case No. CI16-2 (Dist. Ct. Thomas County 2016).

Brush Creek Ranch, LLC (the “Ranch”) owned property in Thomas County along the 225-mile route for the Nebraska Public Power District’s (“NPPD”) R-Project, a 345,000 volt transmission line connecting the Gerald Gentleman Station near Sutherland to substations in Thedford and Holt County.

Nebraska law authorized NPPD to condemn property for the construction and operation of transmission lines, including the R-Project. Neb. Rev. Stat. § 70-301. NPPD may condemn property in the same manner as railroad corporations for the construction of railroads. The statute then refers to the statutory process for filing a petition to condemn and the subsequent procedural process for assessing damages, found at sections 76-704 to 76-724. However, the statute does not refer to section 76-702, which allows a condemner to “enter upon any land for the purpose of examining and surveying same in contemplation of bringing or during the pendency of condemnation proceedings.”

NPPD representatives attempted to enter the Ranch’s property to conduct surveys for the R-Project, but the Ranch denied NPPD entry. NPPD then entered the property without permission and conducted surveys.

The Ranch sued, seeking a declaration that NPPD had no authority to survey the Ranch property under section 76-702, or alternatively that section 76-702 was unconstitutional. The Ranch also sought an order limiting the manner in which NPPD conducted survey efforts, and compensation for the alleged taking of property that occurred when NPPD surveyed the Ranch without permission. NPPD moved for partial summary judgment and a preliminary injunction prohibiting the Ranch from denying NPPD access to the property.

The Thomas County District Court held the Nebraska Supreme Court’s holding in Burlington Northern Santa Fe Railroad Co. v. Chaulk, 262 Neb. 235 (2001) (“Burlington”) controlled NPPD’s authority to survey the Ranch because NPPD’s statutory authority is tied to the manner in which railroad corporations exercise their authority to condemn. The Burlington Court expressly permitted a railroad corporation to enter onto property and conduct surveys in accordance with section 76-702.

The Thomas County District Court also held section 76-702 was constitutional because it did not limit or otherwise preclude the Ranch from seeking compensation for damages from NPPD’s survey activities in an action for tort, inverse condemnation, or under Article I, section 21 of the Nebraska Constitution. The Court refused to impose judicial oversight on NPPD’s subsequent survey activities on the Ranch.

The Court granted NPPD’s motions for a preliminary injunction and partial summary judgment, subject to NPPD posting a $10,000 bond to cover damages to the Ranch from the survey activities. The Court also allowed the Ranch to seek compensation for any damages to its real and personal property from NPPD’s survey and construction activities at trial.

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