Appeal from the District Court for Washington County, JOHN E. SAMSON, Judge, on appeal thereto from the County Court for Washington County, C. MATTHEW SAMUELSON, Judge.
Paul F. Peters for appellant.
Wm. Oliver Jenkins and Benjamin M. Belmont, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellees.
MOORE, PIRTLE, and RIEDMANN, Judges.
[22 Neb.App. 309] Moore, Judge.
In this condemnation proceeding, the Papio-Missouri River Natural Resources District (NRD) appeals from a decree of dismissal entered by the district court for Washington County. The district court concluded that the NRD failed to show that it made a reasonable attempt to induce John Camden and Mary Camden to accept its offer to acquire an easement, which attempt is a jurisdictional requirement to a condemnation proceeding. After our review of the record, we agree with the district court and affirm.
The NRD is the owner and operator of approximately 85 dams and 100 miles of levees. In 1983, the NRD constructed a dam, designated as " W-3," to heal an eroding gully and stabilize a stream in Washington County. This was a joint project with the National Resources Conservation Service of the U.S. Department of Agriculture (USDA) under the USDA's " Public Law 566" program. In April 1982, the owners of the land on which the dam was to be constructed granted [22 Neb.App. 310] the NRD an easement to allow the NRD to build, operate, and maintain the damsite. John's construction and excavation company was hired to construct this dam. The dam was initially constructed as a low-hazard dam with an expected lifespan of 50 years.
In November 1993, the Camdens purchased real property that included the damsite. While owner of this property, John constructed a number of features near the damsite which enabled him to harvest topsoil. According to John, he harvested this soil for over 20 years.
In approximately 2005, the Camdens learned that the NRD was considering rehabilitating the W-3 damsite. The Camdens were initially included in discussions with the NRD regarding the potential design of the site's structure. In 2008, following an environmental assessment, the NRD elected to upgrade the W-3 dam to a high-hazard dam. The NRD had an opportunity to receive federal stimulus funding for the rehabilitation of the dam, and the project was placed on " fast track" status to meet the federal deadlines.
Martin Cleveland, a construction engineer for the NRD, was the NRD representative responsible for acquiring the landrights needed for the dam upgrade. A public hearing was held in May 2009 during which the need for the project and the impact on associated landowners were discussed. John and his attorney attended and spoke at the hearing in opposition to the project. Following the hearing, legal descriptions were developed for the easements needed to complete the project and an appraisal of the impacted property was commissioned. The NRD sought to acquire a permanent easement around the
original easement area and a temporary easement for ingress and egress during construction. The area of the permanent easement sought totaled approximately 11.23 acres.
An appraisal of the impacted property was completed, and in the appraiser's summary report, dated May 28, 2009, he concluded that the value of the NRD's proposed permanent easement and temporary construction easement on the property was $67,350. On June 15, Cleveland sent a letter on behalf of the NRD to the Camdens that included a proposed purchase agreement and proposed easements. The NRD offered the [22 Neb.App. 311] Camdens $67,350 in exchange for the easements. Cleveland spoke with John by telephone sometime after the letter was sent, to ensure the Camdens had received the NRD's offer. During that conversation, John directed the NRD to send all future correspondence to the Camdens' attorney.
In early July 2009, Cleveland spoke with the Camdens' attorney and informed him that a revised purchase agreement and easement agreement would be sent. On July 30, Cleveland sent the Camdens' attorney a letter containing revised purchase and easement agreements. Cleveland's letter indicated the NRD had not adjusted the amount of its offer, but had clarified easement rights and corrected previous errors in the purchase agreement and easement documents. Cleveland testified that the NRD had lowered the elevation requirement for the flood pool, which lowering would allow the Camdens to use more of the permanent easement area for farming and other activities. The NRD requested a written response to the offer on or before August 10, 2009.
On August 4, 2009, the Camdens' attorney sent Cleveland a letter rejecting the NRD's offer. Through this letter, the Camdens communicated that their loss of land was valued at $750,000 because they would lose their ability to harvest soil. The Camdens also proposed an alternative that would mitigate their loss. This alternative, or counteroffer, consisted of the following five parts:
1. The present auxiliary/emergency spillway would remain to the North, but would be moved 100 feet to the South to enable access to [the Camdens'] proposed building site. The present alignment to stay as is to eliminate westerly dogleg on south end of structure. In addition, no dirt to be taken from Camden property to build the new structure.
2. The easement would set forth that the grantee would permanently maintain the conservation pool at the draw down elevation of 1,226 feet to allow Grantor to continue to harvest ...