70-667 Plants, systems, and works; construction or operation; works of internal improvement; laws applicable; eminent domain; procedure; when available.
70-667. Plants, systems, and works; construction or operation; works of internal improvement; laws applicable; eminent domain; procedure; when available.All power plants and systems, all hydrogen production, storage, or distribution systems, all ethanol production or distribution systems, and all irrigation works constructed, acquired, used, or operated by any district organized under or subject to Chapter 70, article 6, or proposed by such district to be so constructed, acquired, owned, used, or operated are hereby declared to be works of internal improvement. All laws applicable to works of internal improvement and all provisions of law applicable to electric light and power corporations, irrigation districts, or privately owned irrigation corporations, the use and occupation of state and other public lands and highways, the appropriation, acquisition, or use of water, water power, water rights, or water diversion or storage rights, for any of the purposes contemplated in such statutory provisions, the manner or method of construction and physical operation of power plants, systems, transmission lines, and irrigation works, as herein contemplated, shall be applicable, as nearly as may be, to all districts organized under or subject to Chapter 70, article 6, and in the performance of the duties conferred or imposed upon them under such statutory provisions. Such laws, provisions of law, or statutory provisions are hereby made applicable to all irrigation works and facilities operated by irrigation divisions of public power and irrigation districts organized under Chapter 70, article 6, and shall include, but not be limited to, the right of such district to exercise the powers conferred upon districts by Chapters 31 and 46, relating to operation, maintenance, rehabilitation, construction, reconstruction, repairs, extension, recharge for ground water, and surface and subsurface drainage projects and the assessment of the cost thereof to the lands benefited thereby. The right to exercise the power of eminent domain is conferred, except that this power may not be exercised for the purpose of condemning property for use by a privately operated ethanol production or distribution facility or a privately operated hydrogen production, storage, or distribution facility. The procedure to condemn property shall be exercised in the manner set forth in Chapter 76, article 7. SourceLaws 1933, c. 86, § 7, p. 349; Laws 1941, c. 138, § 1, p. 545; C.S.Supp.,1941, § 70-707; R.S.1943, § 70-667; Laws 1951, c. 101, § 106, p. 496; Laws 1971, LB 626, § 2; Laws 1973, LB 189, § 1; Laws 1981, LB 181, § 32; Laws 1986, LB 1230, § 49; Laws 2005, LB 139, § 17. Annotations1. Liability of district2. Measure of damages3. Miscellaneous1. Liability of districtLegislature is without power to make a grant in fee of, or an easement over, public school lands without compensation for the damage for such taking or use. State v. Platte Valley Public Power and Irrigation Dist., 143 Neb. 661, 10 N.W.2d 631 (1943).District is liable in damages for public school lands taken under condemnation proceedings for irrigation canal. State ex rel. Johnson v. Central Nebraska Public Power & Irrigation Dist., 143 Neb. 153, 8 N.W.2d 841 (1943).A public power district which, by constructing and maintaining a tailrace, destroys by drainage the subirrigation waters of lands of others, is liable for resulting damages. Luchsinger v. Loup River Public Power Dist., 140 Neb. 179, 299 N.W. 549 (1941).2. Measure of damagesWhere land is taken for temporary use only, measure of compensation is not the market value but what the property is fairly worth during the time which it is held. Pierce v. Platte Valley Public Power & Irr. Dist., 143 Neb. 898, 11 N.W.2d 813 (1943).The measure of damages recoverable by a landowner, whose land is permanently injured by seepage water, is the difference between the reasonable market value of the property before and after the injury plus the value of the crop injured in the field at the time of seepage, but shall not include compensation for loss of the use of the land for subsequent years caused by the same seepage. Heiden v. Loup River Public Power Dist., 139 Neb. 754, 298 N.W. 736 (1941).Where, in a condemnation proceeding, both parties adopt an incorrect theory as to the measure of damages and an instruction is given fairly reflecting that theory, it will be adhered to on appeal. Behle v. Loup River Public Power Dist., 138 Neb. 566, 293 N.W. 413 (1940).Damages recoverable in the condemnation by an irrigation district of land damaged by seepage from the irrigation reservoir are only those arising from the condemnation, and evidence as to the value of the land must be based upon its value in the condition in which it was at the time of the condemnation. In re Platte Valley Public Power & Irrigation Dist., 137 Neb. 313, 289 N.W. 383 (1939).Damages for injury to land due to seepage from an irrigation reservoir are not continuous in character but original and recoverable in one action; the measure of such damages is the difference in value of the land before and after the dam was erected, taking into consideration the uses to which the land was put and for which it was reasonably suited. Applegate v. Platte Valley Public Power & Irrigation Dist., 136 Neb. 280, 285 N.W. 585 (1939).3. MiscellaneousOmaha Public Power District subject to garnishment process to same extent as any electric and power company. Schreiner v. Irby Constr. Co., 184 Neb. 222, 166 N.W.2d 121 (1969).All the obligations imposed and rights declared under other specified statutes are preserved by this section. State ex rel. Dawson County Feed Products v. Omaha P. P. Dist., 174 Neb. 350, 118 N.W.2d 7 (1962).Provisions of general irrigation act are only incorporated so far as they are applicable. Halligan v. Elander, 147 Neb. 709, 25 N.W.2d 13 (1946).Legislature did not expressly restrict district in nature of title to be taken under eminent domain, but gave it power to take what was necessary for the public use for which the taking was authorized, up to and including the fee. Burnett v. Central Neb. P. P. & I. Dist., 147 Neb. 458, 23 N.W.2d 661 (1946).In condemning a right-of-way for an irrigation lateral, the benefit accruing to all irrigable land within the irrigation system's area of delivery by reason of the availability of water must be considered as a general benefit, and is not deductible from the consequential damages to land not taken. Prudential Insurance Company v. Central Nebraska Public Power & Irrigation Dist., 139 Neb. 114, 296 N.W. 752 (1941).Public power districts are governed as to their use and occupation of highways by the statutes relating to irrigation districts so far as they are applicable. Wright v. Loup River Public Power Dist., 133 Neb. 715, 277 N.W. 53 (1938).In exercising the power of eminent domain to obtain right-of-way over private property, a public power district is not restricted to condemnation along boundary lines. Johnson v. Platte Valley Public Power & Irrigation Dist., 133 Neb. 97, 274 N.W. 386 (1937).Power of eminent domain is expressly conferred. State ex rel. Loseke v. Fricke, 126 Neb. 736, 254 N.W. 409 (1934).