SID No. 67 v. State , 309 Neb. 600 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/16/2021 08:10 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
SID NO. 67 v. STATE
Cite as 309 Neb. 600Sanitary and Improvement District No. 67
of Sarpy County, Nebraska, appellant,
v. State of Nebraska Department
of Roads and Sarpy County,
Nebraska, appellees.
___ N.W.2d ___
Filed June 25, 2021. No. S-20-659.
1. Sanitary and Improvement Districts: Statutes. Formed according to
Nebraska statutes, sanitary and improvement districts are units of local
government.
2. Sanitary and Improvement Districts. The primary function of sanitary
and improvement districts is to install and maintain public improve-
ments such as streets, sewers, utility lines, and other improvements
associated with residential and commercial subdivisions.
3. Standing: Pleadings: Evidence: Words and Phrases. If a motion chal-
lenging standing is filed after the pleadings stage and the court holds an
evidentiary hearing and reviews evidence outside of the pleadings, the
motion is considered a factual challenge.
4. Standing: Evidence. The party opposing a factual challenge must offer
evidence to show its entitlement to bring the suit.
5. Standing: Pleadings: Evidence: Words and Phrases. If standing is
challenged at the pleadings stage, before an evidentiary hearing and
before any evidence outside of the pleadings is admitted, it is deemed a
facial challenge.
6. Standing: Pleadings. In considering a facial challenge, the trial court
will typically review only the pleadings to determine whether the plain-
tiff has therein alleged enough facts to establish standing.
7. Parties: Statutes. Neb. Rev. Stat. § 25-301 (Reissue 2016) requires that
subject to certain statutory exceptions, every action shall be prosecuted
in the name of the real party in interest.
8. Actions: Parties. The purpose of the requirement in Neb. Rev. Stat.
§ 25-301 (Reissue 2016) is to ensure that actions are prosecuted only
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SID NO. 67 v. STATE
Cite as 309 Neb. 600by persons who have some real interest in the cause of action or a legal
or equitable right, title, or interest in the subject matter of controversy.
9. Parties. A real party in interest is one who, under the substantive law,
has a claim to the relief sought. In this way, real party in interest is a
procedural requirement that turns on the substantive law of the claim.
10. Eminent Domain: Words and Phrases. Inverse condemnation is a
common shorthand for a landowner’s suit to recover the value of prop-
erty that has been taken or damaged by the State without the benefit of
condemnation proceedings.
11. Constitutional Law: Eminent Domain. The substantive law in an
inverse condemnation action derives from provisions in the U.S. and
Nebraska Constitutions, which temper the State’s inherent power to take
private property.
12. Judgments: Appeal and Error. An appellate court is not prevented
from affirming the judgment of a district court on different grounds.
13. Counties: Property. A county is not a person having private property.
14. Sanitary and Improvement Districts: Legislature: Political
Subdivisions. A sanitary and improvement district is a legislative crea-
ture, a political subdivision of the State of Nebraska.
15. Sanitary and Improvement Districts: Property: Statutes. Once
formed, a sanitary and improvement district has no inherent authority to
hold an interest in property; it, unlike a person, can exercise only those
powers expressly granted to it by statute or necessarily implied to carry
out its expressed powers.
16. Sanitary and Improvement Districts: Property. A sanitary and
improvement district is not capable of holding private property.
17. Sanitary and Improvement Districts: Property: Statutes. A sanitary
and improvement district is granted the power by statute to take and
hold real and personal property for a limited purpose.
18. Political Subdivisions: Eminent Domain: Legislature. A political sub-
division of a state cannot hold private property for purposes of a takings
claim against its own parent state. To the contrary, that property is ulti-
mately the sovereign state’s, held by the political subdivision pursuant
to the grace of the Legislature.
Appeal from the District Court for Sarpy County: Nathan
B. Cox, Judge. Affirmed.
Dean J. Jungers, of Hascall, Jungers & Garvey, for appellant.
Douglas J. Peterson, Attorney General, and Matthew F.
Gaffey for appellee Nebraska Department of Roads.
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309 Nebraska Reports
SID NO. 67 v. STATE
Cite as 309 Neb. 600John W. Reisz, Deputy Sarpy County Attorney, for appellee
Sarpy County.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
This is an inverse condemnation action, brought by a sani-
tary and improvement district (SID) seeking compensation
from the State. The district court dismissed the action on the
pleadings, finding the SID lacked standing.
We agree. The SID is a political subdivision of the State,
created by and subject to the State. As such, it is not a “person”
having “private property” and is thus incapable of bringing an
inverse condemnation action against the State. We affirm.
BACKGROUND
[1,2] The appellant in this case is Sanitary and Improvement
District No. 67 of Sarpy County, Nebraska (SID 67). Formed
according to Nebraska statutes, 1 SID’s are units of local gov-
ernment. 2 Their primary function is to install and maintain
public improvements such as streets, sewers, utility lines, and
other improvements associated with residential and commer-
cial subdivisions. 3
SID 67 serves Normandy Hills, a subdivision of more
than 340 residences and several commercial properties near
Bellevue, Nebraska. According to SID 67, it has maintained
the “streets and roads” in the subdivision using funds raised
“through the use of bonded indebtedness and general levy of
taxes.” Normandy Hills is located just east of Highway 75.
1
See Neb. Rev. Stat. § 31-727 et seq. (Reissue 2016).
2
See SID No. 1 v. Adamy, 289 Neb. 913, 858 N.W.2d 168 (2015).
3
See, id.; Hollstein v. First Nat. Bank of Aurora, 231 Neb. 711, 437 N.W.2d
512 (1989).
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SID NO. 67 v. STATE
Cite as 309 Neb. 600For much of the subdivision’s history, Normandy Hills’
roads provided residents easy access to Highway 75 via either
of two routes. From the subdivision’s northwest corner, resi-
dents could travel about 500 feet west along Grenoble Drive
to reach the highway. Alternatively, residents could enter the
highway from the subdivision’s southwest corner by driving
some 500 feet west along Normandy Boulevard. Both routes
connected by direct intersections to Highway 75.
But in 2003 and 2004, the State of Nebraska Department
of Roads, now known as the Nebraska Department of Trans­
portation (NDOT), agreed with Sarpy County to jointly recon-
struct Highway 75. To do so, they blocked the two previous
access routes between the subdivision and Highway 75 and
instead rerouted such access via an alternative route.
Rather than leading directly west to Highway 75, the alter-
native route detoured north. Grenoble Drive was blocked near
the highway’s shoulder, and drivers were rerouted north along
South Fort Crook Road, a frontage road that ran parallel with
the highway. From South Fort Crook Road, drivers could turn
west onto Fairview Road, which ultimately connected with
Highway 75.
In a petition for compensation in the county court for
Sarpy County, SID 67 claimed this rerouting had effected a
“tak[ing] or damag[ing]” of its property. SID 67 alleged it
was “the owner of the streets and roads located within the
[SID] by reason of the dedication set forth in the plat of
Normandy Hills, recorded October 18, 1972 at Book 5 of the
Plat Records of Sarpy County Register of Deeds, at Page 82.”
The alleged dedication instrument, however, was not attached
to SID 67’s petition.
Although acknowledging the alternative route still afforded
highway access from its streets and roads, SID 67 alleged it had
been damaged by NDOT and Sarpy County’s “terminat[ion]”
of the two previously direct access routes. According to
SID 67, the alternative route was an insufficient replace-
ment, because it was indirect. SID 67 also claimed that the
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SID NO. 67 v. STATE
Cite as 309 Neb. 600alternative route failed to comply with Bellevue’s fire code
and that its sharp turns and steep grade altogether prevented
certain vehicles’ passage, particularly during severe weather or
congested traffic.
As a result of the rerouting, SID 67 asserted that it would
be forced to acquire right of way and construct a new fire
apparatus access road to serve the residents of the District,
as well as reconstruct the intersection and approach at
Grenoble Drive and the new access road to better serve
the residents of the District and make the flow of traffic at
said intersection passable during inclement weather.
The county court appointed three appraisers to assess the
value of SID 67’s damages, if any. However, after considering
the evidence at a hearing, the appraisers issued a final report
concluding “[SID 67’s] damages suffered by reason of the
taking of the access to the property described in the Petition,
including interest, total $0.00.”
SID 67 next sought review in the district court for Sarpy
County. There, SID 67 again alleged inverse condemnation.
NDOT and Sarpy County moved to dismiss, alleging lack of
standing and failure to state a claim upon which relief can
be granted. 4
The district court dismissed the action on the pleadings for
lack of standing. According to the district court, SID 67 was
not the real party in interest, because its pleadings had alleged
neither that “[its] property ha[d] been taken” nor that it “[wa]s
an ‘abutting landowner’” to highway accesses that had been
blocked. Contrary to SID 67’s claim that it owned the streets
and roads within Normandy Hills as the result of a dedication,
the district court found:
The October 18, 1972 dedication . . . did not grant SID
67 an ownership interest in this property; quite the con-
trary, it divested SID 67 from any ownership interest it
may have had and transferred ownership to the public[,]
4
See Neb. Ct. R. Pldg. § 6-1112(b)(1) and (6).
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SID NO. 67 v. STATE
Cite as 309 Neb. 600thereby converting the private roads constructed by SID
67 into public roads.
Thus, despite observing that the motions had equally alleged
failure to state a claim, the district court concluded it needed
only to rely on lack of standing to determine that dismissal
was appropriate.
After the action was dismissed, SID 67 appealed. We
removed the case to our docket on our own motion.
ASSIGNMENTS OF ERROR
SID 67 assigns five errors, which we consolidate and restate
as two: The district court erred in (1) declining to admit evi-
dence offered in opposition to dismissal and (2) dismissing the
action on the pleadings for want of the real party in interest.
STANDARD OF REVIEW
The question of whether a plaintiff is the real party in inter-
est and therefore has standing is a question of the court’s
subject matter jurisdiction. 5 Accordingly, either a litigant or
the court can raise standing at any time, including on appeal. 6
The plaintiff bears the burden to establish standing to bring
the suit. 7
A district court’s grant of a motion to dismiss on the plead-
ings is reviewed de novo by an appellate court, accepting the
factual allegations in the complaint as true and drawing all
reasonable inferences of law and fact in favor of the nonmov-
ing party. 8 However, an appellate court reviewing a dismissal
on the pleadings is not obliged to accept as true legal
5
See Equestrian Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953
N.W.2d 16 (2021).
6
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435(2018).
7
See id.
8
See, Ryan v. Streck, Inc., ante p. 98, 958 N.W.2d 703 (2021); Schaeffer v.
Frakes, 306 Neb. 904, 947 N.W.2d 714 (2020).
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Cite as 309 Neb. 600conclusions couched as factual allegations or threadbare recit-
als of the elements of a cause of action supported by mere con-
clusory statements. 9
ANALYSIS
We agree with the district court that the real party in interest
doctrine is dispositive in this case. However, before we discuss
that issue, we must first characterize the stage of litigation dur-
ing which standing was challenged, for that affects whether
evidence should have been allowable. 10
Facial, Not Factual, Challenge
[3-6] If a motion challenging standing is filed after the
pleadings stage and the court holds an evidentiary hearing and
reviews evidence outside of the pleadings, the motion is con-
sidered a “factual challenge.” 11 The party opposing a factual
challenge must offer evidence to show its entitlement to bring
the suit. 12 But if standing is challenged at the pleadings stage,
before an evidentiary hearing and before any evidence outside
of the pleadings is admitted, it is deemed a “facial challenge.” 13
In considering a facial challenge, the trial court will typically
review only the pleadings to determine whether the plaintiff
has therein alleged enough facts to establish standing. 14
Here, NDOT’s and Sarpy County’s motions to dismiss were
filed at the pleadings stage of litigation. No evidentiary hear-
ing was held; nor was evidence admitted. The district court
then dismissed the action for lack of standing, apparently
9
See Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).
10
See Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938
N.W.2d 329 (2020).
11
Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856(2020).
12
Id.
13Western Ethanol Co., supra note 10.
14
See id.
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SID NO. 67 v. STATE
Cite as 309 Neb. 600without consulting evidence outside of the pleadings. It
acknowledged considering only the “[p]etition and [a]ppeal”
for purposes of its order. The motions were thus treated as
presenting a facial challenge, and as the party opposing the
challenge, SID 67 had no entitlement to offer evidence in
its defense.
SID 67 argues that ownership of the roads in Normandy
Hills was at issue and that this involved “a question of fact
which required the court to consider the case as a motion for
summary judgment rather than a motion on jurisdiction.” 15
SID 67 thus insists that the plat allegedly showing its owner-
ship of the roads should have been considered.
But that argument misapprehends the nature of a facial
challenge. Jurisdiction was at issue, having been facially chal-
lenged by NDOT’s and Sarpy County’s motions to dismiss. To
prevail against that facial challenge, it was SID 67’s burden to
allege adequate facts in its pleadings showing that it had stand-
ing to bring the suit. And in assessing whether SID 67 had
met that burden, the district court was not required to consider
evidence outside of the pleadings. SID 67’s first assignment of
error is accordingly without merit.
Want of Real Party in Interest
Having characterized the stage of litigation below and
determined that SID 67’s first assignment of error is without
merit, we turn next to SID 67’s second assignment of error.
SID 67 assigns that the district court erred in finding that it
lacked standing because it was not the real party in interest to
this action.
[7-9] Neb. Rev. Stat. § 25-301 (Reissue 2016) requires that
subject to certain statutory exceptions, 16 “[e]very action shall
be prosecuted in the name of the real party in interest . . . .”
15
Brief for appellant at 19.
16
See Neb. Rev. Stat. § 25-304 (Reissue 2016) (listing exceptions).
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SID NO. 67 v. STATE
Cite as 309 Neb. 600The purpose of that requirement is to ensure that actions are
prosecuted only by persons who have some real interest in the
cause of action or a legal or equitable right, title, or interest in
the subject matter of controversy. 17 A real party in interest is
one who, under the substantive law, has a claim to the relief
sought. 18 In this way, real party in interest is a procedural
requirement that turns on the substantive law of the claim. 19
[10,11] In its claim, SID 67 sought relief via inverse con-
demnation. Inverse condemnation is a common shorthand for
a landowner’s suit to recover the value of property that has
been taken or damaged by the State without the benefit of
condemnation proceedings. 20 The substantive law in an inverse
condemnation action derives from provisions in the U.S. and
Nebraska Constitutions, 21 which temper the State’s inherent
power to take private property. 22
Under Neb. Const. art. I, § 21, “[t]he property of no per-
son shall be taken or damaged for public use without just
compensation therefor.” And the 5th Amendment to the U.S.
Constitution, as applied to the states by the 14th Amendment,
similarly requires the State to pay “just compensation” when it
takes “private property . . . for public use.” 23
[12] Applying the real party in interest doctrine to this
case, the district court dismissed this action upon finding that
17
See Valley Boys, supra note 11.
18
See id.
19See John P. Lenich, Nebraska Civil Procedure § 6:2 (2021).
20
See, Knick v. Tp. of Scott, Pennsylvania, ___ U.S. ___, 139 S. Ct. 2162,
204 L. Ed. 2d 558 (2019); Russell v. Franklin County, 306 Neb. 546, 946
N.W.2d 648 (2020).
21
See, Russell, supra note 20; Cappel v. State, 298 Neb. 445, 905 N.W.2d 38(2017).
22
See, Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017); Thompson
v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015).
23
See Knick, supra note 20.
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SID NO. 67 v. STATE
Cite as 309 Neb. 600contrary to SID 67’s allegations in the pleadings, a dedication
instrument could not have conveyed to it ownership of the
roads at issue. While we agree that dismissal was appropriate,
we reach that conclusion on our de novo review by slightly
different reasoning than the district court, because an appel-
late court is not prevented from affirming the judgment of
a district court on different grounds. 24 We rest our decision
on the argument stated in NDOT’s brief that “SID 67 is not
a ‘person’ for purposes of making an inverse condemnation
claim . . . .” 25
Neb. Const. art. I, § 21, protects only the property of a
“person” from being taken or damaged without just compensa-
tion. Similarly, the U.S. Constitution limits its requirement of
just compensation to a state’s taking of “private” property for
public use. 26 Citing these constitutional provisions and alleging
that SID 67 is not a “person” capable of owning the property at
issue in a “private” capacity, NDOT insists that SID 67 is not
the real party in interest to this inverse condemnation action.
We agree.
We have long held that not all entities qualify as legal per-
sons for purposes of constitutional protection. For example,
it is well settled in Nebraska that a county is not a “per-
son” entitled to the guarantee of due process. 27 Explaining
why, we stated that “[a] county, as a creature and political
24
See Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
25
Brief for appellee NDOT at 17.
26
See U.S. Const. amends. V and XIV.
27
See, e.g., In re Claim of Roberts for Attorney Fees, 307 Neb. 346, 949
N.W.2d 299 (2020); White v. White, 293 Neb. 439, 884 N.W.2d 1 (2016);
Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152, 794 N.W.2d
685 (2011); City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638
N.W.2d 839 (2002); Rock Cty. v. Spire, 235 Neb. 434, 455 N.W.2d 763(1990); Saunders Cty. v. Metropolitan Utilities Dist.-A, 11 Neb. App. 138,
645 N.W.2d 805 (2002); Dodge Cty. Bd. v. Nebraska Tax Equal. & Rev.
Comm., 10 Neb. App. 927, 639 N.W.2d 683 (2002).
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Cite as 309 Neb. 600subdivision of the State, is neither a natural nor an artificial
person.” 28 We held the same was true of a school district. 29 And
other jurisdictions have applied the same reasoning to hold
that states, 30 cities, 31 and various other political subdivisions 32
are generally not persons under their respective constitutions’
similarly worded due process clauses.
Our case law has also extended that reasoning from the due
process context to the context at issue here. In Rock Cty. v.
Spire, 33 a county alleged that the Legislature, by enacting stat-
utes requiring the county’s furniture and office equipment to be
transferred to a state agency, had effected a taking of county
property for which compensation was required.
We rejected the county’s argument, stating:
Because, as we have established [for purposes of due
process], the county is not a person, it is not within the
protections afforded by Neb. Const. art. I, § 21. Neither
may the county claim compensation under the federal
Constitution. Under Nebraska law a county lacks author-
ity to hold property in a proprietary capacity and may
hold only property which is dedicated to a public use. . . .
28
White, supra note 27, 293 Neb. at 444, 884 N.W.2d at 6. Accord, Schropp
Indus., supra note 27; City of Lincoln, supra note 27.
29
See Loup City Pub. Sch. v. Nebraska Dept. of Rev., 252 Neb. 387, 562
N.W.2d 551 (1997).
30
See, South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed.
2d 769 (1966); South Dakota v. U.S. Dept. of Interior, 665 F.3d 986 (8th
Cir. 2012).
31
See, State v. City of Birmingham, 299 So. 3d 220 (Ala. 2019); Board Educ.
St. Louis v. Missouri Bd. Educ., 271 S.W.3d 1 (Mo. 2008); City of Cave
Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001); Morial
v. Smith & Wesson Corp., 785 So. 2d 1 (La. 2001). Cf. City of Newark v.
State of New Jersey, 262 U.S. 192, 43 S. Ct. 539, 67 L. Ed. 943 (1923).
32
See, Lakehaven Water and Sewer v. City of Fed., 195 Wash. 2d 742, 466
P.3d 213 (2020); State, Dept. of Game v. Troy Township, 900 N.W.2d 840(S.D. 2017).
33
Rock Cty., supra note 27.
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Cite as 309 Neb. 600The State therefore does not take private property within
the meaning of U.S. Const. amend. V when it takes prop-
erty from the county and is not required to compensate
the county. 34
In view of this case law interpreting the constitutional pro-
visions at issue, we next consider whether the type of entity
at issue here is entitled to takings protections. We acknowledge
that we have previously recognized that some public entities
can qualify as condemnees under the eminent domain statutes,
at least in the limited context of their holding tax liens on con-
demned private property. 35 If SID 67 is to be considered a real
party in interest in this action, it must show that it, unlike a
county, 36 is a “person” having “private property.”
But we find that argument foreclosed by our decision in
S.I.D. No. 95 v. City of Omaha. 37 There, the SID, on behalf
of itself and its member landowners, challenged the city’s
annexation of land within the SID’s district. The SID had
raised various constitutional arguments, including a claim for
inverse condemnation.
We rejected the SID’s arguments, including its inverse con-
demnation claim. Quoting from a line of cases that dealt with
the rights of municipal corporations in relation to the State,
we reasoned:
“‘Municipal corporations are political subdivisions of
the State, created as convenient agencies for exercising
such of the governmental powers of the State as may be
entrusted to them. For the purpose of executing these
powers properly and efficiently they usually are given
the power to acquire, hold, and manage personal and
34
Id. at 449, 455 N.W.2d at 772.
35
See, City of Waverly v. Hedrick, 283 Neb. 464, 810 N.W.2d 706 (2012);
State v. Missouri P. R. Co., 75 Neb. 4, 105 N.W. 983 (1905).
36
See Rock Cty., supra note 27.
37
S.I.D. No. 95 v. City of Omaha, 221 Neb. 272, 376 N.W.2d 767 (1985).
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Cite as 309 Neb. 600real property. The number, nature and duration of the
powers conferred upon these corporations and the terri-
tory over which they shall be exercised rests in the abso-
lute discretion of the State. Neither their charters, nor any
law conferring governmental powers, or vesting in them
property to be used for governmental purposes, or autho-
rizing them to hold or manage such property, or exempt-
ing them from taxation upon it, constitutes a contract with
the State within the meaning of the Federal Constitution.
The State, therefore, at its pleasure may modify or with-
draw all such powers, may take without compensation
such property, hold it itself, or vest it in other agencies,
expand or contract the territorial area, unite the whole or
a part of it with another municipality, repeal the charter
and destroy the corporation. All this may be done, con-
ditionally or unconditionally, with or without the consent
of the citizens, or even against their protest. In all these
respects the State is supreme, and its legislative body,
conforming its action to the state constitution, may do as
it will, unrestrained by any provision of the Constitution
of the United States.’” 38
Then, despite acknowledging that the above language
referred only expressly to “municipal corporations,” we held:
We know of no rule of law which would make this
rule any different as applied to [an SID], which is another
form of political subdivision. By inserting “sanitary and
improvement districts” in place of “municipal corpo-
rations” [above], we have a correct statement of the
law which is dispositive of this issue. We are unable
to find any basis to support the claim of S.I.D. No. 95
38
Id. at 279-80, 376 N.W.2d at 772 (emphasis supplied) (quoting City of
Millard v. City of Omaha, 185 Neb. 617, 177 N.W.2d 576 (1970)). Accord,
Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151(1907); Campbell v. City of Lincoln, 182 Neb. 459, 155 N.W.2d 444(1968).
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Cite as 309 Neb. 600that the enactment of the [city’s annexation] ordinance
violated the constitutional rights of either the district itself
or any of its residents. 39
[13-15] We believe that the above statement of law con-
cerning municipal corporations is also dispositive in this case.
Under Rock Cty., 40 a county is not a “person” having “private
property.” And like a county, the SID “is a legislative creature,
a political subdivision of the State of Nebraska.” 41 Statutes
prescribe the SID’s formation as “a public corporation of this
state.” 42 Once formed, the SID has no inherent authority to
hold an interest in property; it, unlike a “person,” can exercise
only those powers expressly granted to it by statute or neces-
sarily implied to carry out its expressed powers. 43
[16,17] Nor does the SID hold “private property.” 44 The SID
is granted the power by statute “to take and hold real and per-
sonal property necessary for its use.” 45 But any exercise of that
power is plainly limited to being a product of the SID’s public
function. 46 And the Legislature could just as easily retract that
power or discontinue the SID’s existence altogether. 47 As we
stated above, so too could the Legislature “‘“at its pleasure
. . . take without compensation such property”’” as it has
allowed the SID to hold. 48
39
S.I.D. No. 95, supra note 37, 221 Neb. at 280, 376 N.W.2d at 772-73.
40
See Rock Cty., supra note 27.
41
SID No. 1, supra note 2, 289 Neb. at 922, 858 N.W.2d at 176. Accord
Rexroad, Inc. v. S.I.D. No. 66, 222 Neb. 618, 386 N.W.2d 433 (1986).
42
Neb. Rev. Stat. § 31-730 (Reissue 2016).
43
Cf. Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).
44
See U.S. Const. amends. V and XIV.
45
Neb. Rev. Stat. § 31-732 (Reissue 2016).
46
S.I.D. No. 95, supra note 37.
47
Id.
48
Id. at 280, 376 N.W.2d at 772. Accord, Hunter, supra note 38; City of
Millard, supra note 38; Campbell, supra note 38.
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Cite as 309 Neb. 600We note that this relationship between SID’s and the
State distinguishes this case from that line of cases in which
courts have recognized that the federal government must pro-
vide compensation for its taking of a state’s property. As the
U.S. Supreme Court recognized in United States v. 50 Acres of
Land, 49 due to the status of state and federal governments as
separate sovereigns, a state can indeed hold “private property”
independently of the federal government. When the federal
government takes that property, it must pay compensation.
[18] Yet, the U.S. Supreme Court has also recognized that
the takings clause under the U.S. Constitution does not apply
when a sovereign state transfers public property from one gov-
ernmental use to another, both uses a function of that state’s
sovereignty. 50 As several other jurisdictions have already held,
by this reasoning, a political subdivision of a state cannot hold
“private property” for purposes of a takings claim against its
own parent state. 51 To the contrary, that property is ultimately
the sovereign state’s, held by the political subdivision pursuant
to “the grace of the [Legislature].” 52
We thus conclude that because SID 67 is not a “person”
having “private property,” it is not the real party in interest
and therefore lacks standing to bring this inverse condemna-
tion action. For this reason alone, the district court was correct
49
United States v. 50 Acres of Land, 469 U.S. 24, 105 S. Ct. 451, 83 L. Ed.
2d 376 (1984).
50
See United States v. Carmack, 329 U.S. 230, 67 S. Ct. 252, 91 L. Ed. 209(1946). See, also, Risty v. Chicago, R. I. & Pac. Ry. Co., 270 U.S. 378,
390, 46 S. Ct. 236, 70 L. Ed. 641 (1926) (“[t]he power of the State and its
agencies over municipal corporations within its territory is not restrained
by the provisions of the Fourteenth Amendment”).
51
See, e.g., Georgetown County v. Davis & Floyd, Inc., 426 S.C. 52, 824
S.E.2d 471 (S.C. App. 2019); Bd. of Water Works v. Board of Supervisors,
890 N.W.2d 50 (Iowa 2017); St. Louis Sewer Dist v. Bellefontaine Nbrs.,
476 S.W.3d 913 (Mo. 2016) (en banc).
52
Bd. of Water Works, supra note 51, 890 N.W.2d at 69. Accord S.I.D. No.
95, supra note 37.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
SID NO. 67 v. STATE
Cite as 309 Neb. 600in dismissing SID 67’s action on the pleadings. We need not
further consider the merits of SID 67’s claim. 53
CONCLUSION
On our de novo review, we agree with the district court’s
decision to dismiss this case on the pleadings. Since SID 67
is not a “person” having “private property,” it cannot bring an
inverse condemnation action against the State. Dismissal was
thus appropriate.
We affirm the judgment of the district court for Sarpy
County.
Affirmed.
Miller-Lerman, J., participating on briefs.
53
See Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161, 168, 745
N.W.2d 317, 322 (2008) (“‘when a motion to dismiss raises both rule
12(b)(1) [subject matter jurisdiction] and [rule 12(b)](6) grounds, the court
should consider the rule 12(b)(1) grounds first and should then consider
the rule 12(b)(6) grounds only if it determines that it has subject matter
jurisdiction’”) (quoting Anderson v. Wells Fargo Fin. Accept., 269 Neb.
595, 694 N.W.2d 625 (2005)).