76-711. Condemner; interest in property; deposit of awards; abandonment; appeal; interest; writ of assistance; removal of property; liability.

The condemner shall not acquire any interest in or right to possession of the property condemned until he or she has deposited with the court for the use of the condemnee the amount of the condemnation award in effect at the time the deposit is made. The condemner shall have sixty days from the date of the award of the appraisers to deposit with the court the amount of the award or the proceeding will be considered as abandoned. When the amount of the award is deposited with the court by the condemner, the condemner shall be deemed to have accepted the award unless he or she gives notice of appeal from the award of the appraisers pursuant to section 76-715. If the proceeding is abandoned, proceedings may not again be instituted by the condemner to condemn the property within two years from the date of abandonment.

If an appeal is taken from the award of the appraisers by the condemnee and the condemnee obtains a greater amount than that allowed by the appraisers, the condemnee shall be entitled to interest from the date of the deposit at the rate provided in section 45-104.02, as such rate may from time to time be adjusted, compounded annually, on the amount finally allowed, less interest at the same rate on the amount withdrawn or on the amount which the condemner offers to stipulate for withdrawal as provided by section 76-719.01. If an appeal is taken from the award of the appraisers by the condemner, the condemnee shall be entitled to interest from the date of deposit at the rate provided in section 45-104.02, as such rate may from time to time be adjusted, compounded annually, on the amount finally allowed, less interest at the same rate on the amount withdrawn or on the amount which the condemner offers to stipulate for withdrawal as agreed to by the condemnee as provided by section 76-719.01.

Upon deposit of the condemnation award with the court, the condemner shall be entitled to a writ of assistance to place him or her in possession of the property condemned and the condemnee shall be liable for diminution in the value of the property caused by the condemnee's purposeful removal of real or personal property not previously agreed to in writing by the condemner and condemnee from the condemned property.

Source

Annotations

1. Interest

2. Abandonment

3. Miscellaneous

1. Interest

A new statutory interest rate will apply to a condemnation award as of the effective date of the amendment implementing the new rate. Abboud v. Papio-Missouri River NRD, 253 Neb. 514, 571 N.W.2d 302 (1997).

In an appeal by a condemnee, if the condemnee obtains a greater amount than that allowed by the appraisers, the condemnee shall not be entitled to interest on the amount deposited in the county court which the condemner had offered to stipulate for withdrawal. The 1982 amendment to this section, which requires that the condemnee agree to the stipulation, is applicable only where the appeal is taken by the condemner. Iske v. Papio Nat. Resources Dist., 218 Neb. 39, 352 N.W.2d 172 (1984).

District court's allowance of interest held to be in compliance with this section. Harmony Lanes v. State, 193 Neb. 826, 229 N.W.2d 203 (1975).

Interest on award in eminent domain does not depend on pleading nor prayer for same. Thacker v. State, 193 Neb. 817, 229 N.W.2d 197 (1975).

When condemner has not made deposit nor entered into possession, the statute precludes payment of interest alleged to have accrued prior to entry of final judgment. Petersen v. School Dist. of Bellevue, 188 Neb. 354, 196 N.W.2d 510 (1972).

Condemnee is not entitled to interest on amount deposited with county judge after award has become final. Blecha v. School Dist. of Hebron, 173 Neb. 183, 112 N.W.2d 783 (1962).

Where a condemnee appeals from an appraisers' award to the district court and obtains an award greater than was awarded by the appraisers, the condemnee is entitled to interest pursuant to this section even if it is not requested in the prayer of the petition. Walter C. Diers Partnership v. State, 17 Neb. App. 561, 767 N.W.2d 113 (2009).

2. Abandonment

Where eminent domain proceeding was pending in which question of abandonment and its effect could be determined, action for declaratory judgment on claimed abandonment should have been dismissed. Zarybnicky v. County of Gage, 196 Neb. 210, 241 N.W.2d 834 (1976).

City may abandon eminent domain proceedings within sixty days from award of damages. Bowley v. City of Omaha, 181 Neb. 515, 149 N.W.2d 417 (1967).

3. Miscellaneous

"Which provision shall apply to all appeals by the condemner or condemnee pending on June 6, 1961," refers to section 76-719.01. Iske v. Papio Nat. Resources Dist., 218 Neb. 39, 352 N.W.2d 172 (1984).

An owner of land taken by the Department of Roads through eminent domain proceedings, who has been paid and has accepted the award of damages, cannot later attack the taking by a collateral action. Bishop v. Department of Roads, 205 Neb. 760, 290 N.W.2d 193 (1980).