- 600 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

Sanitary 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 improvements 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 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 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 plaintiff 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/13/2021 08:10 AM CDT
- 601 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

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.

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 property 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 creature, 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 subdivision of a state cannot hold private property for purposes of a takings 

claim against its own parent state. To the contrary, that property is ultimately 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.
- 602 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

John 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 sanitary 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 government. 2 Their primary function is to install and maintain 

public improvements such as streets, sewers, utility lines, and 

other improvements associated with residential and commercial 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).
- 603 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

For 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, residents 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 Transportation (NDOT), agreed with Sarpy County to jointly reconstruct 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 alternative 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 replacement, because it was indirect. SID 67 also claimed that the 
- 604 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

alternative 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 contrary, 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).
- 605 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

thereby 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 evidence 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 interest 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 pleadings 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 nonmoving 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).
- 606 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

conclusions couched as factual allegations or threadbare recitals of the elements of a cause of action supported by mere conclusory 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 during 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 considered 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 hearing 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.

13 Western Ethanol Co., supra note 10.

14 See id.
- 607 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

without 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 ownership of the roads should have been considered.

But that argument misapprehends the nature of a facial 

challenge. Jurisdiction was at issue, having been facially challenged 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 standing 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).
- 608 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

The 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 condemnation. 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 person 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.

19 See 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.
- 609 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

contrary 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 appellate 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 compensation. 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 persons for purposes of constitutional protection. For example, 

it is well settled in Nebraska that a county is not a “person” 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).
- 610 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

subdivision 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 statutes 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 authority 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.
- 611 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

The State therefore does not take private property within 

the meaning of U.S. Const. amend. V when it takes property from the county and is not required to compensate 

the county. 34

In view of this case law interpreting the constitutional provisions 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 condemned 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 condemnation 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).
- 612 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

real property. The number, nature and duration of the 

powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute 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 authorizing them to hold or manage such property, or exempting 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 withdraw 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, conditionally 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 corporations” [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).
- 613 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

that 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 concerning 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 necessarily 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 personal 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.
- 614 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

We 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 provide 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 governmental 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 condemnation 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.
- 615 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

SID NO. 67 v. STATE

Cite as 309 Neb. 600

in 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)).