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one element of a cause of action for breach of fiduciary duty, 

there is nothing inconsistent in the trial court’s findings.

VI. CONCLUSION

We conclude that the trial court did not err in finding that 

the property was sold at or near fair market value and that 

therefore, the appellants suffered no damages. Additionally, the 

court did not err in discounting the offer from BDG; nor was it 

error for the court to decline to impose any equitable remedies. 

Although we find no abuse of discretion in denying each party 

attorney fees after trial, we vacate the orders granting interim 

attorney fees and remand the matter to the trial court for a 

determination of whether justice and equity require the trust to 

bear these costs.

 Affirmed in part, and in part vacated

and remanded with directions.

John Camden and Mary Camden, appellees, 

v. Papio-Missouri River Natural

Resources District, appellant.

___ N.W.2d ___

Filed August 26, 2014. Nos. A-13-266 through A-13-268.

1. Eminent Domain: Appeal and Error. An appeal from the district court’s determination that good faith negotiations occurred prior to the filing of a condemnation petition presents a mixed question of law and fact.

2. Eminent Domain: Jurisdiction. Statutory provisions requiring good faith 

attempts to agree prior to institution of condemnation proceedings are jurisdictional, and objection based on the failure of the record to show that the parties 

cannot agree may be raised at any time by direct attack.

3. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of 

law, which an appellate court resolves independently of the trial court.

4. Actions: Eminent Domain: Courts. Pursuant to Neb. Rev. Stat. § 76-704 

(Reissue 2009), if any condemnee fails to agree with the condemnor with respect 

to the acquisition of property sought by the condemnor, a petition to condemn the 

property may be filed by the condemnor in the county court of the county where 

the property or some part thereof is situated.

5. Eminent Domain. In order to satisfy Neb. Rev. Stat. § 76-704.01(6) (Reissue 

2009), there must be a good faith attempt to agree, consisting of an offer made in 

good faith and a reasonable effort to induce the owner to accept it.
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6. Words and Phrases. Good faith is a state of mind consisting of honesty in belief 

or purpose and the absence of intent to defraud.

7. Eminent Domain. Extended negotiations are not required if the condemnor and 

condemnee cannot reach an agreement.

8. Eminent Domain: Jurisdiction. The statutory requirement that a condemnor 

make a good faith offer and reasonably attempt to induce settlement is mandatory 

and jurisdictional.

9. Eminent Domain: Proof: Records. A condemnor’s unsuccessful attempt to 

reach an agreement with the condemnee must be alleged and proved in the condemnation proceedings and must appear on the face of the record.

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. Judgment 

of District Court affirmed.

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.

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.

FACTUAL BACKGROUND

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 
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310 22 NEBRASKA APPELLATE REPORTS

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 
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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 the silt dirt as will be designated on 

the plans.

3. Camden Excavating would supply the dirt for this 

project at its fair market value; in addition, Camden 
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312 22 NEBRASKA APPELLATE REPORTS

Excavating would not be disqualified from bidding or 

constructing this project.

4. The Camdens would receive $150,000.00 in compensation for this permanent easement, plus $5,000.00 in 

attorney fees.

5. Any damages sustained to the crops on the land 

would be directly reimbursed to the individual renting 

the land.

The Camdens’ attorney requested that Cleveland contact him if 

he wanted to meet to review the Camdens’ response.

On August 6, 2009, Cleveland responded to the Camdens’ 

counteroffer with another letter. Cleveland notified the 

Camdens that their counteroffer would be presented to the 

NRD’s board of directors (the Board) at the upcoming meeting 

on August 13 and invited the Camdens to make a presentation during that meeting. However, Cleveland also informed 

the Camdens that NRD management was not recommending 

that the Board accept the counteroffer. Specifically, Cleveland 

noted that NRD management viewed the counteroffer as “being 

unreasonable and/or disruptive of the project, and irrelevant to 

the real issue of the amount of the diminution in the fair market 

value of [the Camdens’] property resulting from acquisition of 

the easements.”

At the August 13, 2009, meeting, John was allowed to 

briefly speak in front of the Board before being told to sit 

down. One of the Board members testified that the Camdens’ 

proposal document was not physically presented at the subsequent closed session of the meeting. Nor, he testifed, was 

the Camdens’ counteroffer completely explained to the Board; 

instead, NRD management only informed the Board that the 

Camdens “gave a frivolous offer.” At the conclusion of the 

meeting, the Board adopted the condemnation resolution. No 

actual response to the Camdens’ counteroffer was given by the 

NRD, and no further effort was made to negotiate an agreement with the Camdens prior to commencement of the condemnation proceedings.

The NRD filed a “Petition for Appointment of Appraisers” 

on August 14, 2009. On September 19, the report of the 

appraisers was filed in the county court and the Camdens were 
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awarded a total of $113,416. The Camdens appealed that award 

to the district court.

On October 13, 2009, the NRD filed a “Petition for 

Appointment of Appraisers for Corrected Easement” because 

an error was discovered in the legal description of the temporary ingress and egress easement. The Camdens were awarded 

an additional $600 for the corrected easement. That award was 

also appealed to the district court.

On February 16, 2010, after another error was discovered, the NRD filed a second “Petition for Appointment of 

Appraisers for Corrected Easement.” That petition sought to 

correct the description of the temporary ingress and egress 

easement. Once again, the Camdens were awarded $600 in 

damages. That award, which was in addition to the above $600 

award, was also appealed to the district court.

In their petitions on appeal to the district court, the Camdens 

raised a number of claims which they argued should invalidate 

the NRD’s condemnation proceedings. Among these claims 

was that the NRD did not negotiate in good faith prior to initiating the condemnation process. The district court consolidated 

all three of the condemnation cases and held a bench trial on 

this issue on January 28, 2013.

On February 11, 2013, the district court entered an order 

of dismissal of all condemnation proceedings. The district 

court found that the NRD was under pressure to complete the 

project as quickly as possible to avoid losing federal stimulus 

funds. It found that because of this pressure, the NRD made 

a number of errors during the process, including having to 

initiate three separate condemnation proceedings in order to 

address legal description discrepancies. The court also concluded that the NRD did not negotiate in good faith, because 

it did not make a reasonable attempt to induce the Camdens to 

accept the offer.

In so holding, the district court found that the Camdens’ 

counteroffer was not frivolous, unreasonable, or disruptive, 

for two reasons: First, the court noted the NRD made unilateral design-change plans in between its offers to the Camdens 

which could have signified to the Camdens that changes to 

the plan were still a subject of negotiation. Second, the court 
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314 22 NEBRASKA APPELLATE REPORTS

noted the Camdens’ $150,000 counteroffer was closer to the 

board of appraisers’ award than the $67,350 offered by the 

NRD. The district court dismissed the proceedings due to a 

lack of jurisdiction.

The NRD appeals from the order of dismissal.

ASSIGNMENTS OF ERROR

Although assigning three separate errors, the NRD essentially argues that the district court erred when it determined 

that the NRD did not make a reasonable attempt to induce the 

Camdens to accept its offer and dismissed the action.

STANDARD OF REVIEW

[1-3] An appeal from the district court’s determination that 

good faith negotiations occurred prior to the filing of a condemnation petition presents a mixed question of law and fact. 

Krupicka v. Village of Dorchester, 19 Neb. App. 242, 804 

N.W.2d 37 (2011). Statutory provisions requiring good faith 

attempts to agree prior to institution of condemnation proceedings are jurisdictional, and objection based on the failure of 

the record to show that the parties cannot agree may be raised 

at any time by direct attack. Id. The question of jurisdiction 

is a question of law, which an appellate court resolves independently of the trial court. Id. However, findings as to any 

underlying factual disputes will be upheld unless clearly erroneous. Id.

ANALYSIS

The NRD contends that it met the statutory requirement to 

engage in good faith negotiations prior to initiating condemnation proceedings. The NRD provides three arguments to 

support its position. First, the NRD contends that it made substantial changes to its design of the rehabilitated dam in order 

to induce the Camdens to accept. Second, the NRD’s invitation 

to the Camdens to present before the August 2009 meeting of 

the Board should have been considered an attempt to induce 

the Camdens’ acceptance. Finally, the NRD asserts that the 

Camdens’ counteroffer was so unreasonable and excessive that 

it excused the NRD from any further negotiation.
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Cite as 22 Neb. App. 308

[4] Before addressing the NRD’s arguments, we summarize the underlying law. Under Neb. Rev. Stat. § 76-704 

(Reissue 2009),

[i]f any condemnee shall fail to agree with the 

condemn[o]r with respect to the acquisition of property 

sought by the condemn[o]r, a petition to condemn the 

property may be filed by the condemn[o]r in the county 

court of the county where the property or some part 

thereof is situated.

The petition shall include, among other things, evidence of 

attempts to negotiate in good faith with the property owner. 

Neb. Rev. Stat. § 76-704.01(6) (Reissue 2009).

[5-7] In order to satisfy § 76-704.01(6), there must be a 

good faith attempt to agree, consisting of an offer made in 

good faith and a reasonable effort to induce the owner to 

accept it. See State v. Mahloch, 174 Neb. 190, 116 N.W.2d 305 

(1962). This court has defined good faith as “a state of mind 

consisting of honesty in belief or purpose and the absence 

of intent to defraud.” Krupicka v. Village of Dorchester, 19 

Neb. App. at 256, 804 N.W.2d at 48, citing Black’s Law 

Dictionary 762 (9th ed. 2009). The Nebraska Supreme Court 

has stated that extended negotiations are not required if the 

condemnor and condemnee cannot reach an agreement. State v. 

Mahloch, supra.

[8,9] The statutory requirement that a condemnor make 

a good faith offer and reasonably attempt to induce settlement is mandatory and jurisdictional. Prairie View Tel. Co. 

v. County of Cherry, 179 Neb. 382, 138 N.W.2d 468 (1965); 

Higgins v. Loup River Public Power Dist., 157 Neb. 652, 61 

N.W.2d 213 (1953). The condemnor’s unsuccessful attempt to 

reach an agreement with the condemnee must be alleged and 

proved in the condemnation proceedings and must appear on 

the face of the record. See Prairie View Tel. Co. v. County of 

Cherry, supra. The Nebraska Supreme Court has analyzed this 

negotiation requirement in a number of cases, which we summarize below.

In Higgins v. Loup River Public Power Dist., 159 Neb. 

549, 68 N.W.2d 170 (1955), a public power district brought 
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316 22 NEBRASKA APPELLATE REPORTS

condemnation proceedings against the owner of a farm in order 

to obtain an easement across the farm for an electric transmission line. The owner of the farm first refused to allow the district to complete a survey of the proposed easement, but eventually an agreement to complete the survey was reached with 

the help of the owner’s attorney. However, after this survey, the 

district did not further negotiate with the owner or his attorney before instituting condemnation proceedings. Rejecting the 

district’s arguments that it was not able to contact the owner, 

the court determined that the district did not meet its statutory 

requirement to negotiate in good faith.

In State v. Mahloch, supra, the State sought to obtain 

lands to be used as a right-of-way for an interstate highway. 

The State informed the landowner that it wished to purchase 

a portion of his land and offered $16,600 based upon an 

appraisal completed by the Department of Roads. The landowner declined the offer. The State then sent the landowner 

a letter describing the first meeting and reoffered the $16,600 

as a final offer. Contracts for sale were included with the letter. The landowner did not respond to the letter or make any 

further effort to negotiate. The trial court found the State’s 

offer was sufficient. On appeal, the Nebraska Supreme Court 

affirmed, finding that the State had met its duty to make 

a good faith offer to purchase and a reasonable bona fide 

attempt to have the offer accepted.

In Wolfe v. State, 179 Neb. 189, 137 N.W.2d 721 (1965), 

the State brought eminent domain proceedings to obtain a 

permanent easement for state control of outside advertising on 

an owner’s land located next to a highway. Before initiating 

those proceedings, the State offered the landowner $25 for the 

easement. The landowner replied that he would not grant the 

easement for less than $7,000 or $8,000. The State then sent 

a letter confirming the $25 offer and advised that it could be 

accepted at any time prior to the condemnation hearings. The 

trial court found that the State made an offer in good faith. 

The Supreme Court affirmed, noting that the nominal offer 

was supported by the evidence at trial that the value of the 

landowner’s property was the same after the taking as it was 

before the taking.
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Cite as 22 Neb. App. 308

In Prairie View Tel. Co. v. County of Cherry, 179 Neb. 382, 

138 N.W.2d 468 (1965), Cherry County, Nebraska, sought to 

condemn real estate for a county road. The county requested 

that the landowners attend a meeting before its board of 

commissioners in order to engage in negotiations. When the 

landowners did not attend the meeting, the county attempted 

one visit to their home to discuss acquiring the property, but 

did not find the landowners at home. The county then sent 

the landowners a letter offering $3,000 and requiring their 

attendance at a board of commissioners meeting to discuss the 

offer. The county’s letter stated that if the landowners did not 

attend the meeting or otherwise inform the board, the board 

would conclude they refused to accept the offer and refused to 

further negotiate. However, the letter did not indicate the extent 

of the lands the county was seeking. During the condemnation proceedings, the landowners filed a motion for summary 

judgment contending that the county did not make a good faith 

offer and a reasonable attempt to induce them to accept the 

offer. The district court granted the motion and dismissed the 

county’s condemnation proceedings. The district court held that 

there was no offer made in good faith because the county never 

informed the appellees as to the amount of land it intended to 

take. The Supreme Court agreed with the district court’s holding and affirmed.

Finally, in Suhr v. City of Seward, 201 Neb. 51, 266 N.W.2d 

190 (1978), the Nebraska Supreme Court concluded the City 

of Seward, Nebraska, had engaged in good faith negotiations 

with landowners before instituting condemnation proceedings 

to obtain a clear zone easement over a 2.32-acre parcel of the 

landowners’ property for airport purposes. In that case, the 

city employed two appraisers, who estimated the landowners’ 

damages at $1,200 and $1,600. A review appraiser concluded 

the initial estimates were excessive and valued the landowners’ damages at $500. The city contacted the landowners and 

presented a written offer of $500 for the easement. When the 

landowners responded that the initial offer was inadequate, the 

city indicated that it would consider a counteroffer. The landowners did not make any counteroffer or raise any questions 

regarding the easement. Instead, the landowners contacted 
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318 22 NEBRASKA APPELLATE REPORTS

an attorney who wrote to the city and informed the city that 

the landowners would not negotiate regarding the easement 

because the city’s airport project violated county zoning ordinances. This allegation regarding violation of zoning ordinances was rejected by the Nebraska Supreme Court in another 

case. See Seward County Board of Commissioners v. City of 

Seward, 196 Neb. 266, 242 N.W.2d 849 (1976). Citing Wolfe 

v. State, 179 Neb. 189, 137 N.W.2d 721 (1965), and a number 

of decisions from other jurisdictions, the Suhr court found the 

letter from the landowners’ attorney excused the city from any 

further attempts to negotiate.

In addition to the Nebraska Supreme Court’s decisions 

regarding the negotiation requirement, this court has also 

recently confronted this requirement. In Krupicka v. Village 

of Dorchester, 19 Neb. App. 242, 804 N.W.2d 37 (2011), the 

landowner contended that the Village of Dorchester, Nebraska, 

never presented a valid offer because it did not include a legal 

description of the land to be condemned. Distinguishing our 

case from Prairie View Tel. Co. v. County of Cherry, 179 Neb. 

382, 138 N.W.2d 468 (1965), we determined the village sufficiently described the land it was attempting to acquire in its 

offer. Thus, we concluded the village had engaged in good 

faith negotiations.

Applying the above statutory requirement and the corresponding case law to the present matter, we conclude the NRD 

failed to meet the requirement of making a reasonable attempt 

to induce the Camdens to accept its offer prior to initiating 

condemnation proceedings.

We conclude, as did the district court, that the NRD’s offer 

to the Camdens occurred on July 30, 2009. The NRD’s arguments that it made earlier design changes to the rehabilitation 

project in order to induce the Camdens to accept the offer are 

not convincing. Although the NRD did include the Camdens 

in initial discussions regarding the dam rehabilitation while 

the environmental impact was studied, at no time did the 

NRD convey to the Camdens that it was negotiating for easements on their property. Further, these discussions occurred 

before the Camdens were aware of the exact extent of the 

NRD’s taking. Additionally, the NRD never conveyed to the 
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Camdens that it was changing the elevation of the spillway 

as part of the negotiations. Rather, the NRD stated that revisions to the offer were being made and a revised offer would 

be sent at some point. There is no evidence in the record that 

the Camdens were aware the NRD was lowering the spillway as part of the negotiations. Rather, the NRD made this 

change unilaterally.

We also reject the NRD’s claim that affording the Camdens 

an opportunity to present at the August 2009 meeting of the 

Board was a reasonable attempt to induce acceptance of the 

offer. The record shows that John had a brief opportunity 

to address the Board before and after the Board went into a 

closed executive session. There is no evidence in the record 

that the Board gave a formal response to the Camdens’ counteroffer, presented another offer in response to the Camdens’ 

counteroffer, or even retendered its original offer during that 

meeting. In fact, the only evidence in the record regarding 

this meeting demonstrates that the Board was simply informed 

during its executive session that the Camdens’ counteroffer 

was frivolous.

Finally, having independently analyzed the Camdens’ counteroffer, we cannot say the district court erred when it found 

the counteroffer was not unreasonable to the degree that would 

have excused the NRD from further negotiations. When the 

Camdens made their counteroffer, it was in response to the 

NRD’s revised offer which incorporated a design change in 

the spillway. The NRD never informed the Camdens that 

additional changes to the project could not be accommodated. Thus, the Camdens’ proposals for design changes were 

not unreasonable.

Additionally, the Camdens’ request for $150,000 in compensation and $5,000 in attorney fees was not irrational. This is 

especially true considering the fact that the board of appraisers 

concluded that the Camdens should be awarded $113,416 in 

damages resulting from the taking. The NRD’s offer, $67,350, 

was approximately half of this amount.

To avoid this entire situation, the NRD simply had to 

respond to the Camdens’ counteroffer and explain that it was 

adhering to its original offer. See Wolfe v. State, 179 Neb. 189, 
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320 22 NEBRASKA APPELLATE REPORTS

137 N.W.2d 721 (1965). It failed to do so. The NRD’s arguments that it negotiated in good faith are without merit.

CONCLUSION

We affirm the district court’s conclusion that the NRD 

failed to show that it made a reasonable attempt to induce the 

Camdens to accept its offer to acquire an easement.

Affirmed.