Letter from E. E. Bennett (Los Angeles) to William Reinhardt, March 31, 1950

RE: LVL&WCO. - LAS VEGAS VALLEY WATER DISTRICT Los Angeles, March 31, 1950 80-8 Mr. Wm. Reinhardt: You have asked about certain phases of the procedure which would be involved in the event Las Vegas Valley Water District should file an action to condemn the water producing and distributing system at Las Vegas, Nevada. The District was created by Chapter 167 of the Nevada Statutes of 1947. Section 1, paragraph (7), authorized the District to exercise in the State of Nevada the right of eminent domain in the manner provided by law for the condemnation of private property for public use. Section 20 of the same chapter provides as follows: "The power of eminent domain herein granted may be exercised in the manner provided by Nevada Compiled Laws 1929, sections 9153 to 9176, inclusive, as amended or supplemented, or any law hereafter enacted for that purpose." Section 20 was amended by Chapter 130 of the Nevada Statutes of 1949. The amended section provides in part as follows: "Where an existing water system is so condemned, the district shall be entitled to take possession thereof upon the entry of judgment regardless of the fact that an appeal may be pending, but in such event the district shall be required to pay into court the full amount of the judgment, together with such further reasonable sum as may be required by the court to pay any further damages and costs that may be recovered in said proceedings as all damages that may be sustained by the defendant if for any cause the property shall not be finally taken by the district." The sections of the Nevada Compiled Laws referred to in Section 20 are the general provisions relating to eminent domain. -2- Sectlon 9162 of the Compiled Laws authorizes the Court in a condemnation case on motion of the plaintiff at any time after commencement of the suit to permit the plaintiff to occupy the premises sought to be condemned pending the action. On this preliminary request the Court is required to take proof of the value of the premises sought to be condemned, the reasons for requiring a speedy occupation, and is required to grant or refuse the motion according to the equity of the case and the relative damages which may accrue to the parties. If the Court permits the plaintiff to take possession, it must require the plaintiff to execute and file in Court a surety bond in not less than double the value of the premises sought to be condemned as determined by the Court. I believe that LVL&WCo. should be able to successfully resist an application of the District to take possession of its property pending the trial of the action. I do not now see any pressing need for the District to have possession pending the trial and I think that we could show many elements of damage, both to ourselves and to the public, if such possession were sought by the District. Section 9169 of the Compiled Laws provides that at any time after the entry of judgment or pending an appeal from the judgment, whenever the plaintiff shall have paid into Court for the defendant the full amount of the judgment and such further sum as may be required by the Court as a fund to pay any further damages and costs that may be recovered in the proceedings, the District Court may authorize the plaintiff to take possession and use the property until final conclusion of the litigation. I have already noted a special provision to the same effect in the amended Section 20 of the Act creating the District. You will notice that after a trial of the action the plaintiff can only obtain possession of the property pending an appeal by paying into Court the full amount of the judgment plus such additional sum as the Court may fix. I think it is quite probable that the District would seek to obtain possession of the property after the trial Court had fixed the damages even though we may take an appeal. The Court would not have any discretion to refuse the request if the plaintiff complied with the provisions of the statute with reference to payment of funds into Court. You have also asked whether the District could prosecute a condemnation action prior to the authorization and sale of its bonds. There is nothing in the eminent domain statutes which expressly prohibits filing of an action prior to the time a plaintiff is financially able to pay the judgment, I have not yet encountered any cases in which this exact situation has arisen. However, it is my view that it is very unlikely that the District would take such action and if it did, I believe that Court would have power to postpone the action at least until an election had been had authorizing the sale of the bonds. One of the reasons which impel this conclusion is that Section 9166 of the Compiled Laws provides that the plaintiff must within thirty days after final judgment determining the value of the property condemned pay the sum of money assessed. Section 9167 says that payment may be made to the defendants or the money may be deposited in Court for the defendants. If the money be not so paid or deposited, the defendant may levy an execution and if the money cannot be obtained by levy of execution "the Court, upon a showing to that effect, must set aside and annul the entire proceeding, and restore possession of the property to the defendants, if possession has been taken by the plaintiff." You can see that it would be rather foolhardy for the District to proceed with the condemnation action unless it were in position to promptly pay the award made by the trial Court. This fact would also furnish a reason for the trial Court to postpone the trial of the case if the bonds had not been authorized or sold prior to the commencement of the action. E. E. Bennett ECR:LW