Balog v. State, Dept. of Roads, 35738

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before WHITE, C. J., CARTER, MESSMORE, SPENCER, BOSLAUGH and BROWER, JJ., and DIERKS; BOSLAUGH
• Citation: 177 Neb. 826,131 N.W.2d 402
• Parties: Joseph BALOG and Josephine Balog, Appellees, v. STATE of Nebraksa, DEPARTMENT OF ROADS, Appeilant.
• Docket Number: No. 35738,35738
• Decision Date: 20 November 1964

Page 402

131 N.W.2d 402 177 Neb. 826 Joseph BALOG and Josephine Balog, Appellees,
v.
STATE of Nebraksa, DEPARTMENT OF ROADS, Appeilant. No. 35738. Supreme Court of Nebraska. Nov. 20, 1964.

Page 404

Syllabus by the Court

1. Where the trial court gives no reason for an order granting a new trial, and the appellant contends that there is no prejudicial error in the record which justifies the granting of a new trial, it is the duty of the appellee to point out the prejudicial error which the appellee contends justifies the granting of the new trial.

2. The value of a leasehold is the difference between the rental value of the remainder of the term and the rent reserved in the lease. If the rent reserved equals or exceeds the rental value, the lessee suffers no loss and cannot recover.

3. Where the entire leasehold is taken, the measure of damages is the value of the leasehold.

4. Where a part of a leasehold is taken or a leasehold is damaged, the measure of damages is the difference between the value of the leasehold immediately before and immediately after the taking.

5. Conflicting instructions are erroneous and prejudicial unless it is apparent from the record that the jury was not misled thereby.

6. It is the duty of the trial court to instruct [177 Neb. 827] the jury as to the proper basis upon which damages are to be assessed.

7. The reception of evidence collateral to the main issue is within the sound legal discretion of the trial court.

8. Private property cannot be taken without compensation for public use under a police regulation relating strictly to the public health, the public morals, or the public safety any more than under a police regulation having no relation to such matters but only to the general welfare.

9. The exercise of police power may or may not involve the taking of private property and it may or may not involve mere noncompensable inconvenience to the owner thereof. The distinction is not whether it is a valid exercise of police power but whether or not the property itself is taken or damaged.

10. The right of an owner of property abutting on a street or highway to ingress and egress to and from his premises by way of the street is a property right in the nature of an easement in the street

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which he cannot be deprived of without due process of law and compensation for his loss.

11. The measure of the right of the owner of property abutting on a street to access to and from it by way of the street is reasonable ingress and egress under all the circumstances.

12. The right of a landowner or lessee to just compensation for property taken or damaged for public use is guaranteed by the Constitution. Art. I, § 21, Constitution of Nebraska.

13. An abutting property owner is entitled to recover the damages resulting from the destruction or material impairment by the State of his right of access to an existing highway.

14. Whether the right of access to an existing highway has been destroyed or materially impaired is a question of fact which must be determined upon the particular facts in each case.

Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Sp. Asst. Atty. Gen., Harold S. Salter, Asst. Atty. Gen., Warren D. Lichty, Jr., and James M. Winter, Sp., Asst. Attys. Gen., Lincoln, for appellant.

Davis, Thone, Bailey & Polsky, Lincoln, for appellees.

[177 Neb. 828] Heard before WHITE, C. J., CARTER, MESSMORE, SPENCER, BOSLAUGH and BROWER, JJ., and DIERKS, District Judge.

BOSLAUGH, Justice.

This is a proceeding in eminent domain. The plaintiffs, Joseph Balog and Josephine Balog, are lessees of a tract of land which is located adjacent to and north of the Cornhusker Highway north of Lincoln, Nebraska. In March and April of 1962, the plaintiffs constructed a building upon the leased land in which they operate a restaurant and tavern business.

On July 31, 1962, the State of Nebraska, the defendant in this proceeding, condemned a strip of land 12 feet in width across the south end of the leased property, together with the right of access to the Cornhusker Highway except by means of a oneway service road or frontage road which has been constructed between the south line of the leased property and the north line of the Cornhusker Highway.

The plaintiffs refused to accept the award of the appraisers appointed by the county court and appealed to the district court. The jury returned a verdict which in form found for the plaintiffs but assessed the amount of their recovery at '$None.' The plaintiffs filed a motion for new trial which was sustained. The defendant has appealed from the order which set aside the verdict and granted the plaintiffs a new trial. The assignments of error all relate to the order sustaining the motion for new trial.

The trial court gave no reason for its order granting the plaintiffs a new trial. The defendant contends that there is no prejudicial error shown in the record which would justify the granting of a new trial. It then becomes the duty of the plaintiffs to point out the prejudicial error which they contend justifies the granting of the new trial. Connor v. State, 175 Neb. 140, 120 N.W.2d 916.

[177 Neb. 829] The plaintiffs contend that the trial court erred in instructing the jury in reference to the measure of damages and in excluding the testimony of other lessees as to the effect of the improvement upon their property.

By instruction No. 6 the trial court instructed the jury that where a leasehold is taken or injured, the lessee is entitled to recover the value of the leasehold or the difference between the rental value of the remainder of the term and the rent reserved in the lease; that where a leasehold is taken or damaged, the lessee is entitled to recover the difference in the value of the leasehold immediately before and immediately after

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the taking; and that where the rent reserved equals or exceeds the rental value of the premises, the lessee suffers no loss and cannot recover.

In instruction No. 7 the jury was instructed that the measure of the damages sustained by the plaintiffs was the difference between the market value of their leasehold interest immediately before and immediately after the taking from which the injury resulted.

Instruction No. 8 was as follows:

'The measure of damages where a portion of a leasehold interest is taken, is the difference between the 'bonus' in the lease before and after the taking.

'This means that you will have to first (1) determine what is the fair rental value of the lease as of July 31, 1962, as enhanced by the improvement made by the lessee, for the remaining term of the lease as shown by the evidence. (2) You will then deduct from such amount the rent required to be paid by the lessee. (3) The difference, if any you find, constitutes what is referred to as the 'bonus' in the lease. If you find no difference between the fair rental value of the lease and the rent required to be paid by the lessee, there is no 'bonus' and therefore you cannot find any damages. On the other hand, if you find a 'bonus' in the lease as explained above you must then determine whether such 'bonus' has been depreciated in value by reason of the taking [177 Neb. 830] herein for highway purposes. The amount of this depreciation in value, if any you so find from the evidence, shall constitute the damages sustained by the lessee. The measure of such depreciation, if any, is the difference between the bonus, if any, before and after the taking of the tract of land as of July 31, 1962.'

The value of a leasehold is the difference between the rental value of the remainder of the term and the rent reserved in the lease. Ballantyne Co. v. City of Omaha, 173 Neb. 229, 113 N.W.2d 486. If the rent reserved equals or exceeds the rental value, the lessee suffers no loss and cannot recover. Where the entire leasehold is taken, the measure of damages is the value of the leasehold. Where a part of a leasehold is taken or a leasehold is damaged, as in this case, the measure of damages is the difference between the value of the leasehold immediately before and immediately after the taking.

The instructions which were given in this case were confusing and misleading. One part of instruction No. 6 advised the jury that the plaintiffs were entitled to recover the value of the leasehold. Another part of instruction No. 6 advised the jury that the plaintiffs were entitled to recover the difference in the value of the leasehold immediately before and immediately after...