City of Lincoln, Application of, 33862

• Decision Date: 27 January 1956
• Docket Number: No. 33862,33862
• Parties: Application of the CITY OF LINCOLN, Nebraska, etc. CITY OF LINCOLN, Appellant, v. Anna I. MARSHALL and William D. McClellan, Appellees.
• Court: Nebraska Supreme Court

Page 470

74 N.W.2d 470

161 Neb. 680

Application of the CITY OF LINCOLN, Nebraska, etc.

CITY OF LINCOLN, Appellant, v. Anna I. MARSHALL and William D. McClellan, Appellees.

No. 33862.

Supreme Court of Nebraska.

Jan. 27, 1956.

Syllabus by the Court

1. The jury, in fixing the damages sustained by a landowner in consequence of the appropriation, or injury, of his property for a public use may take into account every element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser's estimate of the market value of such property.

2. Where a part of a tract of land is taken for a public purpose, the fact that the remainder may thereafter be subjected to assessment for public improvements does not constitute an element of damage in condemnation proceedings.

3. Evidence of the price at which other similar lands in the locality have been sold is admissible in evidence on the question of damages in a condemnation proceeding as a part of the case in chief, where a sufficient foundation has been laid therefor.

Jack M. Pace, Wayne R. Douce, Lincoln, for appellant.

Max Kier, Loncoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This is an action by the city of Lincoln to condemn and acquire by eminent domain a tract of land belonging to the defendant, Anna I. Marshall, for a public street. The verdict and judgment of the district court was for the defendant in the amount of $6,000. The city of Lincoln appeals.

The only issue before the trial court was the amount of damages sustained by the defendant as a result of the condemnation of the land for the purpose for which it was taken. The plaintiff alleges that the verdict and judgment is excessive as a result of errors committed by the trial court. The plaintiff has assigned three specific errors: (1) In permitting the introduction of evidence and in instructing the jury to consider future special assessments to be assessed against the property not taken, as an element of damages; (2) in refusing to permit plaintiff to lay a proper foundation for and make proof of sales of similar land to aid the jury in fixing the damages, and (3) in copying into the instructions material allegations of the pleadings which were unsupported by evidence.

The purpose of the taking was to complete the opening of Fiftieth Street in the city of Lincoln between O and L Streets to a width of 60 feet. The land involved is specifically described in the petition. For the purposes of this appeal it will be described as a tract 240 feet wide fronting on O Street and 315.2 feet long extending south to N Street. The land taken is the west 30 feet of this tract, it now being the east 30 feet of Fiftieth Street between O and N Streets. The defendant William D. McClellan was made a party because he was in possession of the property as lessee. It appears, however, that he has assigned all his right, title, and interest in the property to the defendant Anna I. Marshall, and he has, therefore, no interest in the litigation. We shall hereafter refer to Anna I. Marshall as the defendant.

With respect to the first assignment of error, defendant alleged that the property not taken would be damaged by reason of the severance therefrom of the property taken 'and this defendant will also be subjected to special assessments for paving, water and sewer in 50th Street, none of which improvements are required or could be assessed except for the taking of defendant's property for the opening of 50th Street.' The plaintiff moved to strike the quoted portion of the answer, which motion was overruled by the trial court. Over objection, the defendant offered evidence that the property of the defendant not taken would be assessed approximately $2,420 for paving and $735 for water mains. The court submitted this evidence for the jury's consideration in fixing the amount of defendant's damages. The city consistently contended throughout the trial that this was error.

The record shows that the taking occurred on June 5, 1954. The damages must be assessed as of that date. Platte Valley Public Power & Irr. Dist. v. Armstrong, 159 Neb. 609, 68 N.W.2d 200. The applicable rule is: "The jury, in fixing the damages sustained by a landowner in consequence of the appropriation or injury of his property for a public use, may take into account every element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser's estimate of the market value of such property." Schulz v. Central Nebraska Public Power & Irr. Dist., 138 Neb. 529, 293 N.W. 409, 413. See, also, Rath v. Sanitary Dist. No. 1, 156 Neb. 444, 56 N.W.2d 741.

The general rule is that where a part of a tract of land is taken for a public use, the mere fact that the remainder may thereafter be subject to assessment does not constitute an element of damages in condemnation proceedings. 29 C.J.S., Eminent Domain, § 172, p. 1042; 18 Am.Jur., Eminent Domain s. 279, p. 918. The reason for this rule is that the damages are to be assessed as of the date of the taking. The question of whether or not the street should be improved by grading, paving, or otherwise, was a question wholly unrelated to whether or not the land should be taken and used by the city as a street. Proceedings to pave the street or to construct water mains thereon are necessarily separate and apart from the condemnation proceeding. Compensation for the taking or damaging of private property for a public use is to be ascertained and paid in full without regard to special assessments for benefits growing out of improvements that may be made in the future. City of Tulsa v. Horwitz, 151 Okl. 201, 3 P.2d 841; Gaylord v. City of Bridgeport, 90 Conn. 235, 96 A. 936; Wayland v. City of Seattle, 96 Wash. 344, 165 P. 113; City of Detroit v. Beecher, 75 Mich. 454, 42 N.W. 986, 4 L.R.A. 813. The reasoning supporting the rule is well stated in the earlier Washington case of In re Harrison Street, 74 Wash. 187, 133 P. 8, wherein it is said: 'In determining the damages to be paid when the city proposes to change the grade of the street under its right of eminent domain, the purpose...