County of Sarpy, Nebraska v. United States, 362-64.

• Decision Date: 09 November 1967
• Docket Number: No. 362-64.,362-64.
• Citation: 386 F.2d 453
• Parties: COUNTY OF SARPY, NEBRASKA v. The UNITED STATES.
• Court: U.S. Claims Court

386 F.2d 453 (1967)

COUNTY OF SARPY, NEBRASKA v. The UNITED STATES.

No. 362-64.

United States Court of Claims.

November 9, 1967.

Dixon G. Adams, Bellevue, Neb., attorney of record, for plaintiff.

Howard O. Sigmond, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner Saul Richard Gamer with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on February 16, 1967. Exceptions to the commissioner's opinion and report were filed by the parties. The case has been submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion, and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is, therefore, entitled to recover and judgment is entered for plaintiff in the sum of $75,628, plus interest, as part of just compensation, at the rate of 4 percent from the date of taking in 1954, the amount to be determined pursuant to Rule 47(c).

Commissioner GAMER'S opinion,^* as modified by the court, is as follows:

Plaintiff seeks, pursuant to a Private Act, $135,560 as compensation for the closing by defendant of a segment of one of its roads.

For many years prior to 1954 there existed in Sarpy County, Nebraska, a public road, maintained by the county, which originated in the western part of the town of Bellevue as an extension of one of its streets (Calhoun). The road ran generally south, bordering the then eastern boundary of the Offutt Air Force Base, and then continuing in a southerly direction to cross, by way of a steel truss bridge, a rather large stream in the area, Papillion Creek.

During World War II, the Martin Bomber Modification Plant was located on the grounds of the Base, and the part of the road between Bellevue and the Base, which part was paved (the balance of the road having a gravel surface), was used extensively to serve the plant. Consequently, it was then, and still is, frequently referred to as Modification Road (although the use of the plant was discontinued after the war). However, a county road in generally the same location as Modification Road has existed ever since 1870.

At the south end of the bridge, Modification Road connects with another county road, H-9, which although arching to the east, continues to run in a southerly direction through the village of La Platte, which is also in the county, and then connects with U. S. Highway 73-75 (hereafter "Highway 75").

Highway 75 is one of the main north-south highways in Nebraska. It generally serves the traffic between Omaha and Topeka, Kansas. Bellevue, the Offutt Air Force Base, La Platte, Modification Road, and the above-described part of County Road H-9, all lie east of the highway. The western edge of Bellevue is a little over a mile east of Highway 75, the western boundary of the Base borders it. Modification Road and its bridge crossing Papillion Creek are approximately three-fourths of a mile away, and La Platte lies about one-fourth of a mile away.

This area east of the highway is pocketed in on the east by the Missouri River, which is approximately 3 miles from Highway 75, and on the south by the Platte River, approximately 1 mile below La Platte. The Platte River enters the Missouri River around 2½ miles east of La Platte. The only way to cross the Platte River in this area is by Highway 75. Papillion Creek divides this pocketed area in two. The creek enters the area at the southwest corner of the Base where Highway 75 bridges over it, then meanders first southeasterly and then southerly, and then sharply curves to run east-west and to enter the Missouri River around 1½ miles north of the Platte River.

In this area east of Highway 75, the only bridge crossing Papillion Creek is the Modification Road bridge. Thus, unless one went west all the way over to the highway, the only way to get from the lands on one side of the creek to the lands on the other was by way of Modification Road and its bridge.

Both before and after World War II, Modification Road with its bridge was frequently and regularly used by the residents and farmers of the area, as well as by others. In conjunction with County Road H-9, it formed a direct, short, through route between Bellevue and La Platte, all lying entirely east of Highway 75. In enabled those living north of the creek and south of Bellevue to go south to La Platte or points beyond simply by crossing the bridge. Similarly, it so enabled those living south of the creek to go north to Bellevue and points beyond (Bellevue being in the Omaha metropolitan area). Some farmers farmed lands on both sides of the creek. Some resided on one side and worked or farmed land on the other. La Platte was used for area voting purposes. In addition, the area school house for the lower grades was in this village. Farmers in the area north of the creek frequently used the road to transport farm machinery south to Plattsmouth, Nebraska for repairs, no such repair business being available in Bellevue. The road was frequently used to haul produce from farm to market, and supplies to the farms. A rendering plant was located just south of the bridge, and the road and the bridge were regularly used by persons from Bellevue going to and from the plant, as well as by the company's trucks. The Allied Chemical and Dye Corporation was, in 1954, building a plant east of La Platte and this activity also generated traffic over the road. And the county's employees themselves used the road frequently to travel south from the county garage located southeast of Bellevue to the county gravel pits and quarries located on the other side of the creek and beyond La Platte, and then to return to the garage, where the maintenance materials were stockpiled.

In 1954, the main east-west runway at the Base was extended to the east and the entire Base consequently enlarged. The runway extension work resulted in the severing of that part of Modification Road which lay in the path of the runway. Modification Road had formerly bordered on the eastern edge of the Base. Now the Base extended farther east approximately a mile. The part of the road lying south of the Base, as well as the bridge over Papillion Creek, was left intact, but, going north, the road now ended at the Base, and there was no way from such point to get around the Base.

Thus, the Modification Road-County Road H-9 through route from the Bellevue to the La Platte areas was destroyed. Furthermore, the only way most of those in the pocketed area could thereafter reach lands on the other side of the creek was to go west to use Highway 75 and then come back east. This has caused inconvenience and financial hardship. No compensation has been paid for the severance of the road.

It is true that Highway 75 was then (and is now) a good high-speed expressway, and that some persons in the area with easy access to it who formerly used the more direct route to the east are not unduly inconvenienced. However, those living, for instance, south and east of Bellevue, but north of the creek, would, after the taking, have to go first on East Road and enter Bellevue on the eastern edge of the town (East Road being an extension of Hancock Street) by way of a steep grade, and continue north through the town and its business district, in order to obtain access to the road which led out of Bellevue to Highway 75. Only then could he proceed south on Highway 75 to go to La Platte or points beyond. This circuitous route would be miles longer. If he lived just south of Bellevue, it might only be 3-4 miles longer. However, some one who lived or worked just north of the creek and simply wanted to get to lands directly south of the creek would first have to go north to and through Bellevue, west to Highway 75, south on the highway, then east at La Platte, and north again, just to get over the creek. His extra mileage would go as high as 10.

The destruction of Modification Road as an area through route and as the only way to traverse Papillion Creek east of Highway 75 created additional problems. During rush hours, long waits — sometimes from 15-30 minutes — were encountered before being able to gain entrance to Highway 75 from the access road leading out of Bellevue. The time lost by farmer-businessmen, both because of the extra distance and the nature of the Bellevue-Highway 75 route, resulted in substantial additional expenses. And for farmers moving large pieces of farm equipment and machinery, the route through Bellevue and Highway 75 presented further problems. Entering the town on the west by the steep Hancock Street grade was often difficult. Moving wide equipment through city streets, narrowed by parked cars, with all the incident traffic hazards, was troublesome. Damage was caused by the striking of equipment parts against street curbs, blades being dulled or broken. Police escorts were sometimes necessary. And, after finally gaining access to Highway 75, the special hazards of large, slow-moving farm machinery on a high-speed highway were encountered. Accidents occurred from fast-moving passenger cars running into slow-moving farm equipment. Up to the Base, the highway was at that time a divided four-lane one, but thereafter and proceeding south it narrowed to two lanes. No one could pass a 16-foot-wide cultivator moving on this two-lane portion of the highway. And where the highway crossed Papillion Creek just south of the Base there was a narrow, blind, overpass. It became necessary to have a flag man assist the movement of farm machinery across the overpass. The Modification Road-County Road H-9 route had been an excellent one...