Danish Vennerforning and Old Peoples Home v. State Dept. of Roads, 39265

• Decision Date: 09 May 1974
• Docket Number: No. 39265,39265
• Citation: 217 N.W.2d 819,191 Neb. 774
• Parties: The DANISH VENNERFORNING AND OLD PEOPLES HOME, a Nebraska corporation, Appellee, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.
• Court: Nebraska Supreme Court

Page 819

217 N.W.2d 819

191 Neb. 774

The DANISH VENNERFORNING AND OLD PEOPLES HOME, a Nebraska corporation, Appellee, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.

No. 39265.

Supreme Court of Nebraska.

May 9, 1974.

Syllabus by the Court

1. In a condemnation proceeding an owner receives full compensation for all damages sustained and the measure of those damages is the actual legal rights acquired by the condemner and not the use actually made of the land by the condemner.

2. A condemner must take the rights he appropriates unconditionally by his petition of taking and he must pay full compensation to the condemnee for what he takes or is entitled to take by his petition of taking.

3. An unaccepted promise by a condemner to do something in the future cannot affect the character or the extent of the rights acquired or the amount of damages to be recovered as just compensation.

4. 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 or street.

5. Where land has been taken or damaged for public use and the work completed without just compensation being first made, and continued possession is necessary and proper for such public use, the owner is not entitled to injunctive relief but is limited to an action for damages for the property taken or damaged.

Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., Asst. Atty. Gen., Gary R. Welch, Royce N. Harper, Sp. Asst. Attys. Gen., Lincoln, for appellant.

Farnham, Moylan & Dowd, Harry J. Farnham, Patrick F. Moylan, Harry H. Foulks, Omaha, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and FLORY, District Judge.

McCOWN, Justice.

The plaintiff filed its petition against the State Department of Roads to require the department to provide reasonable and convenient access to plaintiff's property; to replace access destroyed by highway construction; and to recover damages. The District Court entered a partial summary judgment ordering the defendant to restore access to plaintiff's property as nearly as possible to its location and condition prior to the construction, and retained jurisdiction for the determination of damages sustained because of the denial of access until the completion of the restoration of the access ordered. The defendant has appealed.

The plaintiff, The Danish Vennerforning and Old Peoples Home, a Nebraska corporation, owns approximately 21 acres of land in Omaha, Nebraska, on which it operates a recreation hall and maintains a park. The only access to and from plaintiff's property prior to the matters involved here was on North Ridge Drive, an east-west street, which abuts plaintiff's property for several hundred feet along the south side. The westerly portion of North Ridge Drive was a deadend and there was no access on the west or north. A private road on plaintiff's property extended from the area of the clubhouse in the westerly portion of plaintiff's property to the south-easterly corner, where it left plaintiff's property and entered North Ridge Drive. From that point, the access route was east on North Ridge Drive to 30th Street, a north-south arterial.

The defendant, Department of Roads, was in the process of constructing an interchange for the interstate highway system which involved relocation and reconstruction of several streets north and east of the plaintiff's property. The construction of relocated 30th Street would close North Ridge Drive east of plaintiff's property.

On January 19, 1970, the Department of Roads filed a condemnation action against the plaintiff in which the State sought to acquire an easement for cut and fill purposes covering 125,664 square feet, largely in the north portion of plaintiff's property. The condemnation petition did not seek to acquire any access rights and specifically provided that upon completion of the interstate project 'all rights, interests and use of the above described easement area shall be returned to the owner * * *.'

A condemnation hearing was held on February 16, 1970, by the appraisers to determine the award to plaintiff for the temporary construction easement being condemned. At that hearing the Department of Roads set out a plan for access to plaintiff's property through the construction of an access road from plaintiff's property at approximately the location of the existing access road onto North Ridge Drive, and thence south across North Ridge Drive and down to Howell Street, the next east-west street to the south of North Ridge Drive. The appraisers, before making any return of the award for the temporary construction easement, required the Department of Roads to file an affidavit that the department would, in fact, build such an access road, and such an affidavit, with supporting plans, was executed and filed by the Department of Roads.

On February 20, 1970, the appraisers made their award in the condemnation action to the plaintiff in the sum of $2,500. The affidavit of the Department of Roads agreeing to construct the access road was attached to the award. The plaintiff did not consent or agree to the building of the access road proposed. The plaintiff withdrew the $2,500 condemnation award from the county court on March 17, 1970, and no appeal was filed in that proceeding. Construction commenced thereafter and in August 1970, in the process of construction, the defendant completely destroyed North Ridge Drive east of plaintiff's former point of access.

The action here was commenced...