Deitloff v. City of Norfolk

• Decision Date: 20 December 1968
• Docket Number: No. 36947,36947
• Citation: 183 Neb. 648,163 N.W.2d 586
• Parties: William DEITLOFF and Ella Deitloff, husband and wife, Appellees, v. CITY OF NORFOLK, Appellant.
• Court: Nebraska Supreme Court

Page 586

163 N.W.2d 586

183 Neb. 648

William DEITLOFF and Ella Deitloff, husband and wife, Appellees, v. CITY OF NORFOLK, Appellant.

No. 36947.

Supreme Court of Nebraska.

Dec. 20, 1968.

Syllabus by the Court.

1. In condemnation proceedings, where persons are shown to be familiar with the particular land in question, they may be permitted as witnesses to testify as to the value of the tract immediately before and immediately after the appropriation.

2. The owner of real estate which is taken in condemnation proceedings and who is familiar with its value can testify as to its value.

3. Generally, either lay or expert witnesses may be allowed to testify as to the value of a tract of land taken or the value of the remainder thereof immediately before and immediately after the taking if proper foundation is laid showing they have an acquaintance with the property and are informed as to the state of the market, the weight and credibility of their testimony being for the jury.

4. Under ordinary circumstances, expert opinion evidence is to be considered and weighed by the triers of fact like any other testimony.

5. The amount of damages sustained by a landowner for the taking of land by eminent domain for a public improvement and the difference in the fair and reasonable market value of the remainder of the land before and after the taking is peculiarly of a local nature to be determined by a jury, and its verdict will not ordinarily be interfered with if it is based on the testimony.

6. In a condemnation act, when the evidence is conflicting, the verdict of a jury will not be set aside unless it is clearly wrong.

7. In a condemnation action, the weight and credibility of testimony of either lay or expert witnesses regarding value of land taken or value of remainder immediately before and immediately after the taking is for the jury.

8. Instructions to a jury must be considered together, so that they may be properly understood, and, if as a whole they fairly state the law applicable to the evidence when so construed, error cannot be predicated on the giving thereof.

9. Article I, section 21, Constitution of Nebraska, provides that the property of no person shall be taken or damaged for public use without just compensation therefor.

10. Whenever an owner of property damaged by the construction of some public improvement is entitled to compensation by the Constitution or statutes of the state, the measure of his compensation is the same as in the case of a partial taking, namely, the decrease in the market value of his land.

Jewell & Otte, Norfolk, for appellant.

McFadden & Kirby, Norfolk, for appellees.

Heard before WHITE, C.J., BOSLAUGH, SMITH, and McCOWN, JJ., and HUBKA, ACH, and GARROTTO, District Judges.

GARROTTO, District Judge.

This is an action of reverse condemnation for the damage caused to the property of the plaintiff-appellees, hereinafter referred to as plaintiffs, by construction of a large earthen flood control dam or dike about 13 feet in height which was constructed adjacent to the land of the plaintiffs by defendant-appellant City of Norfolk, hereinafter referred to as defendant.

Plaintiffs are the owners of a 2-acre tract of land about 2 miles north of Norfolk, in Madison County, Nebraska, upon which property there are a modern three bedroom home and a modern two bedroom home. The defendant built a dam or dike across the road from plaintiffs' property for flood control purposes leaving plaintiffs' property between the dike and the North Fork River. Appeal was taken from the award of the appraisers appointed by the county court to the district court for Madison County.

The defendant filed its answer alleging that it was the owner of the fee title to the property on which the dam was erected. Defendant denied any restriction to the natural drainage to the North Fork River, and further denied that plaintiffs sustained any damage as the result of the construction of said dike.

William Deitloff, one of the owners and a party plaintiff, testified that the construction of the dike would, in times of major flood, cause the water to back up and flood his property. He further testified that the value of his property before the construction of the 13-foot dike was $28,500 and that the value of the property immediately afterwards was $19,500.

Walter Gutzmann, a licensed real estate broker, testified on behalf of the plaintiffs as to the value of the improvements on plaintiffs' property and the value of plaintiffs' property before and after the construction of the dike. He further stated that prior to the construction of the dike, he had seen as much as 60 acres under water on the west side of U.S. Highway No. 81 and that the highest he had seen the water was in 1944 and 1960.

Mr. Gutzmann, who has been an expert in real estate appraisals and values in and around Norfolk for 27 years, testified that he knew the location of the real estate owned by the plaintiffs, its improvements, the location of roads and highways running to and past the property, and also the location of the North Fork River immediately to the north and west of the property in question. This witness further testified that the construction of the dike diminished the value of the property. The major elements he took into consideration in arriving at the diminution in value were: (1) The obstruction of the natural flow of water; (2) the undesirability of the place due to the construction of the dike; (3) that one must cross over the top of the dike to approach the property; and (4) the sandwiching of the property between the river and the dike. Mr. Gutzmann also stated he had taken into consideration: The dike's interference with air; fear of flood; difficulty in obtaining a loan; and difficulty in selling the property.

Mr. Gutzmann further testified that in his opinion the value of the property in question before the construction of the dam was $26,500 and after said construction its value was $18,000.

The defendant called as its witness Stuart Hales, a real estate expert who testified he was acquainted with the terrain, the North Fork River, and the area in general; that the construction of the embankment had no effect, one way or another, upon the market value of the land. He further testified that the mere location of the property in relationship to the river would act as a diminishing influence on the overall value of the property.

The court sustained the motion of the plaintiffs that the jury be permitted to view the premises and the terrain involved. The jury did so in charge of the court's bailiff.

The jury returned a verdict in favor of the plaintiffs in the sum of $8,500. Judgment was entered on the verdict.

The motion of defendant for judgment notwithstanding the verdict, or, in the alternative, for new trial was overruled by the court and the defendant appealed to this court.

It was agreed by the parties that the only issue to be considered was the diminution in the value of the plaintiff's property.

In its bried the defendant sets forth seven assignments of error as a basis for reversal of the judgment entered by the trial court: (1) and (2) that the trial court erred in overruling defendant's motion to dismiss after the plaintiffs rested and again after all parties rested; (3) that the trial court erred in overruling defendant's motion to strike the testimony of Walter Gutzmann; (4) that the trial court erred in submitting the issue of increased flood hazard to the jury as contained in instruction No. 9; (5) that the verdict of the jury and judgment of the trial court are not sustained by sufficient evidence; (6) that the verdict of the jury and the judgment of the trial court are contrary to the evidence; and (7) that the verdict of the jury and judgment of the trial court are contrary to law.

We take up first assignments of error Nos. (1), (2), and (3). As related heretofore, the evidence of the plaintiffs when they rested their case consisted in the main of the testimony of one of the owners of the property, William Deitloff, and Walter Gutzmann, the real estate expert. Mr. Deitloff testified as to his ownership of the property with his wife; that he was well acquainted with the area for a number of years; that he purchased it 13 years previous of the time of trial; and that he built the two homes thereon. He built the first house 11 years and the second 9 years previous to construction of the dike. He knew the value of his property before and after the construction of the dike. He stated the value before said construction was $28,500 and $19,500 afterwards, or a diminution of $9,000.

This court, in a long line of cases has repeatedly held that: 'The owner of real estate which is taken in condemnation proceedings who is familiar with its value can testify as to its value.' Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N.W.2d 865.

In Twenty Club v. State, 167 Neb. 37, 91 N.W.2d 64, this court said: 'In condemnation proceedings, where persons are shown to be familiar with the particular land in question, they may be permitted as witnesses to testify as to the value of the tract immediately before and immediately after the appropriation.'

Mr. Gutzmann testified as to his long acquaintance with the area and of his 27 years of experience in selling, appraising, and valuing real estate in the area of Norfolk and in Madison County. He gave his opinion that the value of plaintiffs' property before the dike was constructed was $26,500 and immediately thereafter was $18,000, a diminution of $8,500.

In Lansman v. State, 177 Neb. 119, at page 125, 128 N.W.2d 569, at page 573, this court said: "Generally, either lay or expert witnesses may be used to testify as to the value of a tract of land taken or the value of the remainder thereof immediately before and immediately after the taking if proper foundation is laid showing they have an acquaintance with the property and are informed as to the...