Dowd v. City of Omaha, Douglas County

• Court: Nebraska Court of Appeals
• Writing for the Court: MILLER-LERMAN
• Citation: Dowd v. City of Omaha, Douglas County, 520 N.W.2d 549, 2 Neb.App. 958 (Neb. App. 1994)
• Decision Date: 26 July 1994
• Docket Number: No. A-92-542,A-92-542
• Parties: Duane J. DOWD and Frances Dee Dowd, Appellants, v. CITY OF OMAHA, DOUGLAS COUNTY, Nebraska, Appellee.

Page 549

520 N.W.2d 549

2 Neb.App. 958

Duane J. DOWD and Frances Dee Dowd, Appellants, v. CITY OF OMAHA, DOUGLAS COUNTY, Nebraska, Appellee.

No. A-92-542.

Court of Appeals of Nebraska.

July 26, 1994.

Syllabus by the Court

1. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

2. Rules of Evidence: Appeal and Error. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. Neb.Rev.Stat. § 27-103(1) (Reissue 1989). As a general rule, to constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

3. Eminent Domain: Damages. Generally, when part of a tract is taken in condemnation, the land taken must be valued in relation to the tract of which it is a part. The owner is entitled to compensation not only for the part taken, but also for any depreciation in the value of the remainder caused by the taking, less special benefits.

4. Deeds: Easements: Conveyances: Railroads. An easement, as distinguished from a fee simple determinable or defeasible fee interest, is created when the deed indicates that the conveyance in question is for the limited purpose of constructing and operating a railroad.

5. Real Estate: Easements: Conveyances: Warranty. A grant of land with full covenants of warranty, which definitely describes the land conveyed, and then excepts or reserves a roadway for the use of the public, or a railroad or other right-of-way, as such, occupying a mere easement on, over, or across the land conveyed, conveys the fee to the entire tract subject to the easement reserved.

6. Real Estate: Easements: Conveyances: Railroads. A transfer of land crossed by a railroad right-of-way transfers it subject to an easement, and the grantor does not retain the servient estate underlying the railroad right-of-way unless the grantor explicitly identifies a retention.

7. Real Estate: Easements: Conveyances: Railroads. It is generally illogical to presume that the grantor of a tract

which includes a railroad right-of-way intends to retain the servient estate underlying the right-of-way while parting with the remainder of the tract.

8. Real Estate: Conveyances: Public Policy. Retention of remote or isolated portions of land has long been criticized as against public policy.

9. Deeds: Easements: Conveyances: Abandonment. The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots.

10. Real Estate: Title: Conveyances. When the owner of land abutting upon a street or highway or upon a body of water or watercourse conveys the land, the conveyance will carry title to and fix the boundaries of the grantor's land by the center of this street or highway or the thread of the body of water or watercourse if the grantor's title extends thereto, notwithstanding the land is described as being bounded by the road, highway, or watercourse.

11. Real Estate: Easements: Conveyances. Where land is described as abutting or being bounded by a public easement, the transfer of the abutting land includes a transfer of a fee interest to the center of the easement.

12. Real Estate: Title: Easements: Conveyances: Railroads. On abandonment of railroad use, title to the land contained within a right-of-way would revert to the adjoining landowner.

J. Patrick Green, Omaha, for appellants.

Herbert M. Fitle, Omaha City Atty., Michael A. Goldberg and Alan M. Thelen, Omaha, for appellee.

IRWIN, MILLER-LERMAN, and MUES, JJ.

MILLER-LERMAN, Judge.

In this condemnation case, Duane J. Dowd and Frances Dee Dowd, appellants and condemnees, appeal from certain trial rulings and the judgment entered by the district court after trial by jury. For the reasons recited below, we reverse, and remand for further proceedings.

FACTS

This case involves the partial taking of Lots 7, 8, 9, and 22 in three tracts to the east of the Little Papillion Creek, in a northwest subdivision of the City of Omaha (City) known as Richland Acres. The condemnation action was commenced by the City to acquire the property for park and recreational use in conjunction with construction of the Keystone Trail.

The owners of the property at issue were Duane J. Dowd and Frances Dee Dowd, husband and wife. There were no improvements on the property, and the property had a transitional zoning status classified as "Development Reserve." Lots 7, 8, 9, and 22 run in a north-south direction in relation to each other and are partially bordered by North 88th Street to the east. Little Papillion Creek runs generally north-south through Lots 7, 8, 9, and 22. Land comprising Lots 7, 8, 9, and 22 is found on both sides of the creek. The condemned portions were to the east of the creek. The noncondemned portions of Lots 7, 8, 9, and 22, to the west of the creek, proceed to an abandoned railroad right-of-way. Condemnees were also owners of Lot 23, the land to the west of the right-of-way. Lot 23 is bordered by North 90th Street at the westernmost point. North 90th Street is a four-lane arterial street on which considerable commercial development has occurred. The following is a general illustration of the area:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

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The petition for condemnation was filed in the county court by the City on April 12, 1988. The county board of appraisers valued the condemned portions of Tract 1, containing 88,719 square feet, at a total of $7,100; Tract 2, containing 167,730 square feet, at a total of $13,400; and Tract 3, containing 160,574 square feet, at a total of $94,500. Of these total amounts, condemnees were allowed $6,931.84 on Tract 1, $12,842.06 on Tract 2, and $76,859.39 on Tract 3. Condemnees appealed to the district court on all three tracts, setting out each tract as a separate cause of action. The City filed an appeal with regard to Tract 3.

A jury trial was conducted over 10 days. The bill of exceptions consists of 11 volumes comprising 2,468 pages of testimony accompanied by over 125 exhibits. Following deliberations, the district court jury returned a verdict valuing Tracts 1 and 2 together at $35,905 and Tract 3 at $28,915. The district court awarded the costs to the City on all three causes of action and denied condemnees' request for fees, costs, and expert witness expenses. Since condemnees had withdrawn funds under the award in county court, the district court entered a net judgment for the City in the amount of $79,724.05. Condemnees timely appealed to this court.

Condemnees allege eight assignments of error, which we condense to four. Condemnees claim that the trial court erred (1) in finding that condemnees were not the owners of the abandoned railroad right-of-way and in failing to treat the center of the right-of-way as the western boundary between the condemned tracts and the lot owned by condemnees west of the condemned tracts for purposes of computing severance damages and value of the land taken; (2) in admitting the purchase prices paid by condemnees for Tracts 1 and 3 in 1979 and 1981 respectively and in admitting the blighted purchase price paid by condemnees for Tract 2 in 1985; (3) in allowing the city's expert, Thomas E. Stevens, to testify and ultimately formulate an opinion based on hearsay declarations that were inherently vague and speculative; and (4) in failing to award condemnees attorney fees, expert witness fees, and costs as to Tracts 1 and 2, on which the jury verdict exceeded the county court award.

Because we find reversible error in connection with the first assignment of error, and the remaining assignments of error pertain to the unique context of the conduct of the trial, we limit our opinion to consideration of the first assignment of error.

STANDARD OF REVIEW

Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. County of Dakota v. Worldwide Truck Parts & Metals, 245 Neb. 196, 511 N.W.2d 769 (1994).

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. Neb.Rev.Stat. § 27-103(1) (Reissue 1989). As a general rule, to constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

McDonald v. Miller, 246 Neb. 144, 149, 518 N.W.2d 80, 84 (1994).

ANALYSIS

The ownership of the abandoned railroad right-of-way which connects Lot 23 on the west with the western portions of Lots 7, 8, 9, and 22 on the east was an issue in this case. The resolution of the ownership of the abandoned railroad right-of-way is significant for valuation purposes because generally, when part of a tract is taken in condemnation, the land taken must be valued in relation to the tract of which it is a part. Frank v. State, 176 Neb. 759, 127 N.W.2d 300 (1964), modified 177 Neb. 488, 129 N.W.2d 522. The owner is entitled to compensation not only for the part taken, but also for any depreciation in the value of the remainder caused by the taking, less special benefits. Sorensen v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180, 376 N.W.2d 539 (1985).

Condemnees contend that they were the owners of the abandoned railroad right-of-way, and as a result, Lots 7, 8, 9, 22, and 23 were contiguous for purposes of assessing compensation. The City argued that condemnees were not the owners of the...