Enterprise Co. v. Sanitary Dist. No. One of Lancaster County

• Decision Date: 17 January 1964
• Docket Number: No. 35530,35530
• Citation: 176 Neb. 271,125 N.W.2d 712
• Parties: ENTERPRISE COMPANY, Inc., a Corporation, Appellee, v. SANITARY DISTRICT NO. ONE OF LANCASTER COUNTY, Nebraska, a Public Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 712

125 N.W.2d 712

176 Neb. 271

ENTERPRISE COMPANY, Inc., a Corporation, Appellee, v. SANITARY DISTRICT NO. ONE OF LANCASTER COUNTY, Nebraska, a Public Corporation, Appellant.

No. 35530.

Supreme Court of Nebraska.

Jan. 17, 1964.

Syllabus by the Court.

1. In testing the sufficiency of the evidence to support a judgment, the evidence must be considered in the light most favorable to the successful party.

2. It is the duty of the trial court to instruct the jury as to the proper basis upon which damages are to be assessed and to fully and fairly inform the jury as to the various items of damage which should be taken into consideration in arriving at the verdict.

3. It is the duty of the trial court to instruct the jury upon the issues presented by the pleadings and supported by the evidence.

4. General benefits are those which result from the enjoyment of the facilities provided by a public improvement. Special benefits are those which arise from the peculiar relation of the land in question to the public improvement and which are not shared by all other land within range of the public improvement.

Kier, Cobb & Luedtke, Janice L. Gradwohl, Lincoln, for appellant.

Ginsburg, Rosenberg & Ginsburg, Norman Krivosha, Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, SPENCER, BOSLAUGH, and BROWER, JJ., and LYNCH, District Judge.

BOSLAUGH, Justice.

Sanitary District No. One of Lancaster County, Nebraska, commenced this proceeding to obtain an easement for the purpose of enlarging an existing drainage ditch. Enterprise Company, Inc., is the owner of the land involved in the proceeding. For convenience, Enterprise will be referred to as the plaintiff, and the Sanitary District as the defendant.

The plaintiff recovered damages in the amount of $13,005 in the trial court. The defendant appeals from that judgment. The assignments of error relate to the sufficiency of the evidence to sustain the judgment and the instructions to the jury.

The land owned by the plaintiff is an irregular tract lying east of the Chicago & North Western Railroad right-of-way and south of Adams Street in the City of Lincoln, Nebraska. The land is in an industrial area and is used for industrial purposes.

In 1930, the defendant obtained an easement for a drainage ditch along the western boundary of the property. The easement obtained in this proceeding is adjacent to and along the east line of the 1930 easement. The taking which is involved in this appeal is an area 18 feet wide and 1,100 feet long. It amounts to .47 of an acre.

Prior to the taking the plaintiff had constructed a building on the property. The building is leased to Mapes Industries, Inc., and is used for manufacturing purposes. The building when constructed was 33 feet east of the east line of the 1930 easement. Since the easement obtained in this proceeding is 18 feet in width, the west line of the Mapes building is now 15 feet from the east line of the defendant's easement.

There was evidence that the land taken had a value of $4,000 per acre at the time of the taking. The defendant produced evidence that the land was of a lesser value, but in testing the sufficiency of the evidence to support a judgment the evidence must be considered in the light most favorable to the successful party. O'Neill v. State Dept. of Roads, 174 Neb. 540, 118 N.W.2d 616.

There was evidence that the taking of the easement and the enlarging of the drainage ditch will require that the foundation of the Mapes building be protected and reinforced to prevent the collapse of the building; that the fair and reasonable value of this additional construction is $11,000; that prior to the taking the area between the west line of the Mapes building and the east line of the 1930 easement could be used for parking and similar uses; that the area remaining between the west line of the building and the east line of the new easement is so narrow that it cannot be used for parking and similar uses; and that the effect of the taking was to destroy the value of the 15-foot area west of the Mapes building.

The evidence which we have summarized was sufficient to sustain the judgment. Therefore, it is unnecessary to discuss the evidence relating to the other items of damage claimed by Enterprise. The assignments of error relating to the sufficiency of the evidence to sustain the judgment are without merit.

The defendant contends that the trial court should have instructed the jury that a landowner cannot recover damages that are uncertain, conjectural, or speculative. A landowner has no right to recover such damages. However, there is no duty upon a trial court to instruct the jury concerning damages that cannot be recovered.

It is the duty of the trial court to instruct the jury as to the proper basis...