Frank v. State Dept. of Roads

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; WHITE
• Citation: Frank v. State Dept. of Roads, 127 N.W.2d 300, 176 Neb. 759 (Neb. 1964)
• Decision Date: 03 April 1964
• Docket Number: No. 35619,35619
• Parties: Owen A. FRANK and Dorothea Frank, wife of Owen A. Frank, Appellants, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.

Page 300

127 N.W.2d 300

176 Neb. 759

Owen A. FRANK and Dorothea Frank, wife of Owen A. Frank, Appellants, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.

No. 35619.

Supreme Court of Nebraska.

April 3, 1964.

Syllabus by the Court

1. The measure of damages for property taken for public use is the fair and reasonable value of the property actually appropriated and the difference in the fair and reasonable market value of the remainder of the property before and after the taking.

2. In the determination of remainder damage, it is the effect of the severance of the property taken on the value of the total unit of property that produces remainder damage.

3. If a party limits his proof of remainder damage to a portion of the property remaining after the taking, he may not thereby limit the proof offered by the condemner as to the value of the whole of the remainder before and after the taking.

4. Land taken by right of eminent domain should be valued as a portion of the tract of which it is a part and not as if it stood alone.

5. Damages in a condemnation action are peculiarly of a local nature, and weight and credibility of valuation testimony are for the jury.

6. In a condemnation action, the burden of proof is on the condemnee landowner to prove that the severance of the property taken caused damage to the value of the total unit of the remainder and to prove the amount of that damage.

7. Access to property is one of many factors bearing upon a determination of its value and where access has been affected, generally this court, as a matter of law, cannot determine that it thereby diminishes the value of the property. This determination is for the jury to make in conformity with the proper measure of damages.

8. In a condemnation action where the evidence is in conflict, the verdict of the jury will not be set aside unless it is affirmatively shown that the verdict is clearly wrong.

9. A party may not require, in a condemnation action, that a particular witness as to valuation follow or subscribe to any given formula or method of appraisal or require that certain factors affecting valuation be considered.

Wright, Simmons & Hancock, Scottsbluff, for appellants.

Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., Sp. Asst. Atty. Gen., Harold S. Salter, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

WHITE, Chief Justice.

This is a State highway condemnation case. From a jury verdict and judgment for the plaintiffs in the sum of $12,280, the plaintiffs appeal. The jury made special findings in this case; first, that the value of the property taken by the State was $12,280; and, second, that there was no damage to the remainder of the plaintiffs' property. The plaintiffs assign error in the inadequacy of the verdict in that there was no allowance for damage to the remainder of their property, error in the admission of the testimony of the witness Zich for the State, error in an instruction, and error in permitting the State to introduce evidence as to the value of the whole of plaintiffs' property when the plaintiffs themselves limited their claim for remainder damage to only a portion of it.

The land condemned was for the purpose of constructing a portion of a by-pass of State Highway No. 26 on the north side of Scottsbluff, Nebraska. The date of the taking was September 12, 1962. Plaintiffs own approximately 124 acres of land in an area which is gradually being developed for residential purposes. It is one continuous piece of property being bordered by Twenty-seventh Street, a paved arterial, on the north, Twentieth Street on the south, Fifth Avenue on the west, and a drainage ditch on the east which runs directly north in a straight line on the east border for a short distance and then extends diagonally in a southeast-northwest direction to a point where it intersects Twenty-seventh Street, the north boundary of the property. The actual taking by the State is 6.14 acres in a strip approximately 150 feet wide which runs parallel with and immediately next to the diagonal portion of the drainage ditch bordering plaintiffs' property on the east. The evidence shows that the plaintiffs had sold tracts from the west side of this property bordering Fifth Avenue for a Safeway store, for a school and church, and for small residential tracts. The balance of the property was devoted to farm purposes at the time of the taking, was unplatted, and was zoned by the City of Scottsbluff for residential, single-family dwelling purposes. The evidence shows that the whole surrounding area was gradually being developed for urban residential and incidental commercial purposes with comparatively new subdivisions and sales of property therein to the north, west, and east of the plaintiffs' property.

What was the testimony as to valuation of the tract taken and the remainder? All of the plaintiffs' witnesses testified that there was no damage to the remainder of the 124 acres, except to two strips of land both running parallel and adjacent to the highway right-of-way. The first strip consists of 2.12 acres, running directly south from the triangular sliver of land, taken by the State to furnish the turning area onto the new highway from Twenty-seventh Street. This sliver extended west on Twenty-seventh Street approximately 54 feet to the west of the point where the new highway will interest Twenty-seventh Street. The second strip consists of an area of 5.95 acres and a 150-foot strip parallel and adjacent to the west of the highway right-of-way throughout the Frank property. These 'strips' or 'areas' are not platted, marked, or naturally divided in any way on the property. They were selected and marked off on the maps arbitrarily by the plaintiffs' witnesses as to the area of remainder damage.

The plaintiffs' witnesses fixed a valuation of the land taken varying from $16,135 to $21,810. On the two strips selected for remainder damage, the plaintiffs' witnesses estimated the difference in value before and after the taking of September 12, 1962, as varying between $9,570 (owner Frank) to something over $12,000 (witness Scriven). The total damage they testified to ranged between about $27,500 to $31,380. The State's witnesses fixed a valuation on the tract taken varying between $9,824 to $12,280 based on the difference in value of the total tract immediately before and after the taking of September 12, 1962. This valuation in turn was based on a total valuation of the tract from $225,000 to $246,000 before the taking of the 6.14 acres for the right-of-way. The State's witnesses found no damage to the remainder of plaintiffs' property from the effect of the taking. The jury returned a verdict of $12,280 and, in response to the verdict form furnished it by the court, found that there was no damage to the remainder.

The evidence shows that this property, while now having only nonplatted use as farm property, has a high potential value for residential subdivision purposes. While the testimony of the experts differed widely as to the significance of the different sales and the factors that each one of them took into consideration in fixing the value of the acreage, it is significant that they fixed a fairly uniform value per acre throughout the whole acreage and that it varied from about $2,000 to about $2,750 per acre. The plaintiffs' witnesses fixed a higher valuation on the lots that had access to Twenty-seventh Street because, although zoned at present for residence purposes only, they gave this area extra value because of a possible change in zoning, the fact that Twenty-seventh Street was a main artery of traffic, and because commercial properties of comparatively high value had been sold a short distance to the west on Twenty-seventh Street. The defendant's testimony, on the other hand, was to the effect that the difference in access before and after the taking would cause no difference in the valuation of the property for the available or prospective uses and that the effect of the taking on value, if any, would be to increase it. It also appeared that the property before the taking bordered on the drainage ditch to the east with no access to a road or other property in that direction.

The plaintiffs assign error in the court permitting the defendant's witnesses to testify as to the value of all of the plaintiffs' land before and after the taking and also error in permitting testimony as to the value of the remainder before and after the taking of September 12,...