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, 129 N.W.2d 522, 177 Neb. 488 (Neb. 1964)
• Decision Date: 03 July 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 522

129 N.W.2d 522

177 Neb. 488

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.

July 3, 1964.

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.

On motion for rehearing plaintiff condemnees attack the finding in our opinion that there was competent evidence to sustain the special finding of the jury that there was no damage to the remainder property of the plaintiffs. Further, they specifically attack those portions of the opinion which state that the jury could have found that any remainder damage was counterbalanced by an increase in value as the result of the taking, and that if the effect of the taking was to increase the value of the remainder, that the condemner was entitled to introduce valuation testimony from which such inferences could be drawn. The last two statements, they say, permit the allowing of special benefits when there was no evidence in the record as to special benefits as the result of the taking. Special benefits must be pleaded and proved, and general benefits may not be offset. Gillespie v. City of South Omaha, 79 Neb. 441, 112 N.W. 582; Dayton v. City of Lincoln, 39 Neb. 74, 57 N.W. 754; Regouby v. Dawson County Irr. Co., 126 Neb. 711, 254 N.W. 389. However, the condemnees must request an instruction that general benefits may not be offset and none was requested in this case. See, Dayton v. City of Lincoln, supra; Gillespie v. City of South Omaha, supra. Our opinion made no changes in the law as to pleading and proving such benefits and none were intended. They appear in context simply as comment on the possible valuation analysis that the jury might have made. Our opinion states, and we adhere to the holding, that the competent evidence as to valuation sustains the finding that there was no damage to the remainder. The effect of the taking on the value of the remainder was for the jury. It was properly instructed as to the measure of damages. And our opinion points out that the valuation witnesses and the jury were entitled to consider the effect of the taking on all available and prospective uses as it related to any change in market value before and after the taking. Access to Twenty-seventh Street was one of many factors involved. Just how much access was affected was for the jury. It could have found that plaintiffs' right to access was the same afterwards as...