Gledhill v. State

• Citation: 243 N.W. 909,123 Neb. 726
• Decision Date: 11 August 1932
• Docket Number: 28169
• Parties: THOMAS E. GLEDHILL, APPELLEE, v. STATE OF NEBRASKA, APPELLANT
• Court: Supreme Court of Nebraska

243 N.W. 909

123 Neb. 726

THOMAS E. GLEDHILL, APPELLEE, v. STATE OF NEBRASKA, APPELLANT

No. 28169

Supreme Court of Nebraska

August 11, 1932

APPEAL from the district court for Sarpy county: JAMES T. BEGLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. " Private property in Nebraska cannot be taken or damaged for public use without just compensation therefor, and this rule applies to public authorities exercising the right of eminent domain in establishing and opening public highways." Johnson v. Peterson, 85 Neb. 83, 122 N.W. 683.

2. One whose land is damaged temporarily for public use by the construction of a public improvement by the state constitutes such a damage as requires compensation under section 21, art. 1 of the Constitution.

3. Bridges constructed over a stream must be so built and maintained as to provide for the flow of all the water which can be carried in the channel, including its natural flood channel. Failure to make proper provision imposes liability, although it may have been constructed according to approved principles of engineering.

4. If such a bridge obstructs the flow, it is evidence that it was not properly constructed, regardless of the principles upon which it was built.

5. Where the state, in the improvement of a state highway, builds a cheap temporary bridge, which obstructs the flow of water in a watercourse causing temporary damage to the owners of private property, just compensation must be made for such damage.

6. In a suit to recover damages under the constitutional provision for damage to property for public use, it is immaterial whether the petition states a cause of action ex delicto or ex contractu. If the fact is established that property has been damaged for public use, the owner is entitled to compensation.

7. Where land, no part of which is taken, is temporarily damaged by a temporary public improvement, the measure of compensation is not the market value but the value of the use for the period damaged.

8. " Damages based upon the value of unmatured crops are analagous to profits lost, and are governed by the same rule precluding recovery in cases of either uncertainty or remoteness. The question of whether damages based on the result of an unmatured crop are speculative must be determined by whether there is sufficient data to determine with reasonable certainty the probable value it would have had if matured." 17 C. J. 785.

9. When there is evidence of the actual matured value of other crops of a like kind grown during the same period, in portions of the same or adjoining land under similar conditions, there is sufficient data to determine with reasonable certainty the probable value of an unmatured crop if it had matured.

10. A tenant for a term has a property right in land, which is protected by section 21, art. 1 of the Constitution.

Appeal from District Court, Sarpy County; Begley, Judge.

Action by Thomas E. Gledhill against the State of Nebraska. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

HASTINGS, District Judge, dissenting.

C. A. Sorensen, Attorney General, L. Ross Newkirk and Homer L. Kyle, for appellant.

Patrick & Smith, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, DAY and PAINE, JJ., and LOVEL S. HASTINGS, District Judge. HASTINGS, District Judge, dissents.

OPINION

DAY, J.

The plaintiff seeks to recover damages from the state, sustained by himself and as assignee of the claims of 19 others, by reason of the construction of a temporary bridge by the state across a watercourse on a state highway. The state appeals from a judgment of approximately $ 25,000 in favor of plaintiff.

The suit was brought against the state under the provision of the state Constitution which prohibits the taking or damaging of private property for public use without just compensation. In September, 1928, a steel span bridge at the location involved washed out by a heavy rainfall and replacement was necessary. The drainage ditch follows the general course of the Papillion creek, drains over 600 square miles, and carries a large volume of water in flood time. The highway involved is designated as U.S. 75 and is an important one, carrying heavy traffic from Omaha to Kansas City. At the time, the state was engaged in paving and otherwise improving the highway. It was necessary to replace this bridge quickly to avoid inconvenience to the public. Since a change in the location of the road was contemplated but not definitely determined, the state, in order to save money, erected a temporary wooden pile bridge. In order to support this bridge, piles were driven within the ditch, and to reinforce it other piles were driven in the ditch upstream. Thereafter on March 5, 1929, a thaw caused the ice in the ditch to break up and, together with water draining in the ditch from melting snow, began to move downstream. The ice lodged against the piling of the bridge causing a gorge or dam which held back the flow of ice and water above the bridge and flooded the land for which plaintiff claims damage. The plaintiff alleges that said land was rendered useless during the crop season of 1929.

The property of the plaintiff and his assignors was damaged without actual taking by the construction of this temporary public improvement. It was the purpose of those representing the state to construct a temporary bridge as cheaply as possible. The bridge constructed was the cause of the damage to the plaintiff and his assignors who owned land upstream from the bridge. The evidence in this case is overwhelming that the beginning of the flood was caused by the floating ice cakes in the ditch being held at the bridge. From this point the ice and water backed up for a considerable distance until the ditch was filled, when it overflowed the land and destroyed the dikes which had been constructed at private expense by the landowners. There is evidence in the record of engineers to establish the various levels along this ditch which tends to prove that the bridge was not the cause of the flood. However, this evidence is not impressive in view of the fact that there was no flooding until the ice cakes lodged against the bridge and that the flood started from that point. The bridge was so constructed that it obstructed the flow of ice and water and caused the flood. There was other evidence that this ditch had overflowed prior to the building of this bridge. The finding of the trial court that this temporary highway bridge was the cause of this flood and the consequent damage is the only finding possible from the evidence in this case.

Is the damage resulting from the construction of this bridge such as would entitle the plaintiff to just compensation? The property of the plaintiff and his assignors was damaged without actual taking by the construction of a temporary public improvement. Since the insertion of the words "or damaged" in section 21, art. I of the Constitution of 1875, it has been the well-settled law in this state that one whose property was damaged without actual taking was entitled to just compensation. Omaha & R. V. R. Co. v. Standen, 22 Neb. 343, 35 N.W. 183; City of Omaha v. Kramer, 25 Neb. 489, 41 N.W. 295. In the latter case, it was said: "The words, 'or damaged,' in section 21, art. I of the Constitution, include all damages arising from the exercise of the right of eminent domain which cause a diminution in the value of private property." At a later date, in Johnson v. Peterson, 85 Neb. 83, 122 N.W. 683, this court said: "Private property in Nebraska cannot be taken or damaged for public use without just compensation therefor, and this rule applies to public authorities exercising the right of eminent domain in establishing and opening public highways." This latter case was cited with approval in Weinel v. Box Butte County, 108 Neb. 293, 187 N.W. 939. Recently this court held, in Nine Mile Irrigation District v. State, 118 Neb. 522, 225 N.W. 679, to the same effect. These few cases, cited out of the many, indicate in outline the established law in this state.

The fact that the damage in this case was of a temporary nature and caused only by a temporary bridge constructed for the use and convenience of the public does not prevent a recovery. 1 Nichols, Eminent Domain (2d ed.) p. 309, says: "An entry on private land may constitute a taking, though temporary in its nature and for only a temporary purpose. A city could not, for example, while it was building a new city hall on the site of an old one, formally divest the owner of a neighboring building of the use of his property for a year and employ it for a temporary seat of government without compensation for depriving him of the use of his land and building. Accordingly it is held that land or other property cannot be actually put to use by public authority for a temporary purpose without compensating the owner." The authority cites the following cases which support the rule. McKeon v. New York, N. H. & H. R. Co., 75 Conn. 343, 61 L. R. A. 730, 53 A. 656; Brigham v. Edmands, 7 Gray (Mass.) 359; Alexander v. United States, 39 Ct. Cl. 383, and other cases. In line with this authority and the amendment to our Constitution by the adding of the words "or damaged," where one's land is damaged temporarily for public use by the construction of a public improvement by the state, it constitutes such a damage as requires compensation under section 21, art. I of the Constitution.

1 Lewis, Eminent Domain, sec. 78, says: "Works of public utility must be so constructed as not to interfere with the accustomed flow of the stream, otherwise there is a right to recover for any consequent damage to private property. Authority to bridge or cross a stream does not imply authority to interfere with...