Lincoln Branch, Inc. v. City of Lincoln, S-92-427
| Decision Date | 04 March 1994 |
| Docket Number | No. S-92-427,S-92-427 |
| Citation | 245 Neb. 272,512 N.W.2d 379 |
| Parties | LINCOLN BRANCH, INC., a Nebraska Corporation, Appellant and Cross-Appellee, v. CITY OF LINCOLN, Nebraska, a Municipal Corporation, Appellee and Cross-Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Eminent Domain: Damages: Testimony: Juries. In a condemnation case, the weight and credibility of the testimony of lay or expert witnesses upon the issues of valuation and damages are for the jury.
2. Eminent Domain: Damages: Juries. The amount of damages sustained in a condemnation action is peculiarly of a local nature and ordinarily is to be determined by the jury.
3. Verdicts: Appeal and Error. Where the evidence is conflicting, an appellate court will not ordinarily interfere with the verdict of the jury unless it is clearly wrong.
4. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a jury verdict in a condemnation case, the evidence must be considered most favorably to the successful party, every controverted fact must be resolved in that party's favor, and that party is entitled to the benefit of any inferences reasonably deducible from it; a jury's verdict will not be disturbed unless it is clearly wrong.
5. Eminent Domain: Damages. The measure of compensation for land taken for public use is the fair market value of the land actually appropriated and the difference in the fair and reasonable market value of the remainder of the land before and after the taking.
6. Property: Vendor and Vendee: Words and Phrases. Fair market value is the price which property will bring when offered by a willing seller to a willing buyer, neither being obligated to buy or sell.
7. Eminent Domain: Easements: Damages: Juries. In determining the fair and reasonable value of land before and after it is damaged by a taking of an easement under the power of eminent domain, it is proper for the jury to consider the purposes for which it was being used at the time it was damaged, and all uses for which it is adapted and might be put, and award compensation upon the basis of its most advantageous and valuable use.
8. Eminent Domain: Juries: Evidence. If the evidence as to whether property is adaptable for a certain use is in conflict, it is the jury's province to determine which highest and best use and resulting valuation are more credible.
9. Eminent Domain: Expert Witnesses. An expert witness' testimony as to the value of land taken is purely advisory and is not binding on the trier of fact.
10. Eminent Domain: Trial: Expert Witnesses: Evidence: Appeal and Error. Where testimony of an expert regarding the valuation of real estate in a condemnation action is admitted without objection by the opponent, the opponent may not on appeal seek to impeach the foundation of that testimony and destroy the admissibility of the evidence to argue that the proffered evidence does not support the verdict.
11. Trial: Expert Witnesses: Juries. Once admitted without objection, the weight and credibility of an expert's valuation testimony is a question for the jury.
12. Trial: Evidence: Waiver. If, when inadmissible evidence is offered, the party against whom such evidence is offered consents to its introduction, or fails to object or to insist upon ruling on the objection to introduction of such evidence, and otherwise fails to raise the question as to its admissibility, that party is considered to have waived whatever objection he or she may have had thereto, and the evidence is in the record for consideration the same as other evidence.
13. Trial: Appeal and Error. One cannot silently tolerate error, gamble on a favorable result, and then complain that one guessed wrong.
14. Eminent Domain: Damages: Interest: Appeal and Error. Neb.Rev.Stat. § 76-719.01 (Reissue 1990) requires in an eminent domain proceeding that if, on appeal from the appraisers, the compensation finally awarded is less than the amount of money received by the condemnee, the court shall enter judgment against the condemnee for the amount of overpayment, together with interest at the rate provided by law.
15. Eminent Domain: Damages: Attorney Fees: Fees: Appeal and Error. Neb.Rev.Stat. § 76-720 (Reissue 1990) requires that upon an appeal by a condemnee only, if the final judgment is not greater than the award of the appraisers, the condemnee shall be charged with a reasonable sum for the fees of the condemnor's attorney and for fees necessarily incurred for not more than two expert witnesses.
Charles D. Humble and Linda W. Rohman, Erickson & Sederstrom, P.C., Lincoln, for appellant.
William F. Austin, Lincoln City Atty., and Ernest R. Peo III, Lincoln, for appellee.
In this condemnation action, plaintiff-appellant and cross-appellee, the condemnee Lincoln Branch, Inc., appealed to the district court the $560,387.36 award made to it by the county court appraisers. Following trial, the district court, pursuant to verdict, entered judgment in the sum of $489,600 in favor of Lincoln Branch against defendant-appellee and cross-appellant, the condemnor City of Lincoln. Being dissatisfied with the amount of the judgment, Lincoln Branch appealed to the Nebraska Court of Appeals. We removed the matter to this court under the authority granted by Neb.Rev.Stat. § 24-1106(3) (Cum.Supp.1992) to regulate our caseload and that of the intermediate court. Lincoln Branch asserts, in summary, that as the judgment is not supported by the evidence and is contrary to law, it is clearly wrong and must therefore be vacated and a new trial granted. The city, on the other hand, not only defends the judgment, but asserts in its cross-appeal that the district court erred in failing to (1) account for the fact that the city had, pursuant to the award of the appraisers, paid Lincoln Branch and its lienholder more than the verdict Lincoln Branch obtained and (2) assess costs against Lincoln Branch. We affirm as modified, and remand the cause with directions.
In Harmony Lanes v. State, 193 Neb. 826, 832, 229 N.W.2d 203, 207 (1975), we wrote:
In a condemnation case, the weight and credibility of the testimony of lay or expert witnesses upon the issues of valuation and damages are for the jury.... The amount of damages sustained in a condemnation action is peculiarly of a local nature and ordinarily is to be determined by the jury. Where the evidence is conflicting this court will not ordinarily interfere with the verdict of the jury unless it is clearly wrong.
Accord, City of Hastings v. Peter Ellis Farms, 216 Neb. 550, 344 N.W.2d 640 (1984); Wear v. State of Nebraska, 215 Neb. 69, 337 N.W.2d 708 (1983). We have also declared:
[I]n determining the sufficiency of the evidence to sustain a verdict, the evidence must be considered most favorably to the successful party, every controverted fact must be resolved in his favor, and he is entitled to the benefit of any inferences reasonably deducible from it. A jury's verdict will not be disturbed unless it is clearly wrong.
Zwygart v. State, 230 Neb. 128, 132-33, 430 N.W.2d 301, 304 (1988).
Lincoln Branch purchased that portion of an abandoned railroad right-of-way commencing at the city's 35th Street just north of Vine Street and ending approximately 560 feet east of 84th Street. Lincoln Branch paid $1,940,947 for the realty, which is 100 feet wide along most of its length but has segments which are 125 feet, 150 feet, and 200 feet wide.
Prior to the purchase of the subject realty, Lincoln Branch reviewed an appraisal prepared for the seller, which valued the realty at $2,150,000, based on the premise that the highest and best use of the realty was as a corridor. The seller's appraiser recited that "discontinuation of the corridor would result in land sections that are inconsistent in terms of development with adjoining property [and] would produce [an] uneconomic use of the lands."
Although Lincoln Branch admits that it purchased the realty as a corridor, it determined to subdivide it and sell some portions, develop some of the segments itself, and sell other portions to developers. Lincoln Branch's president had previously purchased other abandoned railroad rights-of-way, which he divided into parcels and sold at a profit, and at the time of Lincoln Branch's purchase of the realty, he was aware of interest in several tracts for commercial development. He was also aware that the city was interested in placing a bike path on the subject realty, recognized the city's commitment to bike paths, and knew that the city had purchased a 4-mile path in the south part of the city for $1,450,000. He expected to be treated fairly should the city seek to obtain a portion of Lincoln Branch's realty for such a path.
After several meetings between representatives of the city and Lincoln Branch's president, Lincoln Branch received a letter advising that the city wished to acquire an easement for a bike path along the center of the realty. Although the city later agreed to deviate from the center in certain areas, the easement, as condemned, remains, for the most part, along the center. The deviations include points near 35th Street, where the easement commences at the south edge of the realty, then merges to the middle; between 48th and 56th Streets, where the easement is nearer to the south edge; east of 56th Street, where the easement crosses closer to the north edge of the realty and then, within a few blocks, crosses back toward the south side; between 66th and 70th Streets, where the easement, at the request of Lincoln Branch, lies near the northwest side of the realty; and, finally, southeast of O Street, where the easement passes over the street at the railroad bridge and lies at the southwest side of the realty.
Lincoln Branch's expert testified that although the...
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