Lowell v. Buffalo County

• Decision Date: 23 May 1930
• Docket Number: 27057
• Citation: 230 N.W. 842,119 Neb. 776
• Parties: O. E. LOWELL, APPELLANT, v. BUFFALO COUNTY, APPELLEE
• Court: Nebraska Supreme Court

230 N.W. 842

119 Neb. 776

O. E. LOWELL, APPELLANT, v. BUFFALO COUNTY, APPELLEE

No. 27057

Supreme Court of Nebraska

May 23, 1930

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

The constitutional provision forbidding the taking or damaging of private property for public use without just compensation applies to special damages to land by the vacating of a public highway.

The words " or damaged" as used in the constitutional provision forbidding the damaging of private property for public use without just compensation include all damages thus causing a diminution in the value of such property.

The law provides for the ascertainment and payment of special damages to private property by the vacating of a public highway.

An appeal to the district court from an award of special damages to private property, caused by the vacating of a public highway, is authorized by law.

Upon appeal from an award of damages caused by the vacating of a public highway, the compensation to which claimant is entitled must be ascertained " in the same manner as in actions by ordinary proceedings." Comp. St. 1922, § 2603.

Neither Constitution nor statute excepts from just compensation for special damages to private property by the vacating of a public highway any loss or injury that reduces its value, special benefits considered.

A landowner cannot ordinarily recover, on account of a lawful public improvement, damages that he suffers in common with the public generally, though his loss may be greater in degree, but this rule does not prevent the recovery of special damages.

Where private property has been taken or damaged by the vacating of a public highway, the owner, if suffering special damages, is entitled to recover the difference between its value immediately before and immediately after the change.

Where a public highway, intersecting an improved farm and extending to markets in both directions, is vacated, leaving the landowner with only one outlet from a cul-de-sac, he may thus suffer special damages not common to the community at large.

Whatever reduces the market value of real estate by the injuring of it for public use may be considered in determining the just compensation to which the property owner is entitled, where he suffers damages not common to the public generally.

Where the owner of real estate is entitled to recover special damages, on the ground that it was depreciated in value by the vacating of a public highway intersecting it, the jury, in determining his just compensation, may consider resulting diversion of travel and removal of a mail box and a schoolhouse, not as independent items of damage, but for the purpose of determining the market value of the property before and after the vacating of the highway.

Appeal from District Court, Buffalo County; Hostetler, Judge.

Action by O. E. Lowell, full name Oscar E. Lowell, against Buffalo County. From the judgment, plaintiff appeals.

Reversed and remanded.

Nye & Nye, for appellant.

E. G. Reed, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON and DAY, JJ., and THOMSEN, District Judge.

OPINION

ROSE, J.

This is a proceeding to recover from Buffalo county $ 5,000 in damages alleged to have been caused by the vacating of a public highway running north and south through a 200-acre island farm owned by plaintiff. Extending northeast and southwest, his land is an irregular tract approximately half a mile wide between two channels of the Platte river. A modern house occupied by him and his family is situated near the east end of his farm. In front of his residence the county maintained for many years a public highway running north and south, on which there was a bridge across the north channel a short distance north of his house and a bridge across the south channel 1,335 feet therefrom. By the old route it was approximately five miles to Gibbon on the north and about the same distance to Lowell on the south, towns thus formerly accessible to plaintiff for marketing and for other purposes. The county vacated this highway north and south of his land, abandoned both bridges and left him with a single outlet extending north 660 feet from his residence to a road running southwest along the south bank of the north channel of the Platte river a mile or more to a new graveled highway.

Plaintiff filed his claim with the county board, was awarded $ 125, and appealed to the district court.

The petition states a cause of action and contains in detail pleas that plaintiff's dwelling house and other farm buildings are now on a blind road or cul-de-sac; that the distance to his public markets at Gibbon and Lowell is materially increased; that the former general traffic which created a market at his home for some of his farm products is diverted to other highways; that a former mail box and schoolhouse a few rods from his residence are more than a mile away; that these changes were caused by the changing of the highway; that the vacating of the old road decreased the value of his real estate to the extent of $ 5,000, for which he demands judgment.

The answer contains allegations to the effect that defendant opened, approximately three-fourths of a mile west of the property of plaintiff, between his markets at Gibbon and Lowell, a new highway which has been improved and graveled by the state; that the new highway is connected with his premises by a suitable, shorter road to his markets at Gibbon and Lowell; that the portion of his farm formerly occupied by the old road has been restored to him as a special benefit; that he has not been damaged by the change to any extent beyond $ 125, which defendant offers to pay. The answer contains also a general denial. Allegations of new matter in the answer were put in issue by a reply.

Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $ 125 only. From a judgment for that sum he has appealed.

By rulings on evidence and by instructions the trial court required the jury to disregard testimony tending to prove that the value of the farm was depreciated by the removal of the mail box and the schoolhouse and by the diversion of traffic. These rulings and instructions were properly challenged as erroneous and prejudicial. In respect to all damages recoverable the entire record is presented for review. The evidence shows without dispute that for many years a public highway extended north and south through plaintiff's farm and across both channels of the Platte river; that the action of the county board left his dwelling house on a blind road or cul-de-sac; that he has only one outlet; that by the present route it is more than a mile from his farm buildings to the new traveled highway; that the distance to his markets is increased. There is also testimony tending to prove that, by the vacating of the old road and the creating of the cul-de-sac, plaintiff suffered damages not shared in common with the community at large; that the removal of the mail box and the schoolhouse and the diversion of traffic were necessary results of the changes and materially depreciated the market value of the farm.

The Constitution forbids the taking or damaging of private property for public use without just compensation. Const art. I, sec. 21. The words "or damaged" as used in the section of the Constitution cited include all damages arising from the exercise of the right of eminent domain which cause a diminution in the value of private property. City of Omaha v. Kramer, 25 Neb. 489, 41 N.W. 295. The legislature made provision for the ascertainment and payment of damages to private property by the vacating of a public highway. Comp. St. 1922, sec. 2586...