McArthur v. Papio-Missouri River Natural Resources Dist.

Decision Date24 May 1996
Docket NumberNo. S-94-191,PAPIO-MISSOURI,S-94-191
Citation547 N.W.2d 716,250 Neb. 96
PartiesMabel F. McARTHUR and Denning D. McArthur, Jr., Trustees, et al., Appellees, v.RIVER NATURAL RESOURCES DISTRICT, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Appeal and Error. To be considered by an appellate court, a claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party.

2. Eminent Domain: Verdicts: Appeal and Error. A condemnation action is reviewed as an action at law, in connection with which a verdict will not be disturbed unless it is clearly wrong.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by said rules; judicial discretion is involved only

when the rules make such discretion a factor in determining admissibility.

4. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert under Neb. Evid. R. 702, and unless the court's finding is clearly erroneous, such a determination will not be disturbed on appeal.

5. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion.

6. Eminent Domain: Witnesses. An owner of real property shown to be familiar with the value of such land is a competent witness to testify as to its value for the use to which it is then being put, without additional foundation.

7. Trial: Expert Witnesses. Admissibility of expert testimony depends on whether specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. It is for the trial court to make the initial decision on whether the testimony will assist the trier of fact. The soundness of the trial court's determination depends upon the qualifications of the witness, the nature of the issue on which the opinion is sought, the foundation laid, and the particular facts of the case.

8. Trial: Eminent Domain: Witnesses. In order for the testimony of either an expert or lay witness to be admissible on the question of market value of real estate, the witness must be familiar not only with the property in question, but also with the state of the market.

9. 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.

10. Trial: Eminent Domain: Evidence. In eminent domain proceedings where the sales price of other tracts are offered as evidence of market value of the tract taken, a wide discretion must be granted the trial judge in determining the admissibility of the evidence of the other sales. The evidence should not be admitted where there is a marked difference in the situation of the properties.

11. Trial: Eminent Domain: Evidence. Whether the properties the subject of other sales are sufficiently similar to the property condemned to have some bearing on the value under consideration, and to be of any aid to the jury, must necessarily rest largely in the discretion of the trial court, which will not be interfered with unless abused. The exact limits, either of similarity or difference, or of nearness or remoteness in point of time, depend upon the location and character of the properties and the circumstances of the case.

12. Rules of Evidence: Expert Witnesses: Hearsay. Rule 703 of the Nebraska Evidence Rules allows experts to rely on hearsay facts or data reasonably relied upon by experts in the field as a basis for their opinion.

13. Expert Witnesses: Witnesses. The value of an opinion of an expert witness, or any witness, must be dependent upon and is no stronger than the facts upon which it is predicated, and it has no probative force unless the assumptions upon which it was based are shown to be true.

14. Eminent Domain: Evidence. Generally, evidence as to the sale of comparable property is admissible as evidence of market value, provided there is adequate foundation to show the evidence is material and relevant. The foundation evidence should show the time of the sale, the similarity or dissimilarity of market conditions, the circumstances surrounding the sale, and other relevant factors affecting the market conditions at the time.

15. Eminent Domain: Evidence: Valuation: Proof. In condemnation proceedings where the value of real estate is in issue, evidence of particular sales of other land may not be introduced as independent proof on the question of value, unless foundation is laid indicating that prices paid represented the market or going value of such land.

16. Eminent Domain: Valuation: Offers to Buy or Sell: Words and Phrases. The fair market value is the value of the property if offered for sale upon the open market as between one who is ready and willing to sell but is not compelled to sell, and one who is ready, able, and willing to buy but is not required to buy.

17. Expert Witnesses. When an expert's opinion does not have a sound and reasonable basis such that the expert is able to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture, the opinion should be stricken.

18. Eminent Domain: Evidence: Valuation. The capitalizing of an estimate of the net rents from a probable use of the property is an accepted method of valuation.

19. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction; (2) the tendered instruction is a correct statement of the law; and (3) the tendered instruction is warranted by the evidence.

Paul F. Peters and Kathleen C. Vance, of Schmid, Mooney & Frederick, P.C., Omaha, for appellant.

Tyler B. Gaines, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellees.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

FAHRNBRUCH, Justice.

In this condemnation action, Papio-Missouri River Natural Resources District (NRD), the condemner, appeals from a jury verdict in favor of the condemnee owners, Mabel F. McArthur and Denning D. McArthur, Jr., et al. The jury awarded the condemnees $135,146 as compensation for the taking of a 61.43 acre tract in Washington County.

We reverse the judgment of the trial court and remand the cause for a new trial because the trial court abused its discretion in admitting certain testimony of an expert containing the valuation of the 61.43 acres which was not grounded upon a reasonable basis and was premised upon guess and conjecture.

ASSIGNMENTS OF ERROR

Restated and summarized, NRD assigns as error that the trial court erred in permitting Neale Shaner, over objection, to testify as an expert, in not striking the testimonies of Shaner and Russell Nelsen, and in refusing NRD's requested jury instruction. NRD also assigned as error, but did not argue in its brief, the overruling of its motion for a new trial. To be considered by an appellate court, a claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party. Scott v. Pepsi Cola Co., 249 Neb. 60, 541 N.W.2d 49 (1995). Therefore, we need not address the issue of NRD's motion for a new trial.

STANDARD OF REVIEW

A condemnation action is reviewed as an action at law, in connection with which a verdict will not be disturbed unless it is clearly wrong. Holman v. Papio-Missouri River Nat. Resources Dist., 246 Neb. 787, 523 N.W.2d 510 (1994).

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by said rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Floyd v. Worobec, 248 Neb. 605, 537 N.W.2d 512 (1995). A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert under Neb. Evid. R. 702, and unless the court's finding is clearly erroneous, such a determination will not be disturbed on appeal. Miles v. Box Butte County, 241 Neb. 588, 489 N.W.2d 829 (1992). A trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion. Lantis v. City of Omaha, 237 Neb. 670, 467 N.W.2d 649 (1991).

FACTS

This action arises from the July 3, 1991, NRD taking of 61.43 acres of real estate adjoining the Missouri River in Washington County. NRD acquired the property for the purpose of revitalizing the Missouri River environment and developing public recreation along the river.

The county court appointed appraisers who reported that the total damages to the condemnees for the 61.43 acres was $101,437.

The record reflects that the condemnees were Mabel and Denning McArthur, who held in trust an undivided half interest in the 61.43 acres. Penelope Sue and David N. Shaner and Laura M. Shaner, as custodian for Jeffrey A. Shaner, a minor, owned the other undivided half interest.

The condemnees appealed the award of the court-appointed appraisers to the district court for Washington County. The condemnees alleged that damages resulting from the taking were substantially in excess of the amount awarded by the court-appointed appraisers.

At trial, Neale Shaner (Shaner), husband of Laura Shaner and father of Penelope, David, and Jeffrey Shaner, was called by the condemnees to testify as an expert, as was Russell Nelsen, a licensed real estate appraiser and broker.

The trial court overruled NRD's objections to Shaner testifying as an expert and NRD's motions to strike the opinions of Shaner and Nelsen. The trial court also refused NRD's requested jury...

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