Medelman v. Stanton-Pilger Drainage Dist., STANTON-PILGER

• Decision Date: 14 March 1952
• Docket Number: STANTON-PILGER,No. 33122,33122
• Citation: 155 Neb. 518,52 N.W.2d 328
• Parties: MEDELMAN et al. v.DRAINAGE DIST.
• Court: Nebraska Supreme Court

Page 328

52 N.W.2d 328

155 Neb. 518

MEDELMAN et al. v. STANTON-PILGER DRAINAGE DIST.

No. 33122.

Supreme Court of Nebraska.

March 14, 1952.

Syllabus by the Court.

1. When lands are taken in a condemnation proceeding by reason of the power of eminent domain the owners thereof are entitled to recover full compensation for the lands actually taken and for damages to the remainder thereof such an amount as is equivalent to the diminution of the fair market value thereof resulting therefrom.

2. The market value of property includes its value for any reasonably use to which it may be adaptable.

3. Generally, either lay or expert witnesses may be used to testify as to the value of a tract of land taken or the value of the remainder thereof immediately before and immediately after the taking if proper foundation is laid showing they have an acquaintance with the property and are informed as to the state of the market, the weight and credibility of their testimony being for the jury.

4. Under ordinary circumstances expert opinion evidence is to be considered and weighed by the triers of fact like any other testimony.

Deutsch & Jewell, Norfolk, for appellants.

Thomas L. Grady, Stanton, for appellee.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

WENKE, Justice.

This is a condemnation proceeding instituted in the county court of Stanton County on June 8, 1950, by the Stanton-Pilger Drainage District to obtain a 200-foot right-of-way across the lands of Frank Medelman and Leo Sokol, doing business as the Elkhorn Construction Company, for the purpose of constructing a new pilot channel to straighten the course of the Elkhorn River. Appeal was taken from the appraiser's award to the district court for Stanton County. In the district court trial was had to a jury. The sole issue tried by the jury was to determine the amount of damages which the landowners had sustained by the taking. The jury returned a verdict for $500 on which the trial court entered judgment. Their motion for new trial having been overruled, the landowners appealed.

Appellants owned approximately 97 acres of land in the south half of Section 3, Township 23 North, Range 3 East of the 6th P.M., in Stanton County, Nebraska, at the time this proceeding was instituted. They acquired this land by warranty deed dated November 8, 1947, and paid for it the sum of $5,000. The appellee's right-of-way passes across the north part of the land.

In this type of action we have held: 'As damages the plaintiffs are entitled to recover full compensation for the land actually taken and for such damages to the remainder thereof as are equivalent to the diminution of the fair market value thereof.' Langdon v. Loup River Public Power Dist., 144 Neb. 325, 13 N.W.2d 168, 171.

In this respect we have said: 'The market value of property includes its value for any reasonable use to which it may be put. If, by reason of its surroundings, or its natural advantages, or its artificial improvements or its intrinsic character, it is peculiarly adapted to some particular use, all the circumstances which made up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating compensation. The proper inquiry is, what is its fair market value in view of any reasonable use to which it may be applied and all the reasonable uses to which it is adapted? The correct rule is as stated in Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123, 125, 8 L.R.A. 123: "* * * witnesses should not be allowed to give their opinions as to the value of the property for a particular purpose, but should state its market value in view of any purpose to which it is adapted. The condition of the property and all its surroundings may be shown, and its availability for any particular use. If it has a peculiar adaptation for certain uses, this may be shown, and if such peculiar adaptation adds to its value the owner is entitled to the benefit of it. But, when all the facts and circumstances have been shown, the question at last is, what is it worth in the market?' Lewis, Em.Dom., § 479." Langdon v. Loup River Public Power Dist., supra.

As stated in 18 Am.Jur., Eminent Domain, § 242, p. 878: 'When the land taken has valuable deposits of minerals, or contains sand, gravel, peat, or other materials of value, or is covered with growing crops, or trees capable of being converted into lumber, these circumstances may be considered so far as they affect the market value of the land; but part of the realty cannot be separately valued for its materials, as an item additional to the value of the land for the purpose of sale.' See 29 C.J.S., Eminent Domain, § 174, p. 1043.

Under this principle appellants could introduce evidence to show that the lands involved contained gravel deposits of such character that they were adaptable to commercial development and show the fair market value of the lands in view thereof. This they did.

Appellants complain that the trial court erred by permitting appellee's witnesses to testify as to the fair market value of the lands actually taken for a new pilot channel and the damage resulting therefrom to the remainder because they did not show a knowledge of all the uses and purposes to which the property could be put.

Appellee's witnesses were qualified to and did testify as to the value of the land taken and damages resulting therefrom based on its use for pasture and agricultural purposes but none were qualified as experts in the field of gravel and the commercial production thereof nor did they testify concerning its value if reasonably adaptable thereto, although they did testify as to observing what had been taken from some of the test holes and also what had been stockpiled in 1948.

'Minerals in place are matters concerning which the ordinary person probably knows little as to their value, and their value is usually a matter for expert testimony to explain to the jury, because not capable of being understood by the average person.' Thorn v. Dunn, Tex.Civ.App., 94 S.W.2d 1229, 1230.

Whether or not this rule would apply to gravel, which is here involved, we need not decide.

We said in Langdon v. Loup River Public Power Dist., supra: 'The question of the qualification of witnesses to testify as to the value of the premises in question is raised by the rulings on objections to the testimony of certain witnesses. In Republican V. R. Co. v. Arnold, 13 Neb. 485, 14 N.W. 478, we stated: 'Where persons are shown to be familiar with the value of a particular piece of land, across which a railroad has been built, they may be permitted to testify as to the value of such tract immediately before the location of the road, and to the value thereof immediately afterwards.' And in Wahlgren v. Loup River Public Power District, supra [139 Neb. 489, 297 N.W. (833) 837], we stated: '* * * where persons are shown to be familiar with the particular land in question, they may be permitted as witnesses to testify as to the value of the tract immediately before and immediately after the appropriation. Republican V. R. Co. v. Arnold, 13 Neb. 485, 14 N.W. 478; Blakeley v. Chicago, K. & N. R. Co., 25 Neb. 207, 40 N.W. 956; Burlington & M. R. R. Co. v. White, 28 Neb. 166, 44 N.W. 95; Chicago, R. I. & P. Ry. Co. v. Buel, 56 Neb. 205, 76 N.W. 571.' And as stated in 20 Am.Jur. 754, sec. 897: 'Ordinarily, property owners who have lived for some time in the vicinity and know the property are qualified to testify to its value.' Either lay or expert witnesses may be used if proper foundation is laid showing they have an acquaintance with the property and are informed as to the state of the market, the weight and credibility being for the jury.'

Appellants introduced evidence to the effect that the lands taken contained a gravel bed adaptable to being developed for the profitable production of commercial gravel and the witness considered that fact in placing his value thereon. On the other hand appellee introduced evidence as to the value of the lands based on its use for pasture and agricultural purposes only. It is not necessary that a witness, testifying as to the fair market value of lands, be familiar with, have knowledge of, and take into consideration every possible use to which the owner of the lands being taken may think they are adaptable. What a witness considers in coming to his...