Y Motel, Inc. v. State Dept. of Roads

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; SPENCER; NEWTON; BOSLAUGH
• Citation: Y Motel, Inc. v. State Dept. of Roads, 227 N.W.2d 869, 193 Neb. 526 (Neb. 1975)
• Decision Date: 17 April 1975
• Docket Number: No. 39591,39591
• Parties: Y MOTEL, INC., a Nebraska Corporation, Owner, et al., Appellees, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.

Page 869

227 N.W.2d 869

193 Neb. 526

Y MOTEL, INC., a Nebraska Corporation, Owner, et al., Appellees, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.

No. 39591.

Supreme Court of Nebraska.

April 17, 1975.

Syllabus by the Court

1. Ordinarily the entire property involved in an eminent domain proceeding is to be valued and damages to it assessed as a whole.

2. Where, in eminent domain proceedings, the property is clearly divisible from

the standpoint of use and adaptability, presenting different factors and elements of damage, it definitely is not error to permit such division. In determining whether the property is to be considered as a whole or as units, usually unity of use is given greater emphasis, and has been called the controlling and determining factor.

3. In the valuation of a motel property gross room rental may be a substantial factor in making a comparison of comparable properties.

4. The evidence on gross room rental was admissible herein because: (1) It was one of the items by which the jury could gauge comparability of the sales relied upon for comparison; (2) it was an item to which prospective buyers gave substantial consideration; and (3) the property was adapted to only one use.

5. In an eminent domain proceeding, anticipated profits from the continued carrying on of a business in an established location cannot be considered in estimating the damages, and the profits of a business cannot be shown for the purpose of proving the value of the property.

6. Evidence of the use of federal funds in a state road project is not admissible in an eminent domain proceeding.

7. The fact that an expert witness uses sales of properties in other states as a basis of comparison in determining value rather than comparable sales in the vicinity of the property condemned goes to the foundation for, and the weight to be given to, the expert's testimony.

8. The admissibility of expert testimony is ordinarily within the discretion of the trial court and its ruling will be upheld on appeal unless an abuse of discretion is shown.

9. The allowance of a reasonable attorney's fee for necessary services performed by an attorney will not be reversed on appeal in the absence of a showing of an abuse of discretion by the trial court in making the allowance.

Clarence A. H. Meyer, Atty. Gen., Royce N. Harper, Spec. Asst. Atty. Gen., Dept. of Roads, Warren D. Lichty, Jr., Asst. Atty. Gen., for appellant.

Rollin R. Bailey of Davis, Bailey, Polsky, Huff & Denney, Lincoln, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

SPENCER, Justice.

The State prosecutes this appeal from the award to the plaintiffs in an eminent domain proceeding. The State alleges 27 assignments of error. In affirming the judgment we consider only those we deem material enough for comment.

Y Motel, Inc., is a family corporation owned by Vernon and Elaine Strauch. The corporation is the owner of a tract of 12.8 acres at the juncture of U.S. Highways Nos. 77 and 6. The tract is somewhat triangular in shape due to Highway No. 6 running in a northeasterly to southwesterly direction. Located on the south 4.83 acres is a modern motel facility known as the Colonial Inn, consisting of 64 units, a restaurant, swimming pool, and lounge. The motel faced old Highway No. 77 which has been abandoned in this area and now is a city street. The balance of the land, referred to as the north 8 acres, was zoned commercial and was not used in connection with the motel. It was acquired by the Strauchs for investment purposes. It was vacant and unimproved except for a barn.

Relocated Highway No. 77, with four lanes, approximately 100 feet wide, cuts across the north 8 acres in a northwesterly to southeasterly direction, leaving two triangular tracts. Both Highway No. 6 and Highway No. 77, after the relocation of Highway No. 77, have center islands and controlled access. All driveways on old Highway No. 77 remain open. There are four, one being located near the south point of the triangle. There were formerly two driveways on Highway No. 6. The State condemned the right of ingress and egress to and from the motel to Highway No. 6 on the south except for one driveway located at the far easterly edge of the motel property. The motel improvements are all located to the west of this entrance.

A small strip of land along the south boundary line of the motel tract lying next to Highway No. 6 was also condemned, and 607.4 square feet of the motel site was temporarily taken for construction of the driveway. Another strip, 2.23 acres, across the north 8-acre tract was permanently condemned. This is the new portion of Highway No. 77 which divided the area into two triangular tracts.

Plaintiffs' witnesses fix the damage to the 8-acre tract from $82,938 to $97,000, and damage to the motel area from $132,500 to $150,000. The State's witness fixed the damage to both areas at $50,200. The county court appraisers assessed plaintiffs' damage at $82,693. The jury verdict, which is being appealed herein, was for $120,079.40. This is below the damages fixed by the plaintiffs' witnesses and considerably more than the figure given by the State's witness.

Plaintiffs, in presenting their evidence, divided the two tracts. They used one of the owners and two qualified real estate appraisers as to the north 8 acres. They used a licensed real estate broker and appraiser who was a motel expert and one of the owners as to the motel area. The State used one expert witness to testify to the damage to the north 8 acres and also to the damage to the motel area. He added them together to arrive at his total damage figure.

The State objects to the procedure used by the plaintiffs in permitting their witnesses to value the 8-acre tract and the motel area separately. Ordinarily, this might be error. Here, however, the two tracts were separate and divisible. From the standpoint of use and adaptability they were totally unrelated and presented entirely different factors influencing the element of damages. This is evident from the method pursued by the State's appraiser for the two tracts. The State's assignment is patently frivolous. Ordinarily, the entire property involved in an eminent domain proceeding is to be valued and damages to it assessed as a whole. See Frank v. State (1964), 176 Neb. 759, 127 N.W.2d 300. Where, however, it is clearly divisible from the standpoint of use and adaptability, presenting different factors and elements of damage, it definitely is not error to permit such division. In determining whether the property is to be considered as a whole or as units, usually unity of use is given greater emphasis, and has been called the controlling and determining factor. 29A C.J.S. Eminent Domain § 140, p. 591.

One of the chief complaints of the State is that plaintiffs' motel expert was permitted to consider gross income from room rentals in arriving at the valuation of the motel portion of the property. The evidence in question goes only to the determination of damages measured by the difference in the value of the motel property before and after the taking. In this respect we are concerned with the temporary easement of the motel property during construction, the taking of a small strip of land along the south boundary line of the motel, and the limitation of access, that is, ingress and egress to the motel property after the taking. The balance of the taking was the 100 foot wide strip cutting the 8-acre tract into two triangular parcels which will be considered hereafter.

Plaintiff's motel expert has operated his own business of motel sales and appraisals throughout an 11-state midwestern area since 1965. Since 1970, he has handled motel sales of over $20 million. He deals exclusively in motels and is considered to be the largest motel broker in the midwest in number of motels sold. The motels he used for comparison purposes were motels actually sold by him. In addition to being a motel broker he also operates motels in Lincoln, Nebraska, and other areas. For comparison purposes, he confined his market area for motels to the plains states west of the Mississippi River and east of the Rockies, exclusive of resort areas such as Denver, Colorado Springs, the Ozarks, and the lake country. He arrived at the before taking value of the motel property in question by comparing it with sales of what he considered comparable motel properties in the market area within a reasonable time before the taking. These motels were located in Nebraska, Kansas, Missouri, Arkansas, Oklahoma, and Texas.

In determining whether such properties were comparable, plaintiffs' expert considered location, size (number of units), nature of clientele (percentage of commercial and tourist), age of improvements, nature of their construction, condition, facilities such as living quarters, meeting rooms, restaurant, lounge, annual gross room rentals, and future prospects for the motel property as related to its current situation. He testified that prospective buyers of motels consider all these factors. The gist of his testimony was that gross room rental was the substantial factor considered by prospective purchasers. It was his further testimony that management is not a dominant factor in the consideration of the valuation of a motel. Management, at best, would not show more than a 10 percent variation up, to 15 percent variation down from the average property with exceptionally good or exceptionally poor management. He considered the Strauchs to be good managers.

We are in agreement with plaintiffs' expert that gross room rentals as it relates to the size of the property could clearly be a substantial factor. The exclusion of the testimony of gross room rentals as a factor of comparability would have the anomalous effect of permitting the expert to consider it, but preventing a disclosure of this portion of the basis of his opinion.

We...