Moyer v. Nebraska City Airport Authority
| Decision Date | 24 January 2003 |
| Docket Number | No. S-01-1131.,S-01-1131. |
| Citation | 265 Neb. 201,655 N.W.2d 855 |
| Parties | James MOYER and Sharon Moyer, Appellees, v. NEBRASKA CITY AIRPORT AUTHORITY, Appellant. |
| Court | Nebraska Supreme Court |
Richard H. Hoch and Jeffrey J. Funke, of Hoch, Funke & Kelch, Nebraska City, for appellant.
John W. Voelker for appellees.
In 1991, as part of plan to build a new airport, the Nebraska City Airport Authority (Airport Authority) condemned a portion of farmland owned by James Moyer and Sharon Moyer. A jury awarded the Moyers $82,748. In 1999, the Moyers brought this inverse condemnation action, alleging that in both the initial construction and the subsequent construction of a runway extension, the Airport Authority obstructed and altered existing drainways. The Moyers alleged that improper construction and operation resulted in significant erosion damage to their remaining property. A jury awarded the Moyers $16,400 in damages, and the Airport Authority appealed.
In this appeal, we determine if the present inverse condemnation action is barred by res judicata because of the prior condemnation. Because we determine that the Moyers are seeking to recover for damages caused by improper construction or operation not contemplated in the prior condemnation, res judicata does not apply. We also determine that the Moyers presented sufficient evidence to establish improper construction or operation. We affirm.
The Airport Authority condemned a portion of a quarter section of farmland owned by the Moyers. The Airport Authority sought 23.1 acres in fee and an aviation easement. A jury entered an award in the amount of $82,748, including severance damages. The land condemned lies to the north of the remaining Moyer property.
After taking the Moyer property, the Airport Authority began construction on the new airport. The engineers devised a drainage scheme to remove diffused surface water from the airport property. The original design called for drainage channels to be constructed. These channels were to take water to two diversion terraces which would in turn take the water to a natural drainway. This natural drainway cuts across both the Airport Authority property and the Moyer property. After the drainway enters the Moyer property from the north, it carries water diagonally from the northwest to the southeast.
In the original plan, one diversion terrace was to wrap around the southeast end of the runway and take water to the north where it was to be deposited into the natural drainway just before the drainway entered the Moyer property. The other diversion terrace was to carry water to the east and deposit it into the drainway just before the drainway left the Moyer property.
After construction began, James Moyer expressed concern to the Airport Authority that the drainage design would result in damage to his property, but he denied requesting any specific design changes. At some point after this discussion, the drainage scheme was altered. Instead of using the two-diversion terrace design, the Airport Authority implemented a one-diversion terrace design. After draining from the airport, water was taken to the diversion terrace. The diversion terrace began on the east side of the airport. It then wrapped around the south side of the runway, directing water back to the northwest. After it turned to the northwest, the diversion terrace ran between the Moyer property and the runway. Eventually, the diversion terrace emptied into the natural drainway.
As built in the original construction, the diversion terrace meets the natural drainway about 150 feet north of the Moyer property line. In total, 248 acres drain into the natural drainway. Of this total, 36.8 acres drain into the drainway as a result of the diversion terrace.
In 1999, the Airport Authority extended the airport runway. As part of the project, the Airport Authority made the diversion terrace longer, raised its height from 11/2 to 3 feet, and widened its bottom.
In October 1999, the Moyers filed an inverse condemnation action under Neb. Rev.Stat. § 76-706 (Reissue 1996) for the appointment of appraisers with the Otoe County Court. The appraisers determined that the Moyers had suffered no damages, and the Moyers appealed to the district court. In their petition on appeal, they claimed that construction at the airport had obstructed and altered existing drainways, resulting in damage to their property. At the pretrial conference, the Moyers were allowed to amend their petition to claim damages that resulted from both the original construction and the construction of the extended runway.
The Airport Authority filed a motion for summary judgment, asserting that as a result of the previous condemnation proceeding, the inverse condemnation action was barred by res judicata. The district court denied the motion, reasoning that the initial condemnation action "did not include possible damage to the remainder as a result of claimed additional damage resulting from the use of the property that had been condemned by the Airport Authority."
At trial, the Moyers claimed that because of the Airport Authority's construction and operation of the airport, they had suffered two distinct types of damages. First, the Moyers argued that the drainage scheme dumps too much water at too high of a rate into the natural drainway that runs through their property, causing erosion to the drainway. The civil engineer called by the Moyers, Ronald E. Ross, described how the airport has changed the manner in which surface water reaches the natural drainway. Ross testified that the airport construction increased the number of acres draining into the natural drainway by a net of only 2 acres. But, because the airport runways, parking lots, and drainage systems accelerate the velocity at which diffused surface water drains, twice as much water reaches the drainway as previously did. Ross also testified that the diversion terrace has changed where diffused surface water enters into the drainway. As a result, the number of acres that drain into the drainway before it reaches the Moyer property has doubled, increasing the volume of water flowing through the drainway as it crosses the Moyer property. Ross also testified that the drainage scheme used by the airport increased the velocity at which water enters into and flows through the natural drainway.
Ross opined that the increased volume and velocity of water entering into the natural drainway is eroding the drainway. He described cost-efficient methods that the airport could have used to reduce both the volume and the velocity of the surface water entering into the natural drainway.
James Moyer and his son testified that since the construction of the airport, the natural drainway has eroded and that the amount of water in the drainway has increased. Before the airport was constructed, they were able to cross the natural drainway with farming equipment, but now that is impossible. The record shows that the erosion of the natural drainway has worsened since the extension project and will continue to worsen. The Moyers' appraiser testified that the inability to cross the natural drainway has devalued the Moyer property.
The Moyers' second argument, that the airport construction has damaged their property, focused on erosion damage that their fields have suffered since the airport's construction. According to the Moyers, the redesigned diversion terrace does not operate as planned. As a result, water breaches and overflows the terrace during moderate and heavy rainfalls. This water then flows onto the Moyer property, eroding fields that lie south of the airport. Evidence showed that this erosion has worsened since the runway extension project and that it will continue to worsen.
To support their contention about the diversion terrace, the Moyers presented evidence from both Ross and Brian D. Dorsey, a construction manager. Dorsey testified that erosion was present on the diversion terrace itself and on the Moyer fields south of the diversion terrace. He opined that the erosion on the Moyer property resulted from diffused surface water draining from the airport, but the court refused to allow Dorsey to testify whether he believed the construction and design of the drainage scheme were negligently done. Ross testified that the diversion terrace is eroding and that it has breached during heavy rains. He opined that the erosion of both the terrace and the fields will continue.
Both Charles E. Swanson, the engineer who planned the drainage scheme for the initial construction, and Alois Hotovy, the engineer who planned the runway extension, testified for the Airport Authority. Both claimed that the drainage system they had developed was properly designed and constructed. Contradicting Swanson's testimony, however, Hotovy testified that the original diversion terrace suffered from problems—in particular, an inability to handle large rainfall—resulting in minor erosion to the Moyer property. Moreover, Swanson admitted that if the diversion terrace was operating as designed, it would not be eroded to the extent suggested by the evidence presented by the Moyers.
The Airport Authority moved for directed verdict both at the close of the Moyers' case in chief and at the end of all the evidence. In both motions, it asserted that res judicata barred the Moyers' action. It also argued that because of the earlier condemnation action, the Moyers were required to show improper construction or operation of the airport, and that they had failed to do so. The court overruled both motions.
At the jury instruction hearing, the Moyers requested that the jury be given an instruction concerning whether the Airport Authority had violated water laws. The Airport Authority objected, and the trial judge refused to give the instruction. The jury returned a $16,400...
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