Phillips Petroleum Co. v. City of Omaha

• Decision Date: 16 December 1960
• Docket Number: No. 34831,34831
• Citation: 171 Neb. 457,85 A.L.R.2d 570,106 N.W.2d 727
• Parties: , 85 A.L.R.2d 570 PHILLIPS PETROLEUM COMPANY, a corporation, Appellee, v. CITY OF OMAHA, a Municipal Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 727

106 N.W.2d 727

171 Neb. 457, 85 A.L.R.2d 570

PHILLIPS PETROLEUM COMPANY, a corporation, Appellee, v. CITY OF OMAHA, a Municipal Corporation, Appellant.

No. 34831.

Supreme Court of Nebraska.

Dec. 16, 1960.

Syllabus by the Court.

1. The purpose of assignments of error required by the rules of this court is to advise appellee and the court of the issues on appeal which are submitted for consideration and decision.

2. The consideration of an appeal in this court is limited to errors assigned and discussed except the court may consider a plain error not assigned or discussed.

3. An option to purchase real estate is a unilateral contract by which the owner of the property agrees with the optionee that he has the right to buy the property according to the terms and conditions of the option.

4. Such an option does not constitute an estate or interest in land but it is a mere right of election to accept or reject a present offer within the time and upon the terms designated.

5. A holder of a mere option to purchase land which is sought to be condemned is not entitled to any compensation to be paid therefor nor to any damages by reason of the severance of a part of the land from the remainder of it, the subject of the option.

6. A provision in a lease of real estate giving to the lessee the right and election to purchase the land upon conditions therein stated is no part of the lessee's leasehold estate in the land and it creates in the lessee no estate in the land. It is only a contract right and is not an extension or amplification of the estate granted by the lease.

7. A holder of an option to purchase land being condemned, whether contained in a lease in which the holder is lessee or evidenced by separate writing, has no interest in the land which entitles him to compensation.

8. It is the duty of the trial court to inform the jury as to each item or element of damage it should consider in reaching its verdict.

9. The proof on the trial of a jury case should be confined to legal evidence tending to prove or disprove an issue made by the pleadings, and an improper matter submitted to the jury for its consideration by the trial court is prejudicial error if it may have influenced the verdict.

10. If it does not appear from the record that an improper matter submitted to the jury for its consideration by the trial court did not affect the result of the trial unfavorably to the party against whom it was admitted, its reception must be considered prejudicial error.

11. The owner of property abutting on a street is not entitled as against the public to access to his land at all points on the boundary between it and a street although entire access cannot be denied him. The measure of the right of the property owner is reasonable ingress and egress under all the circumstances.

12. Whether or not there was error in a sentence or part of an instruction, it will be considered with the instruction of which it is a part and all the other instructions. The meaning of the instruction will not be determined from a single or separate phrase or paragraph but by considering the instructions as a whole.

13. Private property cannot be taken without compensation for public use under a police regulation relating strictly to the public health, the public morals, or the public safety any more than under a police regulation having no relation to such matters but only to the general welfare.

14. The volume of business done on any given leasehold has a direct relation to the value of the leasehold as volume is directly connected with the success of the business and diminution of business means decrease in volume.

15. A landowner must recover all his damages caused by the taking of land from him by condemnation and which may arise on account of the proper construction and the future operation of an improvement for which the land was taken in the condemnation proceeding.

Herbert M. Fitle, Bernard E. Vinardi, Irving B. Epstein, Frederick A. Brown, Benjamin M. Wall, Edward M. Stein, Steven J. Lustgarten, Omaha, for appellant.

Gaines, Spittler, Neely, Otis & Moore, Omaha, for appellee.

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

BOSLAUGH, Justice.

Phillips Petroleum Company, appellee, appealed to the district court for Douglas County from the assessment of damages made by the appraisers appointed in proceedings initiated in the county court of Douglas County by the City of Omaha, appellant, for the appropriation by the exercise of the power of eminent domain of specifically described real estate within the city for use by it in the improvement of streets. The contesting parties in this court are Phillips Petroleum Company and City of Omaha.

The substance of the amended petition of appellee in the district court was that it was a corporation authorized to do business in Nebraska; that appellant was a city of the metropolitan class of Nebraska; that appellee was at all the times important to the litigation the lessee of the real estate involved herein; that its lease of the premises provided that the lessee should have an option to purchase the leased premises free from any encumbrances at any time during the term or any extension or renewal of the term of the lease for an amount stated therein; that on November 4, 1954, appellant commenced condemnation proceedings to acquire the described premises; that the award of the appraisers appointed therein made to appellee was $6,325; that the real estate involved was a part of a tract used for many years and then used by appellee as a service station; that it had been by appellee improved by placing thereon buildings and concrete driveways, and installing equipment and other things usual and incidental to such a modern place of business; that the taking of the property described herein, the changing of the grades, and the constructing of improvements for which the land was taken have damaged the property of the service station tract not appropriated, and necessitated the alteration of the service station facilities and reconstruction of various improvements including removal of diesel and truck fuel tanks, removal of liquid propane gas tanks, removal and replacement of pump islands, removal and grading of concrete driveways and replacement of concrete surface thereon, replacement of signs, incidental wiring, and installation of equipment; that by reason of the facts alleged appellee had been caused damage to the property not taken of $12,500 and damage by reduction in the market value of the premises remaining because of the loss of the part taken of $30,000; and that appellee refused the award made by the appraisers and has, as provided by law, prosecuted an appeal therefrom to the district court for Douglas County. Appellee asked from appellant the sum of $42,500.

The answer of appellant was in substance an admission of the appropriation by it of the real estate involved by the exercise of the power of eminent domain; an allegation that the award of the appraisers to appellee was fair and just for the damages sustained by it; and a denial of all other matters stated by appellee in its amended petition.

The result of the trial of the issue made by the pleadings had to a jury was a verdict for appellee of $13,168.80. A motion for new trial was denied. This appeal is from the judgment and the order denying a new trial.

The property leased by the appellee from the owner of it consisted of about 10,000 square feet located at the southeast of the intersection of Dodge and Seventy-second Streets in the city of Omaha. The former was north and the latter west of it. The property was irregular in shape and it was roughly somewhat like the shape of home plate of a baseball diamond with the base or longest property line thereof being to the north along the south boundary of Dodge Street. Appellee secured a lease of the ground, which was unimproved, July 1, 1935, and soon thereafter it modestly improved it as a motor vehicle service station, hereafter designated station, appropriate to the conditions then existing. Appellee constructed thereon a cottage-type building without any service bay in which to wash, polish, or service motor vehicles. Appellee put in three pumps in the front of the building which faced Dodge Street and two pumps to the west of the building on the Seventy- second Street side. It installed lights, wiring, and signs.

The site of the station was in 1953 substantially cleared and an entire new modern one was erected including the construction of a new building consisting of an office, two bays in which to service motor vehicles, two new pump islands and four pumps on Dodge Street, and a pump island and two pumps thereon on the Seventy-second Street side. The station area and the driveways on the Dodge Street side were paved. On the Seventy-second Street side the graveled surface was continued because of the contemplated widening of that street. All facilities and modern incidentals were installed including those for supplying liquified petroleum gas to the public. There were then four 35-feet-wide drives for access of vehicles to and from the station, two on the Seventy-second Street side and two on the Dodge Street side. A part of the street right-of-way between the property line of the leased property and the curb line of the streets was improved by appellee as a part of the driveways as access to and from the station. The grade of the station site when it was improved in 1953 was established in harmony with the street grade or elevation at the south edge of the pavement on Dodge Street and at the east edge of the pavement on Seventy-second Street. This was the situation when the condemnation proceedings were commenced for the appropriation by the city of 523 square feet of the area leased by appellee at the northwest corner or part thereof for use of appellant in enlarging the rights-of-way of and...