Pieper v. City of Scottsbluff, 35501

• Court: Supreme Court of Nebraska
• Citation: 176 Neb. 561,126 N.W.2d 865
• Docket Number: No. 35501,35501
• Parties: Francis J. PIEPER and Louise Pieper, husband and wife and Leo Stricker, Appellees, v. The CITY OF SCOTTSBLUFF, Nebraska, a Municipal Corporation, Appellant.
• Decision Date: 13 March 1964

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126 N.W.2d 865 176 Neb. 561 Francis J. PIEPER and Louise Pieper, husband and wife and Leo Stricker, Appellees,
v.
The CITY OF SCOTTSBLUFF, Nebraska, a Municipal Corporation, Appellant. No. 35501. Supreme Court of Nebraska. March 13, 1964.

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Syllabus by the Court

1. The measure of damages for land taken for public use is the fair and reasonable market value of the land actually appropriated and the difference in the fair and reasonable market value of the remainder of the land before and after the taking.

2. The words, 'or damaged,' in Article I, section 21, of the Constitution of Nebraska, include all actual damages resulting from the exercise of the right of eminent domain which diminish the market value of private property.

3. In condemnation proceedings, 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.

[176 Neb. 562]

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4. The general rule is that the burden of showing the damages which the landowner will suffer rests upon him while the burden is on condemner to show matters which tend to reduce or mitigate the damages.

5. In determining the reasonable market value of land in a condemnation proceeding it is proper to consider the condition of the property and all its surroundings, as well as its adaptability for any particular use. If it has a peculiar adaptation for certain uses which adds to its value the owner is entitled to the benefit of it.

6. The evidence as to the adaptability of property for certain uses must be limited to uses reasonably anticipated in the immediate future.

7. The amount of damages sustained by a landowner for the taking of land by eminent domain for a public improvement and the difference in the fair and reasonable market value for the remainder of the land before and after the taking is peculiarly of a local nature to be determined by a jury, and its verdict will not ordinarily be interfered with if it is based on the testimony.

8. The owner of real estate which is taken in condemnation proceedings who is familiar with its value can testify as to its value.

9. In a condemnation action the weight and credibility of testimony of either lay or expert witnesses regarding value of land taken or value of remainder immediately before and immediately after taking is for the jury.

10. In a case where land condemned is under lease to and in possession of a third person, and by the taking or damaging the lessee is deprived of his use in whole or in part, he is entitled to recover from the condemner on the same character and quality of proof as would entitle the condemnee to recover.

11. In a case where a lessee of the owner of land which has been condemned has established a right of recovery for damage for deprivation of right to produce crops, the measure of his right of recovery is the difference between the value of his share of the crops at maturity and what would have been the cost of production of the entire crop.

12. Where a lessee of the owner of land which has been condemned has established a right of recovery for damage for deprivation of the right to graze and sell cattle on the market, such fact may be taken into consideration in assessing the damages suffered by the lessee.

13. One may not complain of the misconduct of counsel [176 Neb. 563] if with knowledge of such misconduct he does not ask for a mistrial.

14. When the evidence is conflicting the verdict of the jury will not be set aside, unless it is shown to be clearly wrong.

15. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

16. Evidence examined, and the verdict and judgment held not to be excessive under the circumstances.

Loren G. Olsson, Marvin L. Holscher, Scottsbluff, for appellant.

Neighbors, Danielson & Van Steenberg, Scottsbluff, Rush C. Clarke, North Platte, for appellees.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

MESSMORE, Justice.

The City of Scottsbluff, a municipal corporation, brought this action in the county court of Scotts Bluff County to condemn

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certain land owned jointly by Francis J. Pieper and Louise Pieper, husband and wife as joint tenants in fee simple of said land. The purpose of the taking was to enable the city to construct, maintain, and operate on the land taken several sewer lagoons, mains, structures, and equipment appurtenant thereto, to be used in supplying public sewer service to the inhabitants of the city and others to whom the city by law is authorized to supply such service. The city sought to take the fee simple title to a certain part of the Pieper land. Appraisers were appointed by the county judge and made a report in writing assessing the damages sustained by the Piepers in the amount of $50,470, and the damages sustained by the tenant, Leo Stricker, at $5,775. The [176 Neb. 564] city deposited the amounts of these awards in the county court. The city appealed to the district court. The case was tried to a jury in the district court resulting in a verdict in favor of the Piepers in the sum of $64,170, and in favor of Leo Stricker, the tenant, in the sum of $5,775. The city filed a motion for new trial which was overruled. The city perfected appeal to this court.

Judgment was rendered upon the verdict in favor of the plaintiffs for the sum of $41,411.87, being the sum of $64,170, less $25,000 previously withdrawn by the Piepers from the amount that had been deposited by the city, pursuant to the city's offer to stipulate therefor, plus interest, and costs. Judgment was rendered in favor of Leo Stricker, tenant, for $6,074.01, being the sum of $5,775 plus interest, and costs.

We will refer to Francis J. Pieper as Pieper or plaintiff, and on occasions, if required, we will refer to Pieper and his wife as plaintiffs; to Leo Stricker as tenant; and to the City of Scottsbluff as the city or defendant.

The only issue tried was the amount of damages sustained by the plaintiffs and the amount of damages sustained by the tenant as a result of the taking.

The defendant set forth many assignments of error which need not be enumerated. Such assignments as necessary to a determination of this appeal will be taken up in the opinion.

The farm owned by the Piepers at the time of the taking by condemnation by the city on March 20, 1962, consisted of approximately 266.53 acres adjoining the North Platte River on the north, and 2 1/2 miles southeast of the city. In addition to the cultivated land, the farm consisted of pasture, wetland range, marshland, channels of the North Platte River, gravel deposits, and an area occupied by the main irrigation canal and subject to an easement in favor of the Minatare Mutual Canal and Irrigation Company. The farm consisted of two tracts of land, one lying north and the other south of the tracks of the Chicago, Burlington, and Quincy Railroad[176 Neb. 565] Company which owned a 150 to 200 foot right-of-way.

Pieper's father bought this land in 1910, and Pieper has lived on it for 49 years. The plaintiff's father leveled the land north of the railroad tracks. When the plaintiff became the owner of the land, he rearranged the whole farm so that it would irrigate better. The land is now all level so that he can run water 80 rods without cross ditches. There was a four-room house on the Pieper farm which the plaintiff's father made into a two-story house by adding four bedrooms upstairs. A kitchen with a basement under it was also added. This construction took place about 1914. A year or so prior to the trial, a new foundation was built under this house, and it was completely insulated and remodeled. There is a granary with a machine shed attached, a brooder house, a garage and television repair shop, a chicken house which accommodates 300 to 400 laying hens, and a dairy barn of a 20-cow capacity with a shed and calf barn attached thereto. A tenant house was built in 1950, and a substantial addition made to it. The size of the tenant house was almost doubled by the addition. The tenant house has two bedrooms,

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bathroom, dining room, living room, kitchen, utility room, and a 24 X 24-foot basement. Pictures of the plaintiff's residence and the tenant house in evidence disclose that they are well constructed and modern in every respect.

The land taken by the condemnation proceeding was a tract lying south of the right-of-way of the railroad consisting of approximately 138.24 acres, including 30.92 acres of cultivated land; 33.63 acres of irrigated pasture; 1 acre of marshland; 5 acres of land occupied in part by the canal and subject to the easement of the canal company, being 5 of the 9.51-acre right-of-way of the canal company; 9.9 acres of high pasture; 36.64 acres of wetland range, including islands in the North Platte River; 13.55 acres of river channels; and 7.6 acres comprising an area in which there are two lakes and gravel deposits. [176 Neb. 566] The tract was severed approximately midway between its northern and southern boundaries by the marshland and the canal. Of the 9.51 acres comprising the canal, its excavated banks and adjoining land, the west 4.51 acres were owned by the canal company, but approximately 3.5 acres of the east 5 acres that were subject to the easement of the canal company were useable by the plaintiffs.

All of the improvements heretofore mentioned were north of the railroad tracks and were not taken in the condemnation proceeding. This tract consisted of 128.29 acres of cultivated land and the improvements thereon.

The lagoons were to be operated and maintained by the city within the area lying between...