Platte Valley Public Power & Irr. Dist., Application of

• Decision Date: 21 January 1955
• Docket Number: No. 33582,33582
• Citation: 68 N.W.2d 200,159 Neb. 609
• Court: Nebraska Supreme Court
• Parties: In the Matter of the Application of PLATTE VALLEY PUBLIC POWER & IRRIGATION DISTRICT, etc. PLATTE VALLEY PUBLIC POWER & IRRIGATION DISTRICT, a Public Corporation, Appellant, v. Alvin A. ARMSTRONG et al., Appellees.

Page 200

68 N.W.2d 200

159 Neb. 609

In the Matter of the Application of PLATTE VALLEY PUBLIC POWER & IRRIGATION DISTRICT, etc PLATTE VALLEY PUBLIC POWER & IRRIGATION DISTRICT, a Public Corporation, Appellant, v. Alvin A. ARMSTRONG et al., Appellees.

No. 33582.

Supreme Court of Nebraska.

Jan. 21, 1955.

Syllabus by the Court

1. Where a jury is permitted to view the premises involved in eminent domain litigation, the result of its observations is evidence which, in arriving at a verdict, it may consider only in connection with other competent evidence.

2. The market value of lands taken by eminent domain proceedings, together with damages, if any, to other remaining lands by severance, are computable as of the time of the taking, which is deemed to occur when the petition for condemnation is filed.

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

4. An owner or tenant in possession of a farm who at the proper time, in due course of good husbandry and in good faith plants a crop on land after the petition for condemnation is filed but before condemner has deposited the award with the county judge or before condemner has by some binding election accepted the award, and such crop is growing but unmatured at the time of such deposit or election, may as of that time ordinarily recover damages for injury to or destruction of his share of the value of such crop in its then condition as well as damages to his leasehold estate then existent.

5. Condemnee must establish the foregoing conditions by a preponderance of competent evidence which also meets the requirements as to measure of damages and sufficiency and clarity of proof to take it out of the realm of speculation for the purpose of submission to a jury.

6. Generally, however, if a leasehold interest is taken or injured, lessee is entitled to a sum which will restore the money loss consequent to the taking or injury. This consists generally of the fair market value of the leasehold or unexpired term of the lease, and is said to be the difference between the rental value of the remainder of the term and the rent reserved in the lease, bearing in mind that where the rent reserved equals or exceeds the rental value, the lessee has suffered no loss and cannot recover.

7. A jury should be fully and fairly informed as to the various items of damages which it should take into consideration in arriving at its verdict. In this respect it is the duty of the trial court to instruct as to the proper basis upon which damages are to be assessed for each such item.

8. A party to an action in condemnation has a right to have all of the competent evidence of which he has availed himself on the question of damages submitted to a jury for consideration, and a failure of the trial court to allow its submission is reversible error.

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

10. Condemnation is a special statutory proceeding and on appeal to the district court from an appraisement of damages in such cases, if other issues than the question of damages are involved, they must be presented by proper pleadings.

11. If on appeal to the district court a condemner claims special benefits, such issue should be appropriately pleaded and supported by competent evidence.

12. One contiguous tract or unit is that which in general belongs to the same proprietor as that taken, and is continuous with it and used together for a common purpose, whether or not the same is separated by platted or existing lines, lots, blocks, streets, alleys, or like divisions.

13. Ordinarily in a condemnation proceeding it is a question of law whether or not the property involved constitutes one contiguous unit or tract, but where the doubt is factual, depending on conflicting evidence or on different views of the evidence, the court should submit the question to the jury under proper instructions.

14. Where the property involved is one contiguous tract or unit, in estimating the damages occasioned by the appropriation of a part thereof for public use, the injury to the property remaining as well as the market value of the property actually taken should be considered, although the petition filed by the condemner for the appointment of appraisers only describes the property taken.

15. The measure of damages for land taken for public use in such cases 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.

16. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence.

17. A litigant is entitled to have the jury instructed as to his theory of the case as shown by pleading and evidence, and a failure to do so is prejudicial error.

18. The purpose of an instruction is to furnish guidance to the jury in its deliberations, and to aid it in arriving at a proper verdict; and, with this end in view, it should state clearly and concisely the issues of fact and the principles of law which are necessary to enable it to accomplish the purpose desired.

Crosby & Crosby and Jess C. Nielsen, North Platte, for appellant.

McGinley, Lane, Powers & McGinley, Ogallala, E. H. Evans, North Platte, for appellees.

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

CHAPPELL, Justice.

Plaintiff, Platte Valley Public Power and Irrigation District, filed its petition in the county court on July 28, 1952, to condemn a necessary right-of-way for the construction, operation, and maintenance of a dike along the south 300 feet of Lot 9, located in the west half of the southeast quarter of Section 6, Township 13 North, Range 36 West of the 6th P. M., in Keith County, Nebraska. The land actually taken was 9.1 acres of tillable land and 24 acres of accretion or riparian land directly south thereof, which was non-tillable and partially covered with trees, brush, bunch grass or clover, and had a frontage of about 792 feet along the South Platte River. Such 33.1 acres so taken was the southernmost portion of Lot 9 which theretofore consisted of about 67.8 acres, all lying south of and extending along U. S. Highway No. 30 and the Union Pacific Railroad double track rights-of-way. Lot 9 will be hereinafter called the south track. It originally consisted of 48.87 more acres adjacent thereto on the east and extending along such rights-of-way, but plaintiff had previously appropriated that portion thereof. The time when that was done does not appear in this record. The rights-of-way aforesaid were fenced in but there were private gates into private roads across them which were at times claimed to have been used by defendants. However, by what legal right they so crossed the Union Pacific right-of-way is not in any manner shown.

North of such rights-of-way is a tract of 178 acres of land located in the east half of said Section 6. Such land will be hereinafter called the north tract. Sixty-eight acres thereof lying north of and extending along such rights-of-way were in cultivation. However, the remaining 110 acres were non-tillable rough pasture land lying entirely north of such cultivated 68 acres.

Defendants Alvin A. Armstrong and Fred A. Armstrong, hereinafter designated by name or as defendants Armstrong, have owned all the land aforesaid as tenants in common since their father's death in 1951. There are no improvements upon the land except some not too well-defined fences, an old boxcar used as a hunting shack, and a well. However, the boxcar and well are located on the north tract.

Defendant Darrell Thalken, hereinafter designated by name or as defendant Thalken, was a tenant in possession of all the land under a written lease with defendants Armstrong from March 1, 1952, to March 1, 1957, which was allegedly executed in good faith, without knowledge of the contemplated condemnation. The record in that regard discloses that the lease was negotiated in the fall of 1951 when Thalken was orally permitted to enter and do some farm work upon the north tract. Thalken actually lived several miles west of the land, but the lease aforesaid not only included the land here involved but also superseded a lease theretofore made by Thalken with the father of defendants Armstrong, on other described lands formerly owned by him but located some distance west. The lease provided that Thalken would pay as rent one-third of all grain crops delivered, but defendants Armstrong were to supply grass or hay seed and nurse crop, and receive one-half of the seed and hay crops. Thalken was to pay $500 annual cash rent for 489 acres of pasture land, which, contrary to plaintiff's contention, clearly included the 110 acres of pasture land heretofore described in the north tract.

Defendant Clifford Wills, hereinafter designated by name or as defendant Wills, held a 10-year written hunting and fishing lease on all the land involved, which was allegedly entered into with defendants Armstrong on July 10, 1952, just 18 days prior to the filing of plaintiff's application to condemn, without any prior notice or knowledge that such privileges would also be condemned by plaintiff.

Appraisers were duly appointed and qualified, who on August 13, 1952, filed their findings and award respectively assessing the damages as follows: To defendants Armstrong as owners of the land taken and appropriated, $3,125; to defendant Thalken, as tenant in possession, $1,000; and to defendant Wills, lessee of hunting and fishing privileges, $200.

Therefrom plaintiff appealed...