State Dept. of Roads v. Dillon

• Decision Date: 31 May 1963
• Docket Number: No. 35369,35369
• Citation: 121 N.W.2d 798,175 Neb. 350
• Parties: STATE of Nebraska, DEPARTMENT OF ROADS, Appellee, v. William DILLON and Margaret Dillon, Husband and Wife, Tenants (Eva I. Dillon Land), Appellants.
• Court: Nebraska Supreme Court

Page 798

121 N.W.2d 798

175 Neb. 350

STATE of Nebraska, DEPARTMENT OF ROADS, Appellee, v. William DILLON and Margaret Dillon, Husband and Wife, Tenants (Eva I. Dillon Land), Appellants.

No. 35369.

Supreme Court of Nebraska.

May 31, 1963.

Syllabus by the Court

1. Generally stated, condemnation is the implementation of the power of eminent domain, or of the right of a nation or state, or some other to whom the power is lawfully delegated, to take or condemn private property for public use.

2. Ordinarily due compensation must be made for property taken under the power of eminent domain.

3. By the terms of Article I, section 21, of the Constitution of Nebraska, the property of no person shall be taken or damaged for public use without just compensation therefor.

4. In an instance where land is taken by condemnation the owner is entitled to recover the fair market value of the land at the time of taking.

5. If land is damaged by the taking of other land the right of recovery is the difference between the fair market value immediately before and immediately after taking.

6. In an instance of the destruction of matured crops of a condemnee the measure of the damage is the value at the time of destruction.

7. In the case of injury to crops the condemnee is entitled to the difference between what they were worth at the time of maturity and what they would have been worth if they had not been injured.

8. 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.

9. In a case where a lessee of the owner of land which has been condemned has established a right of recovery for damage to growing crops or for deprivation of right to produce such 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.

Orville Entenman, Papillion, for appellants.

Clarence A. H. Meyer, Atty. Gen., A. A. Christensen, Harold S. Salter, Asst. Attys. Gen., James F. Petersen, Sp. Asst. Atty. Gen., Lincoln, for appellee.

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

YEAGER, Justice.

This action as it comes to this court is by the State of Nebraska, Department of Roads, plaintiff and appellee, against William Dillon and Margaret Dillon, husband and wife, defendants and appellants. It is one commonly referred to as an action in condemnation. It had its origin in a petition filed before the county judge of Sarpy County, Nebraska, for the appointment of appraisers to appraise the fee simple title damages to a tract of land and all improvements thereon within Sections 3, 4, and 9, Township 12 North, Range 10 East of the 6th P.M., Sarpy County, Nebraska, owned by one Eva I. Dillon. A more accurate description of the land is not required herein. This area was condemned by the plaintiff herein for public highway right-of-way purposes. The right to condemnation is not involved here.

A portion, if not all, of this described land was under an oral 1-year lease, at the time of condemnation, to the defendants on a division of crop basis whereby the defendants were to retain three-fifths of the crops produced and the owner was to receive two-fifths thereof as rent.

Appraisers were duly appointed and they made an appraisement which was filed on May 12, 1960. The damage to the land was appraised at $30,765.25, and the damage to the leasehold was appraised at $1,740. The appraisal of the damage to the land or any interest of Eva I. Dillon is of no direct concern on this appeal. The damage to the leasehold of the defendants alone is of concern here.

From this appraisal of the damage to the leasehold the plaintiff took an appeal to the district court as did also the defendants. On that appeal the plaintiff filed a petition to which petition the defendants filed an answer. It does not appear necessary to summarize the contents of the petition herein.

By the answer the defendants asserted the existence, the description, the duration, and the character of their leasehold interest, about which there is no dispute. The alleged that their leasehold was damaged by the plaintiff in the taking and damaging of land of Eva I. Dillon. They denied that their damage was only $1,740, but alleged that on the contrary it amounted to $4,000. They asked that damages be awarded to them in the amount of $4,000.

The case was tried to the court, a jury having been waived, and there judgment was rendered fixing the value of the defendants' damage at $414 and $40.44 interest, instead of $1,740, the amount of the appraisal. The elements involved in the computation of the amount of the damage do not directly appear. The trial was started June 4, 1962, and journal entry of the judgment was made June 12, 1962.

The defendants filed a motion for new trial which was overruled, from which ruling and the judgment the defendants have appealed.

By the motion for new trial it was asserted that the decision is not sustained by sufficient evidence; that the decision is contrary to law; and that there were errors of law occurring at the trial duly excepted to by the defendants.

The errors asserted in the brief as grounds for reveral are that the court erred in overruling the motion for new trial; that the findings and judgment were inadequate and clearly wrong; and that the findings and judgment of the court are not sustained by sufficient evidence.

The record without dispute discloses that 43.13 acres of the leasehold area were condemned for right-of-way; that 1.51 acres were taken for temporary easement for haul roads; that 14.05 acres were taken for temporary easement for borrow pits; and that a permanent channel easement of 2.26 acres was taken. Evidence of the defendants was to the effect that 25 acres of the area taken which was suitable for production of corn would have produced 70 bushels of corn an acre of the value of $1 a bushel, three-fifths of which would produce in revenue $42 an acre, and that a proper deduction for production expense would produce for the defendants a net of $28 an acre, or $700. There was also evidence of necessary expenditures for fencing to permit the use of the leasehold during the term of the lease totaling $955. It was also estimated that there were 43 acres of pasture which would be unavailable for use by the defendants during the term of the lease on which the witness placed a value of $3 an acre, or $129. This testimony came from a witness whose name is Alois T. Gramlich. His total estimate in all areas of damage to the defendants was $1,784.

The defendant William Dillon was called as a witness in his own behalf and gave information as to the leasehold which included the terms, the description, the use to which the area was devoted, and the manner of operation with particular reference to suitability of area.

This witness testified that in his opinion the area suitable for the production of corn would have produced 75 bushels of corn an acre in 1960. No objection was made as to his competency as a witness. There was objection but only on the ground of relevancy, materiality, that the testimony was speculative, and that it did not reflect the proper measure of damages. He testified that corn sold for around $1 a bushel; that the productive value was $75 an acre, his share of which would have been $45 an acre; and that his necessary expense in production would have been about $6 an acre. His total estimate of the loss on account of the taking of the corn area was $975. His estimate in all areas of damage was $2,565. This is made up of the loss on account of inability to produce crops under the lease and $1,590 for fencing around borrow pits, removal of fencing, and other fencing which became necessary on account of the taking and the use of property by the plaintiff.

One witness testified on behalf of the plaintiff. This witness qualified as an expert in the evaluation of land taken such as was involved here and the deprivation of use, and particularly the effect upon the value of the deprivation of the right of use by a tenant upon lands leased for the current year where the rental for the leasehold was on a crop share basis.

As a bais for his calculations and conclusions he took into consideration, and correctly so, that the year involved started March 1, 1960, and ended February 28, 1961. He also took into consideration that April 27, 1960, was the effective date of condemnation. He also took into consideration the fact that after March 1, 1960, and before April 27, 1960, the defendants had done some work on the land taken on which they intended to plant corn. He considered that this date of April 27, 1960, was the date when the right of the defendants to use the land taken came to an end.

The total effect of the testimony of this witness was to say that the total damage of the defendants on account of loss of use of the leasehold was $215. The items making up this amount were loss on account of borrow pits, $50; on account of haul roads, $45; disking, $70; and fencing, $50. He allowed nothing on account of the value of crops lost by prevention of use of land, and gave as his reason that under the circumstances the defendants were entitled to no damage for loss of crops. The plaintiff adduced no evidence in denial of the evidence of defendants of damage for loss of crops.

There are two phases of this case each requiring a measure of separate consideration. One of these relates to loss of profit caused by the prevention of production of prospective crops, and the other to specific items of damage which items were reasonably ascertainable with the value only uncertain. There was evidence of both parties on the...