Twenty Club v. State
| Decision Date | 03 July 1958 |
| Docket Number | No. 34382,34382 |
| Citation | 167 Neb. 37,91 N.W.2d 64 |
| Parties | TWENTY CLUB, a corporation, Appellant, v. The STATE of Nebraska, Department of Roads and Irrigation, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. 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.
2. Appraisers in condemnation proceedings may testify as any other witness when the proper foundation is laid, but in no event must evidence of the award of such appraisers be admitted as evidence to go to the jury.
3. Where a verdict of a jury is clearly against the weight and reasonableness of the evidence it will be set aside and a new trial granted.
4. While declarations made in opening statements of attorneys and preserved in a bill of exceptions may not be used as evidence or stipulation in determining issues in a case, it is proper to refer to them for the purpose of ascertaining the theory on which the case was presented.
5. The general rule in condemnation cases is that the burden of showing the damages which the landowner or lessee will suffer rests upon him while the burden is on the condemner to show matters which tend to reduce or mitigate damages.
Eugene D. O'Sullivan, Omaha, Francis M. Casey, Plattsmouth, for appellant.
Clarence S. Beck, Atty. Gen., Harold S. Salter, Asst. Atty. Gen., for appellees.
Heard before SIMMONS, C. J., and MESSMORE, YEAGER, WENKE, and BOSLAUGH, JJ.
The action here was commenced by the State of Nebraska through its Department of Roads and Irrigation by petition in the county court of Sarpy County, Nebraska, to condemn certain real property of the Twenty Club, a corporation, lying immediately to the east of U. S. Highway No. 73, which is a state highway. The property taken extends from the Platte River on the south northward about 3,640.3 feet. From the south line to the north for about 1,768 feet the width ranges from 42 feet to 42.7 feet. The land to the north for the next 1,407 feet ranges from 26.4 feet to 26.9 feet. The remaining distance to the north ranges from 26.4 feet to 117.2 feet. It comprises about 3.12 acres of land. About 1,768 feet of the land to be taken is south of a county highway which extends from U. S. Highway No. 73 eastward through the real property from which the strip of land is to be taken and about 1,872.3 feet of the strip is to the north of this county highway.
In the petition in the county court it was alleged that in the opinion of the State Engineer, in the interest of public safety and general welfare, it was necessary that the right of egress and ingress be limited to the locations thereinafter described. No means of egress or ingress was described but the petition stated: 'There will be no right of access from the above described land (land to be taken by condemnation) on to the remaining property of the condemnee.' The effect of this was to say, and concerning this there is no dispute, that the only means of ingress or egress is over the county highway which extends eastward through the property of the Twenty Club from U. S. Highway No. 73, and from the county highway north and south onto the Twenty Club property.
On the basis of the petition condemnation was had and as a result the Twenty Club was awarded damages in the amount of $2,636.
From the award the Twenty Club took an appeal to the district court for Sarpy County Nebraska. In that court it became plaintiff and will be hereinafter so denominated. The State of Nebraska, Department of Roads and Irrigation, became defendant and will be referred to hereinafter by that designation.
On perfection of the appeal the plaintiff filed a petition and later an amended petition. The action was presented to the court on the amended petition, hence no further attention to the original petition is required.
In the amended petition the plaintiff waived any objection to the taking of the property described in the condemnation proceedings and it in no wise objected to the proceedings or any formality involved therein, or to the legality or constitutionality of any statute or statutes pursuant to which the proceedings were instituted or controlled.
By the petition it asked for adequate compensation for property taken and for diminution of the value of the property which remained, which it said it had not been allowed by the condemnation award.
It was further substantially pleaded that the taking would deprive the club of the use of access which it had to the property for about 35 years to its irreparable damage and injury, the right to which access is guaranteed to it under the Constitution and laws of the State of Nebraska and of the United States of America. The prayer responded to the allegations of the petition. An answer was filed whereby there was a joinder of the issues tendered by the petition.
The case was tried to a jury. A verdict was returned in favor of the plaintiff and against the defendant for $2,740. Judgment was rendered on the verdict. By order of the court it was declared that the judgment should bear interest at the rate of 6 percent per annum from June 19, 1956. A motion for new trial was duly filed which was overruled. From the judgment and the order overruling the motion for new trial the plaintiff appealed.
The plaintiff has set forth in its brief as grounds for reversal four assignments of error. The first is divided into three parts. They are that the verdict and judgment are contrary to the law; that the verdict and judgment are contrary to the evidence; and that the verdict and judgment are not sustained by the law and the evidence.
The answer to these propositions will effectually dispose of the third assignment by which it is asserted that the court erred in the admission of the testimony of a witness called by the defendant as to the damage sustained by the plaintiff.
On the trial the plaintiff called one witness who testified that the amount of the damage was $41,933.53. Three witnesses were called by the defendant as to damage. One, Clay Thomas, testified that the damage was $2,436; one, Hal Easton, $3,256; and a third, Lester Hauschild, $2,044. The basic qualifications of none of these witnesses to give testimony as to damage to property such as this has been attacked. The only attack as to Easton is that the amount fixed by him is too low. An attack as to Thomas is made on the ground that he related his testimony to 59 acres of land whereas the total acreage owned by plaintiff is 59 acres of deeded land and an additional amount of accretion bringing the total to about 120 acres.
It may be said that in fixing the amount of damage he did relate his testimony to the 59 acres, but in response to further questioning he in clear substance stated that in considering the entire acreage the damage would not be greater since there would be no damage additional to that to the 59 acres. This witness, as well as the other two called by the defendant, was shown to be competent to give testimony as to damage. The appropriate rule is: '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.' Wahlgren v. Loup River Public Power Dist., 139 Neb. 489, 297 N.W. 833, 835. See, also, Medelman v. Stanton-Pilger Drainage Dist., 155 Neb. 518, 52 N.W.2d 328. The foundational requirements of this rule as to all of these witnesses was met.
It is objected also that the testimony of the witness Hauschild was incompetent for the reason that he was one of the appraisers in the original condemnation proceeding in the county court. This contention is contrary to what this court has said on this subject. The fact that he was such an appraiser did not render his testimony as to damage incompetent. The rule in this respect is...
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...For cases in other jurisdictions applying the general rule, see Greene County v. Hicks, 249 Ark. 69, 458 S.W.2d 152; Twenty Club v. State, 167 Neb. 37, 91 N.W.2d 64; North Carolina State Highway Commission v. Thomas, 2 N.C.App. 679, 163 S.E.2d 649; State Highway Commission v. Rollins, 471 P......
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...is familiar with its value can testify as to its value.' Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N.W.2d 865. In Twenty Club v. State, 167 Neb. 37, 91 N.W.2d 64, this court said: 'In condemnation proceedings, where persons are shown to be familiar with the particular land in questio......
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