Verzani v. State, Dept. of Roads

• Decision Date: 17 March 1972
• Docket Number: No. 38069,38069
• Citation: 195 N.W.2d 762,188 Neb. 162
• Parties: Philip F. VERZANI, owner, et al., Appellees, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.
• Court: Nebraska Supreme Court

Page 762

195 N.W.2d 762

188 Neb. 162

Philip F. VERZANI, owner, et al., Appellees, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.

No. 38069.

Supreme Court of Nebraska.

March 17, 1972.

Syllabus by the Court

1. In an eminent domain proceeding where a part of the property is taken, the landowner may recover the value of the land appropriated and the depreciation in value of the remainder of the land. The remainder is generally considered to be land which is owned by the same proprietor, contiguous to the land taken, and devoted to the same use.

2. In an eminent domain proceeding, anticipated profits from the continued carrying on of a business in an established location cannot be considered in estimating the damages, and the profits of a business cannot be shown for the purpose of proving the value of property.

3. Damage claimed to result from improper design or construction of a highway should be pleaded specially.

4. Damage related to traffic flow is not compensable.

Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., Asst. Atty. Gen., Gary R. Welch, Dale L. Babcock, Jr., Royce N. Harper, Special Asst. Attys. Gen., Lincoln, for appellant.

Smith, Smith & Boyd, Robert G. Scoville, South Sioux City, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

BOSLAUGH, Justice.

This is an appeal in a proceeding in eminent domain. On August 4, 1969, the defendant, State of Nebraska, condemned 4.85 acres of land in Dakota County, Nebraska, for highway purposes. The land taken was part of a 10-acre tract which was being purchased by the plaintiff Raymond L. Kilberg from Philip F. Verzani and Emma L. Verzani. While the proceeding was pending, the contract was completed and the land conveyed to Raymond L. Kilberg and Robert C. Kilberg. See Northeastern Nebraska R.R. Co. v. Frazier, 25 Neb. 42, 40 N.W. 604. The vendors have filed a disclaimer in the proceeding.

In the district court the damages were fixed at $27,017. The State has appealed and contends that the trial court erred in permitting the jury to consider certain items of damage.

The principal controversy concerns severance damages. The evidence shows that the 10-acre tract was being used in conjunction with adjacent land lying to the west in the operation of a racetrack known as Raceway Park. The adjacent land consisted of a tract 22 rods wide owned by Raymond L. Kilberg and Darlene Kilberg, and a 1-acre tract owned by Raceway Park, Inc. Raceway Park, Inc., and Robert C. Kilberg were not parties to the proceeding.

Raceway Park, Inc., is a corporation in which 40 percent of the stock is owned by Raymond L Kilberg, 40 percent by Robert C. Kilberg, 10 percent by Robert Murphy, and 10 percent by Eugene A. Kock. In addition to owning the 1-acre tract of land, the corporation held a lease on the other property. The record indicates that the racetrack; other improvements consisting of bleachers, retaining walls, office building, concession stands, and toilets and washroom facilities; and fencing were located on the 1-acre tract and the 22-rod tract. The 10-acre tract was used as a parking lot.

Over the objection of the defendant, the trial court permitted the plaintiffs to introduce evidence concerning consequential damages to the land and improvements adjacent to the 10-acre tract. The defendant contends that any severance damage should have been limited to the 5.15 acres remaining in the 10-acre tract after the taking.

The rule is well established that where only a part of the property is taken, the landowner may recover the value of the land appropriated and the depreciation in value of the remainder of the land. The remainder is generally considered to be land which is owned by the same proprietor, contiguous to the land taken, and devoted to the same use. Rath v. Sanitary Dist. No. One, 156 Neb. 444, 56 N.W.2d 741; Platte Valley Public Power & Irr. Dist. v. Armstrong, 159 Neb. 609, 68 N.W.2d 200. As stated in 4A Nichols on Eminent Domain (3d Ed.), s. 14.31(2): 'It is, of course, essential to constitute a single parcel that it be owned in its entirety by one owner or one set of owners.'

The evidence in this case established a diversity of ownership in the land and improvements adjacent to the 10-acre tract. The facts did not justify a disregard of the corporate identity of Raceway Park, Inc. See Jonas v. State, 19 Wis.2d 638, 121 N.W.2d 235, 95 A.L.R.2d 880. The evidence as to severance damages should have been restricted to that part of the 10-acre tract remaining after the appropriation of 4.85 acres.

The plaintiffs produced an expert witness, Leonard W. Dierking, who testified that the only remainder...