Walkenhorst v. State, Dept. of Roads

Decision Date13 February 1998
Docket NumberNo. S-96-436,S-96-436
PartiesMary WALKENHORST et al., Appellants, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Eminent Domain: Verdicts: Appeal and Error. A condemnation action is reviewed as an action at law, in connection with which a verdict will not be disturbed unless it is clearly wrong.

2. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by said rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

4. Eminent Domain: Damages. A plaintiff in an eminent domain case is entitled to recover the fair market value of property taken, as well as any decrease in the fair market value caused by a governmental taking.

5. Constitutional Law: Eminent Domain: Damages. Not only is a condemnor liable to compensate for a taking but also, by virtue of Neb. Const. art. I, § 21, for consequential damage to other property in excess of the damage sustained by the public at large.

6. Constitutional Law: Eminent Domain: Damages. The words "or damaged" in Neb. Const. art. I, § 21, include all actual damages resulting from the exercise of the right of eminent domain which diminish the market value of private property.

7. Constitutional Law: Damages. It is the diminution in market value which establishes the damages under Neb. Const. art. I, § 21.

8. Constitutional Law: Damages. "Consequential damage" defines the kind of damage that is compensable under Neb. Const. art. I, § 21; it does not define the measure of damages.

9. Eminent Domain: Real Estate: Valuation. There are three generally accepted approaches used for the purpose of valuing real property in eminent domain cases: (1) the market data approach, or comparable sales method, which establishes value on the basis of recent comparable sales of similar properties; (2) the income, or capitalization of income, approach, which establishes value on the basis of what the property is producing or is capable of producing in income; and (3) the replacement or reproduction cost method, which establishes value upon what it would cost to acquire the land and erect equivalent structures, reduced by depreciation. Each of these approaches is but a method of analyzing data to arrive at the fair market value of the real property as a whole.

10. Eminent Domain: Improvements. The unit rule is applicable whenever the market data approach is employed, and this rule requires that the value of improved property be considered as a whole, without the assignment of separate costs for the land and individual improvements.

11. Eminent Domain: Damages. With regard to a partial taking of land, in considering the effect of severance on the market value of the remainder, account must 12. Trial: Witnesses: Appeal and Error. It is within the trial court's discretion to determine if there is sufficient foundation for a witness to give his opinion about an issue in question. A trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion.

be taken of all of the inconveniences caused by the severance as they might affect a prospective purchaser and the effect of the severance upon every available, reasonable, and probable future use of the property, as it relates to the market value of the remainder of the property considered as a unitary whole.

13. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

14. Eminent Domain: Expert Witnesses: Damages. Expert testimony concerning the measure of damages in an eminent domain action must be tied to the market value of the property remaining before and after the acquisition.

15. Trial: Eminent Domain: Witnesses. For the testimony of an expert or lay witness to be admissible on the question of market value of real estate, the witness must be familiar with the property in question and the state of the market.

16. Eminent Domain: Damages. Where trees are put to a special purpose, such as for windbreaks, shade, or ornamental use, the measure of the value of condemned land is usually the difference in value of the realty before and after the destruction of the trees.

17. Trial: Evidence: Testimony: Proof: Appeal and Error. Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial court by an offer of proof or was apparent from the context of the testimony.

18. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction, (2) the tendered instruction is a correct statement of the law, and (3) the tendered instruction is warranted by the evidence.

19. Jury Instructions: Appeal and Error. Regarding a claim of prejudice from an instruction given or a court's refusal to give a tendered instruction, the given instructions must be read conjunctively rather than separately in isolation. If the instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

20. Jury Instructions. The general rule is that whenever applicable, the Nebraska Jury Instructions are to be used.

21. Jury Instructions: Eminent Domain: Damages. While a condemnee may testify to and the jury may consider itemized burdens, the trial court is not required to instruct the jury on each individual item making up the condemnee's damages.

William J. Morris and Cheryl L. Adams, of Nelson Morris & Titus, Lincoln, for appellants.

Don Stenberg, Attorney General, and Jeffery T. Schroeder, Lincoln, for appellee.

CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WRIGHT, Justice.

STATEMENT OF CASE

In this eminent domain action, the State of Nebraska, through its Department of Roads, acquired fee title and temporary and permanent easements to part of the condemnees' property. The Madison County Court awarded the condemnees $15,340. On appeal

to the Madison County District Court, a jury returned a verdict in the amount of $9,991. The condemnees have timely appealed from that verdict.

SCOPE OF REVIEW

A condemnation action is reviewed as an action at law, in connection with which a verdict will not be disturbed unless it is clearly wrong. McArthur v. Papio-Missouri River NRD, 250 Neb. 96, 547 N.W.2d 716 (1996).

A trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion. Id.

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by said rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 547 N.W.2d 484 (1996).

FACTS

The condemnees claim they were inadequately compensated for land taken by the State. Mary Walkenhorst, Dale Walkenhorst, Margaret Olson, Marvin Olson, and Morris Moyer each own an undivided one-sixth interest in the land involved herein. Eunice Moyer may hold a life estate as to an undivided one-half interest in the land, and George H. Moyer, Jr.; Marilyn Moyer; Jon M. Moyer; Ann M. Long; and Steve A. Long each hold an undetermined interest in the land. Tim Sunderman is a tenant on the land.

The condemnees own two quarter sections of land in Madison County, Nebraska. The land is separated by U.S. Highway 81, which runs north and south. The land is a farm composed of pastureland and cultivated cropland. The land east of Highway 81 included a shelterbelt containing six rows of trees which extended for approximately 1/2 mile, as well as a home, barn, cribs, and yards suitable for conducting cattle raising and feeding operations. The land was once fenced on all four sides, and there are stock wells, tanks, and catch pens on each quarter section.

On February 22, 1994, through its power of eminent domain, the State acquired two strips of the condemnees' property in order to reconstruct Highway 81. The State acquired 8.24 acres on the east side of the highway and 1.78 acres on the west side of the highway. In this condemnation, the State seized 10.02 total acres of land in fee title, acquired three permanent easements totaling .29 acres and a temporary easement of .36 acres, and obtained control of access to the condemnees' remaining property. Additionally, a fence on the west side of the condemnees' property had to be torn down, and the State built the condemnees a new access road.

At trial, witnesses for the condemnees were Jon Moyer, one of the owners; Richard Walsh, a licensed engineer; James Brogan, an abstractor; and Doug Reigle, one of the farm tenants. Ronald Lumb, a forester, was not permitted to testify in front of the jury, and the condemnees offered his testimony as an offer of proof, which was overruled.

The jury returned a verdict of $9,991. Following trial, the condemnees' motion for new trial was overruled. The condemnees appealed, and a petition to bypass the Nebraska Court of Appeals was granted by this court.

ASSIGNMENTS OF ERROR

In summary, the condemnees assert that the district...

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