Russell v. Franklin County , 306 Neb. 546 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
Thomas M. Russell and Pamela J. Russell,
appellants, v. Franklin County,
Nebraska, appellee.
___ N.W.2d ___
Filed July 24, 2020. No. S-18-827.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Constitutional Law: Eminent Domain. Inverse condemnation is a
shorthand description for a landowner suit to recover just compensation
for a governmental taking of the landowner’s property without the ben-
efit of condemnation proceedings.
4. Eminent Domain: Property: Intent. The threshold issue in an inverse
condemnation case is to determine whether the property allegedly taken
or damaged was taken or damaged as a result of the governmental
entity’s exercise of its power of eminent domain; that is, was the taking
or damaging for public use.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Pirtle and Bishop, Judges, on
appeal thereto from the District Court for Franklin County,
Stephen R. Illingworth, Judge, on appeal thereto from the
County Court for Franklin County, Timothy E. Hoeft, Judge.
Judgment of Court of Appeals affirmed.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
Matthew D. Hammes and Cristina Fackler, of Locher,
Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellants.
Brandy R. Johnson, of Governmental Law, L.L.C., and
Henry Schenker, Franklin County Attorney, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Under the Nebraska Constitution, an owner of private prop-
erty is entitled to just compensation if a governmental entity
damages that property for public use. In this case, a county
felled trees on private property to improve visibility for a
nearby road. Everyone agrees the landowner is entitled to com-
pensation, but the parties disagree on how that compensa-
tion should be calculated. The district court determined that
the landowners were entitled to receive an amount equal to
the diminution in value of the land as a result of the coun-
ty’s action, and the Nebraska Court of Appeals affirmed. We
granted further review and, for reasons we will explain herein,
also affirm.
BACKGROUND
Removal of Trees.
Thomas M. Russell and Pamela J. Russell own 164 acres of
land in rural Franklin County (County). The property has been
in the Russells’ family for many years and includes cropland
and pastureland. According to the Russells, they have used
the property for birdwatching, camping, hunting for game and
mushrooms, and other recreational purposes. There is no resi-
dence on the property.
In December 2015, the County’s highway superintendent
contacted Thomas and asked for permission to cut down trees
on a certain area of the property. The County sought to cut
down the trees to improve visibility for drivers on an adjacent
county road. Thomas agreed to allow the removal of the trees
in the identified area.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
Employees of the County subsequently entered the Russells’
land and cut down and uprooted trees. Rather than removing
trees in the area in which the County was given permission,
however, the employees removed other trees. By the time the
Russells realized what was happening and asked the County to
stop, 67 trees outside of the permitted area had been cut down
or uprooted. At that point, Thomas told the highway superin-
tendent that the County did not have his permission to remove
any other trees.
Inverse Condemnation Proceedings.
The Russells filed an inverse condemnation proceeding
against the County in Franklin County Court. They alleged
that the County had unlawfully taken their property for a pub-
lic use and that they were entitled to just compensation and
other relief under Neb. Rev. Stat. § 76-705 et seq. (Reissue
2018). Appraisers appointed by the county court returned
a report determining the damages suffered by the Russells,
but the Russells were not satisfied and appealed to the dis-
trict court.
In district court, both parties designated experts to give
opinions on the extent of the damages sustained. Both parties
also filed motions in limine seeking to exclude the oppos-
ing party’s experts on the ground that the opposing experts’
damages opinions were based on an incorrect measure of
damages.
The County took the position that the correct measure of
damages was the diminution in market value of the land as a
result of the destruction of the trees. It retained a licensed and
certified real estate appraiser as an expert. He offered opinions
on the fair market value of the Russells’ land before and after
the destruction of the trees. Using this methodology, he deter-
mined the amount of the damages to the property was $200.
The Russells, on the other hand, contended that their dam-
ages were an amount equal to the fair and reasonable cost to
restore the property to its prior condition. They relied upon
an arborist, a salesperson from a nursery and garden center,
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
and a representative from an excavating company to quantify
their damages. Together, the Russells claimed, these experts
calculated the cost to return the property to its prior condition
to be $150,716.
The County then filed a motion for summary judgment. In
its motion, the County conceded that by cutting down trees
outside the scope of the permission granted by the Russells,
it had completed a “taking” of the Russells’ property, but con-
tended that there was no genuine issue of material fact as to
the Russells’ damages. Both parties introduced evidence at the
summary judgment hearing from their experts as to damages.
The district court granted the County’s summary judgment
motion. It stated that the Russells were entitled to some com-
pensation for the County’s removal of their trees and that the
only issue in dispute was the damages to which they were
entitled. The district court concluded that the proper measure
of damages was controlled by Walkenhorst v. State, 253 Neb.
986, 573 N.W.2d 474 (1998). It understood Walkenhorst to
hold that a party whose property is taken by the government
for a public use is entitled to receive the fair market value of
the property taken and any decrease in the fair market value
of remaining property caused by the taking. The district court
reasoned that because the County’s expert offered a dam-
ages opinion based on the correct measure of damages but
the Russells did not, summary judgment was appropriate.
Consistent with the damages opinion offered by the County’s
expert, it determined the Russells were entitled to $200 in
compensation. The Russells appealed.
Court of Appeals.
The Court of Appeals affirmed the district court’s decision
over a dissent. See Russell v. Franklin County, 27 Neb. Ct. App.
684, 934 N.W.2d 517 (2019). The majority opinion agreed with
the district court that the appropriate measure of damages was
controlled by Walkenhorst. It read Walkenhorst to hold that in
takings cases, “vegetation is not to be valued separately and
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
is only considered to the extent that its presence affected the
fair market value of the land.” Russell, 27 Neb. Ct. App. at 692,
934 N.W.2d at 523.
The Court of Appeals’ majority disagreed with the dissenting
opinion’s view that because the damages were temporary, the
Russells were entitled to recover the cost necessary to return
the property to its prior condition under Kula v. Prososki, 228
Neb. 692, 424 N.W.2d 117 (1988). The majority recognized
that in Kula, a landowner was allowed to recover such dam-
ages, but it concluded that Kula did not apply because it “was
not an eminent domain case” and because it involved crops
rather than trees. Russell, 27 Neb. Ct. App. at 696, 934 N.W.2d
at 525.
The majority also rejected the Russells’ argument that
they were entitled to cost of repair damages under Keitges v.
VanDermeulen, 240 Neb. 580, 483 N.W.2d 137 (1992). The
majority concluded that Keitges had no bearing because it was
a tort lawsuit between two landowners. And, even assuming
that Keitges applied, the majority found that the Russells had
not introduced the necessary evidence to be entitled to cost of
repair damages.
We granted the Russells’ petition for further review.
ASSIGNMENTS OF ERROR
The Russells could have been clearer in their petition for
further review as to what errors they were assigning. After an
introduction to the case’s factual and procedural history, the
petition includes a heading in bold type: “ASSIGNMENT OF
ERROR.” Immediately underneath that heading is a sentence
in bold type and capitalized letters. The sentence is preceded
by a Roman numeral I and states: “The Court of Appeals erred
in failing to uphold the Nebraska State Constitution, Nebraska
statutes and existing Supreme Court precedent applicable to
property that has been damaged for a public use.” Argument
in support of that assertion follows. Later on in the petition,
another sentence appears in bold type and all capitalized
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
letters preceded by a Roman numeral II. It generally asserts
that our opinion in Keitges, supra, sets forth the appropriate
measure of damages for temporary damages to trees and that
the Court of Appeals erred by failing to follow it. Argument in
support of that assertion follows.
The Russells appear to believe they effectively assigned
error in both statements in bold type, in all capitalized letters,
and preceded by Roman numerals. Their petition for further
review does not, however, contain a separate section setting
forth multiple assignments of error. Our rules of appellate
practice require that any assignments of error be set forth in
a separate section of the petition for further review. See Neb.
Ct. R. App. P. §§ 2-102(F)(3) (rev. 2015) and 2-109(D)(1)(e)
(rev. 2014).
Although the Russells’ petition for further review does not
contain a separate section setting forth multiple assignments of
error, it does include immediately under the bold type heading
“ASSIGNMENT OF ERROR” the statement following Roman
numeral I. We have, perhaps generously, construed that as a
separate section of the brief assigning a single assignment of
error. Because no other issues have been properly assigned and
argued, we will not discuss them. See State v. Dreimanis, 258
Neb. 239, 603 N.W.2d 17 (1999).
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d
597 (2019).
[2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. Id.
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
ANALYSIS
Background Regarding the Russells’ Claim.
[3,4] The Russells have sought compensation for the
destruction of their trees via inverse condemnation. Inverse
condemnation is a shorthand description for a landowner suit
to recover just compensation for a governmental taking of the
landowner’s property without the benefit of condemnation pro-
ceedings. Henderson v. City of Columbus, 285 Neb. 482, 827
N.W.2d 486 (2013). The right to bring an inverse condemnation
action derives from Neb. Const. art. I, § 21, which provides:
“The property of no person shall be taken or damaged for pub-
lic use without just compensation therefor.” See Henderson,
supra. The threshold issue in an inverse condemnation case is
to determine whether the property allegedly taken or damaged
was taken or damaged as a result of the governmental entity’s
exercise of its power of eminent domain; that is, was the taking
or damaging for public use. See id.
A number of issues that might be contested in an inverse
condemnation case are not disputed in this one. The Russells
do not dispute, for example, that the County removed the trees
to improve visibility on an adjacent county road and that this
constitutes a public use. At the same time, the County does not
deny that it removed trees it did not have the Russells’ permis-
sion to remove and thereby damaged their property. Neither
does the County dispute that the Russells were entitled to some
compensation. The parties have not agreed and do not agree,
however, on how that compensation should be calculated. We
turn to that issue now.
Permanent or Temporary Damages?
The district court and the Court of Appeals concluded that
the Russells were entitled to recover an amount equal to the
diminution in value of their land as a result of the destruction
of the trees. Both courts concluded this measure of damages
followed from our decision in Walkenhorst v. State, 253 Neb.
986, 573 N.W.2d 474 (1998).
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
In Walkenhorst, the State condemned strips of land in order
to reconstruct a highway. The landowners claimed they were
entitled to receive compensation for a shelterbelt of trees that
was present on the condemned land in addition to compensa-
tion for the taking of the land itself. We disagreed, explaining
that the landowners were entitled to recover the fair market
value of the property actually acquired and the decrease in the
market value of the remaining property. As a result, the land-
owners were not entitled to compensation “for the value of the
shelterbelt as a shelterbelt; instead, the only relevant inquiry
[was] how the presence of the shelterbelt on the condemned
land affect[ed] the fair market value of the land taken.” Id. at
992, 573 N.W.2d at 481.
The Russells argue that the district court and then the
Court of Appeals erred by relying on Walkenhorst. They, like
the dissenting opinion in the Court of Appeals, understand
Walkenhorst to set forth the measure of damages for only
those cases in which the government permanently takes private
property for public use. In that circumstance, they admit, the
landowner is entitled to recover only the fair market value of
the property taken, as well as any resulting decrease in the fair
market value of the remaining land. But here, they claim, the
County did not permanently take any portion of their land but
only temporarily damaged trees and, consequently, Walkenhorst
does not apply.
The Russells, again in step with the dissenting opinion in
the Court of Appeals, argue that another case, Kula v. Prososki,
228 Neb. 692, 424 N.W.2d 117 (1988), applies here and allows
them to recover the costs necessary to replace the trees felled
by the County. In Kula, a landowner sued a county under Neb.
Const. art. I, § 21, alleging that the county had installed an
inadequate culvert which caused floodwaters to accumulate
on his land. After the district court entered an award in favor
of the landowner, the county appealed, complaining that the
wrong measure of damages was used. On appeal, this court
held that the land was temporarily damaged and, under those
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
circumstances, the compensation due the landowners was the
value of the use of the land for the period damaged, which in
that case was “the value of the crops which could and would
have been grown upon the land.” Id. at 694-95, 424 N.W.2d
at 119. This court went on to hold that the landowner could
also recover other expenses necessary to return the land to its
prior condition. The Russells assert that because their land was
temporarily damaged, they too should be able to recover an
amount equal to the cost necessary to return their land to its
predamaged condition.
The Russells are correct that the governmental intrusion
here differs from Walkenhorst: in that case, the State took title
to the landowners’ property, while here, it only briefly entered
land and damaged trees. And there is at least some similarity
between this case and Kula, at least insofar as both involve
governmental interference with species of the plant kingdom
growing on private property. Despite that similarity, however,
it is far from clear to us that this case, like Kula, involved only
temporary damages.
Several of our cases recognize that land might not be
completely taken by the government for public use, but may
nonetheless be permanently damaged. In those cases, we have
held that the compensation due the landowner is the measure
of damages applied by the district court and approved by the
Court of Appeals in this case—the diminution in market value
of the land before and after the damages. See, Beach v. City of
Fairbury, 207 Neb. 836, 301 N.W.2d 584 (1981); Quest v. East
Omaha Drainage Dist., 155 Neb. 538, 52 N.W.2d 417 (1952).
See, also, Kula, 228 Neb. at 694, 424 N.W.2d at 119 (explain-
ing that when damages to land are permanent as in Beach,
supra, the measure of damages is the “difference in the market
value of the land before and after the damage”).
Our cases have not significantly explored what differentiates
permanent and temporary damages to land. Nebraska, how-
ever, is far from the only jurisdiction that employs a different
measure of damages for permanent and temporary damages
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
to land. Several other courts that have considered the differ-
ence between those two categories have focused on whether
the harm is likely to continue indefinitely, in which case it
is permanent, or dissipate, in which case it is temporary. The
Texas Supreme Court, for example, describes permanent injury
to real property as that which is “ongoing, continually happen-
ing, or occurring repeatedly and predictably,” and temporary
damages as those that “do not last for long periods of time,
are not ongoing, are not likely to occur again, occur only spo-
radically, or occur unpredictably.” Gilbert Wheeler v. Enbridge
Pipelines, 449 S.W.3d 474, 480 (Tex. 2014). The South Dakota
Supreme Court uses a similar formulation, classifying dam-
age to real estate as permanent when, among other things, it
is “‘presumed to continue indefinitely’” or is “irremediable.”
Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 272 (S.D.
1985). See, also, Rupert v. City of Rapid City, 827 N.W.2d 55
(S.D. 2013); McAlister v. Atlantic Richfield Co., 233 Kan. 252,
262, 662 P.2d 1203, 1211 (1983) (explaining that temporary
damages are those that occur intermittently or occasionally
and the cause of which is removable, while permanent dam-
ages are “practically irremediable”); 1 Dan B. Dobbs, Dobbs
Law of Remedies, § 5.11(2) at 823 (2d ed. 1993) (collecting
cases holding that injury to land is permanent if will “con-
tinue indefinitely”).
The rationale for treating damages that will continue indefi-
nitely as permanent and allowing a recovery based on diminu-
tion in value appears to be that in those circumstances, “[e]ven
though harm will continue, its future effects are captured all at
one time by [the diminution in value of the real estate], which
gives to the plaintiff the loss in value attributable to the future
continuance of the invasion.” Dobbs, supra, at § 5.11(1) at
820. “In contrast, if an invasion is temporary, general dam-
ages will be measured for the harm that has been done up until
judgment, with more damages to come in later suits if they are
necessary.” Id. at 820-21.
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
If damages that will predictably recur are permanent, a strong
case could be made that the damages to the Russells’ property
qualify and thus the district court did not err in its determi-
nation of the appropriate measure of damages. The County
removed the trees because they impaired visibility on a nearby
county road, a fact the Russells do not appear to dispute, given
their admission that the trees were taken for public use. If the
trees needed to be removed to improve road visibility, presum-
ably they would be subject to removal again if replaced, lest
the problems with road visibility arise again.
A decision of the South Dakota Supreme Court, Rupert,
supra, supports an argument along these lines. In that case,
the South Dakota Supreme Court reversed a trial court’s deter-
mination that landowners suffered temporary damages when a
city’s use of deicer killed a number of trees on the landown-
ers’ land. Among the reasons identified by the South Dakota
Supreme Court for reversal was the fact that the city intended
to continue to use the deicer and thus would likely kill any
new trees planted to replace those that were destroyed.
But while we believe a strong case could be made that the
damages to the Russells’ real property were permanent and
the district court’s decision was correct for that reason, we
ultimately determine that it is not necessary to decide that
issue. As we will explain below, even assuming the damages
were temporary, the district court did not err in concluding the
Russells were entitled to recover based on the diminution in
value as determined by the County’s expert.
Temporary Damages Analysis.
As noted above, the Russells’ argument for cost of restora-
tion damages rests on Kula v. Prososki, 228 Neb. 692, 424
N.W.2d 117 (1988). The landowner in Kula was allowed to
recover, in addition to the value of the crops that would have
grown on the land during the time of the temporary damages,
certain costs necessary to return the land to its prior condition.
And contrary to the Court of Appeals’ statement that it was
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
not an eminent domain case, Kula did involve a landowner’s
right to just compensation for damages to private property for
public use. See Russell v. Franklin County, 27 Neb. Ct. App. 684,
934 N.W.2d 517 (2019) (Bishop, Judge, dissenting).
But while we disagree with the Court of Appeals’ major-
ity that the Russells seek a different type of relief than the
landowner in Kula, we agree with its ultimate conclusion that
the Russells are not entitled to the same type of recovery. We
reach this conclusion in reliance on In re Application of SID
No. 384, 259 Neb. 351, 609 N.W.2d 679 (2000) (SID), a case
decided after Kula. Neither the majority nor the dissenting
opinion of the Court of Appeals discussed SID, but we find it
precludes the Russells from obtaining cost of repair damages,
even assuming their damages were temporary.
In SID, a sanitary and improvement district initiated con-
demnation proceedings to construct a sewer line and sought
both permanent and temporary easements. The landowner
sought to introduce expert testimony as to both the diminution
in market value as a result of the easements and the replace-
ment cost of trees and grasses destroyed in the construction of
the sewer line. Of relevance to our analysis here, the landowner
argued entitlement to recover the replacement cost of the trees
and grasses destroyed on the land subject to the temporary
easements. We observed that some of our prior cases involv-
ing temporary takings allowed the landowner to recover the
value of the use of the land for the period taken. We also cited
a California case, Sacramento & San Joaquin Drainage Dist.
v. Goehring, 13 Cal. App. 3d 58, 66, 91 Cal. Rptr. 375, 380
(1970), that in addition to permitting recovery for the value
of the use of the land, permitted cost of restoration damages
if “‘not in excess of the diminution in value of the property
caused by physical changes made by the condemnor during the
period of its possession.’”
This limitation on cost of restoration damages outlined in
Goehring was crucial to our analysis in SID. There was no
evidence in SID of loss of use damages, and the landowner’s
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RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
expert concluded that the diminution in market value caused
by the temporary easements was less than the cost to replace
the destroyed trees and grasses. Because cost of restoration
damages exceeded the diminution in value damages, we held
that the proper measure of damages was the diminution in mar-
ket value caused by the temporary taking.
Under SID, the Russells cannot recover cost of restoration
damages. In this case, as in SID, no one has identified loss of
use damages. And here, the discrepancy between the diminu-
tion in market value and the cost to repair is even greater than
in SID. There is undisputed evidence that the market value of
the Russells’ land decreased by only $200 as a result of the
destruction of the trees while the Russells claim their evidence
shows it would cost over $150,000 to restore their land to its
prior condition. Indeed, this case illustrates the rationale for
the limitation on cost of restoration damages adopted in SID.
Without it, a landowner could receive a significant windfall
through cost of repair damages.
Finally, we note that we do not understand SID to conflict
with Kula v. Prososki, 228 Neb. 692, 424 N.W.2d 117 (1988).
There is no indication in Kula that the restoration costs the
landowner was allowed to recover exceeded the diminution in
market value.
For these reasons, we conclude that whether the damages the
Russells suffered are properly classified as permanent or tem-
porary, they are entitled to the same recovery: the diminution
in value of their land as a result of the removal of their trees.
The Court of Appeals properly affirmed the district court’s
determination of damages on that basis.
CONCLUSION
We find that the Court of Appeals did not err in affirming
the district court’s entry of summary judgment. Accordingly,
we affirm.
Affirmed.