Russell v. Franklin County

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www.nebraska.gov/apps-courts-epub/
10/22/2019 09:06 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
RUSSELL v. FRANKLIN COUNTY
Cite as 27 Neb. Ct. App. 684
Thomas M. Russell and Pamela J. Russell,
appellants, v. Franklin County,
Nebraska, appellee.
___ N.W.2d ___
Filed October 15, 2019. No. A-18-827.
1. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material fact 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. Summary Judgment: Appeal and Error. In appellate review of a sum-
mary judgment, the court views the evidence in a light most favorable
to the party against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the evidence.
3. Constitutional Law: Eminent Domain: Damages. The words “or dam-
aged” 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.
4. ____: ____: ____. Neb. Const. art. I, § 21, broadens the entitlement for
just compensation beyond property that is actually “taken” by the gov-
ernmental entity and includes compensation for property that is damaged
in the sense that the market value of the property has been diminished
even if the property is not actually taken.
Appeal 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 District Court affirmed.
Matthew D. Hammes and Cristina Fackler, of Locher,
Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellants.
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RUSSELL v. FRANKLIN COUNTY
Cite as 27 Neb. Ct. App. 684
Brandy R. Johnson, of Governmental Law, L.L.C., and
Henry Schenker, Franklin County Attorney, for appellee.
Pirtle and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Thomas M. Russell and Pamela J. Russell brought an inverse
condemnation action against Franklin County, Nebraska (the
County), after the County cut down trees on the Russells’ prop-
erty. The district court for Franklin County granted the County’s
motions in limine to exclude testimony of the Russells’ expert
witnesses and granted its motion for summary judgment. Based
on the reasons that follow, we affirm.
BACKGROUND
The Russells own 164 acres of rural property in Franklin
County. The property consists of 43 acres of cropland, and
the remaining 121 acres is pastureland used for “cattle feed-
ing, . . . hunting, bird watching and photography,” as well
as gathering morel mushrooms. There is no residence on the
property, and the only buildings there are a utility shed and a
garage. Thomas’ parents owned the land before he did, and it
had been owned by his family for 47 or 48 years.
On December 4, 2015, Michael Ingram, the highway super-
intendent for the County, sent an email to Thomas seeking
permission to cut down trees in a certain area of the Russells’
property for the purpose of improving visibility for drivers
on a county road adjacent to the Russells’ property. A map
was attached to Ingram’s email identifying the area where
the County wanted to remove the trees. Thomas discussed
the request with his parents, because he did not want them to
be upset if trees were removed. Thomas then told Ingram he
could proceed with removing the trees in the area identified on
the map.
County employees subsequently began cutting down and
excavating trees on the Russells’ property. However, they did
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not remove trees from the area the County had identified and
had received permission from Thomas to remove. Instead,
the county employees cut down and uprooted 67 trees on two
other locations on the property, exceeding the scope of the
permission given by Thomas. The two areas affected totaled
1.67 acres.
Around December 13, 2015, Thomas’ mother called Thomas
because she was upset about the location of the trees removed.
Thomas called Ingram and told him to stop cutting any more
trees until he could take a look at where the County had
been working. On December 14, Ingram sent an email to
Thomas apologizing for “upsetting” the family, admitting that
the County encroached further than it originally planned, and
explaining the County’s plans for removal of more trees. On
December 15, Thomas informed Ingram that he would not
allow the County to remove any more trees on his property.
In January 2017, the Russells filed a “Petition for Inverse
Condemnation” against the County in Franklin County Court,
alleging an unlawful taking of their property for a public
use, and because they had not received just compensation
therefor, they sought damages and other relief using the pro-
cedures set forth in Neb. Rev. Stat. § 76-705 et seq. (Reissue
2018). Thereafter, appraisers were appointed and a return of
appraisers was filed setting forth the damages sustained by
the Russells. Unsatisfied with the damages set by the apprais-
ers, the Russells filed a petition in Franklin County District
Court seeking just compensation for the trees that were unlaw-
fully taken.
Both parties designated experts to give opinions on how
damages should be measured and the amount of damages sus-
tained. Both parties filed motions in limine seeking to exclude
the testimony of the opposing party’s expert—each side claim-
ing the other’s expert was applying an incorrect measure
of damages.
The County then filed a motion for summary judgment
alleging that there was neither a genuine issue of material fact
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as to the market value of the Russells’ property either before
or after the “‘taking’” by the County, nor that the County
“‘took’” a temporary easement by exceeding the scope of
permission they had from the Russells to cut down or remove
trees from their property.
A summary judgment hearing followed. At the hearing,
five exhibits were offered and received into evidence without
objection, subject to the motions in limine that were filed
by both parties with respect to expert testimony. Exhibit 1
was the deposition of Thomas; exhibit 2 was the deposition
of Ingram; exhibit 3 was the deposition of Cody Gerdes, the
County’s expert; exhibit 4 contained all the exhibits utilized at
the depositions of Thomas, Ingram, and Gerdes; and exhibit
5 was the deposition of Jack Phillips, one of the Russells’
experts, and the exhibits utilized at that deposition.
The evidence showed that Gerdes, the County’s expert, was
a Nebraska licensed and certified real estate appraiser who
focused on commercial and agricultural properties. Gerdes
visually examined the Russells’ property and conducted an
appraisal analysis. In his analysis, Gerdes used comparable
market sales of similar rural properties in the area that had
cropland, pastureland, and native trees. He determined that the
highest potential value and best use of the Russells’ property
was agricultural use.
Gerdes then evaluated the property based on its highest
potential value and determined the difference in the fair market
value of the Russells’ land before and after the County’s tak-
ing of trees on the property. He determined that the Russells’
entire property before the taking had a value of $338,600.
Thomas did not disagree with Gerdes’ valuation. Gerdes fur-
ther determined that the property had a value of $338,400
after the taking. Therefore, he determined that the damages
to the property, based on market data comparisons, amounted
to $200.
Phillips, one of the Russells’ experts, was a registered con-
sulting arborist. He used a “Trunk Formula Method” of tree
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appraisal to determine the value of the trees that were cut
down or removed. This was done by measuring the stumps of
the 45 trees that were cut down and estimating the size of the
other 22 smaller trees that were removed by excavation based
on the size of the holes where the trees had been located. He
determined that the appraised value of the 45 trees with stumps
remaining was $99,990 and that the appraised value of the
excavated trees was $4,026, totaling $104,016.
The Russells had two other individuals provide them with
estimates in regard to the claimed losses or damages for
which they wanted to be compensated. A salesperson from
a nursery and garden center estimated a “replacement cost”
of $24,053.75 to plant 25 non-native trees. The species of
trees used in the estimated cost were not the same species of
trees that were removed from the Russells’ property. Thomas
also obtained an estimate from a representative of an exca-
vating company in the amount of $46,700 for clean up of
the trees that were cut down and removal of the remaining
tree stumps.
The district court effectively granted the County’s motions
in limine, denied the Russells’ motions in limine, and granted
the County’s summary judgment motion. The court determined
that the County conceded it exceeded the authority to which
the County and Thomas had originally agreed to and that the
only disputed issue in the case was the measure of damages.
The court stated that the Russells pled their case under the
eminent domain statutes but were now arguing the case as an
unlawful destruction of trees or as a negligence action, which
are causes of actions that should be filed under the Political
Subdivisions Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq.
(Reissue 2012 & Cum. Supp. 2018). The court found that the
case of Walkenhorst v. State, 253 Neb. 986, 573 N.W.2d 474
(1998), was the applicable case in regard to the measure of
damages and that the only admissible relevant evidence on the
appropriate measure of damages was Gerdes’ appraisal, which
determined damages to be $200. The district court granted
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the County’s motion for summary judgment finding that there
were no other material issues of fact. It also awarded the
Russells $200 in damages for the taking.
ASSIGNMENTS OF ERROR
The Russells assign, restated, that the district court erred
in (1) granting the County’s motion for summary judgment
and failing to apply, as a matter of law, the proper measure of
damages; (2) determining as a matter of law that the damages
they sought were based on an unlawful destruction of trees or
negligence action that can only be recovered in an action filed
under the Political Subdivisions Tort Claims Act; and (3) grant-
ing the County’s motions in limine and denying the Russells’
motions in limine, based on the court’s use of the wrong meas­
ure of damages.
STANDARD OF REVIEW
[1,2] Summary judgment is proper only when the plead-
ings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material
fact 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. Wehrer v. Dynamic Life Therapy & Wellness,
302 Neb. 1025, 926 N.W.2d 107 (2019). In appellate review
of a summary judgment, the court views the evidence in a
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
ANALYSIS
The Russells assign three assignments of error, all of which
relate to the same argument: The court applied the wrong
measure of damages. Accordingly, we address all three assign-
ments simultaneously. However, as a preliminary matter, also
before us is the County’s motion to strike pages 24 through 42
of the supplemental transcript, as well as all references to the
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county court appraisers’ opinions in the Russells’ brief, and to
exclude these matters from consideration on this appeal.
The present appeal is from the district court’s order grant-
ing summary judgment in favor of the County. The evidence
before the district court in deciding the County’s motion for
summary judgment did not include the materials at pages 24
through 42 of the supplemental transcript that are the subject
of this motion to strike. In addition, pages 24 through 42 of the
supplemental transcript are not “[t]he pleadings upon which
the case was tried . . .” as contemplated by Neb. Ct. R. App.
P. § 2-104(A)(1)(a), nor any of the other materials specified
by such rule as to be included in a transcript on appeal. We
agree with the County, and therefore, we grant the County’s
motion and strike pages 24 through 42 of the supplemental
transcript which are outside the record presented to us from
the district court.
The district court found that the proper method of determin-
ing damages was the measure of damages applied in eminent
domain cases, that is, that the Russells were entitled to recover
the fair market value of the property taken, as well as any
decrease in the fair market value caused by the governmental
taking. The Russells contend that such measure of damages is
only for situations where the County has permanently taken
land from a landowner. They argue that the proper method of
determining damages is the cost of reasonable restoration of
the property to its preexisting condition or to a condition as
close as reasonably feasible. They further contend that because
the court adopted and applied the wrong measure of damages,
it further erred in granting the County’s motions in limine and
denying the Russells’ motions in limine.
Section 76-705 provides:
If any condemner shall have taken or damaged prop-
erty for public use without instituting condemnation pro-
ceedings, the condemnee, in addition to any other avail-
able remedy, may file a petition with the county judge
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of the county where the property or some part thereof is
situated to have the damages ascertained and determined.
(Emphasis supplied.)
Article I, § 21, of the Nebraska Constitution provides that
“[t]he property of no person shall be taken or damaged for
public use without just compensation therefor.”
No one disputes that the County removed trees on the
Russells’ property for a public use, that is, to improve visibility
upon a county road adjacent to the Russells’ property. There is
also no dispute that 67 trees were removed from two locations,
neither of which was the location the Russells had given per-
mission to the County to remove trees from, and that the area
affected consisted of 1.67 acres.
[3,4] The Nebraska Supreme Court has stated that 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.
Strom v. City of Oakland, 255 Neb. 210, 583 N.W.2d 311
(1998). The Nebraska constitutional clause broadens the enti-
tlement for just compensation beyond property that is actually
“taken” by the governmental entity and includes compensation
for property that is damaged in the sense that the market value
of the property has been diminished even if the property is not
actually taken. Henderson v. City of Columbus, 285 Neb. 482,
827 N.W.2d 486 (2013). Section 76-705 also includes compen-
sation for property that is damaged, in addition to property that
is taken.
In determining the appropriate measure of damages, the
district court relied on Walkenhorst v. State, 253 Neb. 986,
573 N.W.2d 474 (1998). In Walkenhorst, the State acquired,
through its power of eminent domain, two strips of the appel-
lants’ property in order to reconstruct a highway. The property
was pastureland and cultivated cropland, and it included a
shelterbelt containing six rows of trees which extended for
approximately 1⁄2 mile. The State acquired fee title, three per-
manent easements, and a temporary easement to parts of the
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appellants’ property. A jury awarded the appellants $9,991,
and they appealed. The appellants argued that the shelterbelt
of trees located on property taken by the State constituted
property separate and apart from the land and that they were
entitled to compensation for the shelterbelt in addition to any
compensation granted for the taking of the land.
The Supreme Court noted that it has consistently held that
the damages in an eminent domain case are measured based
on market value, whether it be fair market value of the prop-
erty actually acquired or the decrease in market value of the
remaining property.
The Walkenhorst court concluded:
[T]he [appellants’] claim that they should be compensated
separately for the value of the trees is without merit, for
vegetation is generally not to be valued separately and
then added to the value of the underlying land in a sum-
mation approach. [Citations omitted.] The [appellants]
cannot be compensated for the value of the shelterbelt as
a shelterbelt; instead, the only relevant inquiry is how the
presence of the shelterbelt on the condemned land affects
the fair market value of the land taken.
253 Neb. at 992, 573 N.W.2d at 481 (emphasis supplied).
We agree with the district court that Walkenhorst is appli-
cable to the present case and provides the appropriate measure
of damages. In Walkenhorst, the appellants wanted to be com-
pensated separately for the value of the trees in addition to any
compensation granted for the taking of the land. In the present
case, while there was no permanent taking of any land, the
Russells argue that they should be compensated based on the
value of the 67 trees that were removed. The Supreme Court
stated that vegetation is not to be valued separately and is only
considered to the extent that its presence affected the fair mar-
ket value of the land. Accordingly, the district court did not err
in determining that the appropriate measure of damages is the
difference in the fair market value of the land before and after
the taking.
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The Russells argue that the court erred in relying on
Walkenhorst because it involved the measure of damages appli-
cable to permanent damages sustained by a landowner when
the county has actually “taken” the land of a landowner, as
opposed to temporarily damaging property where the damage
can be repaired and restored. The Russells contend that Keitges
v. VanDermeulen, 240 Neb. 580, 483 N.W.2d 137 (1992), is
the controlling case as it sets out the measure of damages for
instances when temporary damages occur where the land can
be returned to its prior condition. In Keitges, the plaintiffs
sued their neighbors to recover damages for the destruction of
trees, shrubs, and vegetation on their property when the neigh-
bor attempted to clear a path for the construction of a fence
between the two adjoining properties. The petition alleged two
causes of action: willful trespass and negligent trespass. A jury
found that defendant’s trespass was not willful and returned a
verdict in the plaintiffs’ favor.
On appeal, the question presented was whether a plaintiff
is entitled to recover the cost of restoring trees and vegetation
on land which he holds for residential or recreational purposes
when a portion of the natural woods is destroyed. The Supreme
Court held:
[I]n an action for compensatory damages for cutting,
destroying, and damaging trees and other growth, and
for related damage to the land, when the owner of land
intends to use the property for residential or recreational
purposes according to his personal tastes and wishes,
the owner is not limited to the difference in value of the
property before and after the damage or to the stump-
age or other commercial value of the timber. Instead,
he may recover as damages the cost of reasonable res-
toration of his property to its preexisting condition or
to a condition as close as reasonably feasible. However,
the award for such damage may not exceed the market
value of the property immediately preceding the damage.
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See “L” Investments, Ltd. v. Lynch, 212 Neb. 319, 322
N.W.2d 651 (1982).
Keitges, 240 Neb. at 589-90, 483 N.W.2d at 143.
The court in Keitges found that the record showed the
plaintiffs used their land for residential and recreational use.
Therefore, the court concluded that the plaintiffs were entitled
to recover the cost of replacing trees and vegetation dam-
aged or destroyed by the defendant and that they must be
allowed to present evidence of the feasibility and cost of
such restoration.
The Russells contend that the damage caused by the County
to the trees and the land can be restored and that the measure
of damages should be the fair and reasonable cost and expense
of restoration. They claim that the cost of the damage, to
include the value and restoration of the trees and the cost to
remove the stumps, totals $150,716.
The Keitges case can be distinguished, because it did not
involve land taken or damages for public use, but, rather, was
a lawsuit between two landowners. The plaintiffs brought tort
actions, specifically willful and negligent trespass, against
the defendant, where compensatory damages could have been
sought and recovered. The present matter is not a tort action.
The Russells never asserted any cause of action for negli-
gence against the County. As the district court found in its
order, the Russells pled their case under the eminent domain
statutes but wanted to recover damages as if the case was one
for unlawful destruction of trees or negligence, which are
tort actions.
Further, there was no evidence that the Russells intended
to “use the property for residential or recreational purposes
according to [their] personal tastes and wishes.” See Keitges,
240 Neb. 580, 589, 483 N.W.2d 137, 143 (1992). There was
no house on the property and no evidence that the Russells
had any intent of ever building a house. There was some
evidence that the property was used at times for “hunting,
bird watching and photography,” as well as gathering morel
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mushrooms, but there was no evidence as to how often these
activities occurred or that this was the primary use. The prop-
erty was also used for “cattle feeding.”
Finally, the measure of damages set forth in Keitges can-
not apply in the present case, because the cost of repair
is only recoverable if the cost does not exceed the market
value of the property immediately preceding the damage.
The Russells claim the total cost of repair is $150,716 for the
damaged 1.67 acres of land. The damaged 1.67 acres con-
sists of approximately 1 percent of the entire 164-acre parcel.
They do not dispute that the entire 164 acres were valued
at $338,600 before the damage. Therefore, the predamaged
value of the affected area was $3,386 (1 percent of $338,600).
The estimated cost of repair greatly exceeds the predam-
aged market value of the damaged property. Accordingly, the
measure of damages set forth in Keitges is not available to
the Russells.
The Russells also contend that Kula v. Prososki, 228 Neb.
692, 424 N.W.2d 117 (1988), is instructive because it involved
temporary damages to land that could be returned to its
prior condition. In Kula, the plaintiff landowner brought an
action against adjoining landowners and Nance County seek-
ing injunctive relief and damages resulting from obstruction
to flow of surface waters off the plaintiff’s property. The
damages included crop replanting and treatment of the land to
eliminate the chemicals and salt on the land resulting from the
ponding of water. On appeal, the Supreme Court determined
that the situation was one involving temporary damage and
that therefore, the rule relating to the measure of damages as
being the difference in the market value of the land before
and after the damage, where there has been no taking, refers
to permanent damage and is inapplicable in this situation.
The Supreme Court held that where the land damaged can be
returned to its prior condition by treatment, grading, or other-
wise, the damage is temporary and the landowner is entitled to
such expenses as part of his or her damages.
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The Russells contend that, like in the Kula case, their
damages are temporary and they are entitled to recover
expenses necessary to return the property to its prior condi-
tion. However, we again note that Kula is distinguishable
from the present case in that Kula was not an eminent domain
case, but, rather, it involved returning the property to its
prior condition, which included crop replanting and treat-
ment to eliminate chemicals and salt on the land. Returning
the property to its prior condition in the present case involves
replacing trees, some very large, that have naturally grown
over numerous years in a wooded area. The removal of
these trees is not temporary in the same sense as crops that
are damaged.
In addition, the evidence from the Russells’ three experts
did not relate to returning the property to its prior condition.
Phillips appraised the value of the 67 trees that were cut
down and excavated, but he did not give an estimate of what
it would cost to replace the trees. The salesperson from the
nursery and garden center estimated a “replacement cost” of
$24,053.75 to plant 25 trees, but there were 67 removed. Also,
the species of trees used in the estimated cost were not the
same species of trees that were removed from the Russells’
property. The representative from the excavating company
gave an estimate for clean up of the trees that were cut down
and removal of the remaining tree stumps. These are not
“replacement costs.”
We conclude that the district court applied the correct
measure of damages—the difference in the fair market value
of the land before and after the taking. Gerdes was the only
expert who provided relevant and admissible evidence on the
correct measure of damages, concluding that the damages
were $200. The testimony of the Russells’ witnesses was
irrelevant in that it was based on the wrong measure of dam-
ages. Therefore, we further conclude that the court did not err
in granting the County’s motions in limine and denying the
Russells’ motions in limine.
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CONCLUSION
We conclude that the district court did not err in granting
the County’s motion for summary judgment and in awarding
the Russells $200 in damages.
A ffirmed.
Moore, Chief Judge, participating on briefs.
Bishop, Judge, dissenting.
I respectfully disagree with the majority that Walkenhorst
v. State, 253 Neb. 986, 573 N.W.2d 474 (1998), controls the
proper measure of damages to be used in the present matter.
Walkenhorst involved an actual “taking” of land; that is not
the case here. When considering compensation for a taking
that does not involve an actual physical taking of land, but
only damage to the property, the Nebraska Supreme Court has
applied a different measure of damages depending on whether
the damages are temporary or permanent. In this case, the
damage done to the Russells’ land was fixable to a degree and
was thus temporary, not permanent. That distinction and appli-
cable measure of damages was not considered by the district
court when entering summary judgment, and therefore, I would
reverse, and remand for further proceedings.
As noted, I do not see Walkenhorst being applicable to the
facts here. Walkenhorst involved the governmental taking of
private property for public use, and the question was whether a
shelterbelt of trees on the taken land should be separately com-
pensated in addition to the taken land; the Nebraska Supreme
Court said no. Compensation was to be based upon the fair
market value before and after the taking of the real property.
Here, there was no real property physically taken; rather, the
Russells’ land was damaged by the removal of the trees for
public use. Therefore, I do not read Walkenhorst as controlling
the outcome here.
The Russells contend that the appropriate measure of dam-
ages for the removal of the trees from their property can
be found in Keitges v. VanDermeulen, 240 Neb. 580, 483
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N.W.2d 137 (1992), which involved an action for compensa-
tory damages for the cutting, destroying, and damaging of
trees and other growth not limited to the difference in value
of the property before and after the damage. The Keitges
court held that damages may be recovered for the cost of
reasonable restoration of property to its preexisting condition
or to a condition as close as reasonably feasible and that in
such circumstances, evidence relating to the land’s diminu-
tion in value has no relevance. However, as noted by the
majority, the meas­ure of damages used in Keitges was based
upon the landowners’ filing an action in negligence against
another landowner, rather than through an inverse condemna-
tion claim against a government body, as in the present mat-
ter. The Russells did not file a negligence action against the
County in this case, and thus, I agree with the majority that
Keitges can be distinguished on that basis. If this had been a
negligence action against the County pursuant to the Political
Subdivisions Tort Claims Act, Neb. Rev. Stat. § 13-901 et
seq. (Reissue 2012 & Cum. Supp. 2018), perhaps the measure
of damages applied in Keitges would have relevance here.
That is not to say the damages described in Keitges would
necessarily be inapplicable here, but that issue need not be
decided for reasons discussed next.
The Russells also direct us to Kula v. Prososki, 228 Neb.
692, 424 N.W.2d 117 (1988) (Kula II), as authority for the
proper measure of damages for the circumstances present
here. I find this case to be more applicable than Walkenhorst
as to what measure of damages to apply when real prop-
erty is physically damaged, but not taken, for public use. In
order to more fully understand the final analysis in Kula II,
it is helpful to look at the original appeal filed in that case.
In Kula v. Prososki, 219 Neb. 626, 365 N.W.2d 441 (1985)
(Kula I), the Nebraska Supreme Court noted that the plain-
tiff, E. James Kula, sued adjoining landowners and Nance
County for injunctive relief and damages. Kula claimed that
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the adjoining landowners filled in a natural watercourse, caus-
ing surface waters to back onto his land, and that the county
raised an adjoining highway and installed inadequate culverts
which caused floodwaters to dam on to his land; Kula incurred
damages as a result. See id. The district court granted injunc-
tive relief, but as for damages, it concluded that Kula failed
to comply with the Political Subdivisions Tort Claims Act and
that the action had not been properly brought as an inverse
condemnation case. On appeal, Kula claimed it was error
for the district court to not award damages “for the alleged
wrongful taking of his property by Nance County.” Kula I,
219 Neb. at 628, 375 N.W.2d at 442. The Nebraska Supreme
Court observed that the district court’s reference to the fact
that Kula did not file a proper inverse condemnation action
likely meant that Kula did not first file an action under Neb.
Rev. Stat. § 76-705 (Reissue 2018) in the county court to have
the damages ascertained and determined. The Supreme Court
agreed that the procedure under § 76-705 was not followed,
but then pointed out Kula’s rights under Neb. Const. art. I,
§ 21 (property of no person shall be taken or damaged for
public use without just compensation), and stated that “[w]hen
private property has been damaged for public use, the owner
is entitled to seek compensation in a direct action under that
constitutional provision.” Kula I, 219 Neb. at 628, 375 N.W.2d
at 443. The court further stated:
That section of the Constitution is self-executing, and
legislative action is not necessary to make the remedy
available. . . . The fact that the plaintiff could have sued
in tort under the Political Subdivision Tort Claims Act
does not preclude him from proceeding in a direct action
for damages under the Constitution. . . .
Additionally, a landowner is not precluded from bring-
ing an action for a mandatory injunction against public
authorities to prevent damage to the owner’s land caused
by a public improvement when the public authorities
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have declined to exercise their right of eminent domain.
Also, the plaintiff had the right to join with his action for
equitable relief his claim for temporary damages.
Kula I, 219 Neb. at 629, 375 N.W.2d at 443 (citations omitted).
Importantly, the Supreme Court stated, “It is not indispen­
sable that the constitutional provision be set out or its exis-
tence alleged in the petition stating the cause of action.” Id.
“All that is necessary is that the litigant allege and prove facts
constituting a cause of action because of it. . . . Therefore, it
is necessary to consider both the pleadings and evidence to
determine whether a cause of action for property damaged
for a public use existed.” Id. Because the district court failed
to consider Kula’s claim for damages in Kula I, the Supreme
Court reversed, and remanded for further proceedings.
When the case returned on appeal following remand, the
Nebraska Supreme Court observed that the case had been
previously reversed and remanded “for further proceedings
to consider the issue of damages under Neb. Const. art. I,
§ 21,” and that an award was entered in Kula’s favor. See
Kula II, supra. Nance County appealed, and Kula cross-
appealed. Nance County complained that the district court did
not use the proper measure of damages; Kula complained that
the award of damages was inadequate. The Supreme Court first
pointed out that since there was nothing in the record to the
contrary, “we assume in deciding this case that the order relat-
ing to the installation of the culvert eliminated future damages.
Therefore, we are dealing with a situation involving temporary
damage.” Id. at 694, 424 N.W.2d at 119. The Supreme Court
then stated:
Accordingly, the County’s reliance on the rule relating
to the measure of damages as being the difference in
the market value of the land before and after the dam-
age, where there has been no taking, cited in Beach v.
City of Fairbury, 207 Neb. 836, 301 N.W.2d 584 (1981),
refers to permanent damage and is inapplicable in this
situation.
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Where land, no part of which is taken, temporarily
suffers damage compensable under Neb. Const. art. I,
§ 21, “‘the measure of compensation is not the market
value but the value of the use for the period damaged.’”
[Citations omitted.] If the land is cropland, the best test of
the value of its use is the value of the crops which could
and would have been grown upon the land.
Kula II, 228 Neb. at 694-95, 424 N.W.2d at 119.
The Nebraska Supreme Court goes on to discuss factors
to consider in ascertaining damages to crops, and then it also
discusses how to address additional expenses incurred by
reason of the County’s action, such as replanting expenses
and treatment of the land to eliminate chemical problems and
salt caused by the ponding of water. The Supreme Court then
holds that “where the land damaged can be returned to its prior
condition by treatment, grading, or otherwise, the damage is
temporary and the landowner is entitled to such expenses as
part of his or her damages.” Kula II, 228 Neb. at 697-98, 424
N.W.2d at 121.
In Kula II, because there was no evidence that the damage
to the property would reoccur, it was deemed temporary, rather
than permanent damage, and compensation could be awarded
to return the property to its prior condition, including replant-
ing expenses and other treatments necessary to return it to
its prior condition. On the other hand, Quest v. East Omaha
Drainage Dist., 155 Neb. 538, 52 N.W.2d 417 (1952), stands
for the proposition that when real property is not physically
taken, but is permanently damaged, the measure of damages is
based on the change in market value. Quest involved the exca-
vation for public use of a lot adjacent to the plaintiff’s prop-
erty, which excavation materially depreciated the market value
of the plaintiff’s property and restricted its use. The excavation
in the adjacent lot resulted in the creation of a 40-foot cliff,
dust blowing up the cliff into the plaintiff’s house, dust and
litter blowing into the yard, wind blowing roofing and shingles
off the side of the house, pools of stagnant water causing
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mosquito problems, and swallows nesting in the cliff. And
although the excavated area was fenced, children got under the
fence and fires were started in the area. In that case, restoring
the plaintiff’s property to its prior condition before the adjacent
lot was excavated was obviously not an option and thus the
damage was permanent. As a result, the appropriate measure
of damages was the difference in market value of the property.
The Nebraska Supreme Court stated, “Where land is not taken,
the measure of damages is the difference in market value
before and after the damaging, taking into consideration the
uses to which the land was put and for which it is reasonably
suitable.” Id. at 544, 52 N.W.2d at 421. The Supreme Court
determined that the plaintiff was entitled to have the issue of
damages submitted to a jury.
The circumstance in Walkenhorst v. State, 253 Neb. 986,
573 N.W.2d 474 (1998), seems inapplicable to the present
case, because Walkenhorst involved the actual physical tak-
ing of land, which is not the circumstance here. Also, Quest,
supra, seems inapplicable; even though no land was physically
taken, the damage from the neighboring lot was ongoing and
permanent, and therefore, restoration of the plaintiff’s prop-
erty to its prior condition was not an option. Thus, I conclude
Kula II, supra, controls the measure of damages in this case,
which would allow for the consideration of costs to restore
the property to its prior condition. To the extent it could be
applied (which cannot be determined in this dissent), Keitges
v. VanDermeulen, 240 Neb. 580, 483 N.W.2d 137 (1992),
offers guidance when considering compensatory damages for
cutting, destroying, and damaging trees, specifically that the
damages would include the cost of reasonable restoration of
the property to its preexisting condition or a condition as close
as reasonably feasible.
The majority distinguishes Kula II on the basis that it “was
not an eminent domain case, but, rather, it involved return-
ing the property to its prior condition, which included crop
replanting and treatment to eliminate chemicals and salt on
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the land.” Although Kula II was not initially filed pursuant to
§ 76-705, as the Russells did here, it nevertheless similarly
involved a landowner’s right to compensation under our state’s
constitution when a person’s property is damaged for public
use. The majority also determines that “[r]eturning the prop-
erty to its prior condition in the present case involves replac-
ing trees, some very large,” and that “removal of these trees is
not temporary in the same sense as crops that are damaged.”
However, just as crops can be destroyed and replanted, so can
trees; admittedly, the restoration of trees will necessarily be a
slower, less precise process. And while the restoration cannot
be exact, compensation to allow for reasonable restoration is
appropriate. The majority further states that the evidence from
the Russells’ three experts did not relate to returning the prop-
erty to its prior condition. However, that evidence was deemed
“inadmissible” by the district court and was never considered
given the district court’s conclusion that the measure of dam-
ages in Walkenhorst, supra, applied. Nevertheless, the district
court’s order did acknowledge that Williams’ testimony went
to the “cost of replacing the trees” and that Philips’ testi-
mony went to damages “based on a reproduction/restoration
cost analysis.”
“If the fact is established that property has been damaged
for public use, the owner is entitled to compensation.” Quest
v. East Omaha Drainage Dist., 155 Neb. 538, 544, 52 N.W.2d
417, 421 (1952). There is no question the Russells sustained
damage to their real property by the actions of a government
body for a public use purpose. In my view, the facts of this
case warrant a measure of damages appropriate for real prop-
erty not physically taken, but which has sustained temporary
damage which can be restored, at least to some degree, to its
prior condition, as described in Kula II, supra.
As a final note, I address the majority’s exclusion of por-
tions of the supplemental transcript supplied on appeal. When
a party appeals an appraisers’ award from the county court
to the district court, Neb. Rev. Stat. § 76-717 (Reissue 2018)
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provides that the county judge shall prepare and transmit to the
clerk of the district court a duly certified transcript of “all pro-
ceedings” concerning the land at issue. While evidence of the
damages assessed by appraisers in the county court proceeding
is not substantive evidence in a de novo trial in the district
court to determine the landowner’s damages caused by emi-
nent domain, see Rose v. Lincoln, 223 Neb. 148, 388 N.W.2d
127 (1986), I am not entirely clear as to why the majority
sustained the County’s motion to strike pages 24 to 42 of the
supplemental transcript in the appeal to this court. Those pages
include, for example, the “Return of Appraisers,” which would
appear to have been appropriately contained in a transcript of
“all proceedings” as required by statute. Regardless, the inclu-
sion or exclusion of those pages does not impact the majority’s
opinion, nor this dissent, in any way.