Opinion
Supreme Court No. S-10713.
July 7, 2004.
Appeal from the Superior Court of the State of Alaska, Second Judicial District, Kotzebue, Richard H. Erlich, Judge. Superior Court No. 2KB-95-50 Civil.
Joseph W. Evans, City Attorney, City of Kotzebue, for Appellant.
C.R. Kennelly, Stepovich, Kennelly Stepovich, P.C., Anchorage, for Appellee.
Before: Matthews, Eastaugh, Fabe, and Carpeneti, Justices. [Bryner, Chief Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
Following our decision in the first appeal in this case, Lane v. Kotzebue, a jury trial was conducted on Wilfred Lane's inverse condemnation and negligence claims. The jury found that the City was not negligent, but awarded damages of $6,300 in inverse condemnation. The court found Lane to be the prevailing party and awarded him attorney's fees of $2,580.57 and costs. Lane was also awarded prejudgment interest of $6,602.88.
982 P.2d 1270 (Alaska 1999).
The City now appeals. We list its contentions and our decision concerning them in the following paragraphs.
1. Was there sufficient evidence to warrant submitting the inverse condemnation case to the jury?
We conclude that there was. It is uncontested that the City installed a water service line to the Howarth property across Lane's lot. There was evidence that the jury could accept as sufficient to prove that the glaciation on Lane's property resulted from leaks in the encroaching service line and evidence that the glaciation resulted in loss of use damages to Lane. Such damages are recoverable in inverse condemnation.
Id. at 1275.
2. Were jury instructions 25 and 26 reversible error?
We conclude that they were not. Instructions 25 and 26 when considered together with special verdict question 8 (asking "[w]hat was the fair market value of the portion of Mr. Lane's property taken for the period May 11, 1985 to May 11, 1995") suggest a loss of use measure of damages. The value of property over a defined time period can properly be measured by the value of the uses of the property during the period.
See 4A NICHOLS ON EMINENT DOMAIN § 14A.01[1], at 14A-3 n. 1 (3d ed. 2003):
DeKalbe v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979).
It was not error to charge that the condemnee could recover compensation for loss of use of his property during the period of construction by the county, based on its rental value during that time. The court correctly charged the jury that they would first have to find that a loss of use had occurred and that the condemnee had taken reasonable steps to avoid such loss.
. . . .
Kadlec v. State of New York, 264 A.D.2d 420, 694 N.Y.S.2d 123 (2d Dept. 1999) (holding that where temporary easement blocked all access to the property owner's unimproved property, the temporary easement amounted to a de facto taking of the entire remaining property during the period of the temporary easement, resulting in damages based on the rental value of the entire remainder).
3. Was Lane the prevailing party?
Since Lane received an affirmative recovery, the court did not abuse its discretion in concluding that he was the prevailing party.
See Glamann v. Kirk, 29 P.3d 255, 265 (Alaska 2001) ("When a party receives a substantial recovery, he or she is considered to be, with few exceptions, the prevailing party for purposes of attorney's fees under Rule 82.").
4. Did the court err in awarding Lane prejudgment interest?
We conclude that it did not. The City's argument on this point is simply that interest should not have been awarded because Lane did not suffer a loss of use. Because we have held that the premise of this argument is incorrect — a jury question on loss of use was raised — the argument fails.
For the reasons stated the judgment of the superior court is AFFIRMED.