Opinion
No. 35715.
Filed December 11, 1964.
1. Constitutional Law: Eminent Domain. By the declaration of Article 1, section 21, of the Constitution of the State of Nebraska, the property of no person shall be taken or damaged for public use without just compensation therefor. 2. Eminent Domain. In an action in condemnation where an easement, as distinguished from property, is taken the owner thereof prior to the taking is entitled to compensation or damages in the amount of its value, if value is proved, and the failure to so instruct the jury is prejudicial error. 3. ___. The free use of land is a property right, and whatever infringes on that must be paid for as damaging the land. 4. ___. Anything connected with the land which would influence the market value thereof in the mind of a good faith intending purchaser would be an element for consideration in determining damage. 5. ___. This rule does not apply to an instance where the damage is to a peculiar value for special reasons to the owner, but it does apply to all instances of uses which follow the property taken or damaged. 6. Trial. Instructions to a jury should state clearly and concisely the issues of fact and principles of law which are necessary to enable it to properly and efficiently consider and make a determination upon the questions presented.
Appeal from the district court for Cass County: JOHN M. DIERKS, Judge. Reversed and remanded.
Carl D. Ganz and Flansburg, Mattson, Field, Ricketts Sorensen, for appellant.
Clarence A. H. Meyer, Attorney General, Harold S. Salter, Warren D. Lichty, Jr., James J. Duggan, and James M. Winter, for appellee.
Clarence A. Davis, for amici curiae.
Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ., and ROBERT L. SMITH, District Judge.
This is an eminent domain action originally instituted in the county court of Cass County, Nebraska, by the State of Nebraska, Department of Roads, in proceedings in condemnation of a permanent easement "to certain property" owned by Mary Fulmer, for the control of outside advertising on land lying within 660 feet of the controlled access lines of an interstate highway right-of-way with the measurement to be made at right angles from the centerline of the highway. The area involved is 17.8 acres out of a farm belonging to Mary Fulmer. For the purposes of this case it appears that a more extended description of the land and its boundaries is not required.
The action was instituted and prosecuted in accordance with the powers granted to the state by the Constitution and the statutes. As to this there is no controversy presented by the record. The right of the state to condemn and the manner pursued for that purpose are specifically agreed to by the parties. The right to condemn, and to condemn a right of the character involved here, is contained in section 39-1328, R.R.S. 1943, and section 39-1320.01, R. S. Supp., 1963. Special attention is directed to the relation between section 39-1320.01, R. S. Supp., 1963, and subdivision (m) of subsection (2) of section 39-1320, R. S. Supp., 1963.
It follows of course that nothing said in this opinion may be treated as any kind or character of determination of constitutionality of the legislation or of the statutes to which reference may be made, or to legality of the procedure employed.
The proceedings here were commenced on January 8, 1963, by the State of Nebraska, Department of Roads, condemner, against Mary Fulmer, owner, by the filing with the judge of the county court of Cass County, Nebraska, a petition for the appointment of appraisers to appraise the value of a permanent easement which did not contemplate an actual taking of anything of a tangible character, but only a preventive right which would prohibit the use of this area of land for outdoor advertising. The purpose of the appraisal was to ascertain the value of the easement, if it had value.
A board of appraisers was duly appointed and qualified, and after investigation on January 28, 1963, it made a return fixing the value of the easement at $100.
On February 23, 1963, Mary Fulmer gave notice of appeal to the district court from the report and award of the appraisers. The appeal was perfected and on April 10, 1963, a petition on appeal was duly filed. By this appeal Mary Fulmer became plaintiff in the action and the State of Nebraska, Department of Roads, became defendant.
The substantial basis of the petition of plaintiff is that she was damaged by the taking of the easement in an amount in excess of the $100 fixed by the board of appraisers and prayed in the alternative that the original action in condemnation of the defendant be dismissed, or that the plaintiff recover damages in the amount of $5,000.
The action was, on appeal to the district court, tried to a jury which returned a verdict on the issues presented in favor of the defendant and by it denied any right of recovery of damages by plaintiff. Judgment was rendered on the verdict. From this judgment the appeal herein was taken. As ground for reversal plaintiff charges that the failure of the jury to return a verdict in her favor for damages was prejudicially erroneous. She also contends that the judgment rendered is contrary to law and the evidence. Other assignments assert error which appeared in certain instructions given. The assignments of error relating to instructions, except as to instruction No. 5, are not comprehensibly argued in the briefs, and therefore they will not be discussed herein.
It is true that a verdict was returned in favor of the plaintiff for $25 but the record discloses that the parties have agreed that this was not related to plaintiff's claim in the action for compensation or damage. As agreed and as stated in the verdict it was for the cost of an abstract of title and has no significance in a consideration of the issues involved herein.
No question is presented herein as to the amount of damage to plaintiff or of compensation to the plaintiff, if any, but only one of whether or not she is entitled to make a substantial recovery.
Returning then to a consideration of instruction No. 5, it declared as follows: "This case involves the taking of a permanent easement for the control of outdoor advertising and does not involve the actual taking of land. The measure of damages in such a case is the difference in the reasonable market value of plaintiff's property before and after the taking of such easement."
This instruction, as is clearly declared, states that if there was allowable damage it was limited to the difference between the reasonable value of plaintiff's property before and after the taking of the easement. The value of the easement as such and of itself is not in this instruction or elsewhere in the instructions made a basis of a measure of damage or right of recovery by the plaintiff.
Article I, section 21, of the Constitution of the State of Nebraska, is the following: "The property of no person shall be taken or damaged for public use without just compensation therefor." This provision contains a measure of right of recovery. It does not however contain any method for ascertainment or restriction upon method of ascertainment of what may be recovered pursuant to this constitutionally declared right of recovery by one whose property has been taken or damaged by a taking under the power of eminent domain.
Instruction No. 5 limits the right to recover, where as here there was no taking of property or right of use by the taker, but only the prohibition of use by the plaintiff for a particular purpose, to the difference between the reasonable market value of plaintiff's property before and after the taking of the prohibitory easement. This instruction and no other contains any exception thereto.
The question here is not that of whether or not the instruction thus limited is fully applicable in a situation such as this where no real property or tangible personal property was taken, but there was only a restriction upon use. It is of course applicable where the only question is that of the actual taking or damaging of property.
The substantial contention of the plaintiff is that in the instance here the use which was the basis of the condemnation had a value all its own, which value was proved in consequence of which she was entitled to compensation therefor, and that the court erred in its failure to so instruct the jury in instruction No. 5 or elsewhere.
On the trial of the case the plaintiff did make proof independent of and in addition to the actual value of the land before and after the condemnation of the value of a use of the easement taken. And it is pointed out here that this evidence is in nowise controverted or denied. This proof was of a contract for the erection and maintenance of advertising signs for a period of 5 years at the rate of $40 a year, with the prospect of renewal or a longer period thereafter.
In the light of this established fact and the decisions of this court it became the duty of the court to instruct the jury that the plaintiff was entitled to receive as damages or compensation the proved value of the easement which was taken, and in this light the plaintiff was entitled to a verdict in her favor in at least the amount undisputedly proved. Instead the verdict was totally in favor of the defendant.
Requests for instruction to the jury covering this phase of the plaintiff's right and interest were duly made but they were refused.
In Dunlap v. Loup River Public Power Dist., 136 Neb. 11, 284 N.W. 742, 124 A.L.R. 400, it was said: "The free use of that land is a property right, and whatever infringes on that must be paid for as damaging the land."
In Wahlgren v. Loup River Public Power Dist., 139 Neb. 489, 297 N.W. 833, it was said: "Anything connected with the land that would influence the market value of the land in the mind of a good faith intending purchaser would be an element for consideration in determining damage."
The principle announced and declared in these cases has been reannounced and redeclared in the following cited cases and others not cited: Quest v. East Omaha Drainage Dist., 155 Neb. 538, 52 N.W.2d 417; Sump v. Omaha Public Power Dist., 168 Neb. 120, 95 N.W.2d 209; Graceland Park Cemetery Co. v. City of Omaha, 173 Neb. 608, 114 N.W.2d 29; Johnson v. Airport Authority, 173 Neb. 801, 115 N.W.2d 426.
There are two cases containing language which on its face appears to be in conflict with the rule to which reference is made in these cited cases, but when examined it becomes apparent that there is no conflict. The language appears in Wiles v. Department of Public Works, 120 Neb. 689, 234 N.W. 918, and is quoted in Wahlgren v. Loup River Public Power Dist., supra. It is as follows: "The compensation for land taken by right of eminent domain is measured by its market value at the time taken, and no evidence is admissible of its peculiar value for special reasons to its owner."
From an examination of the opinions in these and the other cases it appears that the limitation applies only to uses which were for special reason available to the owner at the time of condemnation, and which uses did not follow the land. In other words, the limitation has application to the right of a person and is not an interest which follows property.
The applicable rule as stated in Lynn v. City of Omaha, 153 Neb. 193, 43 N.W.2d 527, which was a condemnation case, is as follows: "The purpose of instructions is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict; and, with this end in view, they should state clearly and concisely the issues of fact and the principles of law which are necessary to enable them to accomplish the purpose desired."
In this case, as pointed out herein, the plaintiff requested instruction in the area omitted by the instructions given which request was denied. In Hyndshaw v. Mills 108 Neb. 250, 187 N.W. 780, it was said: "It is error to refuse a proffered instruction which is warranted by the evidence and correctly states the law of the case, unless the principles involved are covered by other instructions given." This principle was reannounced in Snyder v. Lincoln, 153 Neb. 611, 45 N.W.2d 749.
The conclusion reached is that the court failed to fully and properly instruct the jury as to the issues which were presented to the jury and supported by evidence on the basis of which evidence the plaintiff was conclusively entitled to recover damages or compensation in some amount, and that this was prejudicial error.
The further conclusion is reached that the failure of the jury to, in its verdict, award damages or compensation to the plaintiff in the light of the undisputed evidence of recoverable damage or compensation was prejudicial error.
It must be said therefore that the judgment is contrary to law and that it is not sustained by the evidence.
The judgment of the district court is therefore reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.