Opinion
No. 35715.
Filed April 23, 1965.
1. Appeal and Error. Where a case is tried in the district court on a mutual theory of the parties, this court will dispose of it on appeal on the same theory whether correct or not. 2. Eminent Domain: Easements. The measure of damages for the taking of an easement is the difference in the reasonable market value of the property before and after the taking of the easement. 3. ___: ___. When an easement is taken, which leaves the landowner with property rights of material and measurable value, the compensation due the landowner is the damage to the entire property which is attributable to the taking of the easement and not the separate value of the easement. 4. ___: ___. The compensation due the landowner is to be determined by the difference in the value of the property before and after the taking, and not by separately valuing the easement or right that is taken.
Appeal from the district court for Cass County: JOHN M. DIERKS, Judge. On motion for rehearing. See ante p. 20, 131 N.W.2d 657, for original opinion. Original opinion withdrawn. Affirmed.
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, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
This is a proceeding by the State of Nebraska to secure control of outside advertising on land owned by Mary Fulmer which is adjacent to the Interstate Highway in Cass County, Nebraska. The action was instituted as a proceeding in eminent domain under section 39-1320, R. S. Supp., 1963, to secure a permanent easement for the control of advertising. The landowner refused to accept the award of the appraisers appointed by the county judge and appealed to the district court.
In the district court the action was tried upon the theory that it was a proceeding by the State to condemn a permanent easement upon the land of the plaintiff. Neither party has raised any issue in this court concerning the form of the proceeding or the nature of the right acquired by the State in the proceeding. We dispose of the case on the mutual theory upon which it was tried in the district court.
The jury returned a verdict in favor of the plaintiff landowner in the amount of $25. Her motion for new trial was overruled and she has appealed to this court.
An opinion of this court filed on December 11, 1964, determined that the judgment of the district court should be reversed and the cause remanded for a new trial. Fulmer v. State, ante p. 20, 131 N.W.2d 657. Thereafter, reargument was granted.
The parties stipulated and agreed that the fair and reasonable cost of abstracting the proceeding was $25. The plaintiff was entitled to recover this expense under section 76-710.01, R. S. Supp., 1963, and the jury was so instructed. Thus, the verdict of the jury which limited the plaintiff's recovery to the $25 "abstract cost" was in effect a finding that the plaintiff had sustained no other damages as a result of the taking of the easement to control advertising adjacent to the highway.
The plaintiff contends that the verdict and judgment are not supported by the evidence and that the instructions of the court which permitted the jury to return such a verdict were erroneous. The plaintiff argues that the verdict cannot be sustained because the evidence shows that she could have received a gross income of $40 per year from an advertising lease.
Instruction No. 5 advised the jury that the measure of damages for the taking of an easement is the difference in the reasonable market value of the property before and after the taking of the easement. This was a correct statement of the law. When an easement is taken, which leaves the landowner with property rights of material and measurable value, the compensation due the landowner is the damage to the entire property which is attributable to the taking of the easement and not the separate value of the easement. Dunlap v. Loup River Public Power Dist., 136 Neb. 11, 284 N.W. 742, 124 A.L.R. 400; Wahlgren v. Loup River Public Power Dist., 139 Neb. 489, 297 N.W. 833; Sump v. Omaha Public Power Dist., 168 Neb. 120, 95 N.W.2d 209; Johnson v. Airport Authority, 173 Neb. 801, 115 N.W.2d 426; Connor v. State, 175 Neb. 140, 120 N.W.2d 916. The compensation due the landowner is to be determined by the difference in the value of the property before and after the taking, and not by separately valuing the easement or right that is taken.
In a particular case, the rule may result in a determination that the landowner is entitled to no compensation for the taking of an easement. In principle, the result is similar to that which may occur when the right of access to property is taken or destroyed. Ordinarily, it is a question for the jury whether the taking of the right of access has affected the value of the property, and this court cannot determine as a matter of law that the value of the property was diminished thereby. Frank v. State, 176 Neb. 759, 127 N.W.2d 300. See, also, Chaloupka v. State, 176 Neb. 746, 127 N.W.2d 291; Balog v. State, 177 Neb. 826, 131 N.W.2d 402.
Although there was evidence to the contrary, the State produced evidence that there was no difference in the value of the land before and after the taking of the easement; that the use of the land for advertising purposes would interfere with its use for agricultural purposes to some extent; and that the income produced from advertising use would be so small in comparison to the income received from agricultural use that in the negotiation of a sale of the land the income from the advertising use would be disregarded. This evidence supports the finding that the landowner was not damaged by the taking of the easement and is sufficient to sustain the verdict and judgment.
Our former opinion is withdrawn. The judgment of the district court is affirmed.
AFFIRMED.