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


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    08/07/2020 12:07 AM CDT
    - 546 -
    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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    306 Nebraska Reports
    RUSSELL v. FRANKLIN COUNTY
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    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
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    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
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    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. - 552 -
             Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    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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    RUSSELL v. FRANKLIN COUNTY
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    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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    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. - 556 -
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    RUSSELL v. FRANKLIN COUNTY
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    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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    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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    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.