Norton v. City of Hickman ( 2017 )


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  •                           IN THE NEBRASKA COURT OF APPEALS
    MEMORANDUM OPINION AND JUDGMENT ON APPEAL
    (Memorandum Web Opinion)
    NORTON V. CITY OF HICKMAN
    NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
    AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
    RICHARD A. NORTON, JR., AND CONNIE J. NORTON,
    HUSBAND AND WIFE, APPELLANTS,
    V.
    CITY OF HICKMAN, NEBRASKA, APPELLEE.
    Filed July 25, 2017.   No. A-16-085.
    Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Reversed
    and remanded for further proceedings.
    Donald J. Pepperl, P.C., L.L.O., for appellants.
    Kelly R. Hoffschneider, of Mattson Ricketts Law Firm, for appellee.
    MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
    INBODY, Judge.
    INTRODUCTION
    Richard A. Norton, Jr., and Connie J. Norton (the Nortons) appeal the order of the
    Lancaster County District Court granting summary judgment in favor of the City of Hickman and
    dismissing the Nortons’ inverse condemnation action. For the reasons that follow, we reverse the
    order granting the City’s motion for summary judgment and remand the cause for further
    proceedings.
    STATEMENT OF FACTS
    Our statement of facts is taken from the statement of facts contained in the district court’s
    order which provided as follows:
    -1-
    On or about August 26, 2005, the Nortons took title to the real property that is the
    subject matter of this lawsuit (“the Norton Property”) by virtue of a Warranty Deed
    recorded as Instrument No. 2005050052 in the Office of the Register of Deeds of Lancaster
    County. . . . The Norton Property consists of four tracts of land generally located west of
    the intersection of Fifth Street and Cedar Street and south of Sixth Street Court in southwest
    Hickman. . . . The Norton Property has been located in the 100-year floodplain as
    determined by the Federal Emergency Management Agency (“FEMA”) at all times during
    the Nortons’ ownership of the Norton Property. . . .
    On September 20, 2005, after appropriate notice was published and posted, the City
    of Hickman Planning Commission recommended approval for a Preliminary Plat for a
    subdivision located adjacent to and north of the Norton Property known as the Villas at the
    Village located on both sides of West Sixth Street Court. . . . After appropriate notice was
    published and posted, the City of Hickman City Council on October 11, 2005, approved
    the Preliminary Plat for the Villas at the Village subdivision. . . .
    After appropriate notice was published and posted, the City of Hickman City
    Council on December 13, 2005, approved Ordinance No. 2005-30 creating Street
    Improvement District No. 2005-1 for the paving, grading, curbing and guttering, drainage
    and storm sewer, and incidental work for Cedar Street from Hickman Road to Sixth Street
    and Sixth Street Court from Cedar Street west approximately 450 feet to the end of Sixth
    Street Court adjacent to the Villas at the Village subdivision. . . . After appropriate notice
    was published and posted, the City of Hickman City Council on December 27, 2005,
    adopted Ordinance No. 2005-31 and approved the Final Plat for the Villas at the Village
    subdivision. . . . Grading and paving for the Villas at the Village subdivision was completed
    in 2006. . . .
    As part of the paving project for the Villas at the Village subdivision, an elevated
    sidewalk was constructed just west of the Sixth Street Court cul-de-sac near the far
    northwest corner of the Norton Property over a drainway or swale flowing northwesterly
    through the Norton Property. The elevated sidewalk formed a dam and the City of Hickman
    placed an 18-inch culvert at the bottom of the dam. . . . Additionally, as part of the Villas
    at the Village paving project, the intersection at Sixth and Cedar Streets was reconstructed
    to include a north to south cross-gutter that directed the flow of runoff from 0.51 acres on
    the west side of Cedar Street south along Cedar Street with the water being discharged into
    the unnamed drainage channel at the intersection of Fifth and Cedar Streets. . . . Prior to
    this reconstruction, that flow would have continued in a westerly direction along Sixth
    Street. . . . .
    On December 8, 2009, after appropriate notice was published and posted, the City
    of Hickman City Council approved Ordinance [No.] 2009-20, creating Street Improvement
    Project No. 2009-2, which paved Fifth Street from Cedar Street to Maple Street and Cedar
    Street from Fifth Street to Sixth Street; adjacent and to the east of the Norton Property. . . .
    Street Improvement District No. 2005-1 and Street Improvement Project No. 2009-2 are
    hereinafter collectively referred to as “the Projects.” Based upon the City of Hickman
    Project Engineer’s records, completion of Street Improvement Project No. 2009-2 was in
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    October of 2010. . . . As part of Street Improvement Project No. 2009-2, a concrete flume
    was placed in Fifth Street west of Cedar Street in the public right-of-way, and both Cedar
    and Fifth Streets were paved with concrete curbs and no storm gutters. . . .
    Prior to the City of Hickman’s Street Improvement Project No. 2009-2, Cedar and
    Fifth Streets were asphalt and gravel with grader ditches and culverts on each side. . . . The
    Nortons previously had two culverts with drives accessing their lots north of Fifth Street
    and abutting Cedar Street. As a result of Street Improvement Project No. 2009-2, these two
    culverts and drives were removed and replaced with a concrete curb. . . .The Nortons also
    had two culverts with drives accessing their lots north of Fifth Street and west of Cedar
    Street. As part of Street Improvement Project No. 2009-2, these two culverts and drives
    were removed and replaced with the concrete flume and a drainway flowing west. . . . Also,
    as a part of the Street Improvement Project No. 2009-2, the culvert abutting Cedar Street
    south of Fifth Street was removed and replaced with a concrete curb. . . .
    On or about June 26, 2012, the Nortons were sent via certified mail a Notice of
    Hearing on Special Assessments for Street Improvement Project No. 2009-2 along with a
    list of assessed values and a map of Street Improvement Project No. 2009-2. Richard
    Norton accepted the certified mail on July 2, 2012. . . .
    The Projects were all located within the FEMA designated 100-year floodplain. . . .
    The Projects and the Norton Property all have a Base Flood Elevation (“BFE”) of 1,244
    feet, which is the elevation associated with a 100-year flood or a flood with a one percent
    chance of occurrence in any given year. . . . During a 100-year storm event for the Hickman
    Branch of Salt Creek, the Norton Property and the area located in the Projects will be
    inundated below the BFE of 1,244 feet. . . . Any development of property located in the
    FEMA designated 100-year floodplain (including the Norton Property) requires fill of the
    property to elevate the ground around any proposed structure to the Hickman Branch BFE.
    Any structures must be constructed with the lowest finished floor elevation at least one
    foot above the Hickman Branch Base Flood Elevation in order to comply with local
    floodplain regulations. . . .
    On November 9, 2012, the Nortons first commenced their inverse condemnation
    action against the City of Hickman through the filing of their Petition for Appointment of
    Appraisers before the County Court of Lancaster County, Nebraska. . . . On December 12,
    2012, the Appraisers appointed by the County Court of Lancaster County, Nebraska met
    as required by Nebraska law. . . . On December 12, 2012, the Appraisers carefully inspected
    and viewed the real estate alleged to be damaged as described in the Petition for
    Appointment of Appraisers, and heard all parties interested therein to the amount of
    damages while inspecting and viewing the Norton Property. . . . On December 12, 2012,
    the Appraisers found and assessed $0.00 in damages suffered by the Nortons by reason of
    the actions of the City of Hickman. . . . On January 15, 2013, the Nortons filed their Petition
    on Appeal with [the district] court.
    On September 25, 2014, Thomas W. Kubert and Jason L. Pickerel of Great Plains
    Appraisal, Inc. inspected the Norton Property on behalf of the City of Hickman and
    subsequently prepared an Appraisal to determine the value of the Norton Property before
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    commencement of the Projects and after completion of the Projects using an effective date
    of appraisal of October 1, 2010. . . . The appraisal from Great Plains Appraisal, Inc.
    confirmed that the Projects did increase backwater levels and drainage time of the pooling
    of water on the Norton Property. . . . The appraisal went on to find that additional flooding
    or pooling of the Norton Property only affects the interim use of the Norton Property and
    not the highest and best use of the Norton Property as a single family residence
    development. . . . It is undisputed that the Base Flood Elevation did not change as a result
    of the Projects, nor did the amount of potential fill dirt required for the Norton Property
    change as a result of the Projects. . . . It is also undisputed that the Projects did not further
    restrict or inhibit potential development within the Projects beyond the legal restrictions
    related to the 100-year FEMA floodplain. . . .
    On October 18, 2014, the Nortons filed an Amended Petition. On January 6, 2015,
    the City filed its Motion for Summary Judgment. On May 1, 2015, the Nortons filed a Third
    Amended Petition on Appeal. Hearing was held on the City of Hickman’s Motion for
    Summary Judgment on July 28, 2015. Subsequently on August 25, 2015, the City of
    Hickman filed its Answer to the Third Amended Petition.
    In support of its motion of summary judgment, the City of Hickman provided the affidavit
    of Thomas Kubert, a certified general appraiser. Kubert inspected and completed a retrospective
    appraisal of the Norton Property. Based on his review, Kubert stated the Norton Property is 100
    percent in the FEMA established floodplain and, during a 100-year storm event, the Norton
    Property would be inundated below the base flood elevation of 1,244 feet.
    Kubert stated that in preparing his appraisal, he considered access to the Norton Property
    before and after the two street improvement projects. Kubert also stated that adequate access exists
    for the parcel’s present interim use as a green space for the North, West, and East tracts; and that
    the paved concrete roads improved access for the East tracts with general benefits to the West and
    South tracts. However, regarding the West and South tracts of land, Kubert opined that access
    could be provided through an easement or an agreement with an adjacent tract, but noted that such
    easement or agreements are speculative. The North tract was limited before and after the
    improvement projects because of a sewer and pedestrian easement. The West tract has limited
    access and visibility because of the right-of-way street which is not paved with concrete or gravel
    paving, but the installation of the concrete flume did not influence Kubert’s street analysis, as the
    City could provide access if the parcel is developed. The East tract has always had access and curb
    cuts could be provided by the City if the parcel is developed. The South tract access was limited
    prior to the street improvement projects. Kubert also noted that as Fifth Street “continues to be a
    legal [80] foot public platted street which can be used for access upon development of the parcel,
    the installation of the concrete flume has no significance to the analysis of the before and after
    value of the parcel.”
    In Kubert’s appraisal, before and after the alleged taking of the Norton Property, the value
    of the Norton Property remained at $39,710 with $0 as a final estimated amount of damages.
    Kubert determined that additional flooding or pooling of the Norton Property only affects the
    interim use of the property, but not the highest and best use of the Norton Property as a single
    -4-
    family residence development. Kubert also found that the base flood elevation of the Norton
    Property did not change as a result of the street improvement projects, and that the potential fill
    dirt required for the Norton Property did not change as a result of the street improvement projects,
    meaning that there were no restrictions to potential development for the Norton Property.
    The City also provided the affidavit of Carter Hubbard, a licensed professional engineer,
    in support of its motion for summary judgment. Hubbard conducted a hydraulic and hydrologic
    analysis near the Norton Property to determine the effect of the street improvement projects.
    Hubbard stated that the 2010 project improved drainage as it directed roadside ditches surface
    runoff to roadside curbs and caused surface runoff to be directed to the concrete flume, reducing
    ponding of the paved road. Hubbard also said that the flow patterns along Cedar Street and Fifth
    and Sixth Streets did not change substantially as a result of the street improvement projects.
    Additionally, Hubbard stated that as a result of the Norton property being in the FEMA 100-year
    flood plain area, any development of the Norton Property requires property fill to elevate the
    ground around any proposed structure, with the lowest furnished floor elevation at least one foot
    above the base flood elevation to comply with local floodplain regulations. Hubbard opined that
    the City did not intentionally cause damage to the Norton property and could not have foreseen
    any damage to occur.
    The project engineer for the 2010 street improvement project, Brian Chaffin, also provided
    an affidavit in support of the City’s motion for summary judgment. Chaffin indicated that the
    project was designed using customary engineering standards and that any change in the drainage
    as a result of the project was negligible and did not have any effect on the Norton Property.
    Richard Norton, in an affidavit, claimed that following the 2006 project, he saw a
    substantial increase in the water runoff on his property, and following his review of the plans for
    the second improvement project, he expressed his concerns that the project would create severe
    flooding and access problems for his property. Richard also claimed the second project removed
    multiple access drives to his property. Moreover, Richard contended that he needed to construct a
    bridge over the drainway to access two of his lots and that he requested the City grant him an
    access and maintenance easement, but the City has refused to do so. In a second affidavit, Richard
    stated that the highest and best use of the Norton Property is residential development. Richard also
    opined that if the street improvement projects had not taken place, the Norton Property would have
    been valued at $145,000, but that as a result of the projects, the fair market value of the Norton
    Property was $0.
    The Nortons also provided the affidavit of Richard Danek, a licensed real estate appraiser.
    Danek stated that the street improvement projects damaged the Norton Property as it increased
    flooding, and that the damages occur “irrespective of whether the increased flooding occurs
    outside the 100[-]year floodplain elevation[.]” Danek claims that it was foreseeable that the street
    improvement projects would create access and flooding problems and that vacant lots, or green
    space, have economic value and are damaged by flooding. In his appraisal, Danek indicated that
    the highest and best use of the property prior to the City’s projects was residential development
    with a fair market value of $105,000; but that the lots now have $0 value as a result of the projects.
    In a similar affidavit, Lyle Loth, a professional engineer, opined the foreseeability that the
    street improvement projects would create access and flooding problems. Loth estimated that
    -5-
    velocity at Cedar Street’s upper end would increase from two feet per second to five feet per second
    and Cedar Street’s lower end would increase from one feet per second to three feet per second.
    Specifically, Loth stated that the end results of the projects has caused “the flow of nearly 800
    gallons per minute [to be] redirected from its original flow path”, that it “could cause temporary
    flooding west of the [Fifth] and Cedar Street intersection”, and that the “periodic flooding and the
    development of an eroded channel west of the flume has created challenges for the Nortons to
    access their property.”
    The Nortons also provided the affidavit of Jane Summers, a real estate agent, who claimed
    that the Norton Property was extensively damaged as a result of the street improvement projects
    because they “speed the drainage, dam the drain way, and obstruct or eliminate access, [and] as a
    minimum, extensively damage the Nortons’ property.”
    In the affidavit of Colleen Norton, she claims that in May 2015, the Norton Property was
    “inundated in floodwaters” and that “the floodwaters had crossed over the walkway that connects
    the cul-de-sac on Sixth Street and the bike path to the West.”
    The district court determined that the Nortons failed to present evidence showing the
    existence of a genuine issue of material fact that the damage to the Norton Property was a
    foreseeable result of the street improvement projects to constitute inverse condemnation. The
    district court determined that the evidence established that there was no damage to the Norton
    Property as a result of the City of Hickman’s projects. The district court determined that the
    evidence presented showed that the Norton Property has been used as a vacant green space since
    completing the street improvement projects and that the City has not denied the Nortons access to
    the property by paving the abutting streets, installing concrete curbs, or installing a concrete flume
    in a public right of way. Consequently, the district court determined that any claim that they were
    denied access was not ripe because the Nortons have not yet sought to develop the property. The
    district court also referenced the award of zero damages by the county court appraisers.
    It is from that order that the Nortons have timely appealed to this court.
    ASSIGNMENTS OF ERROR
    The Nortons’ assignments of error, consolidated and restated, are that the district court
    erred (1) in determining the street improvement projects did not cause an intentional or foreseeable
    impairment of their right of access to the Norton Property and an increase in flooding and (2) in
    considering as evidence the award of zero damages by the county court appraisers.
    STANDARD OF REVIEW
    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. Cisneros v. Graham, 
    294 Neb. 83
    , 
    881 N.W.2d 878
    (2016). In
    reviewing a summary judgment, an appellate court views the evidence in the light most favorable
    to the party against whom the judgment was granted and gives that party the benefit of all
    reasonable inferences deducible from the evidence. 
    Id. -6- ANALYSIS
                                         INVERSE CONDEMNATION
    The Nortons contend that the district court erred in determining the street improvement
    projects did not proximately cause material impairment of their access rights to the Norton
    Property. The Nortons claim it was foreseeable to contemplate loss of access damages because the
    street improvement project designs planned for the removal of culverts and drives to access the
    Norton Property. The Nortons additionally contend the district court erred in finding that the street
    improvement projects did not proximately cause an impermissible increase in flooding that was
    intentional or foreseeable because the street improvement projects altered, diverted, increased, and
    sped up storm water flow. The Nortons claim that the street improvement projects resulted in
    increased flooding as a result of the surface water runoffs direction flow being altered, increasing
    the flow along the paved streets with concrete curbs to the concrete flume abutting the Norton
    Property, and increasing the surface water runoff because of the placement of an inadequate culvert
    downstream.
    Summary judgment is proper if the pleadings and admissible evidence offered at the
    hearing 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. Harris v. O’Connor, 
    287 Neb. 182
    , 
    842 N.W.2d 50
    (2014). Summary judgment
    proceedings do not resolve factual issues, but, instead, determine whether there is a material issue
    of fact in dispute. Peterson v. Homesite Indemnity Co., 
    287 Neb. 48
    , 
    840 N.W.2d 885
    (2013). If a
    genuine issue of fact exists, summary judgment may not properly be entered. 
    Id. The party
    moving for summary judgment has the burden to show that no genuine issue of
    material fact exists and must produce sufficient evidence to demonstrate that the moving party is
    entitled to judgment as a matter of law. 
    Id. After the
    movant for summary judgment makes a prima
    facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if
    the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of
    a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the
    motion. 
    Id. In the
    summary judgment context, a fact is material only if it would affect the outcome
    of the case. 
    Id. “The property
    of no person shall be taken or damaged for public use without just
    compensation therefor.” Neb. Const. art. I, § 21. The initial question in an inverse condemnation
    action is whether the government entity’s actions constituted a taking or damage of property for
    public use. Henderson v. City of Columbus, 
    285 Neb. 482
    , 
    827 N.W.2d 486
    (2013). “In order to
    meet the initial threshold in an inverse condemnation case that the property has been taken or
    damages ‘for public use,’ it must be shown that there was an invasion of property rights that was
    intended or was the foreseeable result of authorized government action.” 
    Id. at 493,
    827 N.W.2d
    at 495. “All damages immediate and prospective which result from the taking of property by the
    exercise of the power of eminent domain must be compensated in the original condemnation
    proceeding.” State v. Cheyenne County, 
    157 Neb. 533
    , 539, 
    60 N.W.2d 593
    , 597 (1953).
    “The right of an owner of property which abuts on a street . . . to have ingress to and egress
    from his premises by way of the street is a property right in the nature of an easement in the street,
    -7-
    and the owner cannot be deprived of such right without due process of law and compensation for
    loss.” Buck’s, Inc. v. City of Omaha, 
    22 Neb. Ct. App. 541
    , 546, 
    857 N.W.2d 580
    , 585 (2014).
    However, the access right of an abutting property owner to a public road is not unlimited. 
    Id. Rather, the
    abutting property owner is entitled to reasonable access to abutting property if
    reasonable access remains. 
    Id. “The measure
    of the right of the owner of property abutting a street
    to access to and from the property by way of the street is reasonable ingress and egress under all
    the circumstances.” Craig v. State, 
    19 Neb. Ct. App. 78
    , 81-82, 
    805 N.W.2d 663
    , 666 (2011).
    “Whether the right of access . . . has been destroyed or materially impaired is a question of fact
    which must be determined upon the particular facts in each case.” W. E. W. Truck Lines, Inc. v.
    State, 
    178 Neb. 218
    , 225, 
    132 N.W.2d 782
    , 787 (1965).
    “Surface water is a common enemy and the proprietor may by embankment or dike or
    otherwise defend himself against its encroachments and will not be liable in damages which may
    result from the deflection and repulsion defended against, provided that the proprietor in making
    defense on his own land himself exercised ordinary care, and provided he so uses his own property
    as not to unnecessarily and negligently injure another.” Robinson v. Central Nebraska Public
    Power & Irr. Dist., 
    146 Neb. 534
    , 542, 
    20 N.W.2d 509
    , 513 (1945). “[W]ater flowing in a natural
    drainageway may not lawfully be diverted and cast upon the land of an adjoining landowner to his
    damage where it was not wont to run in a state of nature. Nor may surface waters be collected and
    discharged through an artificial channel in unusual quantities upon land of another, except into a
    natural drain.” Wells v. Miller, 
    173 Neb. 780
    , 784-85, 
    115 N.W.2d 137
    , 140 (1962).
    The district court, in its granting of the City’s motion for summary judgment, determined
    that the flooding issue was whether the increased flooding was substantially certain to result from
    the street improvement projects. The district court determined that the increased flooding was not
    a foreseeable result of the City’s street improvement projects because of the evidence that the
    Norton Property “had always been subject to flooding and pooling of backwater due to its location
    in the 100-year FEMA floodplain.” District Court Order at 12. However, the district court
    acknowledged that the Nortons presented evidence of value loss of the Norton Property due to the
    increased flooding, that the projects increased the amount of surface water abutting the Norton
    Property, and that flooding on the Norton Property increased after the projects.
    In this instance, summary judgment was not properly entered as there are genuine issues
    of material facts regarding whether it was a foreseeable result of the projects that there would be
    increased flooding and a loss of access to the Norton Property. The Nortons’ witnesses provided
    multiple declarations regarding how the projects altered and sped up drainage, dammed drainways,
    obstructed and eliminated access, increased velocity of storm and floodwaters, redirected water
    movement, and required the need for the construction of private access drives, bridges, or culverts.
    Moreover, multiple affidavits expressed that it was foreseeable that the projects would increase
    foreseeable flooding and access problems, causing a substantial loss of fair market value of the
    Norton Property a result of the projects. Because there are genuine issues of material facts as to
    whether the damage or destruction to the lots as a result of increased flooding and loss of access
    was an intentional or foreseeable result of the projects, it was inappropriate for the district court to
    grant the motion for summary judgment.
    -8-
    COUNTY COURT APPRAISERS
    The Nortons argue that the award of the county court appraisers should not have been
    considered by the district court in its factual determination of damages because county court
    condemnation proceedings are administrative rather than judicial and there are no procedural or
    evidentiary safeguards.
    In its order granting the motion for summary judgment, the district court, in a footnote,
    indicated that the Nortons claimed that the county court appraisers’ award was inadmissible in the
    district court. Relying on Nebraska Supreme Court case Langdon v. Loup River Public Power
    Dist., 
    142 Neb. 859
    , 
    9 N.W.2d 201
    (1943), the district court noted that evidence regarding the
    appraisers’ award was inadmissible evidence for a jury. The district court also noted that the county
    court appraisers’ award amount is contained in the pleadings and that the court may properly
    consider it with the evidence presented.
    The City claims that “[t]he Norton’s Third Amended Petition references the transcription
    of the County Court proceedings in Paragraph 9[,] and in Paragraph 10 makes references to the
    Assessment of Damages conducted by the Appraisers appointed by the County Judge of Lancaster
    County[.]” Brief for appellee at 25.
    Paragraph 9 of the Norton’s third amended petition indicates that the Nortons state and
    allege:
    That the plaintiff/condemnees instituted inverse condemnation proceedings before the
    County Judge of Lancaster County, Nebraska for the purposes of determining the
    plaintiff/condemnees’ damages; that the taking of the defendant/condemner is described in
    the Petition for Appointment of Appraisers which is found in the transcript on appeal in
    this matter and incorporated herein by reference as is fully set forth herein[.]
    (Emphasis added.)
    Additionally, paragraph 10 of the third amended petition states and alleges:
    That on the 12th day of December 2012, the appraisers appointed by the County Judge of
    Lancaster, Nebraska assessed the damages caused by the actions of the
    defendant/condemner; that said report of appraisers purports to include all damages to
    which the plaintiffs/condemnees might be entitled by reason of the acquisition of the
    defendant/condemner; that the damages allowed by the appraisers appointed by the County
    Judge of Lancaster County, Nebraska, are wholly inadequate and fail to justly compensate
    the plaintiffs/condemnees for the damages they have suffered by reason of the
    defendant/condemner’s actions.
    (Emphasis added.)
    It appears that paragraph 9 of the third amended petition does reference the transcription
    of the county court’s proceedings and that paragraph 10 of the third amended petition does make
    reference to the assessment of damages conducted by the appraisers. However, it does not appear
    that paragraph 10 specifically references that the appraisers came back with $0 in damages.
    -9-
    Additionally, it does not appear that the appraisers’ award of $0 damages was ever admitted into
    evidence or was part of the pleadings.
    As the appraisers’ award of $0 damages was not included as evidence or as part of the
    pleadings, it was inappropriate for the district court to consider the appraiser’s award in its
    determination.
    CONCLUSION
    As there are genuine issues of material facts existing whether there was a foreseeable result
    of the projects that there would be increased flooding and a loss of access to the Norton Property,
    we reverse the district court’s order granting summary judgment to the City of Hickman. The
    district court further erred in considering the county court appraisers’ award in its determination.
    We reverse the order granting summary judgment to the City and remand the cause for further
    proceedings.
    REVERSED AND REMANDED FOR
    FURTHER PROCEEDINGS.
    - 10 -
    

Document Info

Docket Number: A-16-085

Filed Date: 7/25/2017

Precedential Status: Precedential

Modified Date: 7/25/2017