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James Henderson and v. City of

March 15, 2013


Petition for further review from the Court of Appeals, irwiN, sievers, and moore, Judges, on appeal thereto from the District Court for Platte County, robert r. steiNke, Judge.

The opinion of the court was delivered by: miller-lermaN, J.

Nebraska advaNce sheets 482 285 NEBRASKA REPORTS

1. Constitutional Law: Appeal and Error. Constitutional interpretation is a question of law on which the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision by the trial court.

2. Trial: Witnesses. In a bench trial of an action at law, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

3. Witnesses: Evidence: Appeal and Error. An appellate court will not reevaluate the credibility of the witnesses or reweigh testimony but will review the evidence for clear error.

4. Judgments: Appeal and Error. The trial court's factual findings in a bench trial of an action at law have the effect of a jury verdict and will not be set aside unless clearly erroneous.

5. 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 benefit of condemnation proceedings.

6. Eminent Domain: Property: Intent. Inverse condemnation has been characterized as an action or eminent domain proceeding initiated by the property owner rather than the condemnor, and has been deemed to be available where private property has been actually taken for public use without formal condemnation proceedings and where it appears that there is no intention or willingness of the taker to bring such proceedings.

7. Constitutional Law: Eminent Domain: Damages. Because the governmental entity has the power of eminent domain, the property owner in an inverse condemnation cannot compel the return of the property taken; however, as a substitute, the property owner has a constitutional right to just compensation for what was taken.

8. 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 the result of the exercise of the governmental entity's exercise of its power of eminent domain; that is, was the taking or damaging for public use.

9. Constitutional Law: Eminent Domain: Damages. The words "or damaged" in Neb. Const. art. I, § 21, include all actual damages resulting from the exercise of the right of eminent domain which diminish the market value of private property.

10. ____: ____: ____. Neb. Const. art. I, § 21, is not a source of compensation for every action or inaction by a governmental entity that causes damage to property. Instead, it provides compensation only for the taking or damaging of property that occurs as the result of an entity's exercise of its right of eminent domain.

11. Eminent Domain: Property: Proof. In order to meet the initial threshold in an inverse condemnation case that the property has been taken or damaged 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 governmental action.

Judgment of Court of Appeals affirmed in part and in part reversed, and cause remanded with directions.

Cite as

heavicaN, c.J., wright, coNNolly, stephaN, mccormack, and miller-lermaN, JJ.


James Henderson and Jamie Henderson sued the City of Columbus (the City) after raw sewage flooded into their home. They claimed that the flooding damaged their home and was the result of a malfunction of the city-run sanitary sewage system. After a bench trial on liability, the district court for Platte County found in favor of the City and dismissed the Hendersons' complaint, in which they had alleged theories of recovery based on negligence, inverse condemnation, nuisance, and trespass. The Hendersons appealed to the Nebraska Court of Appeals and assigned error to the district court's rulings with respect to negligence and inverse condemnation. The Court of Appeals affirmed the district court's order with respect to negligence, but reversed the portion of the order in which the district court had found in the City's favor with regard to inverse condemnation. The Court of Appeals remanded the cause for further proceedings with respect to damages related to the inverse condemnation claim. Henderson v. City of Columbus, 19 Neb. App. 668, 811 N.W.2d 699 (2012).

We granted the City's petition for further review of inverse condemnation issues. We conclude, for reasons different than those relied on by the district court, that the Hendersons did not establish an inverse condemnation claim. We therefore reverse that part of the Court of Appeals' decision regarding inverse condemnation, and we remand the cause to the Court of Appeals with directions to affirm the district court's judgment in favor of the City and against the Hendersons on all theories of recovery.


The evidence and facts are set forth in greater detail in the Court of Appeals' published opinion, Henderson v. City of Columbus, supra. We provide here a brief summary of facts relevant to the issues on further review. A heavy rainstorm hit Columbus, Nebraska, in the early morning hours of July 9, 2004. Later that morning, James went to his basement and saw that water mixed with raw sewage was flooding the basement. The sewage appeared to James to be coming from the basement floor drain, which was connected to the City's sanitary sewer system.

The Hendersons filed this action against the City and alleged that the sewer backup and subsequent damage were caused by a malfunction of the city-run sanitary sewage disposal system. They further alleged that 15 other homes suffered similar property damage on July 9, 2004, and that all the other homeowners had assigned their rights to sue the City to the Hendersons. As theories of recovery, they asserted negligence, inverse condemnation under the Nebraska Constitution, nuisance, and trespass.

At trial, the City's utility supervisor testified that in the early hours of July 9, 2004, he was called to respond to a "high alarm" at the sewer system's 26th Avenue lift station. The "high alarm" meant that sewage in the lift station had exceeded a certain level and that action was needed to avoid an overflow. Records showed that a power failure had occurred, and evidence indicated that the power failure may have been the result of lightning. The supervisor took action, including resetting circuit breakers and starting the two pumps at the site, in order to handle the high volume of sewage in the lift station. After he reactivated the power, he believed the pumps were working properly. He checked manholes upstream of the lift station and found no backup; ...

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