LEO W. HIKE, JR., AND JOANNA K. HIKE, HUSBAND AND WIFE, APPELLANTS,
STATE OF NEBRASKA DEPARTMENT OF ROADS, APPELLEE
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Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge.
Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellants.
Jon Bruning, Attorney General, and Martel J. Bundy for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[288 Neb. 62] Stephan, J.
Through its power of eminent domain, the State of Nebraska Department of Roads (NDOR) took certain real property owned by Leo W. Hike, Jr., and Joanna K. Hike, husband and wife, because it was needed for a highway project. The parties were unable to agree on appropriate compensation for the taking, and a jury trial was held to determine damages. After a 5-day trial, the jury returned a verdict in favor of the Hikes for $53,209. The Hikes filed this timely appeal, contending the trial court made various evidentiary and instructional errors which entitle them to a new trial. We find no error and affirm the jury verdict.
The Hikes owned 6.7 acres of land legally described as the northeast quarter of Section 22, Township 13 North, Range 13 East of the 6th P.M., in Sarpy County, Nebraska. The property is located on the west side of U.S. Highway 75, just south of Platteview Road, in Bellevue, Nebraska. The Hikes purchased most of the property in 2001 and added an additional tract in 2003. The total purchase price was $260,000. The Hikes' property included an easement over a neighbor's adjoining property to a 30-foot-wide graded driveway which directly accessed Highway 75 at a point south of the Hikes' property. Prior to the taking, this driveway was the only means of access from the Hikes' property to a public road.
In May 2008, NDOR acquired 1.05 acres of the land, including the easement to the driveway and the access to Highway 75. After the taking, NDOR provided the Hikes temporary access to Platteview Road via a concrete driveway, and NDOR is legally obligated to provide the Hikes direct paved access to a newly constructed Platteview Road after the highway project is completed. After the taking, the Hikes no longer had direct access to Highway 75.
[288 Neb. 63] The primary issue at trial was the property's highest and best use as of May 2, 2008, the date of the taking. The nature and possible uses of the Hikes' pretaking access to Highway 75 was a critical factor in the highest and best use analysis.
Leo Hike is a real estate broker and serves as a Sarpy County commissioner. He formerly served as a Bellevue planning commissioner. He testified that prior to 2008, he intended to develop the property commercially using the 30-foot graded access onto Highway 75. He acknowledged that it would have been necessary to have the property rezoned in order to develop it commercially and that the city of Bellevue had zoning jurisdiction over his property. He further acknowledged that in 2008, the Bellevue Planning Commission's street design standards for commercial zoning access required a 50-foot right-of-way. Leo
Hike thought the standards could be read to require only 25 feet of actual roadway so that his existing access would be sufficient to support commercial development. Alternatively, he thought the Bellevue City Council was likely to waive the 50-foot requirement so he could zone his property commercial with the existing driveway. He also testified that he thought he could obtain additional access to Highway 75, if needed, by purchasing it from the State of Nebraska.
Two appraisers and a commercial real estate developer testified on behalf of the Hikes as to their opinions that the highest and best use of the property before the taking was speculative holding for future commercial development. One appraiser testified that it would be possible to develop the property commercially with the existing driveway. He admitted on cross-examination that before the taking, the 30-foot driveway was " probably not wide enough" for commercial access, but testified that it was " reasonable to assume" that there could have been a solution to this problem which would have permitted commercial development prior to the taking.
The Hikes' other appraiser generally testified that the existing driveway was sufficient to support commercial development of the property. The real estate developer also testified that the property could be developed commercially based on the existing 30-foot graded driveway. These witnesses [288 Neb. 64] generally testified that because the highest and best use of the property before the taking was holding it for future commercial development, its value was between $3 and $4 per square foot, or $130,680 to $174,240 per acre. They further testified that because the taking removed the property's access to Highway 75, after the taking, the highest and best use of the property was for residential use, reducing its value to between $20,000 and approximately $80,000 per acre.
In contrast, NDOR presented testimony of two appraisers and an engineer/land developer to the effect that the existing driveway was not sufficient to support commercial development and that therefore, the highest and best use of the property both before and after the taking was residential. The engineer/developer testified that the 30-foot graded driveway would not have supported commercial development. He opined that 36 feet of paved road would be needed for commercial traffic, but admitted on cross-examination that the development could perhaps be done with two 11-foot paved lanes. One appraiser opined that the 30-foot graded driveway would support residential use only. And appraiser George Tesar, Jr., testified the 30-foot driveway was adequate access for residential use but would not have supported commercial development of the land. These witnesses testified that because the highest and best use of the property before the taking was residential use, its value was between $25,000 and $35,000 per acre. They testified that the highest and best use after the taking remained the same, as did the value. They opined that the value was the same before and after the taking, because the access before and after the taking was substantially the same, even though its physical location had changed from Highway 75 to Platteview Road.
NDOR also introduced evidence that since 1957, it had owned all access rights from the Hikes' property to Highway 75, other than the 30-foot graded driveway. In addition, it introduced evidence that as early as 1998, it had planned to make Highway 75 a freeway and close all access points to it, and that the public had been made aware of these plans in 1998 and in the following years via public hearings.
NDOR contended that this evidence demonstrated that it would never have granted [288 Neb. 65] the Hikes any access to Highway 75 beyond what they possessed via the easement to the 30-foot graded driveway.
Additional relevant facts are set forth in our analysis of the Hikes' specific assignments of error.
II. ASSIGNMENTS OF ERROR
The Hikes assign that the district court erred in (1) allowing NDOR to offer evidence that it intended to take the Hikes' property a decade prior to the time it filed the condemnation petition, (2) failing to instruct the jury that it could not consider NDOR's intent to acquire the Hikes' property in considering fair market value, (3) allowing evidence and argument intended to diminish the taking, (4) failing to instruct the jury that the elimination of the Hikes' easement and access was compensable, (5) refusing to strike the testimony of appraiser Tesar, (6) not allowing appraiser Joel Walker to testify, (7) refusing to allow the Hikes to offer evidence of structural damage that diminished the fair market value of their property, (8) failing to grant a mistrial based upon a statement made by counsel for NDOR in his closing argument, and (9) refusing to grant the Hikes' motion for new trial.
III. STANDARD OF REVIEW
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admis-sibility. The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion.
To establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the [288 Neb. 66] evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction.
Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion. An appellate court reviews a denial of a motion for new trial or, in the ...