1. Judgments: Res Judicata:
Collateral Estoppel: Appeal and Error. The
applicability of claim and issue preclusion is a question of
law. On a question of law, an appellate court reaches a
conclusion independent of the court below.
Limitations of Actions: Appeal and Error.
The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the
decision of the district court on the issue of the statute of
limitations normally will not be set aside by an appellate
court unless clearly wrong.
Summary Judgment. Summary judgment is proper
when the pleadings and evidence admitted at the hearing
disclose no genuine issue regarding any material fact or the
ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of
Summary Judgment: Appeal and Error. In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit
of all reasonable inferences deducible from the evidence.
Limitations of Actions: Pleadings: Proof.
Where a complaint does not disclose on its face that it is
barred by the statute of limitations, a defendant must plead
the statute as an affirmative defense and, in that event, the
defendant has the burden to prove that defense.
Limitations of Actions: Damages. An action
accrues and the statutory time within which the action must
be filed begins to run when the injured party has the right
to institute and maintain a lawsuit, although the party may
not know the nature and extent of the damages.
Neb. 45] 7. Limitations of Actions. An
aggrieved party has the right to institute and maintain a
lawsuit upon the violation of a legal right.
Limitations of Actions: Eminent Domain. In
the context of a physical taking, the statutory period starts
running only when a party exercises dominion over or obtains
an interest in the property.
Limitations of Actions: Municipal Corporations:
Eminent Domain. In the context of a regulatory
taking, a cause of action for inverse condemnation begins to
accrue when the injured party has the right to institute and
maintain a lawsuit due to a city's infringement, or an
attempt at infringement, of a landowner's legal rights in
Constitutional Law: Eminent Domain: Limitations of
Actions. Actions commenced under Neb. Const, art. I,
§ 21, are subject to a 10-year statute of limitations.
Constitutional Law: Eminent Domain: Damages.
Neb. Const, art. I, § 21, provides that the property of
no person shall be taken or damaged for public use without
just compensation therefor.
Constitutional Law: Eminent Domain. Federal
constitutional case law and Nebraska constitutional case law
regarding regulatory takings are coterminous.
Eminent Domain. The U.S. Supreme Court has
identified two types of regulatory actions that constitute
categorical or per se takings: (1) where the government
requires an owner to suffer a permanent physical invasion of
his property, however minor, and (2) where regulations
completely deprive an owner of all economically beneficial
use of his property.
. Regulatory takings challenges are analyzed using
essentially ad hoc, factual inquiries governed by factors
which include the economic impact of the regulation on the
claimant, the extent to which the regulation has interfered
with distinct investment-backed expectations, and the
character of the governmental action.
. Land use regulations do not effect a taking merely because
the regulation caused a diminution in property value.
. A taking may more readily be found when the interference
with property can be characterized as a physical invasion by
government, in contrast to when the interference arises from
some public program adjusting the benefits and burdens of
economic life to promote the common good.
Actions: Eminent Domain: Proximate Cause:
Proof. For an inverse condemnation claim to be
actionable, the injured party has the burden of proving that
the other party's action or inaction was the proximate
cause of the damages.
Negligence: Proximate Cause: Words and
Phrases. The proximate cause of an injury is that
which, in a natural and continuous sequence, [295 Neb. 46]
without any efficient intervening cause, produces the injury,
and without which the injury would not have occurred.
from the District Court for Saunders County: Mary C.
Gilbride, Judge. Affirmed.
K. Barber, of Barber & Barber, P.C., L.L.O., for
A. Fahleson and Sheila A. Bentzen, of Rembolt Ludtke, L.L.P.,
for appellee City of Ashland.
Drouillard and Steven J. Twohig, Deputy Saunders County
Attorneys, for appellee Saunders County.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
Strode and Helen Strode seek review of the district
court's decision dismissing Randy's zoning regulation
inverse condemnation claim, granting a motion for summary
judgment on Helen's zoning regulation inverse
condemnation claim, and granting a motion for summary
judgment on the Strodes' takings claim based on the load
limit posted on a bridge located near their property. We
we hold that Randy is barred from bringing his inverse
condemnation claim, because the statute of limitations on his
claim for compensation began to accrue at the time the City
of Ashland (the City) notified Randy that the use of the
property was in violation of the ordinance. Next, we turn to
Helen's claim. We similarly dispose of that claim based
on the statute of limitations, because, as a joint owner, she
has the same rights in the property as Randy. Finally, we
hold that summary judgment was appropriate on the
Strodes' bridge takings claim, because the load limit on
the bridge does not amount to [295 Neb. 47] a regulatory
taking of the property and there are no issues of material
and Helen are residents of Saunders County, Nebraska. They
owns real property on Block 16, Lots 1, 2, and 3, and Randy
and Helen jointly own real property on Block 16, Lots 7
through 12, and Block 21, Lots 10 and 11, of Stambaugh's
Addition, in Ashland, Saunders County, Nebraska. On April 29,
1999, Randy purchased Lots 1, 2, and 3 of Block 16 from
Greenwood Farmers Cooperative. On November 2, 2000, Randy and
Helen purchased Lots 10, 11, and 12 of Block 16 from Donald
D. Strode and Lucille D. Strode. On December 20, 2001, Randy
and Helen purchased Lots 7, 8, and 9 of Block 16 from Donald
and Lucille. On April 18, 2002, Randy and Helen purchased
Lots 10 and 11 of Block 21 from David L. Hancock. The
property was zoned Public (PUB) by ordinance No. 808, passed
and approved on March 5, 1998, prior to the Strodes'
purchase of the property. The ordinance provides in pertinent
ARTICLE 2: DEFINITIONS
. . . .
Section 2.02 Definitions.
. . . .
Non-conforming Use is an existing use of a structure
or land which does not comply in some respect with the use
regulations applicable to new uses in the zoning district in
which it is located.
. . . .
Variance A variance is a relaxation of the terms of
the Zoning Ordinance where such variance will not be contrary
to the public interest and where, owing to conditions
peculiar to the property and not the result of the actions of
the applicant, a literal enforcement of the [295 Neb. 48]
Ordinance would result in unnecessary and undue hardship. As
used in this Ordinance, a variance is authorized only for
height, area, and size of structure or size of yards and open
spaces; establishment or expansion of a use otherwise
prohibited shall not be allowed by variance, nor shall a
variance be granted because of the presence of
non-conformities in the zoning district or uses in an
. . . .
ARTICLE 4: GENERAL PROVISIONS
. . . .
Section 4.20 Nonconforming Uses.
1. Nonconforming Uses of Land: Where at the
effective date of adoption or amendment of this ordinance,
lawful use of land exists that is made no longer permissible
under the terms of this ordinance as enacted or amended, such
use may be continued so long as it remains otherwise lawful,
subject to the following provisions:
a. No such conforming use shall be enlarged or increased, nor
extended to occupy a greater area of land than was occupied
at the effective date of adoption or amendment [of] this
b. No such nonconforming use shall be moved in whole or in
part to any other portion of the lot or parcel occupied by
such use at the effective date of adoption or amendment of
c. If any such nonconforming use of land ceases for any
reason for a period of more than twelve (12) months, any
subsequent use of such land shall conform to the regulations
specified by this ordinance for the district in which such
land is located.
. . . .
ARTICLE 5: ZONING DISTRICTS
. . . .
Section 5.15 PUB Public and Semi-Public Districts
1. Intent. The Public and Semi-Public District designates
those areas reserved for public use and recreation.
[295 Neb. 49] 2. Permitted Uses
a. Recreational uses including the following: parks, ball
fields, swimming pools, soccer fields, trails, and associated
b. Other public uses including: cemeteries and ...