Thomas M. Russell and Pamela J. Russell. appellants,
Franklin County, Nebraska, appellee.
Summary Judgment. Summary judgment is proper
only when the pleadings, depositions, admissions,
stipulations, and affidavits in the record disclose that
there is no genuine issue as to any material fact 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
Summary Judgment: Appeal and Error. In
appellate review of a summary judgment, the court views the
evidence in a 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.
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.
__:__:__. Neb. Const, art. I, § 21, broadens the
entitlement for just compensation beyond property that is
actually "taken" by the governmental entity and
includes compensation for property that is damaged in the
sense that the market value of the property has been
diminished even if the property is not actually taken.
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
District Court affirmed.
Matthew D. Hammes and Cristina Fackler, of Locher, Pavelka,
Dostal, Braddy & Hammes, L.L.C., for appellants.
Neb.App. 685] Brandy R. Johnson, of Governmental Law, L.L.C.,
and Henry Schenker, Franklin County Attorney, for appellee.
and Bishop, Judges.
M. Russell and Pamela J. Russell brought an inverse
condemnation action against Franklin County, Nebraska (the
County), after the County cut down trees on the Russells'
property. The district court for Franklin County granted the
County's motions in limine to exclude testimony of the
Russells' expert witnesses and granted its motion for
summary judgment. Based on the reasons that follow, we
Russells own 164 acres of rural property in Franklin County.
The property consists of 43 acres of cropland, and the
remaining 121 acres is pastureland used for "cattle
feeding, . . . hunting, bird watching and photography,"
as well as gathering morel mushrooms. There is no residence
on the property, and the only buildings there are a utility
shed and a garage. Thomas' parents owned the land before
he did, and it had been owned by his family for 47 or 48
December 4, 2015, Michael Ingram, the highway superintendent
for the County, sent an email to Thomas seeking permission to
cut down trees in a certain area of the Russells'
property for the purpose of improving visibility for drivers
on a county road adjacent to the Russells' property. A
map was attached to Ingram's email identifying the area
where the County wanted to remove the trees. Thomas discussed
the request with his parents, because he did not want them to
be upset if trees were removed. Thomas then told Ingram he
could proceed with removing the trees in the area identified
on the map.
employees subsequently began cutting down and excavating
trees on the Russells' property. However, they did [27
Neb.App. 686] not remove trees from the area the County had
identified and had received permission from Thomas to remove.
Instead, the county employees cut down and uprooted 67 trees
on two other locations on the property, exceeding the scope
of the permission given by Thomas. The two areas affected
totaled 1.67 acres.
December 13, 2015, Thomas' mother called Thomas because
she was upset about the location of the trees removed. Thomas
called Ingram and told him to stop cutting any more trees
until he could take a look at where the County had been
working. On December 14, Ingram sent an email to Thomas
apologizing for "upsetting" the family, admitting
that the County encroached further than it originally
planned, and explaining the County's plans for removal of
more trees. On December 15, Thomas informed Ingram that he
would not allow the County to remove any more trees on his
January 2017, the Russells filed a "Petition for Inverse
Condemnation" against the County in Franklin County
Court, alleging an unlawful taking of their property for a
public use, and because they had not received just
compensation therefor, they sought damages and other relief
using the procedures set forth in Neb. Rev. Stat. §
76-705 et seq. (Reissue 2018). Thereafter, appraisers were
appointed and a return of appraisers was filed setting forth
the damages sustained by the Russells. Unsatisfied with the
damages set by the appraisers, the Russells filed a petition
in Franklin County District Court seeking just compensation
for the trees that were unlawfully taken.
parties designated experts to give opinions on how damages
should be measured and the amount of damages sustained. Both
parties filed motions in limine seeking to exclude the
testimony of the opposing party's expert-each side
claiming the other's expert was applying an incorrect
measure of damages.
County then filed a motion for summary judgment alleging that
there was neither a genuine issue of material fact [27
Neb.App. 687] as to the market value of the Russells'
property either before or after the
'"taking"' by the County, nor that the
County "'took'" a temporary easement by
exceeding the scope of permission they had from the Russells
to cut down or remove trees from their property.
summary judgment hearing followed. At the hearing, five
exhibits were offered and received into evidence without
objection, subject to the motions in limine that were filed
by both parties with respect to expert testimony. Exhibit 1
was the deposition of Thomas; exhibit 2 was the deposition of
Ingram; exhibit 3 was the deposition of Cody Gerdes, the
County's expert; exhibit 4 contained all the exhibits
utilized at the depositions of Thomas, Ingram, and Gerdes;
and exhibit 5 was the deposition of Jack Phillips, one of the
Russells' experts, and the exhibits utilized at that
evidence showed that Gerdes, the County's expert, was a
Nebraska licensed and certified real estate appraiser who
focused on commercial and agricultural properties. Gerdes
visually examined the Russells' property and conducted an
appraisal analysis. In his analysis, Gerdes used comparable
market sales of similar rural properties in the area that had
cropland, pastureland, and native trees. He determined that
the highest potential value and best use of the Russells'
property was agricultural use.
then evaluated the property based on its highest potential
value and determined the difference in the fair market value
of the Russells' land before and after the County's
taking of trees on the property. He determined that the
Russells' entire property before the taking had a value
of $338, 600. Thomas did not disagree with Gerdes'
valuation. Gerdes further determined that the property had a
value of $338, 400 after the taking. Therefore, he determined
that the damages to the property, based on market data
comparisons, amounted to $200.
one of the Russells' experts, was a registered consulting
arborist. He used a "Trunk Formula Method" of tree
[27 Neb.App. 688] appraisal to determine the value of the
trees that were cut down or removed. This was done by
measuring the stumps of the 45 trees that were cut down and
estimating the size of the other 22 smaller trees that were
removed by excavation based on the size of the holes where
the trees had been located. He determined that the appraised
value of the 45 trees with stumps remaining was $99, 990 and
that the appraised value of the excavated trees was $4, 026,
totaling $104, 016.
Russells had two other individuals provide them with
estimates in regard to the claimed losses or damages for
which they wanted to be compensated. A salesperson from a
nursery and garden center estimated a "replacement
cost" of $24, 053.75 to plant 25 non-native trees. The
species of trees used in the estimated cost were not the same
species of trees that were removed from the Russells'
property. Thomas also obtained an estimate from a
representative of an ...