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Russell v. Franklin County

Court of Appeals of Nebraska

October 15, 2019

Thomas M. Russell and Pamela J. Russell. appellants,
Franklin County, Nebraska, appellee.

         1. 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 of law.

         2. 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.

         3. 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.

         4. __:__:__. 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.

          Appeal 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.

         [27 Neb.App. 685] Brandy R. Johnson, of Governmental Law, L.L.C., and Henry Schenker, Franklin County Attorney, for appellee.

          Pirtle and Bishop, Judges.

          Pirtle, Judge.


         Thomas 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 affirm.


         The 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 years.

         On 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.

         County 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.

         Around 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 property.

         In 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.

         Both 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.

         The 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.

         A 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 deposition.

         The 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.

         Gerdes 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.

         Phillips, 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.

         The 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 ...

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