846 N.W.2d 205
Neb.2014Background
- NDOR condemned 1.05 acres (including a 30-foot easement providing access to US-75) from Leo and Joanna Hike for a highway project; jury awarded $53,209 after trial.
- Central dispute: fair market value immediately before taking — whether highest and best use was residential (NDOR position) or speculative holding for near-term commercial development (Hikes’ position).
- Hikes relied on testimony from two appraisers and a developer valuing the land at commercial rates if additional access could be obtained; NDOR presented appraisers and an engineer asserting the existing 30-foot graded driveway was insufficient for commercial use.
- NDOR introduced evidence that it had planned since 1998 to convert Highway 75 to a restricted-access freeway and had owned other access rights, arguing it would not have granted additional access to facilitate commercial development.
- Trial rulings contested on appeal included admission of NDOR’s planning evidence, refusal to give an instruction excluding consideration of the planned improvement, admission of NDOR appraiser Tesar’s testimony, exclusion of testimony from former NDOR appraiser Joel Walker (settlement-negotiation context), exclusion of evidence of post-taking structural damage, denial of mistrial based on a closing remark, and denial of a new trial.
Issues
| Issue | Hikes' Argument | NDOR's Argument | Held |
|---|---|---|---|
| Admissibility of NDOR’s pre-1998 intent/planning evidence | Evidence of NDOR’s long-standing plan was prejudicial and tended to show the access had effectively been taken earlier, thus should be excluded | Evidence was relevant to rebut Hike’s claim that additional access would have been reasonably probable and to show NDOR would not have granted more access | Evidence admissible; relevant to whether commercial use was reasonably probable and not barred by statute §76-710.01 |
| Jury instruction to prohibit considering change in value from planned public improvement | Court should have instructed jury to disregard any value change caused by the planned improvement or knowledge of likely acquisition | Evidence did not show actual improvements; was limited to reasonableness of future commercial adaptation, so optional exclusionary language was unnecessary | Court did not err in refusing optional language; instructions given adequately covered the issues |
| Admission of appraiser Tesar’s testimony (valuation and assumptions) | Tesar relied on improper facts (NDOR future plan, misstatements about legal access) so his valuation should be stricken | Tesar considered many factors; any improper reliance went to weight, not admissibility; he assumed the Hikes still had easement access for valuation | Trial court did not abuse discretion in admitting Tesar; issues affected weight, not admissibility |
| Exclusion of Joel Walker’s testimony (statements during pre-condemnation negotiation) | Walker’s statements would support Hikes’ position on commercial value and impeach NDOR | Statements were part of settlement/negotiation context and protected by Neb. Rev. Stat. §27-408 and irrelevant | Exclusion upheld: protected by compromise-negotiation rule; district court acted within discretion |
| Exclusion of evidence of structural damage occurring after taking | Hikes sought compensation for structural damage to house | NDOR argued damage resulted from post-taking conduct and is not part of condemnation damages | Exclusion proper: damages caused by post-taking conduct are not compensable in condemnation (separate remedy) |
| Motion for mistrial over closing remark ("We’re not the State Lottery") | Remark was inflammatory; prejudiced jury regarding who pays verdict and required mistrial | Isolated improper hyperbole; curable by strike/admonition | Denial of mistrial affirmed: isolated event; cautionary instruction adequate |
Key Cases Cited
- Pinnacle Enters. v. City of Papillion, 286 Neb. 322 (Neb. 2013) (definition and principles of eminent domain and valuation)
- Moyer v. Nebraska City Airport Auth., 265 Neb. 201 (Neb. 2003) (measure of damages in condemnation: value taken and diminution of remainder)
- Sorensen v. Lower Niobrara Natural Resources Dist., 221 Neb. 180 (Neb. 1985) (market value and adaptability principles in condemnation)
- Mobeco Indus. v. City of Omaha, 257 Neb. 365 (Neb. 1999) (need to instruct jury to disregard value added by improvements when appropriate)
- In re Application of SID No. 384, 259 Neb. 351 (Neb. 2000) (settlement negotiation communications inadmissible under compromise rule)
- Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281 (Neb. 2011) (expert opinion must have sufficient factual basis; improper factual reliance affects weight rather than admissibility)