Hike v. State, 297 Neb. 212

Background

In 2008 the State acquired 1.05 acres of the Hikes’ property for US‑75; a jury verdict on compensation was affirmed on appeal (Hike I).
In August 2011 State construction adjacent to the Hikes’ home caused alleged structural damage (48‑ft cut about 61 ft from the house); experts estimated damage at $51,829.
During the condemnation trial the Hikes sought to introduce evidence of that post‑taking damage; the district court granted the State’s motion in limine and excluded the evidence as not proximately caused by the taking.
The Hikes appealed the exclusion in Hike I and lost; the appellate decision addressed admissibility, not whether a separate action could be brought later.
On April 17, 2015 the Hikes filed a standalone inverse‑condemnation complaint claiming the structural damage; the State moved for summary judgment arguing the 2‑year statute of limitations (§ 25‑218) barred the claim.
The district court granted summary judgment for the State; the Nebraska Supreme Court affirmed, holding § 25‑218 governs inverse‑condemnation claims against the State and the Hikes’ claim accrued in August 2011 and was filed after two years.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the State judicially estopped from raising statute‑of‑limitations because it previously argued the Hikes should bring a separate action?	State previously said structural damage was a separate claim; estoppel should bar a contrary limitations defense.	State’s prior position concerned admissibility in the condemnation trial and did not concede or force a procedural route; no inconsistency.	No estoppel: prior statements addressed evidentiary admissibility, not a waiver of defenses; estoppel not invoked.
Which statute of limitations applies to inverse condemnation against the State? (§ 25‑218 2‑yr v. § 25‑202 10‑yr)	§ 25‑202 (10‑year) is more appropriate for inverse condemnation generally.	§ 25‑218 (2‑year) specifically governs claims against the State and therefore controls.	§ 25‑218 (2‑year) applies to inverse‑condemnation claims against the State because it is the more specific statute.
When did the Hikes’ cause of action accrue and did they ‘bring’ the action in time?	Asserting the damage during the condemnation trial or on appeal constituted bringing the action within two years.	‘‘Bringing an action’’ requires instituting suit or amending the complaint; the Hikes did not file a separate inverse claim until April 17, 2015.	Claim accrued in August 2011; the Hikes did not commence a separate inverse‑condemnation action within two years, so claim is time‑barred.
Can the Hikes rely on article I, § 21 (self‑executing constitutional right) to avoid the limitations ruling?	Constitutional right to just compensation is self‑executing and precludes dismissal on statute‑of‑limitations grounds.	This constitutional argument was not properly assigned in the opening brief and was raised too late (reply brief).	Argument not considered on appeal because it was not properly raised in the initial brief.

Key Cases Cited

Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (Neb. 2014) (prior appeal addressing inadmissibility of structural‑damage evidence in the condemnation trial)
Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (Neb. 1943) (applied 2‑year limitations for state takings/damage claims)
Czarnick v. Loup River P.P. Dist., 190 Neb. 521, 209 N.W.2d 595 (Neb. 1973) (applied 2‑year limitations for claims against the State)
Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (Neb. 1977) (held 10‑year limitations applied to inverse condemnation actions against local entities when eminent domain statutes lacked a special limitations provision)
Steuben v. City of Lincoln, 249 Neb. 270, 543 N.W.2d 161 (Neb. 1996) (applied 10‑year limitations to inverse‑condemnation claims against a municipality)
Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (Neb. 1993) (discussed limits on trial‑court jurisdiction during pendency of appeals and exceptions)