Hike v. State, 297 Neb. 212

Background

The Hikes owned property partially taken by the State in 2008 for U.S. Highway 75 expansion; a condemnation jury verdict was later affirmed on appeal (Hike I).
During contractor construction in August 2011, heavy machinery allegedly caused structural damage to the Hikes’ home; experts estimated $51,829 in damage.
At the condemnation trial the Hikes tried to introduce evidence of the structural damage; the district court excluded it on motion in limine as not proximately caused by the taking.
On appeal in Hike I the Nebraska Supreme Court affirmed the exclusion, noting the damage occurred after the taking and was not compensable in that condemnation proceeding.
The Hikes later filed a separate inverse-condemnation suit against the State on April 17, 2015, asserting the same structural damage; the State moved for summary judgment asserting the 2-year statute of limitations in Neb. Rev. Stat. § 25-218.
The district court granted summary judgment for the State, holding the claim accrued in August 2011 and was time-barred by § 25-218; the Hikes appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the State judicially estopped from asserting the statute-of-limitations defense because it previously argued the Hikes should bring a separate action?	The State earlier told the trial court the Hikes should have brought a separate action for damage, so it should not now assert time bar.	The State’s prior position concerned admissibility of evidence in the condemnation trial and did not compel or preclude a later suit; no bad faith or intent to mislead.	No estoppel — court declined to apply judicial estoppel.
Which statute of limitations applies to inverse-condemnation claims against the State: § 25-218 (2 years) or § 25-202 (10 years)?	§ 25-202 should apply because inverse-condemnation claims are analogous to actions to recover title/possession.	§ 25-218 governs claims against the State specifically; when State is defendant, § 25-218 is the more specific legislative expression.	§ 25-218 (2-year) applies to inverse-condemnation suits against the State.
When did the Hikes’ inverse-condemnation cause of action accrue and was their 2015 suit timely?	The Hikes contend their claim was effectively asserted in Hike I, so it was within the limitations period.	An action is ‘‘brought’’ when a plaintiff actually sues (or amends pleadings); the Hikes did not file a separate complaint until April 17, 2015; accrual was August 2011.	Cause accrued August 2011; the 2015 suit was filed beyond two years and is time-barred.
Did the Hikes preserve a constitutional argument that article I, § 21 (self-executing right to compensation) overrides the statute of limitations?	Article I, § 21 is self-executing and guarantees compensation irrespective of statutory limitations.	Argument was not assigned in the opening brief and was raised first in reply, so it is untimely and not considered.	Not considered — constitutional argument was not properly raised on appeal.

Key Cases Cited

Hike v. State, 288 Neb. 60 (affirming exclusion of post-taking damage evidence) (2014) (the earlier condemnation appeal concerning the same factual damage).
Bordy v. State, 142 Neb. 714 (State-specific 2-year limitations for takings) (1943) (held suits against the State for taking/damaging property must be brought within two years).
Czarnick v. Loup River P. P. Dist., 190 Neb. 521 (applying § 25-218 to claims against the State) (1973) (similar rule for State takings claims).
Krambeck v. City of Gretna, 198 Neb. 608 (analogizing inverse-condemnation to title/possession actions) (1977) (applied 10-year § 25-202 to non-State defendant).
Steuben v. City of Lincoln, 249 Neb. 270 (applying § 25-202 to inverse-condemnation against municipality) (1996) (10-year rule for local governments).
Sports Courts of Omaha v. Meginnis, 242 Neb. 768 (jurisdictional effect of pending appeal) (1993) (discusses when a pending appeal divests trial court jurisdiction).