Hike v. State, 297 Neb. 212

Background

In 2008 the State condemned 1.05 acres of the Hikes’ property for US‑75; a condemnation trial and jury verdict followed and was affirmed on appeal (Hike I).
During construction in August 2011 heavy machinery operated ~61 feet from the Hikes’ house, causing brick veneer and structural damage the Hikes’ experts valued at $51,829.
At trial in the condemnation action the Hikes attempted to introduce evidence of this post‑taking structural damage; the trial court granted the State’s motion in limine excluding that evidence and the exclusion was affirmed on appeal in Hike I as not proximately caused by the taking.
The Hikes did not amend their complaint in that proceeding to assert a separate inverse‑condemnation claim; instead they appealed the evidentiary ruling.
On April 17, 2015 the Hikes filed a separate inverse‑condemnation suit alleging the 2011 damage; the State moved for summary judgment under the 2‑year statute of limitations (Neb. Rev. Stat. § 25‑218), and the district court granted judgment for the State.
The Nebraska Supreme Court affirmed, holding § 25‑218 (2 years) governs inverse‑condemnation claims against the State and the Hikes’ claim accrued in August 2011 and was filed outside the 2‑year period.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the State judicially estopped from asserting a statute of limitations defense because it previously argued the Hikes should bring a separate action?	The State earlier urged the Hikes’ structural‑damage claim must be brought separately, so it should be estopped from now arguing timeliness.	The State’s prior position concerned admissibility and did not preclude a separate suit; no bad faith or intent to mislead.	No estoppel; State not barred from raising limitations defense.
Which statute of limitations applies to inverse condemnation against the State: § 25‑218 (2 yrs) or § 25‑202 (10 yrs)?	§ 25‑202 (10 years) should govern because inverse condemnation is analogous to actions to recover land.	§ 25‑218 (2 years) applies to claims against the State and is the more specific statute.	§ 25‑218 (2 years) governs inverse‑condemnation claims against the State.
When did the Hikes’ cause of action accrue and did they “bring” the action within the limitations period?	Asserting the damage in Hike I (via evidence) equates to bringing the inverse‑condemnation action within the 2‑year period.	An action is only ‘‘brought’’ by instituting a separate suit or amending the complaint; accrual was Aug 2011 when damage occurred.	Cause accrued Aug 2011; Hikes did not commence a separate suit until April 2015—claim time‑barred.
May the Hikes raise a constitutional argument (self‑executing right to compensation) on appeal?	They contend article I, § 21 creates an unequivocal, self‑executing right not subject to the statute of limitations analysis.	Argument was not assigned in the initial brief and was raised first in the reply brief.	Not considered: argument was not properly assigned/raised on appeal.

Key Cases Cited

Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (2014) (affirming exclusion of post‑taking structural damage evidence in condemnation trial)
Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (1943) (applied § 25‑218 two‑year limit to takings claims against the State)
Czarnick v. Loup River P. P. Dist., 190 Neb. 521, 209 N.W.2d 595 (1973) (same as to statute applicable to claims against State entities)
Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977) (held 10‑year § 25‑202 applicable to inverse‑condemnation claims against non‑State entities)
Steuben v. City of Lincoln, 249 Neb. 270, 543 N.W.2d 161 (1996) (applied § 25‑202 to inverse‑condemnation claim against a city)
Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993) (discussed effect of a pending appeal on trial court jurisdiction over related matters)