934 N.W.2d 517
Neb. Ct. App.2019Background
- Thomas and Pamela Russell own a 164‑acre rural parcel (43 acres cropland; 121 pasture/woodland) adjacent to a county road; no residence on the property.
- County highway superintendent requested and Thomas granted permission to remove trees in a specified area to improve road visibility, but county crews instead removed 67 trees in two other locations (totaling 1.67 acres), exceeding the scope of permission.
- The Russells filed an inverse condemnation petition under Neb. Rev. Stat. § 76‑705; county appraisers and experts were designated by both sides.
- County appraiser (Gerdes) concluded the parcel was worth $338,600 before and $338,400 after the removal (damages = $200). Russells’ arborist (Phillips) appraised the removed trees at about $104,016; other replacement/cleanup estimates were substantially higher.
- The district court granted the County’s motions in limine (excluding the Russells’ experts as applying the wrong damages measure), granted summary judgment for the County, and awarded the Russells $200.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper measure of damages for trees removed by government for public use | Russells: use cost of reasonable restoration or reproduction (value of trees/repair costs) | County: use eminent‑domain measure — difference in fair market value of land before and after the taking/damage | Court: apply market‑value before/after (Walkenhorst); damages = $200 |
| Whether inverse condemnation claim is converted to a tort remedy under Political Subdivisions Tort Claims Act | Russells: relief may include restoration costs; claimed temporary/restorable damage | County: remedy under eminent‑domain statutes controls; tort remedy not pleaded here | Court: action properly under eminent‑domain scheme; tort measures not available absent a tort claim |
| Admissibility of plaintiffs’ experts/opinions (motions in limine) | Russells: experts’ restoration/replacement valuations relevant to damages | County: those opinions use wrong legal measure and are therefore irrelevant | Court: excluded Russells’ experts as irrelevant to the legal measure of damages |
| Appropriateness of summary judgment | Russells: factual issues remain (extent/value of damage; restoration feasibility) | County: no genuine issue on market‑value before/after; only Gerdes’ appraisal admissible | Court: summary judgment proper; only $200 damages supported by admissible evidence |
Key Cases Cited
- Walkenhorst v. State, 253 Neb. 986, 573 N.W.2d 474 (1998) (vegetation generally not valued separately; damages measured by how vegetation affects fair market value of land)
- Keitges v. VanDermeulen, 240 Neb. 580, 483 N.W.2d 137 (1992) (for residential/recreational land, owner may recover reasonable restoration cost to return property to preexisting condition, capped at market value)
- Kula v. Prososki, 228 Neb. 692, 424 N.W.2d 117 (1988) (temporary damage that can be remedied supports recovery of expenses to restore use; permanent damage requires market‑value difference)
- Quest v. East Omaha Drainage Dist., 155 Neb. 538, 52 N.W.2d 417 (1952) (where damage is permanent and restoration is not feasible, measure is difference in market value before and after the damage)
- Strom v. City of Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998) (constitutional phrase “or damaged” encompasses actual damages that diminish market value)
- Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013) (Nebraska constitutional provision entitles owners to compensation for diminution in market value even absent a physical taking)
Disposition: Affirmed — district court’s grant of summary judgment and award of $200 affirmed.