Opinion
No. 37371.
Filed July 10, 1970.
1. Eminent Domain: Damages: Evidence. Compensation for land taken by right of eminent domain is measured by its full market value as of the date of the appropriation, and anything connected with the land that would influence its market value in the mind of a good faith intending purchaser is an element for consideration in awarding damages. 2. ___: ___: ___. In eminent domain proceedings where stone or mineral deposits may have bearing on the market value of the land, evidence as to the extent of those deposits is admissible but the award may not be reached by separately evaluating the land and the deposits. Consideration is given to the quantity and quality of the minerals that can be extracted and to the value thereof, solely as evidence for arriving at the value of the land. 3. Eminent Domain: Trial: Evidence. In eminent domain proceedings the resolution of the question as to the presence of minerals and potential recreational development is primarily for the jury under the conflicting issues raised, and the evidence should be decided like any other question of fact at issue in a case. It is not for the court to determine under the guise of a determination of the admissibility of evidence. 4. Eminent Domain: Trial: Witnesses. Generally in eminent domain proceedings, an expert witness, otherwise properly qualified, may be permitted to use and to testify concerning the different factors affecting valuation which a well-informed buyer would use in arriving at the price which he would pay for the property at the time of the taking. 5. ___: ___: ___. Expert opinion evidence in a condemnation case, as in all other cases, is to be considered and weighed by the triers of fact like any other testimony. It is only advisory in nature and is not binding upon the jury of the court. 6. Trial: Witnesses. The weight and credibility of the testimony of either lay or expert witnesses is for the jury. 7. Eminent Domain: Damages: Appeal and Error. The amount of damages sustained in an eminent domain action is peculiarly of a local nature and ordinarily is to be determined by the jury, and this court will not ordinarily interfere with the verdict if it is based upon admissible testimony.
Appeal from the district court for Sarpy County: VICTOR H. SCHMIDT, Judge. Affirmed.
Fraser, Stryker, Marshall Veach, for appellant.
Dixon G. Adams, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is a condemnation action in which the Omaha Public Power District, hereinafter referred to as condemner, condemned a transmission line easement across the plaintiff's property in Sarpy County, Nebraska. The board of appraisers awarded damages in the amount of $94,870. On appeal to the district court the jury made an award of $135,000 and the trial court allowed attorneys' fees of $13,500 and expert witnesses' fees of $1,500. Defendant perfected an appeal to this court.
The easement condemned is a permanent one for a 345,000 kv transmission line or lines. The easement varied in width from 300 feet on the north boundary of the property to 400 feet on the south, and covers 38.3 acres. The taking completely severed a tract containing 3.15 acres on the south end of the property. The easement area is zoned Industrial 2. The witnesses agree the taking was sufficiently broad that no part of the easement area could ever be used for mineral production; that no structure could ever be placed on the easement; and that if a mining operation were conducted adjacent to the easement it would be necessary to leave protective slopes to protect the easement.
The area condemned is a part of a tract of 340 or more contiguous acres, separated by an east-west county road and bounded on the south by the Platte River. The land south of the east-west county road slopes gently to the river. The land north of the county road gradually rises and as it goes north is wooded and hilly. A graveled county road, which is a projection of Thirty-sixth Street in Omaha, separates the land north of the east-west county road. The county road connects with U.S. Highway No. 73-75 some distance east of the plaintiff's property. The land directly west of the easement area is owned by the Metropolitan Utilities District of Omaha. A large water treatment plant and a well field are located on the Metropolitan Utilities District's tract. Cedar Island, which was the island involved in Iske v. Metropolitan Utilities Dist., 183 Neb. 34, 157 N.W.2d 887, lies south and west of plaintiff's land. Immediately west of plaintiff's land to the north of the county road there are two operating limestone quarries.
The property north of the county road contains outcropping of limestone, but to the date of the taking had been farmed. The property south of the road to the river is level bottomland, sloping to the river, and was planted in corn at the time of the taking, August 8, 1967.
The easement condemned occupies a strip along the west edge of the plaintiff's land from its north boundary to its south boundary. It crosses the westerly end of a lake extending across the south end of plaintiff's property, which lake lies adjacent to the Platte River. This lake was formed by a 1960 to 1963 gravel pumping operation. Immediately to the east of this lake, on adjoining properties, there are a series of other lakes created by gravel pumping operations which have now been substantially developed as recreational sites.
Plaintiff's evidence indicates that the land north of the county road is suitable and adaptable for a limestone quarrying operation, and the portion south of the county road is adaptable for the production of sand and gravel, with a residual use for recreational cabin sites.
Plaintiff's first expert witness was a geologist employed to make a subsurface investigation. He drilled two holes to study the limestone formation and used core drillings made by others to evaluate the extent of the mineral deposit on the property, including the easement area. He had previously participated in the testing of the land immediately to the west of plaintiff's land and south of the county road. In addition to the drillings he made a visual inspection of the limestone formation being quarried on the adjoining property. He testified that he had sufficient information to make a reasonable projection of the material under plaintiff's land. He testified to the presence of 1,361,111 cubic yards of limestone; 22,000 cubic yards of wall rock; 1,426,660 cubic yards of natural sand and gravel; and 727,905 cubic yards of fine aggregate underlying the easement area and the protective slope.
Plaintiff then produced an owner of a gravel operation who testified that the amount of material underlying plaintiff's property would make it economical to set up a gravel pumping operation. Plaintiff produced witnesses who testified as to the market for wall rock as well as sand and gravel. Plaintiff also produced a number of witnesses as to the recreational potential which existed in the immediate area of the sand and gravel land. One of them had developed such an area directly across the river from plaintiff's land. This witness testified to the demand for recreational lots in the area and stated that plaintiff's land was more favorably situated than his own and could definitely be developed as a recreational area.
Plaintiff produced a civil engineer and land developer who submitted a proposed design as an illustration of one of the possible ways the plaintiff's land could be developed. He also submitted cost estimates on the proposed development.
Plaintiff's three value experts were licensed real estate brokers who had experience in the appraisal of mineral properties. Their values ranged from $182,600 to $225,000. They all testified to considering the market data or comparable sales approach, but because they could find no comparable sales were forced to use the capitalization of income approach. Both of condemner's appraisers, who fixed plaintiff's damage at $20,115 and $24,257, used the market data approach, but because they could find no comparable sales testified they made necessary adjustments to compensate. Condemner's experts conceded that they knew of no sale of any land that had rock, sand and gravel, and a resort potential all on the same piece of property.
Compensation for land taken by right of eminent domain is measured by its full market value as of the date of the appropriation, and anything connected with the land that would influence its market value in the mind of a good faith intending purchaser is an element for consideration in awarding damages. Lechliter v. State, ante p. 527, 176 N.W.2d 917.
In determining the market value of land condemned, its special adaptability of availability for the highest and best use may be shown and considered. The evidence, while disputed, is fairly conclusive that the highest and best use of the property condemned herein was as part of a limestone and wall rock quarrying operation on the north, and a sand and gravel operation on the south, with a resultant lakeshore recreational facility. This necessarily was one of the fact issues determined by the verdict of the jury. As this adaptability would increase the value in the eyes of prospective purchasers, the plaintiff is entitled to have that fact considered in determining the market value of the land condemned.
Where stone or mineral deposits may have bearing on the market value of the land, evidence as to the extent of those deposits is admissible but the award may not be reached by separately evaluating the land and the deposits. See, Burlington M. R. Co. v. White, 28 Neb. 166, 44 N.W. 95; Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N.W.2d 865. Consideration is given to the quantity and quality of the minerals that can be extracted and to the value thereof solely as evidence for arriving at the value of the land.
The element of speculation in mineral deposits underlying the land condemned does not preclude their consideration in ascertaining the market value of the land. At best, evidence of value with land such as this is largely a matter of opinion. Certainly, condemner should not be permitted to profit from the possible uncertainty of actual market value when it deprives the condemnee of his property. The quality and quantity of the rock which may be quarried, or sand and gravel which may be profitably removed from land being condemned, are admissible to show that they are sufficient for and adaptable to commercial development. If so, they will have an effect on the market value of the lands. However, the market value of the property is the value of the land with the materials in place and not the value of the materials if they were removed. The evidence in this case indicates that plaintiff's expert witnesses did not value the rock, sand, and gravel in place as items separate from the value of the land, but used that information as a factor in arriving at the value of the land.
Condemner devotes 47 pages of its brief to the sufficiency of the evidence to sustain the verdict and attacking the rulings of the trial court on numerous objections to the admission of evidence. Condemner's objections are answered in Iske v. Metropolitan Utilities Dist., 183 Neb. 34, 157 N.W.2d 887. Condemner, cognizant of that possibility, attempts to distinguish the facts of that case from the instant one because that case involved the presence of Cedar Island, and the taking was a fee simple title, whereas in the instant case an easement is taken, admittedly, however, with broad rights which would definitely preclude use except for farming. For practical purposes any industrial or recreational use is destroyed. Plaintiff's land is contiguous to recreational developments and between those developments and Cedar Island. That a recreational potential existed and was a present consideration is apparent from the evidence of those interested in the adjoining developments and from the aerial maps of the area. This reasonably prospective recreational development is a factor to be considered in determining market value.
The resolution of the question as to the presence of minerals and potential recreational development is primarily for the jury under the conflicting issues raised, and the evidence should be decided like any other question of fact at issue in a case. As we said in Iske v. Metropolitan Utilities Dist., 183 Neb. 34, 157 N.W.2d 887: "It is not for the court to determine under the guise of a determination of the admissibility of evidence."
Condemner vigorously assails the foundation for and the testimony of plaintiff's value witnesses. It specifically attacks the reliability of the evidence of plaintiff's geologist in view of evidence produced by it. It further maintains that the rocks underlying the northerly portion of plaintiff's farm are no different in quality or quantity than those which underlie the whole area in adjoining counties. Also, it produced a former manager of the sand and gravel company which had operated on a part of the premises, who testified that further sand and gravel operations on the premises would be economically unfeasible. Condemner argues from this evidence that the land had no value above the market value of comparable farm land. Condemner's experts based their opinions on that premise, but did consider the taking to be the equivalent of a total one.
Plaintiff's value witnesses were shown to be experienced appraisers who had experience with mineral lands as well as some familiarity with the subject property. They were furnished with the results of the studies made by plaintiff's other experts. Additionally, they studied the market for minerals, the cost of transportation, the accessibility of a ready market, other sources of supply, and the reasonable potential of a resultant recreational development.
In Iske v. Metropolitan Utilities Dist., 183 Neb. 34, 157 N.W.2d 887, we held: "Generally, an expert witness, otherwise properly qualified, may be permitted to use and to testify concerning the different factors affecting valuation which a well-informed buyer would use in arriving at the price which he would pay for the property at the time of the taking.
"Generally, an expert witness, when properly qualified, may testify as to the valuation of the property, and the weight and credibility of what the witness considers in coming to his conclusion is for the jury to determine."
In Jensen v. State, 184 Neb. 802, 172 N.W.2d 607, we said: "Expert opinion evidence in a condemnation case, as in all other cases, is to be considered and weighed by the triers of fact like any other testimony. It is only advisory in nature and is not binding upon the jury or the court. The weight and credibility of the testimony of either lay or expert witnesses is for the jury. The amount of damages sustained in an eminent domain action is peculiarly of a local nature and ordinarily is to be determined by the jury, and this court will not ordinarily interfere with the verdict if it is based upon admissible testimony."
Plaintiff's three value appraisers rejected the market data appraisal approach used by condemner's witnesses, because they could find no comparable sales. The method used by them was the capitalization of income approach. This appraisal method was specifically approved in Iske v. Metropolitan Utilities Dist., supra, and on the plaintiff's evidence was appropriate herein.
Condemner complains that the verdict herein is excessive. What we said on this point in Iske v. Metropolitan Utilities Dist., supra, is pertinent: "The jury verdict fell in between the two sets of conflicting expert testimony, being $510,150. The above situation is a frequent one in condemnation cases. Our court has often discussed the function of the jury in this kind of a situation. As we have printed out, there was no error in the trial that could be asserted as properly related to an error in the amount of the verdict. The weight and the credibility of the testimony of either lay or expert witnesses is for the jury. Expert opinion evidence, widely varying in this case, is to be considered and weighed by the triers of fact like any other testimony. The expert witnesses' testimony is purely advisory and is not binding on the triers of fact. The amount of damages sustained is peculiarly of a local nature and ordinarily is to be determined by the jury and this court will not ordinarily interfere with the verdict if it was based upon admissible testimony. When the evidence is conflicting the verdict of the jury will not be set aside unless it is clearly wrong. A landowner only has one day in court and he must recover all of his damages in this condemnation proceeding."
The jury had an opportunity to view the property. This factor is of some significance in the determination of the excessiveness of a verdict in an eminent domain case. See Iske v. Metropolitan Utilities Dist., supra. It is also to be noted that the board of appraisers in county court allowed almost four times the amount fixed by condemner's value witnesses. Obviously the jury did not accept the conclusions of condemner's value witnesses nor the premise that the highest and best use of the property was for agricultural purposes and that it had no quarrying and recreational potential. While the award is generous, it is well within the range of the valuation evidence. On the record herein we cannot say that the verdict is excessive or the result of passion, prejudice, or mistake.
Condemner argues several other alleged errors. We have examined the assignments made and find none which prejudicially affected the verdict herein.
The judgment of the district court is affirmed. No allowance is made in this court for attorneys' fees.
AFFIRMED.