Holman v. PAPIO-MISSOURI RIVER NAT. RES.

523 N.W.2d 510, 246 Neb. 787
CourtNebraska Supreme Court
DecidedNovember 4, 1994
DocketS-93-407
StatusPublished

This text of 523 N.W.2d 510 (Holman v. PAPIO-MISSOURI RIVER NAT. RES.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holman v. PAPIO-MISSOURI RIVER NAT. RES., 523 N.W.2d 510, 246 Neb. 787 (Neb. 1994).

Opinion

523 N.W.2d 510 (1994)
246 Neb. 787

Max HOLMAN and Rose M. Holman, Appellees,
v.
PAPIO-MISSOURI RIVER NATURAL RESOURCES DISTRICT, Appellant.

No. S-93-407.

Supreme Court of Nebraska.

November 4, 1994.

*513 Paul F. Peters, of Schmid, Mooney & Frederick, Omaha, for appellant.

Dixon G. Adams, Papillion, for appellees.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ., and BOSLAUGH, J., Retired.

CAPORALE, Justice.

I. STATEMENT OF CASE

After our determination in Holman v. Papio Nat. Resources Dist, 228 Neb. 94, 421 N.W.2d 430 (1988) (Holman I), that the Papio-Missouri River Natural Resources District, the defendant-appellant herein, was to be enjoined from obstructing a natural drainage ditch along land owned by the plaintiffs-appellees in this case, Max Holman and Rose M. Holman, the district condemned an easement over and across the land. Being dissatisfied with the $21,500 award of the county court appraisers, the Holmans appealed to the district court. In seeking to overturn that court's judgment on the verdict in the sum of $95,000, the district appealed to the Nebraska Court of Appeals, asserting that the district court, hereinafter referred to as the trial court, erred in (1) refusing to strike certain evidence, (2) refusing to receive certain evidence, (3) failing to direct a verdict in the district's favor at the close of the Holmans' case, and (4) calculating the interest due on the judgment. We removed the matter to this court in order to *514 regulate the caseloads of the two appellate courts. We now affirm.

II. SCOPE OF REVIEW

A condemnation action is reviewed as an action at law, in connection with which a verdict will not be disturbed unless it is clearly wrong. See Lincoln Branch, Inc. v. City of Lincoln, 245 Neb. 272, 512 N.W.2d 379 (1994). Moreover, in determining the sufficiency of the evidence to sustain a verdict, the evidence must be considered most favorably to the successful party, every controverted fact must be resolved in the successful party's favor, and the successful party is entitled to the benefit of any inferences reasonably deducible from the evidence. See id.

III. BACKGROUND

While the district has made no complaint in this regard, we nonetheless begin our recitation of the record by observing that at times the trial court curtailed the district's effort to make the record it wished to make. If there was ever any doubt, it should by now be abundantly clear to all that it is not the trial court's prerogative to decide what the trial record shall be. Upon request, a litigant is entitled to a verbatim record of anything and everything which is said by anyone in the course of judicial proceedings; it is the duty of the court reporter to make such a record, and it is the obligation of the trial court to see to it that the reporter accurately fulfills that duty. See, In re Complaint Against Staley, 241 Neb. 152, 486 N.W.2d 886 (1992); State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990); Kennedy v. Kennedy, 221 Neb. 724, 380 N.W.2d 300 (1986); Neb.Ct.R. of Official Ct.Rptrs. 4 (rev. 1992).

That having been noted, the record viewed most favorably to the Holmans establishes that their land consists of 44 acres bounded on the south by the Platte River, on the east by U.S. Highway 73-75, and on the north and west by a natural drainage ditch which flows east through a culvert under the highway.

By the time of Holman I, the district had placed a floodgate at the west end of the culvert adjacent to the northeast corner of the Holmans' land. The easement it later took gives the district the right to close the floodgate if both the Platte River level, as measured at either of two designated points, and water in the culvert reach a described level. The district must reopen the floodgate when the water at both of the designated points on the river subsides to a specified level.

The land is lakefront property in the sense that two lakes were created when a former occupier mined the land for its sand and gravel. The boundaries of the property were diked with the removed topsoil, and according to Max Holman, who first became acquainted with the land in the 1930's, the property had not flooded until 1984, when the district closed its floodgate.

Robert E. Dreessen, a licensed professional civil engineer with 30 years' experience in construction of drainage structures affecting highways and with water runoff, soil mechanics, percolation of water, and storm sewers and similar systems, and who had worked on pumped-out gravel pits which were turned into housing subdivisions, testified that in his opinion the closing of the district's floodgate under the conditions specified in the easement would cause a significant amount of water to be deposited and accumulate upon the Holmans' land. It was also Dreessen's opinion that because of the increased likelihood of periodic flooding of the Holmans' land, the feasibility for the land's development as lakefront residential property under two proposals he made before the district's taking of the easement was "diminished," "probably not ... feasible," "seriously jeopardized," and "not feasible without additional economic analysis."

Mark Rubin is a licensed real estate salesperson and broker who has developed land, serves on the Sarpy County Planning Commission, and has served as its chairperson. In his opinion, the highest and best use of the Holmans' land was that of lakefront residential use. Relying on Dreessen's opinions that a significant accumulation of water would result from the easement and that the two proposals Dreessen had made for lake-front *515 residential use were infeasible, the before taking value of $436,750 for the property had been reduced to $30,000, a difference of $406,750.

Michael Yudelson is a law school graduate who spent 20 years with the estate tax division of the Internal Revenue Service, where he was required to value all types of property, including real estate, as well as study the effect on values of restrictions such as easements. He has also taught real estate valuation. Upon retirement from the Internal Revenue Service, he became affiliated with a shopping center developer, where he is concerned with land acquisitions and in connection with which he is called upon to value real estate. Relying on Dreessen's opinion that the easement made development infeasible, it was Yudelson's opinion that the $413,000 before taking value of the real estate had been reduced by the easement to $130,000, a difference of $283,000.

The district's evidence was that prior to the sandpits being dug, the Holmans' land flooded every time the river came up, almost every year. The terms of the easement are such that the floodgate can be closed only when a Platte River flood is in progress. The Holmans' land was exposed to flooding before the district's taking of the easement because of percolation of water from the river.

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Bluebook (online)
523 N.W.2d 510, 246 Neb. 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holman-v-papio-missouri-river-nat-res-neb-1994.