Iske v. Omaha Public Power District

178 N.W.2d 633, 185 Neb. 724, 1970 Neb. LEXIS 626
CourtNebraska Supreme Court
DecidedJuly 10, 1970
Docket37371
StatusPublished
Cited by14 cases

This text of 178 N.W.2d 633 (Iske v. Omaha Public Power District) 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
Iske v. Omaha Public Power District, 178 N.W.2d 633, 185 Neb. 724, 1970 Neb. LEXIS 626 (Neb. 1970).

Opinions

Spencer, J.

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 [726]*726to 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 fiver. 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 lime[727]*727stone 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 á 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 pre of the possible ways the plaintiff’s land could be [728]*728developed. 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 or 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 ex[729]*729tent 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.

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Iske v. Omaha Public Power District
178 N.W.2d 633 (Nebraska Supreme Court, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
178 N.W.2d 633, 185 Neb. 724, 1970 Neb. LEXIS 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iske-v-omaha-public-power-district-neb-1970.