Kelly v. State

281 N.W.2d 909, 204 Neb. 286, 1979 Neb. LEXIS 1221

• Court: Nebraska Supreme Court
• Decided: August 7, 1979
• Docket: No. 41925
• Status: Published

Opinions

Per Curiam.

This is an appeal by the State of Nebraska Board of Educational Lands and Funds, defendant, from a jury verdict in the District Court for Boyd County, Nebraska, awarding $2,900 to Floyd Kelly and Rose Kelly, plaintiffs, as compensation for improvements to school lands being sold by the Board.

Plaintiffs are the lessees of 80 acres of school land in Boyd County, Nebraska, expiring December 31, 1976. Lessees improved the land by a 300-foot earthen dam constructed by them in 1953 or 1954 and installation of 320 rods of fencing. The parties could not agree on the value of the improvements; plaintiffs filed their petition for an appointment of appraisers in the county court. The parties apparently reached an agreement concerning the 320 rods of fence. The appraisers awarded plaintiffs $2,500 for the dam. On appeal to the District Court the jury verdict was $2,900. Defendant appeals assigning as error: (1) The court’s refusal to give defendant’s tendered instruction on the measure of plaintiffs’ interest; (2) excluding evidence of the United States government’s partial payment of the original dam-site construction costs; and (3) awarding attorney’s fees and appraiser fees.

Plaintiffs’ expert witness testified that the fair and reasonable value of the dam was $2,700 using reproduction cost less depreciation as the basis for his opinion.

Floyd Kelly testified concerning the construction, maintenance, usefulness, condition, and present cost of materials used in constructing a similar dam. He testified the original cost of the dam, not including his labor, was $1,200. He stated the dam had a value to the land of $4,000. There was no objection to this testimony. On cross-examination an attempt was made to elicit information that the federal government contributed money toward the original cost. Plaintiffs’ objection was sustained. This was relevant and proper cross-examination; it was not error, however, since that evidence was later included in the record as a part of an exhibit showing the United States Department of Agriculture contributed $212.50 toward the cost.

Our decision in Pettijohn v. State, ante p. 271, 281 N. W. 2d 901, announced today, controls our decision in this case. Here, both instruction No. 3, given by the court, and defendant’s tendered instruction addressed the issue of the measure of lessee’s compensable interest, and were the same as in Pettijohn. The issue of the allowance of attorney’s fees and appraiser. fees is also the same. The court’s instruction No. 3 was in error in that it did not state the proper measure of plaintiffs’ compensatory interest.

Reversed and remanded for a NEW TRIAL.