We read the Nebraska Court of Appeals' opinion in Russell v. Franklin County, No. A-18-827 (Oct. 15, 2019), twice, just to be sure we were understanding the holding and rationale correctly. Apparently we were: the court held that when the State (inadvertently) takes property -- here, the County highway maintenance department entered the plaintiffs' rural undeveloped land with permission to cut and remove certain trees, but then went to the wrong place and cut the wrong trees -- the only way to measure damages for the taking of the trees is to value the land with the trees, and the land without the trees. In this case, a grand total of $200.
This case wasn't a fight about whether the County had taken property. It had, and it admitted its inverse condemnation liability for just compensation. The County's appraiser used this method:
In his analysis, Gerdes used comparable market sales of similar rural properties in the area that had cropland, pastureland, and native trees. He determined that the highest potential value and best use of the Russells’ property was agricultural use.Gerdes then evaluated the property based on its highest potential value and determined the difference in the fair market value of the Russells’ land before and after the County’s taking of trees on the property. He determined that the Russells’ entire property before the taking had a value of $338,600. Thomas did not disagree with Gerdes’ valuation. Gerdes further determined that the property had a value of $338,400
after the taking.
Slip op. at 687.
In short, he looked only at the value of the land. His value conclusion using this before-and-after-for-the-land method? A big fat $200.
Well, the property owners obviously disagreed, and their expert valued the trees themselves. Their appraiser "used a 'Trunk Formula Method" of tree appraisal to determine the value of the trees that were cut down or removed." Slip op. at 687-88. We won't get into the detail of this valuation methodology, but let's just say it resulted in more than $200. Way more: $104,016. Now we're talking. The owners also obtained evidence of the tree replacement cost of $24k, plus $47k for cleanup of the site the County clear-cut.
So what did the jury do with this evidence? NOTHING. Why? Because the trial court granted the County's motions in limine and for summary judgment, and excluded the property owner's witnesses and evidence:
The court stated that the Russells pled their case under the eminent domain statutes but were now arguing the case as an unlawful destruction of trees or as a negligence action, which are causes of actions that should be filed under the [state tort claims act].
Slip op. at 688.
The court of appeals agreed. Nebraska is a "damagings" jurisdiction, and the court framed the question in the case this way:
The district court found that the proper method of determining damages was the measure of damages applied in eminent domain cases, that is, that the Russells were entitled to recover the fair market value of the property taken, as well as any decrease in the fair market value caused by the governmental taking. The Russells contend that such measure of damages is only for situations where the County has permanently taken land from a landowner. They argue that the proper method of determining damages is the cost of reasonable restoration of the property to its preexisting condition or to a condition as close as reasonably feasible.
Slip op. at 690.
The court relied on a Nebraska Supreme Court case in which the state condemned crop and pasture land for a road widening. The court there held that the vegetation on the land was not to be valued separately from the land:
The Supreme Court stated that vegetation is not to be valued separately and is only considered to the extent that its presence affected the fair market value of the land. Accordingly, the district court did not err in determining that the appropriate measure of damages is the difference in the fair market value of the land before and after the taking.
Slip op. at 692 (citing Walkenhorst v. State, 573 N.W.2d 474 (Neb. 1998)).
We think this is a too crabbed reading of the property claimed to have been taken. The court's approach might make sense if the County was indeed taking the Russells' land as in Walkenhorst. But it didn't. Here, it took the trees themselves, not the land. So just compensation and damages for that taking should have included the value of that property.
The court wrongly viewed the case as a choice between a permanent and temporary taking of the land. If you can make sense of the analysis between pages 693 and 697, please let us know. Because we sure can't. Are we missing something when concluding that the taking of the trees themselves was permanent? What does the land have to do with anything here?
Now maybe it is that Nebraska doesn't have a lot of trees, so they're not familiar with the concept of trees as property. but other jurisdictions seem to get this. See this case, (how to value taken trees), this case, and this case, for examples. And wasn't Arkansas Game also about taking trees?
Now, we get that an intermediate court of appeals is just that -- an intermediate court -- and is bound by the rules that the court of last resort might impose, however odd they might be. But this ruling didn't seem so much a court sticking to bad precedent, as it misapplying the rule and not understanding what "property" was taken or damaged. It wasn't only the land, was it? Are not the trees themselves property?
Not wanting to dump on the court if its analysis was compelled by the parties' arguments, we went back and made sure that this wasn't a pleading problem by the plaintiffs. It appears not, because they alleged "an unlawful taking of their property for a public use," by way of an inverse condemnation claim. Slip op. at 686. Yes, they "sought damages and other relief," but we presume they didn't simply focus on damages, but also included just compensation. And it still doesn't answer the question of why the court concluded the only property here was the land itself.
One judge dissented, which we hope means that this one is primed for further review. See slip op. at 697.
Russell v. Franklin County, No. A-18-827 (Neb. Ct. App. Oct. 15, 2019)
