This is a case about trees. 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 plaintiffs wanted compensation for the trees, measured as the cost to replace the trees. The County offered compensation only for the loss of use or damage to the land, $200. But you really didn't take or damage the land (other than to remove the trees), you took or damaged the trees argued the owners. The trial court agreed with the County, as did the court of appeals.
In this post ("Apparently, Trees Are Not Property In Nebraska") we expressed our dissatisfaction with the court of appeals' ruling and rationale. The court held this wasn't a permanent taking, so no recovery. In our view, the court also wrongly focused on the land, and not on the trees.
When the Nebraska Supreme Court granted review, we had high hopes. The temporary vs permanent thing stuck out as a reversible error, and we thought the court of appeals' "trees are [or aren't] property" analysis was lacking.
Well, in Russell v. Franklin County, No. S-18-827 (July 24, 2020), the Nebraska Supreme Court got us only halfway. It soundly rejected the court of appeals' rationale that this could not be a taking of the trees because it wasn't a "permanent" deprivation or damaging. Score one for the good guys.
But (and there's almost always a "but," isn't there?), the Supreme Court unfortunately didn't clear up the second and more interesting issue. Instead, our reading is that the court made it murkier. The court held that a property owner is only entitled to recover the replacement or restoration costs of the trees destroyed when that cost is not more than the "diminution in value of the property [the land] caused by the physical changes made by the condemnor during the period of its possession." Slip op. at 557 (quoting Sacramento & San Joaquin Drainage Dist. v. Goehring, 13 Cal. App. 3d 58, 66, 91 Cal. Rptr. 375, 380 (1970)).
Here, the value of the lost use of the land resulted in $200, while the cost to replace the tress and restore the land was "over $150,000." Slip op. at 558. Thus, the court concluded, the Russells get only $200.
Indeed, this case illustrates the rationale for the limitation on cost of restoration damages adopted in SID. Without it, a landowner could receive a significant windfall through cost of repair damages.
Id.
What are we missing here? What windfall? Is the court merely concluding that because this is a takings case and the property taken was the trees, that replacement cost isn't the right way to value trees? The way we're reading the opinion, however, is that the court was more focused on a temporary loss of use of the land, and the compensation owed for that, and that still doesn't respond to the owners' argument that the trees were permanently taken and damaged, and not the land.
If someone can explain the court's reasoning to us, we're all ears.
Russell v. Franklin County, No. S-18-827 (Neb. July 24, 2020)
