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Lancaster County Board of Equalization, 

appellant, v. Brad Moser and 

Mary Moser, appellees.

___ N.W.2d ___

Filed October 28, 2022. No. S-21-774.

1. Taxation: Judgments: Appeal and Error. Appellate courts review 

decisions rendered by the Tax Equalization and Review Commission for 

errors appearing on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

3. Administrative Law: Judgments: Words and Phrases. Agency action 

is arbitrary, capricious, and unreasonable if it is taken in disregard of the 

facts or circumstances of the case, without some basis which would lead 

a reasonable and honest person to the same conclusion.

4. Taxation: Valuation: Presumptions: Evidence. A presumption exists 

that a board of equalization has faithfully performed its official duties in 

making an assessment and has acted upon sufficient competent evidence 

to justify its action. That presumption remains until there is competent 

evidence to the contrary presented.

5. ____: ____: ____: ____. If the challenging party overcomes the presumption of validity by competent evidence, the reasonableness of the 

valuation fixed by the board of equalization becomes one of fact based 

upon all of the evidence presented.

6. Taxation: Valuation: Proof: Appeal and Error. The burden of showing that a valuation is unreasonable or arbitrary rests upon the taxpayer 

on appeal from the action of the board of equalization.

7. Taxation: Valuation: Proof. The burden of persuasion imposed on 

a complaining taxpayer is not met by showing a mere difference of 

opinion unless it is established by clear and convincing evidence that 

the valuation placed upon the property, when compared with valuations 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/18/2022 01:07 AM CST
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placed on other similar property, is grossly excessive and is the result of 

a systematic exercise of intentional will or failure of plain duty, and not 

mere errors of judgment.

8. Taxation: Valuation: Words and Phrases. Equalization is the process 

of ensuring that all taxable property is placed on the assessment rolls 

at a uniform percentage of its actual value. The purpose of equalization 

of assessments is to bring the assessment of different parts of a taxing 

district to the same relative standard, so that no one of the parts may be 

compelled to pay a disproportionate part of the tax.

9. Taxation. While absolute uniformity of approach for taxation may not 

be possible, there must be a reasonable attempt at uniformity.

10. Taxation: Valuation: Constitutional Law. The object of the uniformity 

clause is accomplished if all of the property within the taxing jurisdiction is assessed and taxed at a uniform standard of value.

11. Taxation: Valuation: Public Policy. No difference in the method of 

determining the valuation or rate of tax to be imposed can be allowed 

unless separate classifications rest on some reason of public policy or 

some substantial difference of situation or circumstance that would naturally suggest justice or expediency of diverse legislation with respect to 

the objects classified.

12. Taxation: Valuation. Generally, taxpayers are entitled to have their 

property assessed uniformly and proportionately, even though the result 

may be that it is assessed at less than the actual value.

13. Taxation: Valuation: Proof. The burden of proof is on the taxpayer to 

establish that the value of the property has not been fairly and proportionately equalized with all other properties, resulting in a discriminatory, unjust, and unfair assessment.

14. Taxation: Valuation: Constitutional Law: Statutes. The county board 

of equalization has a statutory duty to fairly and impartially equalize 

the values of all items of real property in the county so that all real 

property is assessed uniformly and proportionately. This statutory duty 

is informed, in turn, by the constitutional principles of uniformity and 

proportionality set out in Neb. Const. art. VIII, § 1.

15. Taxation: Valuation: Constitutional Law. In carrying out its duty to 

correct and equalize individual discrepancies and inequalities in assessments within the county, a county board of equalization must give effect 

to the constitutional requirement that taxes be levied uniformly and 

proportionately upon all taxable property in the county.

16. ____: ____: ____. The rule of uniformity applies to both the rate of 

taxation and the valuation of property.

17. Taxation: Valuation: Constitutional Law: Intent. When property 

owners contend their property has been disproportionately valued as 
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compared to other comparable property, such contention must be sustained by evidence that the valuation is arbitrary or capricious, or so 

wholly out of line with actual values as to give rise to an inference 

that the assessor and county board of equalization have not properly 

discharged their duties. Mere errors of judgment do not sustain a claim 

of discrimination. There must be something more, something which in 

effect amounts to an intentional violation of the essential principle of 

practical uniformity.

Appeal from the Tax Equalization and Review Commission. 

Reversed and remanded with directions.

Patrick Condon, Lancaster County Attorney, and Daniel J. 

Zieg for appellant.

David C. Solheim, of Solheim Law Firm, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

In 2018, 2019, and 2020, Mary Moser and Brad Moser 

protested the valuation of their agricultural land, and the 

Lancaster County Board of Equalization (County Board) 

affirmed the valuations. The Mosers appealed to the Tax 

Equalization and Review Commission (TERC), and after a 

consolidated evidentiary hearing, TERC affirmed the County 

Board’s decision regarding the 2020 tax year, but reversed its 

decisions for the 2018 and 2019 tax years. For both 2018 and 

2019, TERC reduced the value of the Mosers’ irrigated acres 

to equalize those acres with a nearby parcel of agricultural 

property. The County Board timely petitioned for review of 

TERC’s decision, 1 and we moved the case to our docket. We 

now reverse the decision of TERC and remand the matter with 

directions to affirm the decision of the County Board.

1 See Neb. Rev. Stat. § 77-5019(2)(a)(i) (Reissue 2018).
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I. BACKGROUND

The facts in this matter are largely undisputed. The Mosers 

own approximately 116 acres of agricultural land located in 

Lancaster County. The parcel number of the subject property 

is 02-36-400-001-000, and it is referred to by the parties as 

“Mary’s Farm.”

At all relevant times, Mary’s Farm was classified as unimproved agricultural land, and the acres were inventoried into 

different subclasses. 2 During the 2018, 2019, and 2020 tax 

years, Mary’s Farm had a center pivot irrigator, so some of the 

acres were subclassified as irrigated cropland. Other acres were 

subclassified as dryland cropland, grassland, and wasteland. 

Under the assessment methodology and schedule of values 

used by Lancaster County during the relevant tax years, the 

actual value of an acre of irrigated cropland was higher than 

the actual value of an acre of dryland cropland, grassland, and 

wasteland, but all subclasses were assessed at the same percentage of actual value. 3

1. 2018 Protest

For tax year 2018, the Lancaster County assessor determined 

the taxable value of Mary’s Farm was $612,500. This valuation 

was based in part on property records subclassifying 88.09 of 

the acres as irrigated cropland. In protesting the 2018 valuation, the Mosers focused on the acres of irrigated cropland, 

asserting that “[c]omparable ground 1 mile west is valued 

much lower than this property.” As authorized by Neb. Rev. 

Stat. § 77-1502.01 (Reissue 2018), the County Board used a 

referee to hear the protest.

2 See, generally, Neb. Rev. Stat. § 77-1363 (Cum. Supp. 2020) (requiring 

agricultural and horticultural land to be divided into classes and subclasses 

for purposes of valuation, including, but not limited to, irrigated cropland, 

dryland cropland, grassland, wasteland, nursery, feedlot, or orchard); Betty 

L. Green Living Trust v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911 

N.W.2d 551 (2018).

3 See, generally, Neb. Rev. Stat. § 77-201(2) (Reissue 2018) (agricultural 

land “shall be valued at seventy-five percent of its actual value”).
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In support of their protest, the Mosers submitted the 2018 

property record for a neighboring parcel of agricultural land, 

referred to by the parties as the “Morrison property.” This 

evidence showed the Morrison property had been classified 

as improved agricultural land, with some acres subclassified 

as dryland cropland and other acres subclassified as grassland 

and wasteland. The Morrison property record did not show 

any acres of irrigated cropland, but the Mosers claimed that 

the Morrison property had two center pivot irrigators. In support, they offered a “Google Earth” image which purportedly 

showed center pivot irrigators, but no crop circles, in a field 

represented to be the Morrison property. Based on that evidence, the Mosers argued that Mary’s Farm and the Morrison 

property were “comparable in soil type and both have irrigated 

and dryland acres.” They argued that because the irrigated 

acres on the Morrison property had been subclassified and valued as dryland, the irrigated acres on Mary’s Farm should be 

revalued as dryland, too.

The referee rejected the Mosers’ argument, reasoning that 

the evidence adduced did not support a reduction in the valuation of the irrigated acres of Mary’s Farm. The County Board 

agreed with the referee. However, pursuant to an unrelated 

2017 settlement between the Mosers and TERC, the County 

Board reduced the 2018 assessed value of Mary’s Farm to 

$598,900.

2. 2019 Protest

A similar protest process occurred in 2019. In that year, the 

county assessor determined the taxable value of Mary’s Farm 

was $570,300, based in part on 90.69 acres which were subclassified and valued as irrigated cropland. The Mosers filed 

a protest, again asking that their irrigated cropland be valued 

as dryland. In support, they provided the 2019 property record 

file for the Morrison property, which again showed that none 

of the acres on the Morrison property were subclassified or 

valued as irrigated cropland. The Mosers also provided color 
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photographs of an operating center pivot in a cropfield they 

represented was part of the Morrison property. And, as they 

had done in 2018, the Mosers asked that the irrigated cropland 

on Mary’s Farm be revalued as dryland cropland.

After reviewing the evidence provided by the Mosers, the 

referee found that the Morrison property was “irrigated by 

2 pivots[,] but taxed as dryland,” and recommended that the 

assessor’s data on the Morrison property be corrected. However, 

the referee concluded that the error in subclassifying and valuing the Morrison property did “not support a valuation error

within [the] current assessment” of Mary’s Farm. The County 

Board agreed with the referee and affirmed the assessor’s 2019 

valuation of Mary’s Farm.

3. 2020 Protest

For the 2020 tax year, the assessor determined the taxable 

value of Mary’s Farm was $551,300. The Mosers protested this 

valuation, but this time they did not challenge the valuation of 

the irrigated acres. Instead, they argued that their wasteland 

acres were valued higher than wasteland acres in surrounding counties. In support, the Mosers offered information on 

the standard land values for the different subclasses and soil 

types in Saline County. The referee concluded that the information provided by the Mosers did not support a valuation 

error with the current assessment of Mary’s Farm. The County 

Board agreed with the referee and affirmed the assessor’s 

2020 valuation.

4. TERC Appeal

The Mosers appealed the 2018, 2019, and 2020 valuations 

of Mary’s Farm to TERC, and a consolidated evidentiary hearing was held on April 5, 2021. Mary testified on behalf of the 

Mosers. She explained that in 2018 and 2019, they protested 

the valuation of the irrigated acres on Mary’s Farm because 

the Morrison property was located nearby and was “valued so 

much lower than ours.” In support, Mary offered the evidence, 
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described above, that the Mosers had presented to the County 

Board in 2018 and 2019 regarding pivot irrigators on the 

Morrison property. Mary testified that the Morrison property 

records for 2018 and 2019 did not show that any portion of 

the Morrison property was irrigated, and she asked that the 

property record for Mary’s Farm be changed to “also reflect 

non-irrigated land,” because that would be “equal.”

Derrick Niederklein, the chief field deputy for the Lancaster 

County assessor’s office, testified on behalf of the County 

Board. Niederklein testified that in 2018 and 2019 the assessor’s office did not know the Morrison property had any irrigated acres. He explained that usually, a property owner reports 

adding a pivot irrigator, 4 and the assessor’s office also uses 

aerial and oblique imagery to identify pivots. Niederklein testified that “leaving the pivot off the Morrisons’ property [was] 

not an intentional act by the assessor’s office.” He admitted 

that it was “not uncommon” for the assessor’s office to learn 

that something was incorrect in its property records because 

conditions can change from year to year, but he testified that 

generally, the property records were “accurate.” Niederklein 

also testified that beginning in the 2020 tax year, the irrigated 

acres on the Morrison property were correctly subclassified 

and valued as irrigated cropland.

In an order entered on August 24, 2021, TERC made a 

finding that the irrigated acres on the Morrison property were 

“comparable to irrigated acres” on Mary’s Farm. TERC further 

found that the documents the Mosers had submitted to the 

County Board during their 2018 and 2019 protests provided 

“compelling evidence” that the Morrison property had pivot 

irrigation, even though the county’s property records for 2018 

and 2019 did not show that any portion of the Morrison property was irrigated. TERC recited the rule that

4 See Neb. Rev. Stat. § 77-1318.01(1) (Reissue 2018) (requiring owner of 

real property to report improvement valued at $2,500 or more to assessor).
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[i]f taxable values are to be equalized it is necessary for 

a Taxpayer to establish by clear and convincing evidence 

that the valuation placed on the property[,] when compared with valuations placed on other similar properties[,] 

is grossly excessive and is the result of systematic exercise of intentional will or failure of plain legal duty, and 

not mere errors of judgment. 5

TERC then reasoned:

In the context of an appeal to this Commission, the 

systematic exercise of intentional will or failure of a plain 

duty is that of the County Board, not the County Assessor. 

During the protest process, the [Mosers] presented the 

County Board with clear evidence that the Morrison Farm 

included irrigated land that was not being assessed as 

irrigated land. At that point, the County Board had a plain 

legal duty to equalize the assessments, even though the 

result may have been that [Mary’s Farm] was assessed at 

less than the actual value.

Based on this reasoning, TERC found there was clear and 

convincing evidence that the County Board’s decisions in 2018 

and 2019 were arbitrary or unreasonable. TERC ordered that 

the irrigated acres on Mary’s Farm must be revalued as dryland 

for both the 2018 and 2019 tax years. Using the county assessor’s scheduled value for dryland cropland, TERC reduced the 

total assessed value of Mary’s Farm by $125,715 for 2018 and 

by $119,605 for 2019.

TERC concluded that no equalization was necessary for 

the 2020 tax year “[b]ecause the irrigated parcels on the 

Morrison farm were assessed as irrigated land” for that tax 

year. Additionally, TERC rejected the Mosers’ contention that 

they were entitled to have any subclass of agricultural land 

in Lancaster County equalized with comparably subclassified 

property in Saline County, reasoning that the scheduled values 

5 See Newman v. County of Dawson, 167 Neb. 666, 94 N.W.2d 47 (1959).
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in another taxing district did not constitute sufficient evidence 

that the assessment of the Mosers’ property was incorrect, arbitrary, or unreasonable.

5. Petition for Judicial Review

The County Board filed this timely petition for judicial 

review in the Nebraska Court of Appeals. 6 The petition challenges only TERC’s decision to reduce the valuation of Mary’s 

Farm for the 2018 and 2019 tax years. We moved the matter to 

our docket on our own motion.

II. ASSIGNMENTS OF ERROR

The County Board assigns, restated, that TERC erred in 

reducing the valuation of Mary’s Farm because there was not 

clear and convincing evidence that the value, when compared 

to similar property, was grossly excessive and was the result of 

a systematic exercise of intentional will or failure of plain legal 

duty and not mere errors of judgment.

III. STANDARD OF REVIEW

[1-3] Appellate courts review decisions rendered by TERC 

for errors appearing on the record. 7 When reviewing a judgment for errors appearing on the record, an appellate court’s 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 8 Agency action is arbitrary, capricious, 

and unreasonable if it is taken in disregard of the facts or circumstances of the case, without some basis which would lead a 

reasonable and honest person to the same conclusion. 9

6 See § 77-5019.

7 Wheatland Indus. v. Perkins Cty. Bd. of Equal., 304 Neb. 638, 935 N.W.2d 

764 (2019).

8 Id.

9 Id.
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IV. ANALYSIS

The ultimate question presented in this appeal is whether 

TERC’s decision to revalue the irrigated cropland on Mary’s 

Farm as dryland cropland conformed to the law, was supported 

by competent evidence, and was neither arbitrary, capricious, 

nor unreasonable. 10 Before addressing that question, we first 

review the taxpayer’s burden of proof in an appeal before 

TERC. We then review the foundational principles of taxing 

agricultural land in Nebraska, as well as the constitutional 

requirements of uniformity and proportionality that govern our 

analysis.

1. Presumption of Validity and Burden of Proof

When reviewing appeals from decisions of county boards of 

equalization, TERC must follow the standard set out in Neb. 

Rev. Stat. § 77-5016(9) (Reissue 2018), which provides:

In all appeals, excepting those arising [from a county tax 

levy], if the appellant presents no evidence to show that 

the order, decision, determination, or action appealed 

from is incorrect, [TERC] shall deny the appeal. If the 

appellant presents any evidence to show that the order, 

decision, determination, or action appealed from is incorrect, such order, decision, determination, or action shall 

be affirmed unless evidence is adduced establishing that 

the order, decision, determination, or action was unreasonable or arbitrary.

[4,5] We have held that the language of § 77-5016(9) creates 

a presumption in an appeal to TERC that a board of equalization has faithfully performed its official duties in making an 

assessment and has acted upon sufficient competent evidence 

to justify its action. 11 That presumption remains until there is 

10 See id.

11 E.g., Wheatland Indus., supra note 7; Betty L. Green Living Trust, supra 

note 2; JQH La Vista Conf. Ctr. v. Sarpy Cty. Bd. of Equal., 285 Neb. 120, 

825 N.W.2d 447 (2013); Brenner v. Banner Cty. Bd. of Equal., 276 Neb. 

275, 753 N.W.2d 802 (2008); Ideal Basic Indus. v. Nuckolls Cty. Bd. of 

Equal., 231 Neb. 653, 437 N.W.2d 501 (1989).
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competent evidence to the contrary presented. 12 If the challenging party overcomes the presumption of validity by competent evidence, the reasonableness of the valuation fixed by 

the board of equalization becomes one of fact based upon all 

of the evidence presented. 13

[6,7] The burden of showing that a valuation is unreasonable or arbitrary rests upon the taxpayer on appeal from the 

action of the board. 14 And the burden of persuasion imposed on 

a complaining taxpayer is not met by showing a mere difference of opinion unless it is established by clear and convincing 

evidence that the valuation placed upon the property, when 

compared with valuations placed on other similar property, is 

grossly excessive and is the result of a systematic exercise of 

intentional will or failure of plain duty, and not mere errors 

of judgment. 15

2. Taxation of Agricultural Land

Mary’s Farm and the Morrison property are both classified 

as agricultural land. 16 According to § 77-1363, agricultural land 

is to be inventoried and valued by class and subclass:

Agricultural land and horticultural land shall be 

divided into classes and subclasses of real property under 

section 77-103.01, including, but not limited to, irrigated cropland, dryland cropland, grassland, wasteland, 

nurseries, feedlots, and orchards, so that the categories 

reflect uses appropriate for the valuation of such land 

according to law. Classes shall be inventoried by subclasses of real property based on soil classification standards developed by the Natural Resources Conservation 

Service of the United States Department of Agriculture as 

12 Id.

13 See Wheatland Indus., supra note 7. See, also, Betty L. Green Living Trust, 

supra note 2; JQH La Vista Conf. Ctr., supra note 11.

14 See id.

15 Id.

16 See § 77-201 and Neb. Rev. Stat. § 77-1359 (Reissue 2018).
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converted into land capability groups by the Property Tax 

Administrator. Land capability groups shall be Natural 

Resources Conservation Service specific to the applied 

use and not all based on a dryland farming criterion. 

County assessors shall utilize soil surveys from the 

Natural Resources Conservation Service of the United 

States Department of Agriculture as directed by the 

Property Tax Administrator. Nothing in this section shall 

be construed to limit the classes and subclasses of real 

property that may be used by county assessors or the Tax 

Equalization and Review Commission to achieve more 

uniform and proportionate valuations.

And according to Neb. Rev. Stat. § 77-103.01 (Reissue 2018):

Class or subclass of real property means a group of 

properties that share one or more characteristics typically 

common to all the properties in the class or subclass, but 

are not typically found in the properties outside the class 

or subclass. Class or subclass includes, but is not limited 

to, the classifications of agricultural land or horticultural 

land listed in section 77-1363 . . . .

It is undisputed that during the 2018 and 2019 tax years, the 

irrigated acres on Mary’s Farm were correctly subclassified as 

irrigated cropland, while the irrigated acres on the Morrison 

property were erroneously subclassified as dryland cropland. 

It is also undisputed that the erroneous subclassification of 

the Morrison property resulted in a lower assessed value than 

if the acres had been correctly subclassified as irrigated cropland. We find no prior cases in our equalization jurisprudence 

presenting a similar fact pattern. To analyze the duty of the 

County Board under these unique facts, we rely on settled 

principles of uniform and proportionate taxation.

3. Uniform and Proportionate Taxation

Uniform and proportionate taxation, sometimes referred to 

as “equalization,” is a constitutional requirement in Nebraska. 

Article VIII, § 1(1), of the Nebraska Constitution provides 

in relevant part that “[t]axes shall be levied by valuation 
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uniformly and proportionately upon all real property . . . except 

as otherwise provided in or permitted by this Constitution.” 

And article VIII, § 1(4), governs how agricultural and horticultural land is to be uniformly and proportionately valued and 

taxed. It provides:

[T]he Legislature may provide that agricultural land and 

horticultural land, as defined by the Legislature, shall 

constitute a separate and distinct class of property for purposes of taxation and may provide for a different method 

of taxing agricultural land and horticultural land which 

results in values that are not uniform and proportionate with all other real property and franchises but which 

results in values that are uniform and proportionate upon 

all property within the class of agricultural and horticultural land.

 17

[8] We have explained the process and purpose of equalization as follows:

“Equalization is the process of ensuring that all taxable 

property is placed on the assessment rolls at a uniform 

percentage of its actual value. The purpose of equalization of assessments is to bring the assessment of different 

parts of a taxing district to the same relative standard, so 

that no one of the parts may be compelled to pay a disproportionate part of the tax.” 18

[9-12] We have also recognized that while “absolute uniformity of approach for taxation may not be possible, there 

must be a reasonable attempt at uniformity.” 19 The object of 

the uniformity clause is accomplished “‘if all of the property within the taxing jurisdiction is assessed and taxed at a 

uniform standard of value.’” 20 No difference in the method 

17 Neb. Const. art. VIII, § 1(4) (emphasis supplied).

18 Krings v. Garfield Cty. Bd. of Equal., 286 Neb. 352, 357, 835 N.W.2d 750, 

754 (2013), quoting Brenner, supra note 11.

19 Constructors, Inc. v. Cass Cty. Bd. of Equal., 258 Neb. 866, 873, 606 

N.W.2d 786, 792 (2000).

20 Id. at 873, 606 N.W.2d at 792, quoting County of Gage v. State Board of 

Equalization & Assessment, 185 Neb. 749, 178 N.W.2d 759 (1970).
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of determining the valuation or rate of tax to be imposed 

can be allowed unless “separate classifications rest on some 

reason of public policy or some substantial difference of 

situation or circumstance that would naturally suggest justice or expediency of diverse legislation with respect to the 

objects classified.” 21 Generally, taxpayers are entitled to have 

their property assessed uniformly and proportionately, even 

though the result may be that it is assessed at less than the 

actual value. 22

In this case, we consider an issue of first impression in 

Nebraska: whether constitutional principles of uniform and 

proportionate taxation require that an isolated error in the 

subclassification and undervaluation of one taxpayer’s property must be replicated through the equalization process. As 

we explain, we find no such requirement in the Nebraska 

Constitution, Nebraska statutes, or Nebraska case law.

4. Facts and Law Do Not Support 

TERC’s Decision

(a) Presumption of Validity

In any appeal before TERC, the threshold determination 

should be whether the taxpayer presented competent evidence 

to rebut the presumption of validity in favor of the board 

of equalization. 23 Here, TERC made an express finding that 

the Mosers had presented “competent evidence to rebut the 

presumption that the County Board faithfully performed its 

duties and had sufficient competent evidence to make its determination.” In arriving at this conclusion, TERC did not find 

any error in the assessor’s valuation of Mary’s Farm. Rather, 

TERC concluded the Mosers had presented “compelling evidence of pivot irrigation on the Morrison farm” in 2018 and 

2019 and had shown that the assessor’s property records for 

those years taxed the Morrison property as dryland cropland. 

21 Constructors, Inc., supra note 19, 258 Neb. at 874, 606 N.W.2d at 793.

22 Constructors, Inc., supra note 19.

23 See Wheatland Indus., supra note 7.
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As such, we understand TERC to have concluded that the presumption of validity was rebutted by photographic evidence 

that the Morrison property contained irrigated cropland that 

was erroneously valued as dryland cropland.

The County Board has not challenged TERC’s conclusion 

that the Mosers’ evidence sufficiently rebutted the presumption, and we express no opinion in that regard. Because, as we 

explain next, even if the Mosers’ evidence was sufficient to 

rebut the presumption of validity, they did not ultimately satisfy their burden to prove by clear and convincing evidence that 

the valuation of Mary’s Farm was unreasonable or arbitrary. 24

(b) Mosers Did Not Meet Burden of Proof

To prove the value placed on Mary’s Farm was unreasonable or arbitrary, 25 the Mosers had to show that when compared 

to the valuations placed on similar property, the valuation of 

Mary’s Farm was grossly excessive and was the result of either 

a systematic exercise of intentional will or the failure of a plain 

legal duty, and not a mere error of judgment. 26

(i) Grossly Excessive Valuation

We question whether the Mosers proved by clear and convincing evidence that the valuation of their irrigated acres 

was grossly excessive when compared to similar property. We 

agree the Mosers’ evidence showed that the irrigated acres on 

Mary’s Farm were valued higher than the irrigated acres on 

the Morrison property. But the Mosers did not compare the 

irrigated acres on Mary’s Farm to any of the irrigated acres 

in the taxing district which, like their property, had been 

subclassified and valued as irrigated cropland. Instead, they 

compared their valuation to the valuation of irrigated acres 

which had been erroneously subclassified and valued as dryland cropland.

24 See § 77-5016(9).

25 See id.

26 See Betty L. Green Living Trust, supra note 2.
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But even if we set aside the different land classification 

groups of Mary’s Farm and the Morrison property and assume, 

without deciding, that the Mosers proved their valuation was 

grossly excessive when compared to similar property, we 

nevertheless conclude they failed to prove their valuation was 

the result of either a systematic exercise of intentional will 

or the failure of a plain legal duty, and not a mere error of 

judgment. 27

(ii) Insufficient Evidence of Systematic 

or Intentional Action

The Mosers offered no evidence of a systematic or intentional misclassification and undervaluation of irrigated acres 

in Lancaster County. Instead, they offered evidence of a single 

parcel—the Morrison property—where irrigated cropland had 

been erroneously subclassified and valued as dryland. And it 

was undisputed that such error was unintentional and resulted 

from an improvement to the property of which the assessor’s office was unaware, despite its use of aerial and oblique 

imagery to identify pivot irrigators. The evidence also showed 

that when the county became aware of the erroneous subclassification via the Mosers’ tax protests, the error was corrected 

for the 2020 tax year. On this record, the Mosers failed to 

prove the valuation was the result of a systematic exercise of 

intentional will.

(iii) No Plain Legal Duty to Equalize 

Mary’s Farm and Morrison Property

Similarly, the Mosers did not carry their burden of proving 

that the valuation of Mary’s Farm resulted from the failure of 

a plain legal duty and not a mere error of judgment. TERC’s 

order did not explain why it determined the County Board had 

“a plain legal duty to equalize the assessments” by revaluing 

the irrigated acres on Mary’s Farm as dryland cropland. But 

in its appellate briefing, TERC argues that once the Mosers 

presented evidence that their irrigated acres were assessed at 

27 See id.
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a higher value than the irrigated acres on the Morrison property, it “trigger[ed] a duty to equalize.” 28 We thus understand 

TERC to contend that these circumstances implicated constitutional principles of uniform and proportionate taxation. On this 

record, we disagree.

TERC appears to have ignored the fact that a subclassification error regarding the Morrison property was the reason for 

the disparate valuations, but we cannot. When determining 

whether principles of uniformity and proportionality have been 

violated by disparate valuations, we have said it is appropriate 

to consider the reasons offered for “why a particular valuation is what it is” because, without such context, evidence of 

disparate valuations “indicates nothing.” 29 Here, the irrigated 

acres on the Morrison property were valued lower because they 

had been erroneously subclassified as dryland. It was that error 

in subclassification, and only that error, which caused the disparate valuation about which the Mosers complain.

[13-15] The burden of proof is on the taxpayer to establish 

that the value of the property has not been fairly and proportionately equalized with all other properties, resulting in 

a discriminatory, unjust, and unfair assessment. 30 The county 

board of equalization has a statutory duty to “fairly and impartially equalize the values of all items of real property in the 

county so that all real property is assessed uniformly and 

proportionately.” 31 This statutory duty is informed, in turn, by 

the constitutional principles of uniformity and proportionality 

set out in Neb. Const. art. VIII, § 1. In carrying out its duty to 

correct and equalize discrepancies and inequalities in assessments within the county, a county board of equalization “‘must 

give effect to the constitutional requirement that taxes be 

28 Brief for appellee at 8.

29 County of Franklin v. Tax Equal. & Rev. Comm., 296 Neb. 193, 201, 892 

N.W.2d 142, 147 (2017).

30 Lincoln Tel. & Tel. Co. v. County Board of Equalization, 209 Neb. 465, 

308 N.W.2d 515 (1981).

31 Neb. Rev. Stat. § 77-1501 (Reissue 2018).
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levied uniformly and proportionately upon all taxable property 

in the county.’” 32 We see no evidence that these constitutional 

principles were implicated by the County Board’s decision to 

affirm the valuation of Mary’s Farm.

[16] The rule of uniformity applies to both the rate of taxation and the valuation of property. 33 And the object of the 

uniformity clause is accomplished “‘if all of the property 

within the taxing jurisdiction is assessed and taxed at a uniform standard of value.’” 34 The evidence presented in this 

case and relied upon by TERC showed that in 2018 and 2019, 

all agricultural land within the taxing district was assessed 

and taxed at a uniform standard of value based on land classification group and soil type. Under that methodology, which 

no one challenges as unreasonable or arbitrary, the scheduled 

value of an acre of dryland cropland was lower than the 

scheduled value of an acre of irrigated cropland of the same 

soil type. The same assessment methodology was applied to 

both Mary’s Farm and the Morrison property, but due to an 

unknown improvement on the Morrison property, the irrigated 

acres on that property were mistakenly subclassified and 

valued as dryland cropland in 2018 and 2019. As such, this 

case does not present a uniformity problem; rather, it presents 

a classification problem that equalization would exacerbate, 

not correct.

[17] A property owner’s contention that property has been 

disproportionately valued as compared to other comparable 

property

must be sustained by evidence that the valuation is arbitrary or capricious, or so wholly out of line with actual 

values as to give rise to an inference that the assessor 

and county board of equalization have not properly discharged their duties. Mere errors of judgment do not 

32 Krings, supra note 18, 286 Neb. at 358, 835 N.W.2d at 754.

33 Gordman Properties Co. v. Board of Equal., 225 Neb. 169, 403 N.W.2d 

366 (1987).

34 Constructors, Inc., supra note 19, 258 Neb. at 873, 606 N.W.2d at 792.
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sustain a claim of discrimination. There must be something more, something which in effect amounts to an 

intentional violation of the essential principle of practical uniformity. 35

Here, there was no evidence of something more. The only 

reason for the lower valuation of the irrigated acres on the 

Morrison property was that the cropland had been erroneously 

subclassified and valued as dryland because the assessor’s 

office was unaware the parcel had center pivots. Our record 

contains no evidence of an intentional violation of the essential 

principles of uniformity or proportionality and no evidence that 

would give rise to an inference that either the assessor’s office 

or the County Board failed to properly discharge its duties 

under the law.

We reject TERC’s suggestion that constitutional principles 

of uniformity and proportionality require a county board of 

equalization to replicate what has been shown to be an isolated 

and unintentional error in the subclassification and undervaluation of one taxpayer’s property. Were we to adopt such a rule, 

it would have far-reaching consequences to our equalization 

jurisprudence. As the County Board argues:

Under [TERC’s] order, all a taxpayer must do is locate a 

single unknown or unreported improvement to receive a 

reduction on their property value. A taxpayer with a finished basement would only need to locate a single house 

with a finished basement that is unknown to a county 

assessor and by the TERC’s standard, the taxpayer would 

have met their burden for proving a lack of equalization. 

Similarly, a residence that is built and unreported to a 

county assessor would result in all improvements being 

removed from the assessment roll under the TERC’s 

standard. 36

And we generally agree with the County Board’s observation 

that by ordering equalization in response to evidence that a 

35 Newman, supra note 5, 167 Neb. at 672, 94 N.W.2d at 50.

36 Brief for appellant at 10-11.
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single irrigated parcel was misclassified and thus undervalued, 

“TERC created two parcels that are undervalued [and] impermissibly shifted the tax burden to every other irrigated parcel 

that did not protest.” 37

The dissent suggests the County Board had a plain legal duty 

to value the irrigated acres on Mary’s Farm as dryland under 

the reasoning of the U.S. Supreme Court in Sioux City Bridge 

v. Dakota County.

 38 In that case, the Court was reviewing a 

decision of the Nebraska Supreme Court which had affirmed 

the denial of a tax protest over the valuation of a bridge in 

Dakota County. 39 The bridge company had argued it was entitled to have the valuation of the bridge reduced to 55 percent 

of its true value because “other property in the district [was] 

assessed at 55 [percent] of its true value.” 40 The Nebraska 

Supreme Court rejected that argument and held that “when 

property is assessed at its true value, and other property in the 

district is assessed below its true value, the proper remedy is 

to have the property assessed below its true value raised, rather 

than to have the property assessed at its true value reduced.” 41

The U.S. Supreme Court granted certiorari and reversed. 42

Relying on the Due Process and Equal Protection Clauses of 

the 14th Amendment to the U.S. Constitution, the Supreme 

Court reasoned it was “utterly impossible for [the protesting 

taxpayer] by any judicial proceeding to secure an increase in 

the assessment of the great mass of under-assessed property 

in the taxing district.” 43 The Court held that under such circumstances, “the right of the taxpayer whose property alone is 

37 Id. at 9.

38 Sioux City Bridge v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. 

Ed. 340 (1923).

39 Sioux City Bridge Co. v. Dakota County, 105 Neb. 843, 182 N.W. 485 

(1921).

40 Id. at 848, 182 N.W. at 487.

41 Id.

42 Sioux City Bridge, supra note 38.

43 Id., 260 U.S. at 446.
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taxed at 100 [percent] of its true value is to have [the] assessment reduced to the percentage of that value at which others 

are taxed even though this is a departure from the requirement 

of the statute.” 44

Sioux City Bridge is readily distinguishable from this case. 

First, the holding was grounded in the 14th Amendment, not 

the uniformity clause of the Nebraska Constitution, and we 

do not understand the Mosers to have raised or preserved a 

due process or equal protection claim in this case. Moreover, 

the underassessment of property in Sioux City Bridge was 

intentional and systematic—the bridge was being taxed at 

100 percent of its actual value, while the “great mass” 45 of 

property in the district was being taxed at 55 percent of its 

actual value. That is nothing like the situation here, where the 

evidence showed that dryland cropland and irrigated cropland 

were taxed at the same percentage of actual value, and the 

same assessment methodology and uniform valuation standards 

were applied to all agricultural land in the taxing district. And 

finally, although the taxpayer in Sioux City Bridge apparently 

had no way to secure an increase in the intentionally underassessed property, the Mosers point to nothing that prevented 

them from protesting the misclassification of the irrigated acres 

on the Morrison property. 46 Indeed, the record indicates that 

the Mosers’ protests resulted in correcting the misclassification 

of irrigated acres on the Morrison property for the 2020 tax 

year. We are not persuaded that the holding or the reasoning in 

Sioux City Bridge has application here.

The dissent also relies on a settled proposition from our 

equalization jurisprudence which states, “‘“The constitution 

forbids any discrimination whatever among taxpayers, thus, if 

the property of one citizen is valued for taxation at one-fourth 

44 Id.

45 Id.

46 See Neb. Rev. Stat. § 77-1502 (Cum. Supp. 2022) (directing county clerk 

to mail copy of protest to owner when person filing protest is not owner 

of property).
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its value, others within the taxing district have the right to 

demand that their property be assessed on the same basis.”’” 47

But this proposition is not implicated here either, because 

the Mosers’ property and the Morrison property were both 

assessed at the same percentage of actual value based on subclassification. Again, the only reason shown for the valuation 

differences between these two properties was their different 

subclass. And we do not understand the dissent to be suggesting that constitutional principles of uniformity and proportionality are offended by a tax assessment methodology under 

which each subclass of agricultural land has a different scheduled actual value. The Mosers have not shown unconstitutional 

discrimination in the valuation of their property as compared to 

the Morrison property.

We find no principled support for TERC’s conclusion that 

an unintentional error in subclassifying the Morrison property 

as dryland cropland imposed on the County Board a plain legal 

duty to replicate that error through equalization by applying a 

factually false subclassification to reduce the valuation of the 

cropland on Mary’s Farm.

We instead conclude, on this record, that the Mosers failed 

to prove by clear and convincing evidence that the valuation 

of Mary’s Farm, when compared to the valuation of similar 

property, was grossly excessive and was the result of a systematic exercise of intentional will or failure of plain duty, 

and not mere errors of judgment. 48 Nor did the Mosers adduce 

sufficient evidence to establish that the County Board’s decision to affirm the Mosers’ assessments in 2018 and 2019 was 

unreasonable or arbitrary. 49

47 Gamboni v. County of Otoe, 159 Neb. 417, 435, 67 N.W.2d 489, 501 

(1954), overruled in part on other grounds, Hansen v. County of Lincoln, 

188 Neb. 461, 197 N.W.2d 651 (1972). See State v. Savage, 65 Neb. 714, 

91 N.W. 716 (1902).

48 See, Betty L. Green Living Trust, supra note 2; JQH La Vista Conf. Ctr., 

supra note 11.

49 See § 77-5016(9).
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TERC’s conclusion that the County Board had a plain legal 

duty to equalize the 2018 and 2019 assessments by treating 

irrigated cropland on Mary’s Farm as dryland cropland was 

factually incorrect, was not supported by competent evidence, 

failed to conform to the law, was unreasonable, and must 

be reversed. 50

V. CONCLUSION

For the foregoing reasons, we reverse TERC’s decision 

to the extent it ordered that the irrigated cropland on Mary’s 

Farm be valued as dryland cropland for the 2018 and 2019 tax 

years, and we remand the matter with directions to affirm the 

County Board’s assessments on parcel 02-36-400-001-000 for 

both tax years.

Reversed and remanded with directions.

50 See Wheatland Indus., supra note 7.

Cassel, J., dissenting.

Although the majority concedes that irrigated acres on the 

Morrison property were incorrectly classified as dryland and 

that as a result, the Morrison property was erroneously given a 

lower value than the comparable property of Brad Moser and 

Mary Moser, the majority concludes that this triggered no plain 

duty to equalize the two properties. I respectfully disagree. The 

Nebraska Constitution compels otherwise.

Neb. Const. art. VIII, § 1(4), plainly commands that properties within the class of agricultural land and horticultural 

land must be equalized despite being in separate subclasses. 

The majority effectively holds that an error in subclassification relieved the county board of its duty to equalize. This 

court thereby fails to enforce the plain duty imposed by the 

constitution.

For the sake of completeness, and at the risk of some 

duplication of the majority opinion, I set forth this plain constitutional language, the principle commanding adherence to 

the constitutional mandate, and the history of the uniformity 

clause and the amendments permitting separate classification 
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of agricultural land and horticultural land. The majority here 

effectively deprives an agricultural-land taxpayer of any 

remedy for the misclassification of comparable agricultural 

property. Because the organic law of this state requires the 

action taken by the Tax Equalization and Review Commission 

(TERC), I respectfully dissent.

For convenience, I refer generally to the language of article 

VIII, § 1, as the uniformity clause. Insofar as it relates to the 

case before this court, the uniformity clause states as follows:

The necessary revenue of the state and its governmental subdivisions shall be raised by taxation in such manner 

as the Legislature may direct. Notwithstanding Article I, 

section 16, Article III, section 18, or Article VIII, section 4, of this Constitution or any other provision of this 

Constitution to the contrary: (1) Taxes shall be levied by 

valuation uniformly and proportionately upon all real 

property and franchises as defined by the Legislature 

except as otherwise provided in or permitted by this 

Constitution; [and] (4) the Legislature may provide that 

agricultural land and horticultural land, as defined by the 

Legislature, shall constitute a separate and distinct class 

of property for purposes of taxation and may provide for a 

different method of taxing agricultural land and horticultural land which results in values that are not uniform and 

proportionate with all other real property and franchises 

but which results in values that are uniform and proportionate upon all property within the class of agricultural 

land and horticultural land; . . . Each actual property tax 

rate levied for a governmental subdivision shall be the 

same for all classes of taxed property and franchises. 1

To the extent pertinent here, one can readily discern that § 1 

addresses uniformity in two clauses. First, § 1(1) imposes a 

general duty to levy taxes by valuation uniformly and proportionately upon all real property except as otherwise allowed by 

the Nebraska Constitution. Then, § 1(4) permits classification 

1 Neb. Const. art. VIII, § 1 (emphasis supplied).
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of agricultural land and horticultural land as “a separate and 

distinct class of property” and imposes a uniformity requirement upon “all property within the class of agricultural land 

and horticultural land.”

This court, TERC, and the county boards of equalization 

are all bound by the Nebraska Constitution. As this court has 

said:

“A written Constitution is not only the direct and basic 

expression of the sovereign will, but is the absolute rule 

of action and decision for all departments and offices of 

government with respect to all matters covered by it and 

must control as it is written until it shall be changed by 

the authority that established it. . . .” 2

As I explain below, article VIII, § 1(4), commands that all agricultural land and horticultural land be equalized with all other 

agricultural and horticultural lands, regardless of subclasses. 

Neither this court nor the tribunals below may ignore this constitutional mandate.

The uniformity clause has ancient roots. It originated in 

the constitution of 1875. 3 The modern language began with 

the constitutional revisions of 1920, which, as relevant here, 

required simply that “taxes shall be levied by valuation uniformly and proportionately upon all tangible property.” 4

The rules as to uniformity and equal protection of the laws 

apply not only to acts of the legislative department but also 

to the valuation by the assessing officers. 5 Discrimination in 

valuation, where it exists, does not necessarily result from the 

terms of the tax statute, but may be caused by the acts of the 

taxing officer or officers. 6

2 State ex rel. Caldwell v. Peterson, 153 Neb. 402, 408, 45 N.W.2d 122, 127 

(1950) (quoting 11 Am. Jur. Constitutional Law § 44).

3 See Neb. Const. art. IX, § 1 (1875).

4 Neb. Const. art. VIII, § 1 (1920).

5 Constructors, Inc. v. Cass Cty. Bd. of Equal., 258 Neb. 866, 606 N.W.2d 

786 (2000).

6 Id.
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This court has long said that the paramount object of the 

constitution and the laws relative to taxation is to raise all 

needful revenues by valuation of the taxable property so that 

each owner of property taxed will contribute his, her, or its 

just proportion of the public revenues. 7 The object of the law 

of uniformity is accomplished if all property within the taxing 

jurisdiction is assessed at a uniform standard of value, as compared with its actual market value. 8 “Thus if the property of 

one citizen is valued for taxation at one-fourth its value, others 

within the taxing district have the right to demand that their 

property be assessed on the same basis.” 9 In other words, this 

court said, the constitution forbids any discrimination whatever 

among taxpayers. 10 Numerous cases have applied the uniformity clause in this way. 11

As to most real estate, Nebraska law still mandates equalization with all other real estate subject to taxation. Above, I 

quoted article VIII, § 1(1), which commands that “[t]axes shall 

be levied by valuation uniformly and proportionately upon all 

real property . . . as defined by the Legislature except as otherwise provided in or permitted by this Constitution.” Likewise, 

7 See State v. Savage, 65 Neb. 714, 91 N.W. 716 (1902).

8 See id.

9 Id. at 744, 91 N.W. at 720.

10 Id.

11 See, e.g., County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 262 

Neb. 578, 635 N.W.2d 413 (2001); AT&T Information Sys. v. State Bd. 

of Equal., 237 Neb. 591, 467 N.W.2d 55 (1991); Konicek v. Board of 

Equalization, 212 Neb. 648, 324 N.W.2d 815 (1982); County of Buffalo 

v. State Board of Equalization & Assessment, 158 Neb. 353, 63 N.W.2d 

468 (1954); Laflin v. State Board of Equalization and Assessment, 156 

Neb. 427, 56 N.W.2d 469 (1953); Homan v. Board of Equalization, 141 

Neb. 400, 3 N.W.2d 650 (1942); Continental Ins. Co. v. Smrha, 131 Neb. 

791, 270 N.W. 122 (1936); Chicago, R. I. & P. R. Co. v. State, 111 Neb. 

362, 197 N.W. 114 (1923); State v. Fleming, 70 Neb. 523, 97 N.W. 1063 

(1903); State v. Savage, supra note 7; State v. Osborn, 60 Neb. 415, 83 

N.W. 357 (1900); High School District v. Lancaster County, 60 Neb. 147, 

82 N.W. 380 (1900); State, ex rel. Ahern, v. Walsh, 31 Neb. 469, 48 N.W. 

263 (1891); Clother v. Maher, 15 Neb. 1, 16 N.W. 902 (1883).
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a Nebraska statute requires that “[t]he county board of equalization shall fairly and impartially equalize the values of all 

items of real property in the county so that all real property 

is assessed uniformly and proportionately.” 12 The purpose of 

equalization of assessments is to bring the assessment of different parts of a taxing district to the same relative standard, so 

that no one of the parts may be compelled to pay a disproportionate part of the tax. 13

But through amendments begun in 1984, 14 revised in 1989, 15

and completed in 1992, 16 the constitution was amended to allow 

agricultural and horticultural lands to be valued disproportionately from other types of real property but to require them to 

be valued uniformly and proportionately with other agricultural 

and horticultural lands. 17 For the reader’s convenience, I repeat 

that portion of the constitution, which now reads,

the Legislature may provide that agricultural land and 

horticultural land, as defined by the Legislature, shall 

constitute a separate and distinct class of property for purposes of taxation and may provide for a different method 

of taxing agricultural land and horticultural land which 

results in values that are not uniform and proportionate with all other real property and franchises but which 

results in values that are uniform and proportionate upon 

all property within the class of agricultural land and horticultural land.

 18

The principles of interpreting a constitutional provision are 

well settled. The words in a constitutional provision must be 

interpreted and understood in their most natural and obvious 

12 Neb. Rev. Stat. § 77-1501 (Reissue 2018).

13 Krings v. Garfield Cty. Bd. of Equal., 286 Neb. 352, 835 N.W.2d 750 

(2013).

14 See 1984 Neb. Laws, L.R. 7, § 1.

15 See 1989 Neb. Laws, L.R. 2, § 1.

16 See 1992 Neb. Laws, L.R. 219CA, § 1.

17 See Neb. Const. art. VIII, § 1(4).

18 Neb. Const. art. VIII, § 1(4) (emphasis supplied).
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meaning unless the subject indicates or the text suggests that 

they are used in a technical sense. 19 If the meaning of a constitutional provision is clear, the court will give to it the meaning 

that obviously would be accepted and understood by laypersons. 20 Constitutional provisions are not subject to strict construction and receive a broader and more liberal construction 

than do statutes. 21 It is the duty of courts to ascertain and to 

carry into effect the intent and purpose of the framers of the 

constitution or of an amendment thereto. 22

Here, the plain language requires uniformity within the 

entire class of agricultural land and horticultural land. This 

court is not permitted to read into this clause words which 

are not there or to omit words. I respectfully submit that the 

majority does so, at least implicitly. But the plain constitutional 

language commands that “all property within the class of agricultural land and horticultural land” be equalized.

First, the beginning part of § 1(4) states the singular—“a

separate and distinct class”—and not a plural—“one or more

separate and distinct classes.” (Emphasis supplied.) Second, 

the words “all property” immediately precede the words 

“within the class.” 23 Third, the last phrase reads, “uniform 

and proportionate upon all property within the class of agricultural land and horticultural land”—a construction using 

singular and not plural. 24 This provides a plain command to 

equalize all property within the class of agricultural land and 

horticultural land, and it simply does not permit equalization 

only within an agricultural subclass. My reading is, I respectfully suggest, the way these words and phrases would be read 

by a layperson.

19 State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).

20 Id.

21 Id.

22 Id.

23 Neb. Const. art. VIII, § 1(4).

24 Id. (emphasis supplied).
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The Legislature reads § 1(4) the same way that I do. A 

statute proclaims, “The Legislature finds and declares that 

agricultural land and horticultural land shall be a separate and 

distinct class of real property for purposes of assessment.” 25 It 

then states, “The assessed value of agricultural land and horticultural land shall not be uniform and proportionate with all 

other real property, but the assessed value shall be uniform and 

proportionate within the class of agricultural land and horticultural land.” 26 Thus, the legislative language, consistent with 

that of the constitution, mandates that assessed value shall be 

uniform and proportionate within the class of agricultural land 

and horticultural land.

Our previous case law construed this constitutional language the same way. We said that after the amendments to 

article VIII, § 1, and the enactment of statutes pursuant to such 

authority providing for a different method of taxing agricultural 

and horticultural land, the constitution does not require uniformity between the class of agricultural and horticultural land 

and other types of real estate. 27 From this development, we 

drew two principles: (1) “[I]t is no longer required or proper 

to equalize the value of nonagricultural, nonhorticultural land 

with the value of agricultural and horticultural land,” and (2) 

“[e]qualization is still required within the class of agricultural 

and horticultural land, because the constitution still requires 

uniformity within that class.” 28

For the sake of completeness, I note that during floor debate 

of the 1984 legislation submitting an amendment of article 

VIII, § 1, to the voters, senators read the phrase the same 

way. Admittedly, that language was slightly different, in that 

it added a sentence stating, “The Legislature may provide that 

agricultural land and horticultural land used solely for agricultural or horticultural purposes shall constitute a separate and 

25 Neb. Rev. Stat. § 77-1359 (Reissue 2018).

26 Id.

27 Krings v. Garfield Cty. Bd. of Equal., supra note 13.

28 Id. at 361, 835 N.W.2d at 756.
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distinct class of property for purposes of taxation.” 29 One senator stated:

If you read the language very carefully, it says, I’ll just 

read the last part, “shall constitute a separate and distinct 

class.” Very singular. It says there will be one class, a class. 

What it says is, “agricultural land and horticultural land 

taken together as a group will constitute a single class.” I 

think we could probably diagram that on the blackboard 

and all but I believe it is very clear that it is singular and 

it is just a class. We’re not creating two classes. 30

Another senator agreed “100 percent.” 31 Although the 1984 

language differed slightly, it closely resembles the current constitutional wording.

While another statute further divides agricultural land and 

horticultural land into classes and subclasses, nothing in that 

other statute suggests that a misclassification protects an assessment from the requirements of uniformity and proportionality. 32

Here, TERC was reviewing the refusal of the county board 

of equalization to equalize comparable agricultural properties within the same taxing district in Lancaster County. The 

majority suggests that the county board had no plain duty to 

correct an individual discrepancy. But our case law teaches 

otherwise.

In Bartlett v. Dawes Cty. Bd. of Equal.,

 33 this court reiterated 

three important principles. First, a county board of equalization 

has the duty to correct and equalize individual discrepancies 

and inequalities in assessments within the county. 34 Second, in 

29 1984 Neb. Laws, L.R. 7, § 1.

30 Floor Debate, L.R. 7, 88th Leg., 1st Spec. Sess. 340 (Aug. 29, 1984) 

(remarks of Senator Ron Withem).

31 Id. (remarks of Senator Peter Hoagland).

32 See Neb. Rev. Stat. § 77-1363 (Cum. Supp. 2020).

33 Bartlett v. Dawes Cty. Bd. of Equal., 259 Neb. 954, 613 N.W.2d 810 

(2000) (superseded by statute on other grounds as stated in Cain v. Custer 

Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (2018)).

34 See id.
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Cite as 312 Neb. 757

carrying out this function, the county board must give effect to 

the constitutional requirement that taxes be levied uniformly 

and proportionately upon all taxable property in the county. 35 Finally, this basic duty of county boards of equalization 

remains unchanged by enactment of the Tax Equalization and 

Review Commission Act. 36

The correct remedy for equalization was recognized by the 

U.S. Supreme Court nearly 100 years ago in Sioux City Bridge 

v. Dakota County,

 37 which reversed a decision of this court. 38

There, this court found that a property, which had a valuation 

disproportionately higher than comparable property, should 

not have its valuation lowered. 39 This court ruled that when a 

property is assessed at its true value, and other property in the 

district is assessed below its true value, the proper remedy is 

to have the property assessed below its true value raised, rather 

than to have property assessed at its true value reduced. 40

The U.S. Supreme Court reversed this court’s decision and 

remanded the case for further proceedings. 41 The high court 

stated that “such a result as that reached by [this court] is 

to deny the injured taxpayer any remedy at all because it is 

utterly impossible for him by any judicial proceeding to secure 

an increase in the assessment of the great mass of underassessed property in the taxing district.” 42 The Court further 

stated, “The conclusion is based on the principle that where 

it is impossible to secure both the standard of the true value, 

35 See id.

36 See id.

37 Sioux City Bridge v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. 

Ed. 340 (1923).

38 See Sioux City Bridge Co. v. Dakota County, 105 Neb. 843, 182 N.W. 485 

(1921).

39 See id.

40 See id.

41 See Sioux City Bridge v. Dakota County, supra note 37.

42 Id., 260 U.S. at 446.
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LANCASTER CTY. BD. OF EQUAL. V. MOSER

Cite as 312 Neb. 757

and the uniformity and equality required by law, the latter 

requirement is to be preferred as the just and ultimate purpose 

of the law.” 43

Because the high court applied federal constitutional law, 

the majority attempts to discredit the remedy. But the basic 

principle of that case is instructive. Where it is impossible to 

increase the misclassified agricultural land to its true value, the 

preferred remedy is to reduce the injured taxpayer’s property 

value to achieve the uniformity required. To refuse to do so 

deprives the taxpayer of a remedy.

This court’s more recent uniformity clause jurisprudence 

has also provoked criticism. 44 The majority’s implicit application of the uniformity clause only within a subclass is fraught 

with the danger of unintended consequences. Surely, this recent 

experience counsels that in interpreting the uniformity clause, 

this court should strictly adhere to the constitutional text, the 

enabling legislation, and our previous case law—all of which 

require application of the uniformity clause to all property 

within the class of agricultural land and horticultural land. 

After all, “Those who cannot remember the past are condemned to repeat it.” 45

Properly understood, § 1(4) accomplishes two related goals. 

First, it permits agricultural and horticultural lands not to be 

valued uniformly and proportionately with other types of real 

estate, such as residential, commercial, or industrial lands. 

Second, it imposes a uniformity requirement for all lands 

within the separate class of agricultural land and horticultural land.

Here, the assessments were not equalized. Mary’s Farm was 

comparable to the Morrison property: they were located in 

close proximity to one another and both were used as irrigated 

43 Id.

44 See George Kilpatrick, Personal Property Tax Post Mortem: What Lies 

Ahead for Nebraska, 27 Creighton L. Rev. 25 (1993).

45 George Santayana, The Life of Reason: Reason in Common Sense 284 

(Scribner’s 1905).
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Cite as 312 Neb. 757

cropland. Though comparable, the Morrison property was misclassified as dry cropland. This led to its having a lower tax 

valuation. Because the irrigated acres on the Morrison property 

were assessed at a lower rate than the irrigated acres on Mary’s 

Farm, the Mosers’ property was not “equalized” with the value 

of other agricultural land in Lancaster County. As a result, the 

Mosers paid a disproportionate part of the tax.

If a taxpayer’s property is assessed at a value in excess of 

its actual value, or in excess of that value at which others are 

taxed, then the taxpayer has a right to relief. 46 The right is to 

have the taxpayer’s property assessment reduced to the percentage of the property’s value at which others are taxed. 47

TERC’s decision enforced that right.

The majority incorrectly contends that application of our 

long-established uniformity clause jurisprudence would have 

“far-reaching consequences.” It quotes the county board’s brief 

regarding equalization that might be required due to a protest 

based on a “finished basement” or a “residence that is built and 

unreported.” 48

But these examples would not result in reduction of the values of all other properties. Only a taxpayer who protested and 

persisted in that protest would receive equalization and only if 

that taxpayer’s property were significantly overvalued in comparison to the undervalued property. In other words, the situation here did not require the county board to lower all irrigated 

farmland valuations to the Morrison property’s level. But it did 

require the county board to equalize the Mosers’ property with 

the Morrison property.

This is a natural consequence of equalization at the local 

level, in order to provide a remedy for a protesting taxpayer 

disadvantaged by another taxpayer’s undervaluation. Here, 

46 See, AT&T Information Sys. v. State Bd. of Equal., supra note 11; Zabawa 

v. Douglas Cty. Bd. of Equal., 17 Neb. App. 221, 757 N.W.2d 522 (2008).

47 See, Chief Indus. v. Hamilton Cty. Bd. of Equal., 228 Neb. 275, 422 

N.W.2d 324 (1988); Konicek v. Board of Equalization, supra note 11.

48 See brief for appellant at 11.
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Cite as 312 Neb. 757

equalization would reduce the protesting taxpayers’ burden in 

a way not required for other similarly situated taxpayers who 

failed to file protests or to appeal from the denial of their protests. This matters not. Other taxpayers’ failure to exercise their 

rights is no defense to granting such relief to a taxpayer who 

did so exercise such taxpayer’s rights. 49

The majority purports to avoid this clear constitutional command, but it cannot hide from the reality. The majority suggests 

the Mosers should have protested the Morrison property’s valuation. Nothing in the statute cited by the majority 50 or in that 

statute’s 2018 amendment 51 suggests an intention to displace 

the traditional equalization remedy. Nothing in the county 

board’s brief makes any such argument. Nor has any decision 

of this court or the Nebraska Court of Appeals so held. And 

this notion flies in the face of long-settled uniformity clause 

jurisprudence. I have already cited our numerous cases requiring equalization. And this court has repeatedly said that if the 

property of one citizen is valued for taxation at one-fourth its 

value, others within the taxing district have the right to demand 

that their property be assessed on the same basis. 52 Here, the 

owners of the Morrison property are the “one citizen” and the 

Mosers are the “others within the taxing district.” The Mosers 

had the right to demand assessment on the same basis.

In this situation, the county board had the plain duty to 

equalize. TERC was perhaps charitable in relying only on 

plain duty and not systemic discrimination. The county board’s 

49 84 C.J.S. Taxation § 42 (2022) (citing Kuiters v. County of Freeborn, 430 

N.W.2d 461 (Minn. 1988)).

50 See Neb. Rev. Stat. § 77-1502 (Cum. Supp. 2022).

51 See 2018 Neb. Laws, L.B. 885, § 1 (adding requirement that protest “indicate whether the person signing the protest is an owner of the property or 

a person authorized to protest on behalf of the owner”).

52 See, Gamboni v. County of Otoe, 159 Neb. 417, 67 N.W.2d 489 (1954), 

overruled in part on other grounds, Hansen v. County of Lincoln, 188 Neb. 

461, 197 N.W.2d 651 (1972); State v. Back, 72 Neb. 402, 100 N.W. 952 

(1904); State v. Savage, supra note 7; State v. Karr, 64 Neb. 514, 90 N.W. 

298 (1902); State v. Osborn, supra note 11.
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Cite as 312 Neb. 757

failure to correct the misclassification after hearing the taxpayers’ protest for the first year suggests, at best, bureaucratic 

ineptitude, or, worse, a disdain for taxpayers’ rights in the 

equalization process. Our traditional equalization jurisprudence 

places the incentive for diligence where it belongs—upon the 

taxing authority.

The majority purports to limit its refusal to equalize to 

“error in the subclassification and undervaluation of one taxpayer’s property.” But there is no principled distinction, based 

in law, between errors in misclassification involving multiple 

tracts. Perhaps at some point, such errors might be described 

as systemic. But the majority does not announce a principle 

which can guide county boards of equalization and TERC in 

distinguishing when misclassifications are merely “isolated 

error.” And I respectfully urge that the uniformity clause does 

not condone this notion. Our case law teaches otherwise.

TERC was required to faithfully apply Neb. Const. art. 

VIII, § 1(4), and it did so. TERC’s decision conforms to the 

law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. I would affirm its decision. Because the majority takes a different course, I respectfully dissent.

Papik and Freudenberg, JJ., join in this dissent.