- 212 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

Leo W. Hike, Jr., and Joanna K. Hike, 

appellants, v. State of Nebraska

Department of Roads, appellee.

___ N.W.2d ___

Filed July 14, 2017. No. S-16-593.

1. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from 

those facts and that the moving party is entitled to judgment as a matter 

of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

3. Judgments: Estoppel: Appeal and Error. An appellate court reviews a 

court’s application of judicial estoppel to the facts of a case for abuse of 

discretion and reviews its underlying factual findings for clear error.

4. Limitations of Actions. The determination of which statute of limitations applies is a question of law.

5. Limitations of Actions: Appeal and Error. The point at which a statute 

of limitations begins to run must be determined from the facts of each 

case, and the decision of the district court on the issue of the statute of 

limitations normally will not be set aside by an appellate court unless 

clearly wrong.

6. Complaints. Whether a complaint states a cause of action is a question 

of law.

7. Judgments: Appeal and Error. Appellate courts independently review 

questions of law decided by a lower court.

8. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a 

court invokes at its discretion to protect the integrity of the judicial process.

Nebraska Supreme Court Online Library

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

08/18/2017 01:08 AM CDT
- 213 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

9. Estoppel. The doctrine of judicial estoppel protects the integrity of the 

judicial process by preventing a party from taking a position inconsistent with one successfully and unequivocally asserted by the same 

party in a prior proceeding.

10. Estoppel: Intent. Fundamentally, the intent behind the doctrine of judicial estoppel is to prevent parties from gaining an advantage by taking 

one position in a proceeding and then switching to a different position 

when convenient in a later proceeding.

11. Constitutional Law: Eminent Domain. The eminent domain provision 

of Neb. Const. art. I, § 21, prohibits the State from taking or damaging 

property for public use without providing just compensation therefor.

12. Eminent Domain: Words and Phrases. Inverse condemnation is a 

shorthand description for a landowner suit to recover just compensation for a governmental taking of the landowner’s property without the 

benefit of condemnation proceedings.

13. Limitations of Actions: Legislature: Intent. A special statute of limitations controls and takes precedence over a general statute of limitations because the special statute is a specific expression of legislative 

will concerning a particular subject matter.

14. Constitutional Law: Limitations of Actions. Neb. Const. art. I, § 21, 

is enforced procedurally through the eminent domain statutes, Neb. Rev. 

Stat. § 76-701 et seq. (Reissue 2009 & Cum. Supp. 2016), which do not 

provide a special statute of limitations.

15. Limitations of Actions. Neb. Rev. Stat. § 25-202 (Reissue 2016) 

is not a special statute of limitations, but only a general statute of 

limitations.

16. Limitations of Actions: Legislature: Intent. While Neb. Rev. Stat. 

§ 25-218 (Reissue 2016) is not a special statute of limitations for any 

specific type of claim, when the State is a defendant to a claim, it is a 

specific expression of the Legislature’s will regarding the timeframe to 

bring such a claim.

17. Eminent Domain: Statutes. Neb. Rev. Stat. § 25-218 (Reissue 2016) is 

the applicable statute of limitations for claims of inverse condemnation 

against the State because § 25-218 is more specific on the subject than 

is Neb. Rev. Stat. § 25-202 (Reissue 2016).

18. Actions: Words and Phrases. Bringing an action means to sue or institute legal proceedings.

19. Appeal and Error. Errors argued but not assigned will not be considered on appeal.

20. ____. The purpose of an appellant’s reply brief is to respond to the 

arguments the appellee has advanced against the errors assigned in the 

appellant’s initial brief.
- 214 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

Appeal from the District Court for Sarpy County: William

B. Zastera, Judge. Affirmed.

Jason M. Bruno and Jared C. Olson, of Sherrets, Bruno & 

Vogt, L.L.C., for appellants.

Douglas J. Peterson, Attorney General, and Barry K. Waid 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and

Funke, JJ.

Funke, J.

I. NATURE OF CASE

This is an appeal from an order of the district court for 

Sarpy County, Nebraska, granting summary judgment for the 

State of Nebraska Department of Roads on an inverse condemnation claim filed by Leo W. Hike, Jr., and Joanna K. 

Hike. The court ruled that the action was barred by the 2-year 

statute of limitations set forth in Neb. Rev. Stat. § 25-218 

(Reissue 2016). We affirm.

II. FACTS

This is the second case between the Hikes and the State. In 

the first case, Hike v. State (Hike I),1 the Hikes filed a petition 

of appeal in the district court, seeking compensation after the 

State exercised its power of eminent domain in 2008 to acquire 

1.05 acres of the Hikes’ property for an expansion of U.S. 

Highway 75. The parties disagreed about the value of the property taken, and the matter proceeded to a jury trial. On appeal, 

we affirmed the jury verdict rendered in the case.

In August 2011, before the trial in Hike I, the State’s independent contractor began construction on the property taken 

from the Hikes. The contractor used heavy machinery to make 

a 48-foot-deep roadway cut approximately 61 feet from the 

1 Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (2014).
- 215 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

Hikes’ home. That same month, Leo noticed damage to the 

brick veneer of the Hikes’ residence.

The Hikes retained two experts to determine the cause and 

amount of the damage to their home. Both experts attributed 

the damage, estimated at $51,829, to the construction on 

Highway 75. After the Hikes disclosed the evidence of structural damage and that they intended to call their expert witnesses at trial, the State filed a motion in limine to exclude the 

evidence of damage to the residence. The court sustained the 

motion to preclude the Hikes from offering any evidence concerning the structural damage.

After the jury verdict, the Hikes timely appealed, alleging, 

among other things, that the district court erred by not allowing them to offer evidence of the structural damage. On May 

9, 2014, in Hike I, we affirmed the district court’s decision to 

exclude the evidence because it was “not the proximate result 

of the taking, but, rather, was caused by conduct that occurred 

after the taking” by the State.2

On April 17, 2015, the Hikes filed the present action claiming the same structural damage that they attempted to offer 

evidence of in Hike I. On April 19, 2016, the State filed a 

motion for summary judgment alleging that the Hikes’ claim 

was barred by the 2-year statute of limitations in § 25-218. 

After a hearing, the court sustained the State’s motion and dismissed the Hikes’ complaint, finding that the claim was barred 

by § 25-218. The Hikes appealed.

III. ASSIGNMENTS OF ERROR

The Hikes assign, restated and reordered, that the court 

erred in (1) failing to judicially estop the State from raising 

the statute of limitations as a defense, (2) applying § 25-218 

as the relevant statute of limitations, and (3) finding that their 

claim was time barred despite being raised in Hike I.

2 Id. at 75, 846 N.W.2d at 219.
- 216 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

IV. STANDARD OF REVIEW

[1,2] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue 

regarding any material fact or the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law.3 In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted 

and gives such party the benefit of all reasonable inferences 

deducible from the evidence.4

[3] An appellate court reviews a court’s application of judicial estoppel to the facts of a case for abuse of discretion and 

reviews its underlying factual findings for clear error.5

[4-6] The determination of which statute of limitations 

applies is a question of law.6 The point at which a statute of 

limitations begins to run must be determined from the facts of 

each case, and the decision of the district court on the issue 

of the statute of limitations normally will not be set aside by 

an appellate court unless clearly wrong.7 Whether a complaint 

states a cause of action is a question of law.8

[7] Appellate courts independently review questions of law 

decided by a lower court.9

3 Strode v. City of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016).

4 Id.

5 deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).

6 Lindner v. Kindig, 293 Neb. 661, 881 N.W.2d 579 (2016).

7 Strode, supra note 3.

8 See Broad v. Randy Bauer Ins. Agency, 275 Neb. 788, 749 N.W.2d 478 

(2008). See, also, Pinnacle Bank v. Darland Constr. Co., 270 Neb. 978, 

709 N.W.2d 635 (2006) (whether complaint states claim is reviewed de 

novo).

9 Douglas County v. Archie, 295 Neb. 674, 891 N.W.2d 93 (2017).
- 217 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

V. ANALYSIS

1. State Is Not Judicially Estopped

From Asserting Statute of

Limitations Defense

The Hikes argue that the State is judicially estopped from 

asserting a statute of limitations defense, because in Hike I, 

the State successfully argued that the present claim had to be 

brought as a separate action. The State asserts that its argument 

in Hike I, that the Hikes’ evidence of structural damage was 

inadmissible because it was neither proximately caused by the 

condemnation nor relevant to the elements of a condemnation 

action, is not inconsistent with its current statute of limitations defense.

[8-10] Judicial estoppel is an equitable doctrine that a 

court invokes at its discretion to protect the integrity of the 

judicial process.10 The doctrine of judicial estoppel protects 

the integrity of the judicial process by preventing a party 

from taking a position inconsistent with one successfully and 

unequivocally asserted by the same party in a prior proceeding.11 Fundamentally, the intent behind the doctrine of judicial 

estoppel is to prevent parties from gaining an advantage by 

taking one position in a proceeding and then switching to a 

different position when convenient in a later proceeding.12

We have held that bad faith or an actual intent to mislead 

on the part of the party asserting inconsistent positions must 

be demonstrated before the judicial estoppel doctrine may 

be invoked.13

[11] In Hike I, the Hikes sought to recover compensation 

for the State’s acquisition of 1.05 acres of their property by 

10 deNourie & Yost Homes, supra note 5.

11 Id.

12 Id.

13 Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 

105 (2015). See, also, 28 Am. Jur. 2d Estoppel and Waiver § 68 (2011).
- 218 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

eminent domain. “Eminent domain is ‘“[t]he inherent power 

of a governmental entity to take privately owned property, 

esp[ecially] land, and convert it to public use, subject to reasonable compensation for the taking.”’”14 The eminent domain 

provision of Neb. Const. art. I, § 21, prohibits the State from 

taking or damaging property for public use without providing 

just compensation therefor.15 In a condemnation action, there 

are two elements of damage: (1) market value of the land 

taken or appropriated and (2) diminution in value of the land 

remaining, less special benefits.16

While the Hikes attempted to offer evidence of the structural 

damage to their home at the trial on their condemnation action, 

they did not seek leave to amend their complaint to assert 

a separate claim of inverse condemnation and, instead, proceeded under their initial complaint. As a result, the trial court 

excluded the evidence of the structural damage.

On appeal, we held that although the Hikes may have had 

a remedy with respect to any such structural damage, it was 

not compensable in the condemnation proceeding because the 

damage occurred after the taking by eminent domain and the 

damage was not the proximate result of that taking.17

In this appeal, the Hikes argue that the State has taken 

a position inconsistent with the one they successfully and 

unequivocally asserted in their prior proceeding. Specifically, 

the Hikes argue that in Hike I, the State asserted that the 

Hikes should have properly brought their claim of structural 

damage as a separate action and then, in this appeal, the State 

14 Hike I, supra note 1, 288 Neb. at 66, 846 N.W.2d at 213, quoting Pinnacle 

Enters. v. City of Papillion, 286 Neb. 322, 836 N.W.2d 588 (2013), 

quoting Black’s Law Dictionary 601 (9th ed. 2009).

15 See Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 

(2013).

16 Moyer v. Nebraska City Airport Auth., 265 Neb. 201, 665 N.W.2d 855 

(2003).

17 Hike I, supra note 1.
- 219 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

asserted that the separate action was time barred. However, 

the Hikes’ contention is without merit.

In making this argument, the Hikes ignore the State’s legal 

contentions that directly addressed why the evidence of structural damage was inadmissible. Specifically, the State contended that (1) the evidence was not relevant to the elements 

of the condemnation proceeding, (2) the evidence could not 

be shown to have been proximately caused by the condemnation, (3) the presentation of the evidence would unnecessarily delay the trial, and (4) the evidence would be prejudicial 

to the determination of damages for the condemnation. The 

district court’s ruling merely determined the admissibility of 

the evidence in Hike I. It was unnecessary for the court to 

consider the Hikes’ ability to bring their claim as a separate 

action at that time or in the future, nor did the court make 

such a ruling.

Further, the State’s assertion that the Hikes’ evidence of 

structural damage was inadmissible was not inconsistent with 

its current statute of limitations defense. When the court entered 

its order on the motion in limine on July 16, 2012, the Hikes 

still had more than 1 year to bring their inverse condemnation 

claim. Instead of timely filing an action to assert their inverse 

condemnation claim, the Hikes chose to pursue a remedy for 

the structural damage solely through an appeal. The Hikes’ 

choice of how to proceed was not mandated by the State’s 

assertion or the trial court’s ruling.

The Hikes point to our holding in Sports Courts of Omaha 

v. Meginnis18 to argue that they were precluded from filing 

a separate action while their appeal from the district court’s 

decision in Hike I was pending. In Sports Courts of Omaha, 

we recognized that Nebraska case law generally holds that 

once an appeal has been perfected, the trial court is divested 

of its jurisdiction to hear a case involving the same matter 

18 Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 

(1993).
- 220 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

between the same parties.19 However, this rule is not applicable in all circumstances, and Sports Courts of Omaha illustrated one such exception.20

In Sports Courts of Omaha, the plaintiff sued two defendants in the Douglas County District Court, seeking damages on 

a breach of a promissory note. The action was dismissed for 

want of prosecution, and the plaintiff appealed. While the matter was on appeal, the plaintiff sued one of the two defendants 

in the Lancaster County District Court in an action essentially 

identical to the Douglas County case. The Lancaster County 

District Court dismissed the action on several grounds, including that it lacked subject matter jurisdiction because of the 

pending appeal from Douglas County.

On appeal, we held that because the plaintiff’s appeal 

before us involved an action maintained in a court distinct 

from the site of the previous action, our general rule of 

divested jurisdiction was inapplicable to preclude the district court’s jurisdiction over the plaintiff’s Lancaster County 

action.21 Therefore, we determined that the Lancaster County 

District Court had subject matter jurisdiction to consider the 

plaintiff’s suit against the one defendant and that the court 

erroneously concluded that it lacked jurisdiction to dispose 

of the case.22 The Hikes’ reliance on Sports Courts of Omaha

is misplaced.

19 See id. Accord In re Interest of Becka P. et al., 296 Neb 365, 894 N.W.2d 

247 (2017).

20 See Sports Courts of Omaha, supra note 18. See, also, Spady v. Spady, 284 

Neb. 885, 824 N.W.2d 366 (2012) (district court had jurisdiction to award 

temporary alimony while appeal was pending); Russell v. Kerry, Inc., 278 

Neb. 981, 775 N.W.2d 420 (2009) (trial judge of Workers’ Compensation 

Court has continuing jurisdiction to enforce employer’s obligation to pay 

benefits pending employer’s appeal of previous order imposing penalty 

and costs for delayed payment).

21 Id.

22 Id.
- 221 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

In this matter, the Hikes had the option to file a separate 

action after the trial court ruled on the State’s motion in limine, 

but they chose to wait and file an appeal instead. Further, the 

filing of the appeal neither precluded the Hikes from bringing a 

separate action for inverse condemnation nor divested the district court of subject matter jurisdiction to hear such an action.

Finally, the Hikes assert that judicial estoppel should apply 

because, on appeal in Hike I, the State maintained its contention that the evidence of structural damage should have been 

brought as a separate claim after the statute of limitations had 

run. However, our review on appeal considered only the district court’s ruling in limine when it was made. Accordingly, 

it is irrelevant that the statute of limitations had run when the 

State made its argument before this court, because its argument concerned the facts in existence at the time of the district 

court’s ruling in limine. Further, our decision rested only on 

the admissibility of the evidence. As a result, the existence of 

additional remedies available to the Hikes for their structural 

damage was beyond our consideration.

We conclude that the State’s contentions in Hike I do not 

support the application of judicial estoppel in this appeal.

2. Hikes’ Claim Is Barred by

Statute of Limitations

(a) Inverse Condemnation Actions Against 

State Are Subject to 2-Year 

Statute of Limitations

[12] The Hikes argue that the district court incorrectly 

applied § 25-218, instead of Neb. Rev. Stat. § 25-202 (Reissue 

2016), to determine the applicable statute of limitations for 

their inverse condemnation claim. Inverse condemnation is 

a shorthand description for a landowner suit to recover just 

compensation for a governmental taking of the landowner’s 

property without the benefit of condemnation proceedings.23

23 Village of Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014).
- 222 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

The relevant portion of § 25-218 reads as follows: “Every 

claim and demand against the state shall be forever barred 

unless action is brought thereon within two years after the 

claim arose.”

The relevant portion of § 25-202 reads as follows: “An 

action for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages or 

the foreclosure of deeds of trust as mortgages thereon, can only 

be brought within ten years after the cause of action accrues.”

First, the Hikes contend that the application of § 25-218 in 

Bordy v. State24 and Czarnick v. Loup River P. P. Dist.25 has 

been superseded by the application of § 25-202 in Krambeck 

v. City of Gretna26 and Steuben v. City of Lincoln27 to inverse 

condemnation claims. Second, they assert that § 25-202 should 

apply, because it is more specific to claims of inverse condemnation than § 25-218.

The State contends that Krambeck and Stueben are distinguishable from this current appeal, because those cases did 

not involve claims against the State. It also contends that 

§ 25-218 is more specific than § 25-202, because the inverse 

condemnation claim herein is against the State.

In Bordy and Cznarick, we held that under § 25-218, a suit 

against the State for the taking or damaging of private property for public use must be commenced within 2 years from 

the time the taking or damaging of the property occurred.28 In 

Krambeck and Stueben, we held that actions commenced under 

article I, § 21, are subject to a 10-year statute of limitations 

under § 25-202.29

24 Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (1943).

25 Czarnick v. Loup River P. P. Dist., 190 Neb. 521, 209 N.W.2d 595 (1973).

26 Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977).

27 Steuben v. City of Lincoln, 249 Neb. 270, 543 N.W.2d 161 (1996).

28 See Bordy, supra note 24, and Czarnick, supra note 25.

29 See Krambeck, supra note 26, and Steuben, supra note 27.
- 223 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

All four cases cited by the parties concerned the applicable 

statute of limitations for inverse condemnation actions. While

Krambeck and Stueben are more recent, the State is correct 

in its contention that they are factually distinguishable from 

Bordy, Czarnick, and the instant case. The inverse condemnation actions in Krambeck and Stueben were instituted against 

a local power district and a city, respectively, not the State. 

Because the actions in Krambeck and Stueben were not against 

the State, § 25-218 did not apply by its express terms and, as a 

result, we did not address that statute.

Nevertheless, we recognize that in Bordy and Czarnick, we 

did not expressly analyze whether § 25-202 should apply over 

§ 25-218. Accordingly, we consider the parties’ arguments concerning the applicable statute of limitations here.

[13] In determining which statute of limitations applies in 

a particular case, we have established the principle that a special statute of limitations controls and takes precedence over 

a general statute of limitations because the special statute is a 

specific expression of legislative will concerning a particular 

subject matter.30

[14] Though article I, § 21, is a self-executing provision 

of the Constitution, which authorizes a landowner to bring an 

action in inverse condemnation,31 it is enforced procedurally 

through the eminent domain statutes.32 However, in Krambeck, 

we recognized that our eminent domain statutes do not provide 

a special statute of limitations, so we explained that “‘[i]n 

the absence of special statutory provisions regulating the time 

within which an owner must pursue his remedy, the time 

30 See Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006). 

See, also, Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143 (2015) 

(where general and special provisions of statutes are in conflict, general 

law yields to special provision or more specific statute).

31 Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401 

(1994), disapproved on other grounds, Scofield v. State, 276 Neb. 215, 753 

N.W.2d 345 (2008).

32 See Neb. Rev. Stat. § 76-701 et seq. (Reissue 2009 & Cum. Supp. 2016).
- 224 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

prescribed by the general statutes of limitations will ordinarily apply . . . .’”33

Accordingly, we considered which of two general statutes 

of limitations should govern inverse condemnation actions.34

While § 25-202 provides that an action for the recovery of 

the title or possession of lands can only be brought within 10 

years after the cause of action accrues, § 25-206 provides, in 

part, that “[a]n action upon a contract, not in writing, expressed 

or implied, or an action upon a liability created by statute, 

other than a forfeiture or penalty, can only be brought within 

four years.”

We determined that § 25-206, which is explicitly limited 

in its application to “liabilities created by statute,” could not 

apply to eminent domain actions, because the City’s liability 

was not a statutorily created one, but a constitutional one pursuant to article I, § 21.35

We then explained that inverse condemnation actions are 

“analogous to an action by a private landowner against another 

private individual or entity to recover the title to or possession of property,” but, because the power of eminent domain 

precludes the property owner from compelling the return of 

the property taken, the owner is entitled to just compensation as a substitute.36 Accordingly, an action seeking damages 

for inverse condemnation is limited only by the 10-year time 

period required to establish title by adverse possession.37

[15,16] Consequently, § 25-202 is not a special statute of 

limitations, but only a general statute of limitations. While 

§ 25-218 is also not a special statute of limitations for any 

specific type of claim, when the State is a defendant to a 

33 Krambeck, supra note 26, 198 Neb. at 611, 254 N.W.2d at 693, quoting 30 

C.J.S. Eminent Domain § 415 (1965).

34 See § 25-202 and Neb. Rev. Stat. § 25-206 (Reissue 2016).

35 Krambeck, supra note 26, 198 Neb. at 612, 254 N.W.2d at 694.

36 Id. at 614, 254 N.W.2d at 695.

37 Id.
- 225 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

claim, it is a specific expression of the Legislature’s will 

regarding the timeframe to bring such a claim.

[17] As a result of our analysis, we hold that the 2-year 

statute of limitations in § 25-218 is the applicable statute of 

limitations for claims of inverse condemnation against the 

State because § 25-218 is more specific on the subject than is 

§ 25-202.

(b) Hikes Did Not Bring Their 

Claim Within 2 Years

The Hikes argue that even if § 25-218 is the applicable statute of limitations, they brought their claim within 2 years of its 

accrual by asserting it in Hike I. The Hikes’ argument, however, is based on an incorrect understanding of what it means 

to bring an action.

[18] Bringing an action means to sue or institute legal 

proceedings.38 Here, where the Hikes had already had an 

action pending under a condemnation claim, it would have 

meant seeking permission of the trial court to amend their 

complaint to add a claim of inverse condemnation. Instead, as 

mentioned above, the Hikes attempted to introduce evidence 

of structural damage to recover as part of the condemnation 

proceeding.

The Hikes did not bring their inverse condemnation action, 

by asserting the claim in a complaint, until April 17, 2015. 

Further, the district court’s finding that the Hikes’ cause of 

action accrued in August 2011, more than 3 years before the 

Hikes brought their claim, was not clearly wrong. Therefore, 

the Hikes claim of inverse condemnation is barred by the 

2-year statute of limitations.

(c) Hikes’ Constitutional Argument 

Was Not Properly Raised

In their reply brief, the Hikes contend that they have an 

unequivocal right to compensation for the damage caused by 

38 Black’s Law Dictionary 231 (10th ed. 2014).
- 226 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

HIKE v. STATE

Cite as 297 Neb. 212

the State under article I, § 21, because their rights thereunder 

are self-executing. However, the Hikes did not assign such as 

error in their initial brief.

[19,20] As we explained in Hike I, errors argued but not 

assigned will not be considered on appeal. Further, even if the 

argument could be construed as fitting into one of the Hikes’ 

assigned errors, the purpose of an appellant’s reply brief is to 

respond to the arguments the appellee has advanced against 

the errors assigned in the appellant’s initial brief.39 The Hikes’ 

attempt to make the argument for the first time in their reply 

brief is untimely.40

VI. CONCLUSION

We conclude that the 2-year statute of limitations period set 

forth in § 25-218 governs inverse condemnation actions against 

the State. We determine that the district court did not err when 

it granted summary judgment for the State based on its determination that the Hikes’ claim is barred by the 2-year statute 

of limitations.

Affirmed.

Cassel, J., participating on briefs.

39 Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014).

40 See id.