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RUSSELL v. FRANKLIN COUNTY

Cite as 306 Neb. 546

Thomas M. Russell and Pamela J. Russell, 

appellants, v. Franklin County, 

Nebraska, appellee.

___ N.W.2d ___

Filed July 24, 2020. No. S-18-827.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to 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. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

3. Constitutional Law: Eminent Domain. 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.

4. Eminent Domain: Property: Intent. The threshold issue in an inverse 

condemnation case is to determine whether the property allegedly taken 

or damaged was taken or damaged as a result of the governmental 

entity’s exercise of its power of eminent domain; that is, was the taking 

or damaging for public use.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Pirtle and Bishop, Judges, on 

appeal thereto from the District Court for Franklin County, 

Stephen R. Illingworth, Judge, on appeal thereto from the 

County Court for Franklin County, Timothy E. Hoeft, Judge. 

Judgment of Court of Appeals affirmed.

Nebraska Supreme Court Online Library

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

09/18/2020 09:08 AM CDT
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306 Nebraska Reports

RUSSELL v. FRANKLIN COUNTY

Cite as 306 Neb. 546

Matthew D. Hammes and Cristina Fackler, of Locher, 

Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellants.

Brandy R. Johnson, of Governmental Law, L.L.C., and 

Henry Schenker, Franklin County Attorney, for appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

Under the Nebraska Constitution, an owner of private property is entitled to just compensation if a governmental entity 

damages that property for public use. In this case, a county 

felled trees on private property to improve visibility for a 

nearby road. Everyone agrees the landowner is entitled to compensation, but the parties disagree on how that compensation should be calculated. The district court determined that 

the landowners were entitled to receive an amount equal to 

the diminution in value of the land as a result of the county’s action, and the Nebraska Court of Appeals affirmed. We 

granted further review and, for reasons we will explain herein, 

also affirm.

BACKGROUND

Removal of Trees.

Thomas M. Russell and Pamela J. Russell own 164 acres of 

land in rural Franklin County (County). The property has been 

in the Russells’ family for many years and includes cropland 

and pastureland. According to the Russells, they have used 

the property for birdwatching, camping, hunting for game and 

mushrooms, and other recreational purposes. There is no residence on the property.

In December 2015, the County’s highway superintendent 

contacted Thomas and asked for permission to cut down trees 

on a certain area of the property. The County sought to cut 

down the trees to improve visibility for drivers on an adjacent 

county road. Thomas agreed to allow the removal of the trees 

in the identified area.
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RUSSELL v. FRANKLIN COUNTY

Cite as 306 Neb. 546

Employees of the County subsequently entered the Russells’ 

land and cut down and uprooted trees. Rather than removing 

trees in the area in which the County was given permission, 

however, the employees removed other trees. By the time the 

Russells realized what was happening and asked the County to 

stop, 67 trees outside of the permitted area had been cut down 

or uprooted. At that point, Thomas told the highway superintendent that the County did not have his permission to remove 

any other trees.

Inverse Condemnation Proceedings.

The Russells filed an inverse condemnation proceeding 

against the County in Franklin County Court. They alleged 

that the County had unlawfully taken their property for a public use and that they were entitled to just compensation and 

other relief under Neb. Rev. Stat. § 76-705 et seq. (Reissue 

2018). Appraisers appointed by the county court returned 

a report determining the damages suffered by the Russells, 

but the Russells were not satisfied and appealed to the district court.

In district court, both parties designated experts to give 

opinions on the extent of the damages sustained. Both parties 

also filed motions in limine seeking to exclude the opposing party’s experts on the ground that the opposing experts’ 

damages opinions were based on an incorrect measure of 

damages.

The County took the position that the correct measure of 

damages was the diminution in market value of the land as a 

result of the destruction of the trees. It retained a licensed and 

certified real estate appraiser as an expert. He offered opinions 

on the fair market value of the Russells’ land before and after 

the destruction of the trees. Using this methodology, he determined the amount of the damages to the property was $200.

The Russells, on the other hand, contended that their damages were an amount equal to the fair and reasonable cost to 

restore the property to its prior condition. They relied upon 

an arborist, a salesperson from a nursery and garden center, 
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Cite as 306 Neb. 546

and a representative from an excavating company to quantify 

their damages. Together, the Russells claimed, these experts 

calculated the cost to return the property to its prior condition 

to be $150,716.

The County then filed a motion for summary judgment. In 

its motion, the County conceded that by cutting down trees 

outside the scope of the permission granted by the Russells, 

it had completed a “taking” of the Russells’ property, but contended that there was no genuine issue of material fact as to 

the Russells’ damages. Both parties introduced evidence at the 

summary judgment hearing from their experts as to damages.

The district court granted the County’s summary judgment 

motion. It stated that the Russells were entitled to some compensation for the County’s removal of their trees and that the 

only issue in dispute was the damages to which they were 

entitled. The district court concluded that the proper measure 

of damages was controlled by Walkenhorst v. State, 253 Neb. 

986, 573 N.W.2d 474 (1998). It understood Walkenhorst to 

hold that a party whose property is taken by the government 

for a public use is entitled to receive the fair market value of 

the property taken and any decrease in the fair market value 

of remaining property caused by the taking. The district court 

reasoned that because the County’s expert offered a damages opinion based on the correct measure of damages but 

the Russells did not, summary judgment was appropriate. 

Consistent with the damages opinion offered by the County’s 

expert, it determined the Russells were entitled to $200 in 

compensation. The Russells appealed.

Court of Appeals.

The Court of Appeals affirmed the district court’s decision 

over a dissent. See Russell v. Franklin County, 27 Neb. App. 

684, 934 N.W.2d 517 (2019). The majority opinion agreed with 

the district court that the appropriate measure of damages was 

controlled by Walkenhorst. It read Walkenhorst to hold that in 

takings cases, “vegetation is not to be valued separately and 
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Cite as 306 Neb. 546

is only considered to the extent that its presence affected the 

fair market value of the land.” Russell, 27 Neb. App. at 692, 

934 N.W.2d at 523.

The Court of Appeals’ majority disagreed with the dissenting 

opinion’s view that because the damages were temporary, the 

Russells were entitled to recover the cost necessary to return 

the property to its prior condition under Kula v. Prososki, 228 

Neb. 692, 424 N.W.2d 117 (1988). The majority recognized 

that in Kula, a landowner was allowed to recover such damages, but it concluded that Kula did not apply because it “was 

not an eminent domain case” and because it involved crops 

rather than trees. Russell, 27 Neb. App. at 696, 934 N.W.2d 

at 525.

The majority also rejected the Russells’ argument that 

they were entitled to cost of repair damages under Keitges v. 

VanDermeulen, 240 Neb. 580, 483 N.W.2d 137 (1992). The 

majority concluded that Keitges had no bearing because it was 

a tort lawsuit between two landowners. And, even assuming 

that Keitges applied, the majority found that the Russells had 

not introduced the necessary evidence to be entitled to cost of 

repair damages.

We granted the Russells’ petition for further review.

ASSIGNMENTS OF ERROR

The Russells could have been clearer in their petition for 

further review as to what errors they were assigning. After an 

introduction to the case’s factual and procedural history, the 

petition includes a heading in bold type: “ASSIGNMENT OF 

ERROR.” Immediately underneath that heading is a sentence 

in bold type and capitalized letters. The sentence is preceded 

by a Roman numeral I and states: “The Court of Appeals erred 

in failing to uphold the Nebraska State Constitution, Nebraska 

statutes and existing Supreme Court precedent applicable to 

property that has been damaged for a public use.” Argument 

in support of that assertion follows. Later on in the petition, 

another sentence appears in bold type and all capitalized 
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RUSSELL v. FRANKLIN COUNTY

Cite as 306 Neb. 546

letters preceded by a Roman numeral II. It generally asserts 

that our opinion in Keitges, supra, sets forth the appropriate 

measure of damages for temporary damages to trees and that 

the Court of Appeals erred by failing to follow it. Argument in 

support of that assertion follows.

The Russells appear to believe they effectively assigned 

error in both statements in bold type, in all capitalized letters, 

and preceded by Roman numerals. Their petition for further 

review does not, however, contain a separate section setting 

forth multiple assignments of error. Our rules of appellate 

practice require that any assignments of error be set forth in 

a separate section of the petition for further review. See Neb. 

Ct. R. App. P. §§ 2-102(F)(3) (rev. 2015) and 2-109(D)(1)(e) 

(rev. 2014).

Although the Russells’ petition for further review does not 

contain a separate section setting forth multiple assignments of 

error, it does include immediately under the bold type heading 

“ASSIGNMENT OF ERROR” the statement following Roman 

numeral I. We have, perhaps generously, construed that as a 

separate section of the brief assigning a single assignment of 

error. Because no other issues have been properly assigned and 

argued, we will not discuss them. See State v. Dreimanis, 258 

Neb. 239, 603 N.W.2d 17 (1999).

STANDARD OF REVIEW

[1] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those 

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

matter of law. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 

597 (2019).

[2] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Id.
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RUSSELL v. FRANKLIN COUNTY

Cite as 306 Neb. 546

ANALYSIS

Background Regarding the Russells’ Claim.

[3,4] The Russells have sought compensation for the 

destruction of their trees via inverse condemnation. 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. Henderson v. City of Columbus, 285 Neb. 482, 827 

N.W.2d 486 (2013). The right to bring an inverse condemnation 

action derives from Neb. Const. art. I, § 21, which provides: 

“The property of no person shall be taken or damaged for public use without just compensation therefor.” See Henderson, 

supra. The threshold issue in an inverse condemnation case is 

to determine whether the property allegedly taken or damaged 

was taken or damaged as a result of the governmental entity’s 

exercise of its power of eminent domain; that is, was the taking 

or damaging for public use. See id.

A number of issues that might be contested in an inverse 

condemnation case are not disputed in this one. The Russells 

do not dispute, for example, that the County removed the trees 

to improve visibility on an adjacent county road and that this 

constitutes a public use. At the same time, the County does not 

deny that it removed trees it did not have the Russells’ permission to remove and thereby damaged their property. Neither 

does the County dispute that the Russells were entitled to some 

compensation. The parties have not agreed and do not agree, 

however, on how that compensation should be calculated. We 

turn to that issue now.

Permanent or Temporary Damages?

The district court and the Court of Appeals concluded that 

the Russells were entitled to recover an amount equal to the 

diminution in value of their land as a result of the destruction 

of the trees. Both courts concluded this measure of damages 

followed from our decision in Walkenhorst v. State, 253 Neb. 

986, 573 N.W.2d 474 (1998).
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Cite as 306 Neb. 546

In Walkenhorst, the State condemned strips of land in order 

to reconstruct a highway. The landowners claimed they were 

entitled to receive compensation for a shelterbelt of trees that 

was present on the condemned land in addition to compensation for the taking of the land itself. We disagreed, explaining 

that the landowners were entitled to recover the fair market 

value of the property actually acquired and the decrease in the 

market value of the remaining property. As a result, the landowners were not entitled to compensation “for the value of the 

shelterbelt as a shelterbelt; instead, the only relevant inquiry 

[was] how the presence of the shelterbelt on the condemned 

land affect[ed] the fair market value of the land taken.” Id. at 

992, 573 N.W.2d at 481.

The Russells argue that the district court and then the 

Court of Appeals erred by relying on Walkenhorst. They, like 

the dissenting opinion in the Court of Appeals, understand 

Walkenhorst to set forth the measure of damages for only 

those cases in which the government permanently takes private 

property for public use. In that circumstance, they admit, the 

landowner is entitled to recover only the fair market value of 

the property taken, as well as any resulting decrease in the fair 

market value of the remaining land. But here, they claim, the 

County did not permanently take any portion of their land but 

only temporarily damaged trees and, consequently, Walkenhorst

does not apply.

The Russells, again in step with the dissenting opinion in 

the Court of Appeals, argue that another case, Kula v. Prososki, 

228 Neb. 692, 424 N.W.2d 117 (1988), applies here and allows 

them to recover the costs necessary to replace the trees felled 

by the County. In Kula, a landowner sued a county under Neb. 

Const. art. I, § 21, alleging that the county had installed an 

inadequate culvert which caused floodwaters to accumulate 

on his land. After the district court entered an award in favor 

of the landowner, the county appealed, complaining that the 

wrong measure of damages was used. On appeal, this court 

held that the land was temporarily damaged and, under those 
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Cite as 306 Neb. 546

circumstances, the compensation due the landowners was the 

value of the use of the land for the period damaged, which in 

that case was “the value of the crops which could and would 

have been grown upon the land.” Id. at 694-95, 424 N.W.2d 

at 119. This court went on to hold that the landowner could 

also recover other expenses necessary to return the land to its 

prior condition. The Russells assert that because their land was 

temporarily damaged, they too should be able to recover an 

amount equal to the cost necessary to return their land to its 

predamaged condition.

The Russells are correct that the governmental intrusion 

here differs from Walkenhorst: in that case, the State took title 

to the landowners’ property, while here, it only briefly entered 

land and damaged trees. And there is at least some similarity 

between this case and Kula, at least insofar as both involve 

governmental interference with species of the plant kingdom 

growing on private property. Despite that similarity, however, 

it is far from clear to us that this case, like Kula, involved only 

temporary damages.

Several of our cases recognize that land might not be 

completely taken by the government for public use, but may 

nonetheless be permanently damaged. In those cases, we have 

held that the compensation due the landowner is the measure 

of damages applied by the district court and approved by the 

Court of Appeals in this case—the diminution in market value 

of the land before and after the damages. See, Beach v. City of 

Fairbury, 207 Neb. 836, 301 N.W.2d 584 (1981); Quest v. East 

Omaha Drainage Dist., 155 Neb. 538, 52 N.W.2d 417 (1952). 

See, also, Kula, 228 Neb. at 694, 424 N.W.2d at 119 (explaining that when damages to land are permanent as in Beach, 

supra, the measure of damages is the “difference in the market 

value of the land before and after the damage”).

Our cases have not significantly explored what differentiates 

permanent and temporary damages to land. Nebraska, however, is far from the only jurisdiction that employs a different 

measure of damages for permanent and temporary damages 
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to land. Several other courts that have considered the difference between those two categories have focused on whether 

the harm is likely to continue indefinitely, in which case it 

is permanent, or dissipate, in which case it is temporary. The 

Texas Supreme Court, for example, describes permanent injury 

to real property as that which is “ongoing, continually happening, or occurring repeatedly and predictably,” and temporary 

damages as those that “do not last for long periods of time, 

are not ongoing, are not likely to occur again, occur only sporadically, or occur unpredictably.” Gilbert Wheeler v. Enbridge 

Pipelines, 449 S.W.3d 474, 480 (Tex. 2014). The South Dakota 

Supreme Court uses a similar formulation, classifying damage to real estate as permanent when, among other things, it 

is “‘presumed to continue indefinitely’” or is “irremediable.” 

Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 272 (S.D. 

1985). See, also, Rupert v. City of Rapid City, 827 N.W.2d 55 

(S.D. 2013); McAlister v. Atlantic Richfield Co., 233 Kan. 252, 

262, 662 P.2d 1203, 1211 (1983) (explaining that temporary 

damages are those that occur intermittently or occasionally 

and the cause of which is removable, while permanent damages are “practically irremediable”); 1 Dan B. Dobbs, Dobbs 

Law of Remedies, § 5.11(2) at 823 (2d ed. 1993) (collecting 

cases holding that injury to land is permanent if will “continue indefinitely”).

The rationale for treating damages that will continue indefinitely as permanent and allowing a recovery based on diminution in value appears to be that in those circumstances, “[e]ven 

though harm will continue, its future effects are captured all at 

one time by [the diminution in value of the real estate], which 

gives to the plaintiff the loss in value attributable to the future 

continuance of the invasion.” Dobbs, supra, at § 5.11(1) at 

820. “In contrast, if an invasion is temporary, general damages will be measured for the harm that has been done up until 

judgment, with more damages to come in later suits if they are 

necessary.” Id. at 820-21.
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Cite as 306 Neb. 546

If damages that will predictably recur are permanent, a strong 

case could be made that the damages to the Russells’ property 

qualify and thus the district court did not err in its determination of the appropriate measure of damages. The County 

removed the trees because they impaired visibility on a nearby 

county road, a fact the Russells do not appear to dispute, given 

their admission that the trees were taken for public use. If the 

trees needed to be removed to improve road visibility, presumably they would be subject to removal again if replaced, lest 

the problems with road visibility arise again.

A decision of the South Dakota Supreme Court, Rupert, 

supra, supports an argument along these lines. In that case, 

the South Dakota Supreme Court reversed a trial court’s determination that landowners suffered temporary damages when a 

city’s use of deicer killed a number of trees on the landowners’ land. Among the reasons identified by the South Dakota 

Supreme Court for reversal was the fact that the city intended 

to continue to use the deicer and thus would likely kill any 

new trees planted to replace those that were destroyed.

But while we believe a strong case could be made that the 

damages to the Russells’ real property were permanent and 

the district court’s decision was correct for that reason, we 

ultimately determine that it is not necessary to decide that 

issue. As we will explain below, even assuming the damages 

were temporary, the district court did not err in concluding the 

Russells were entitled to recover based on the diminution in 

value as determined by the County’s expert.

Temporary Damages Analysis.

As noted above, the Russells’ argument for cost of restoration damages rests on Kula v. Prososki, 228 Neb. 692, 424 

N.W.2d 117 (1988). The landowner in Kula was allowed to 

recover, in addition to the value of the crops that would have 

grown on the land during the time of the temporary damages, 

certain costs necessary to return the land to its prior condition. 

And contrary to the Court of Appeals’ statement that it was 
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not an eminent domain case, Kula did involve a landowner’s 

right to just compensation for damages to private property for 

public use. See Russell v. Franklin County, 27 Neb. App. 684, 

934 N.W.2d 517 (2019) (Bishop, Judge, dissenting).

But while we disagree with the Court of Appeals’ majority that the Russells seek a different type of relief than the 

landowner in Kula, we agree with its ultimate conclusion that 

the Russells are not entitled to the same type of recovery. We 

reach this conclusion in reliance on In re Application of SID 

No. 384, 259 Neb. 351, 609 N.W.2d 679 (2000) (SID), a case 

decided after Kula. Neither the majority nor the dissenting 

opinion of the Court of Appeals discussed SID, but we find it 

precludes the Russells from obtaining cost of repair damages, 

even assuming their damages were temporary.

In SID, a sanitary and improvement district initiated condemnation proceedings to construct a sewer line and sought 

both permanent and temporary easements. The landowner 

sought to introduce expert testimony as to both the diminution 

in market value as a result of the easements and the replacement cost of trees and grasses destroyed in the construction of 

the sewer line. Of relevance to our analysis here, the landowner 

argued entitlement to recover the replacement cost of the trees 

and grasses destroyed on the land subject to the temporary 

easements. We observed that some of our prior cases involving temporary takings allowed the landowner to recover the 

value of the use of the land for the period taken. We also cited 

a California case, Sacramento & San Joaquin Drainage Dist. 

v. Goehring, 13 Cal. App. 3d 58, 66, 91 Cal. Rptr. 375, 380 

(1970), that in addition to permitting recovery for the value 

of the use of the land, permitted cost of restoration damages 

if “‘not in excess of the diminution in value of the property 

caused by physical changes made by the condemnor during the 

period of its possession.’”

This limitation on cost of restoration damages outlined in 

Goehring was crucial to our analysis in SID. There was no 

evidence in SID of loss of use damages, and the landowner’s 
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expert concluded that the diminution in market value caused 

by the temporary easements was less than the cost to replace 

the destroyed trees and grasses. Because cost of restoration 

damages exceeded the diminution in value damages, we held 

that the proper measure of damages was the diminution in market value caused by the temporary taking.

Under SID, the Russells cannot recover cost of restoration 

damages. In this case, as in SID, no one has identified loss of 

use damages. And here, the discrepancy between the diminution in market value and the cost to repair is even greater than 

in SID. There is undisputed evidence that the market value of 

the Russells’ land decreased by only $200 as a result of the 

destruction of the trees while the Russells claim their evidence 

shows it would cost over $150,000 to restore their land to its 

prior condition. Indeed, this case illustrates the rationale for 

the limitation on cost of restoration damages adopted in SID. 

Without it, a landowner could receive a significant windfall 

through cost of repair damages.

Finally, we note that we do not understand SID to conflict 

with Kula v. Prososki, 228 Neb. 692, 424 N.W.2d 117 (1988). 

There is no indication in Kula that the restoration costs the 

landowner was allowed to recover exceeded the diminution in 

market value.

For these reasons, we conclude that whether the damages the 

Russells suffered are properly classified as permanent or temporary, they are entitled to the same recovery: the diminution 

in value of their land as a result of the removal of their trees. 

The Court of Appeals properly affirmed the district court’s 

determination of damages on that basis.

CONCLUSION

We find that the Court of Appeals did not err in affirming 

the district court’s entry of summary judgment. Accordingly, 

we affirm.

Affirmed.