Liberty Dev. Corp. v. Metropolitan Util. Dist.

of the state’s case against bazer, it is apparent from the files and
records that bazer’s trial counsel demonstrated no incompetence
in attempting to procure instructions of second degree murder
and manslaughter.
[2,3] under the nebraska postconviction act, the district
court has discretion to adopt reasonable procedures for deter-
mining what the motion and the files and records show, and
whether any substantial issues are raised, before granting a full
evidentiary hearing.38 even if appropriate allegations are made,
an evidentiary hearing should be denied if the trial records
and files affirmatively show that the defendant is entitled to no
relief.39 in this case, the trial records and files affirmatively show
that based upon the allegations made in bazer’s motion, bazer
is entitled to no relief. the trial court was correct in dismissing
the motion.
affIrMeD.
38 State v. McLeod, 274 neb. 566, 74 n.W.2d 664 (2007); State v. Dean, 264
neb. 42, 645 n.W.2d 528 (2002).
39 see, State v. Jones, supra note 4; State v. Soukharith, supra note 8.
lIberty D evelopMeNt C orporatIoN, a N ebraSka CorporatIoN,
appellee aND CroSS- appellaNt , v . M etropolItaN utIlItIeS
DIStrICt of oMaha , a MuNICIpal CorporatIoN aND
polItICal SubDIvISIoN of the S tate of N ebraSka ,
appellaNt aND CroSS- appellee .
75 n.W.2d 608
filed July 3, 2008. 	no. s-07-582.
. Judgments: Jurisdiction: Appeal and Error. a jurisdictional question that does
not involve a factual dispute is a matter of law that requires an appellate court to
reach an independent conclusion irrespective of the determination made by the
court below.
2. Trial: Expert Witnesses. it is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to give his opinion
about an issue in question.
3. Trial: Expert Witnesses: Appeal and Error. a trial court’s ruling in receiving
or excluding an expert’s opinion which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
LibertY deV. corp. v. metropoLitan utiL. dist. 	23
cite as 276 neb. 23
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

4. Judges: Words and Phrases: Appeal and Error. a judicial abuse of discretion
exists when a judge, within the effective limits of authorized judicial power, elects
to act or refrain from action, but the selected option results in a decision which is
untenable and unfairly deprives a litigant of a substantial right or a just result in
matters submitted for disposition through the judicial system.
5. Eminent Domain: Easements: Damages. the measure of damages for the taking
of an easement is the difference between the reasonable market value of the prop-
erty before and after the taking of the easement.
6. Eminent Domain: Easements: Damages: Time. damages for the taking of a
permanent easement and a temporary construction easement are measured as of the
date of taking.
7. Eminent Domain: Valuation: Damages: Time. the date for determining valua-
tion and damages in eminent domain proceedings is the date the condemnor files
its petition in condemnation in the county court.
8. Damages: Proof. a plaintiff’s burden to prove the nature and amount of its dam-
ages cannot be sustained by evidence which is speculative and conjectural.
9. Eminent Domain: Real Estate: Valuation. there are three generally accepted
approaches used for the purpose of valuing real property in eminent domain cases:
() the market data approach, or comparable sales method, which establishes value
on the basis of recent comparable sales of similar properties; (2) the income, or
capitalization of income, approach, which establishes value on the basis of what
the property is producing or is capable of producing in income; and (3) the replace-
ment or reproduction cost method, which establishes value upon what it would cost
to acquire the land and erect equivalent structures, reduced by depreciation. each
of these approaches is but a method of analyzing data to arrive at the fair market
value of the real property as a whole.
0. Trial: Eminent Domain: Witnesses. for the testimony of an expert or lay witness
to be admissible on the question of market value of real estate, the witness must be
familiar with the property in question and the state of the market.
. Eminent Domain: Valuation. When real property is temporarily taken by eminent
domain, the value of compensation is determined by one of several methods: ()
ascertaining the value of the property for the period it is held by the condemnor,
(2) ascertaining the difference in the value of the property before and after the tak-
ing, or (3) looking at the fair market rental value of the property during the time it
was taken.
2. Eminent Domain: Evidence. Generally, evidence as to the sale of comparable
property is admissible as evidence of market value, provided there is adequate
foundation to show the evidence is material and relevant. the foundation evidence
should show the time of the sale, the similarity or dissimilarity of market condi-
tions, the circumstances surrounding the sale, and other relevant factors affecting
the market conditions at the time.
3. ____: ____. Whether properties, the subject of other sales, are sufficiently similar
to the property condemned to have some bearing on the value under consideration,
and to be of aid to the jury, must necessarily rest largely in the sound discretion of
the trial court.
24 	276 nebraska reports

petition for further review from the court of appeals, INboDy ,
chief Judge, and C arlSoN and M oore , Judges, on appeal thereto
from the district court for douglas county, J. patrICk M ulleN,
Judge. Judgment of court of appeals reversed, and cause
remanded for a new trial.
daniel G. crouchley and susan e. prazan for appellant.
david a. domina, of domina Law Group, p.c., L.L.o.,
for appellee.
heavICaN, 	c.J., 	wrIght, 	C oNNolly, 	gerrarD, 	S tephaN,
MCC orMaCk, and MIller -lerMaN, JJ.
wrIght, J.
i. nature of case
the 	county 	court 	for 	douglas 	county 	appointed 	three
appraisers 	who 	awarded 	Liberty 	development 	corporation
(Liberty) $55,000 as damages for the taking of easements by the
metropolitan utilities district of omaha (mud). Liberty filed
a petition for review in the district court for douglas county,
and a jury awarded Liberty $750,000. mud appealed, and the
nebraska court of appeals summarily dismissed the appeal for
lack of jurisdiction. We granted further review.
ii. scope of reVieW
[] a jurisdictional question that does not involve a factual
dispute is a matter of law that requires an appellate court to
reach an independent conclusion irrespective of the determina-
tion made by the court below. In re Interest of Fedalina G., 272
neb. 34, 72 n.W.2d 638 (2006).
[2,3] it is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to
give his opinion about an issue in question. Curry v. Lewis &
Clark NRD, 267 neb. 857, 678 n.W.2d 95 (2004). a trial court’s
ruling in receiving or excluding an expert’s opinion which is
otherwise relevant will be reversed only when there has been an
abuse of discretion. Id.
[4] a judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to act or
LibertY deV. corp. v. metropoLitan utiL. dist. 	25
cite as 276 neb. 23

refrain from action, but the selected option results in a decision
which is untenable and unfairly deprives a litigant of a substan-
tial right or a just result in matters submitted for disposition
through the judicial system. Smith v. Papio-Missouri River NRD,
254 neb. 405, 576 n.W.2d 797 (998).
iii. facts
1. J urISDICtIoNal baCkgrouND
mud is a municipal corporation and political subdivision
of the state of nebraska operating as a natural gas and water
facility in the omaha metropolitan area. Liberty is a corporation
whose shareholders are david and robin broekemeier. Liberty
purchased and developed land referred to as the “ranch View
estates 2” subdivision, which included the property subject to
mud’s easements.
after mud was unable to purchase the easements from
Liberty, it filed a petition in the county court for douglas
county to acquire permanent and temporary construction ease-
ment rights for the public purpose of constructing, maintaining,
and operating water mains as a part of its water distribution
system. the particular easement parcels were selected due
to their proximity to mud’s “skyline reservoir” and future
“platte West treatment plant.” mud would allow the ease-
ments to be covered with things such as concrete or asphalt,
fencing, and landscaping, except trees, so long as such cover-
ings did not unreasonably interfere with mud’s use and enjoy-
ment of its easement rights. mud requested that the court
appoint three disinterested appraisers from douglas county to
assess the damages which Liberty would sustain by mud’s
acquisition of temporary and permanent easement rights in
Liberty’s properties.
the easements crossed the length of the ranch View estates 2
subdivision, a new residential subdivision in elkhorn, nebraska,
developed and owned by Liberty. at the time mud filed its peti-
tion, the land had been graded and planted to grass. streets and
sewers had been built, but the subdivision was vacant of homes.
the permanent easements were located on Lots , 3, 4, 27,
28, 40, 4, 52, and 77 through 86, as well as outlot a, totaling
26 	276 nebraska reports

.486 acres. the temporary construction easements were located
on the same lots and totaled .654 acres.
neither the necessity of the taking nor the authority to take
the property was disputed. the amount of compensation was
the sole issue. the county court appointed three disinterested
appraisers to assess the damages Liberty would sustain by
reason of the acquisition of the permanent and temporary ease-
ments. after reviewing and inspecting the lots in question, the
appraisers filed an award in the county court for douglas county
in the amount of $55,000 for temporary and permanent easement
rights acquired by mud through condemnation. the apprais-
ers found that the permanent easements resulted in damages of
$37,500 and that the temporary construction easements resulted
in damages of $7,500.
Liberty timely filed with the county court its notice of intent
to appeal the award of the appraisers to the district court.
Liberty also filed with the county court a certificate of service
stating that it had served mud’s assistant general counsel
with a copy of the notice of appeal and a praecipe for tran-
script. the signature of Liberty’s attorney was on the certificate
of service.
the case was tried to a jury, and on november 6, 2006, the
district court for douglas county entered judgment on the ver-
dict. on the same day, the case was mistakenly dismissed via an
“order of dismissal on progression.” on november 3, Liberty
moved for prejudgment interest, attorney fees, and witness fees.
mud moved for a new trial. presumably, neither party knew
that the case had been dismissed. When Liberty realized this
fact, it moved to set aside the dismissal. on January 3, 2007,
the district court vacated the order of dismissal and reinstated
the case. the court noted that the dismissal had been made by a
different judge and that the dismissal was based on “an incorrect
computer calendar in the clerk’s office.”
on april 3 and 24, 2007, the district court awarded attorney
fees, witness fees, and prejudgment interest to Liberty. mud’s
motion for new trial was overruled, and it appealed on may 8.
on october 7, the court of appeals summarily dismissed the
cause for lack of a final order.
LibertY deV. corp. v. metropoLitan utiL. dist. 	27
cite as 276 neb. 23

2. J urISDICtIoNal aNalySIS
before proceeding to the merits, we address the jurisdictional
issue decided by the court of appeals and a jurisdictional issue
raised by mud on appeal.
(a) court of appeals Jurisdictional issue
the parties agree that the court of appeals erroneously dis-
missed the appeal for lack of a final order. however, because the
parties cannot confer jurisdiction upon this court by either acqui-
escence or consent, we review the issue of jurisdiction below.
see Cummins Mgmt. v. Gilroy, 266 neb. 635, 667 n.W.2d
538 (2003).
in its petition for further review, mud asserted that the
court of appeals erred in concluding the district court did
not have jurisdiction when it entered judgment on the jury
verdict. the progression order which dismissed the case was
dated november , 2006. the verdict of the jury was delivered
november 2. both of these orders were file stamped november
6. because neither order was effective until it was file stamped
by the clerk of the district court, both orders were effective on
november 6. in the absence of a showing to the contrary, we
conclude that the district court had jurisdiction at the time it
entered the jury verdict. to conclude that the court dismissed
the case and then entered the jury verdict would create an
anomaly. it would be an odd and unjust result if a jury verdict
was not entered because another judge had erroneously dis-
missed the case before the verdict could be entered. in the case
at bar, the order of dismissal was an error by a judge who was
unfamiliar with the fact that the case had recently been tried and
a verdict entered.
the district court did not enter any other judgments or
orders before it formally reinstated the case on January 3, 2007.
therefore, all orders from which mud’s appeal was taken were
properly entered by the district court. accordingly, the decision
of the court of appeals which dismissed mud’s appeal pursu-
ant to neb. ct. r. of prac. 7a(2) (rev. 200) is reversed. We
conclude that mud’s notice of appeal was timely and that we
have jurisdiction of the matter.
28 	276 nebraska reports

(b) district court Jurisdictional issue
mud claims that Liberty did not properly perfect its appeal
from the award in the douglas county court. mud raised the
issue in its reply brief before this court.
on december 2, 2002, Liberty filed a notice of appeal in
the douglas county court from the appraisers’ $55,000 award.
attached to this notice was a certificate of service. mud claims
that Liberty did not correctly file a proof of such service as
required by neb. rev. stat. § 76-75.0 (reissue 2003) and
that, therefore, the district court did not acquire jurisdiction of
the appeal.
the manner of perfecting an appeal to the district court from
an award by appraisers in a condemnation proceeding is gov-
erned by § 76-75.0, which provides:
the party appealing from the award for assessment of
damages by the appraisers in any eminent domain action
shall, within thirty days of the filing of the award, file a
notice of appeal with the court, specifying the parties tak-
ing the appeal and the award thereof appealed from, and
shall serve a copy of the same upon all parties bound by
the award or upon their attorneys of record. service may
be made by mail, and proof of such service shall be made
by an affidavit of the appellant filed with the court within
five days after the filing of the notice stating that such
notice of appeal was duly mailed or that after diligent
search the addresses of such persons or their attorneys of
record are unknown.
(emphasis supplied.)
Liberty timely filed a notice of appeal in the douglas county
court. however, instead of an affidavit as proof of service of the
notice of appeal, Liberty filed a “certificate of service.” mud
claims the failure to file an affidavit as proof of service of the
notice was jurisdictional and that Liberty therefore did not per-
fect its appeal to the district court.
mud argues that Wooden v. County of Douglas, 6 neb. app.
336, 744 n.W.2d 262 (2008), controls this jurisdictional ques-
tion. We disagree. in Wooden v. County of Douglas, 275 neb.
97, 75 n.W.2d 5 (2008), the issue was whether the timely
LibertY deV. corp. v. metropoLitan utiL. dist. 	29
cite as 276 neb. 23

filing of the affidavit of proof of service was necessary to vest
the district court with jurisdiction of the condemnation appeal.
the court of appeals had concluded that the timely filing of
such affidavit was jurisdictional. We reversed because we con-
cluded that the timely filing of such an affidavit was directory
and, therefore, not jurisdictional. in the case at bar, the notice of
appeal was timely filed and the proper parties were served with
the notice of appeal.
having determined that all lower courts and appellate courts
were properly vested with jurisdiction, we proceed to the merits
of the appeal before us.
iV. assiGnments of error
mud claims the district court erred () in failing to limit
evidence of damages to the difference in the fair market value
before and after the taking, (2) in allowing Liberty’s expert to
testify without proper foundation, and (3) in denying mud’s
motion for new trial.
V. facts reGardinG merits of appeaL
installation of water mains on the subject property com-
menced march 3, 2003. construction of both the 42- and the
54-inch water mains was completed no later than september
30. mud’s engineer testified that except on Lot , the 54-
inch water main that ran along ranch View drive was located
entirely in the public right-of-way and that the 42-inch water
main was located both on the private easement and the public
right-of-way.
david broekemeier (hereinafter broekemeier), a co-owner of
the development, testified that out of 0 lots in the subdivision,
he had 68 lots contracted for sale at the time of the taking and
that subsequently, only 8 closed. he attributed the failure to sell
the 50 lots to the easements. he stated that the average price for
those lots was $60,000 and that he had sold only 3 lots since
the taking. broekemeier also testified the development had been
held up by mud’s failure to service the area with 8-inch water
mains. broekemeier claimed he could not sell the lots without
water, because the power company would not service the area
before the water mains were in place.
30 	276 nebraska reports

ason okoruwa, a certified appraiser, testified on behalf of
Liberty. on direct examination, okoruwa stated that he had
determined the market value for the lots in the subdivision
before the easements were taken. he testified that in this particu-
lar case, the installation of the water mains vastly affected the
market value of the lots on which the water mains were located,
as well as adjoining lots. he ascertained the effect on the lots
from “research” and from talking to broekemeier, who indicated
that he lost 50 presales as soon as the purchasers became aware
of the water mains.
okoruwa testified that given Liberty could not sell those lots,
he had to estimate what were the damages caused by the taking.
if there was a low market value for residential lots, the high-
est and best use changed. he concluded that before the taking
of the easements, the highest and best use of the property was
residential, and that afterward, it became recreational, park, or
open space. he then subtracted the recreational value of the lots
from their residential value, and the difference was his estimate
of damages.
the record indicates okoruwa testified that the damages to
the property actually taken by the permanent easements were
$206,000. he opined that the damages to the balance of the lots
upon which the easements were located were $892,000. thus,
according to okoruwa, the total damages to the lots upon which
the easements were located were $,098,000.
okoruwa then testified to the damages to the lots directly
adjacent to the permanent easements. the before value of the
lots directly adjacent to the lots with permanent easements
was $657,000. he opined their value after the easements was
$89,000. this amount reflected a difference of $568,000, which
okoruwa stated was the damages caused to the lots that were
adjacent to the permanent easements.
okoruwa then gave his opinion as to the damages caused
by the temporary easements. he stated that because of the
temporary construction easements, Liberty could not sell any
of the lots for at least  year. he proceeded to determine what
he considered was the appropriate rental rate for the lots in the
subdivision because they could not be sold. he concluded that
the reasonable rental rate, or rate of return, for  year on the
LibertY deV. corp. v. metropoLitan utiL. dist. 	3
cite as 276 neb. 23

land was 5 percent. this rate applied to the value of all the lots
that were off the market for at least  year, which, according to
okoruwa, was the entire subdivision. okoruwa testified that the
value before the construction of the temporary easements was
$2,59,000 and that the value after was $,877,000. the dif-
ference of $282,000 was the amount he attributed as damages
to the subdivision for being taken out of the market for at least
 year.
mud objected to okoruwa’s testimony on the basis of foun-
dation, arguing that okoruwa was relying on statements made
to him about effects and events that took place after the taking.
mud’s objections were overruled.
okoruwa was then asked to total all the damages about
which he testified. he was directed to exclude from his total the
amount of any damage that might have been calculated for lots
to the south of those described in his testimony. he stated that
the damages were $2,48,000. he opined this was the sum that
should be awarded to Liberty to compensate it for the takings.
mud’s objection based on lack of proper and sufficient founda-
tion was overruled.
thomas stevens, an appraiser for mud, testified that the
highest and best use of Liberty’s property was single-family
residential. he stated that in his 40 years of experience in the
appraisal business, he had not seen an impact on valuation of
a property due to the presence of a water main. he valued the
permanent easements at $32,500 and the temporary easements
at $7,500.
Vi. anaLYsis
[5-7] the measure of damages for the taking of an ease-
ment is the difference between the reasonable market value of
the property before and after the taking of the easement. In re
Petition of Omaha Pub. Power Dist., 268 neb. 43, 680 n.W.2d
28 (2004). damages for the taking of a permanent easement
and a temporary construction easement are measured as of the
date of taking. see Langenheim v. City of Seward, 200 neb. 740,
265 n.W.2d 446 (978). the date for determining valuation and
damages in eminent domain proceedings is the date the condem-
nor files its petition in condemnation in the county court. see
32 	276 nebraska reports

Platte Valley Public Power & Irr. Dist. v. Armstrong, 59 neb.
609, 68 n.W.2d 200 (955).
the basis for Liberty’s evidence concerning its measure of
damages was broekemeier’s testimony that prior to the condem-
nation, Liberty had 68 lots sold and that after the condemnation,
it lost 50 sales. mud claims that the district court erred in
allowing such evidence because it was irrelevant to the proper
measure of damages. it claims that the record contains numerous
instances where the court allowed evidence regarding the market
value of the property which was not computable as of october 2,
2002, the date mud filed its petition for condemnation.
mud argues that okoruwa’s testimony lacked sufficient
foundation because it relied upon broekemeier’s assertion that
he lost 50 presales after the condemnation. it argues that the
loss of sales was irrelevant and that the district court abused its
discretion in allowing this testimony.
mud also asserts that the district court erred by admitting
evidence of damages to the lots not affected by the easements.
Liberty claimed that the sale of lots in the entire subdivision
was adversely affected due to the installation of the water mains.
okoruwa testified regarding damages to lots adjacent to the lots
with easements.
okoruwa stated that the before value of the lots directly adja-
cent to the lots with the permanent easements was $657,000 and
that their value after the taking was $89,000. he calculated the
damages related to the difference in market value before and
after the taking of lots adjacent to the easements at $568,000.
this was despite the fact that five of these lots (Lots 2, 2, 5,
6, and 29) had been sold for full value at the time of the pro-
ceedings and none of the easements touched these lots.
[8,9] it is fundamental that the plaintiff’s burden to prove the
nature and amount of its damages cannot be sustained by evi-
dence which is speculative and conjectural. Clearwater Corp. v.
City of Lincoln, 202 neb. 796, 277 n.W.2d 236 (979).
there are three generally accepted approaches used for
the purpose of valuing real property in eminent domain
cases: () the market data approach, or comparable sales
method, which establishes value on the basis of recent
comparable sales of similar properties; (2) the income, or
LibertY deV. corp. v. metropoLitan utiL. dist. 	33
cite as 276 neb. 23

capitalization of income, approach, which establishes value
on the basis of what the property is producing or is capable
of producing in income; and (3) the replacement or repro-
duction cost method, which establishes value upon what it
would cost to acquire the land and erect equivalent struc-
tures, reduced by depreciation. each of these approaches is
but a method of analyzing data to arrive at the fair market
value of the real property as a whole.
Walkenhorst v. State, 253 neb. 986, 99, 573 n.W.2d 474,
480 (998).
[0] for the testimony of an expert or lay witness to be
admissible on the question of market value of real estate, the
witness must be familiar with the property in question and the
state of the market. Id. okoruwa purported to testify to the
before and after values of lots subject to the easements using the
market data and comparable sales methods. however, the record
reflects that his testimony did not meet the necessary founda-
tional requirements concerning the effect that the easements had
on the value of the lots.
okoruwa testified that the installation of the water mains
“vastly affected the market values” of the lots. he stated he
obtained 	that 	information 	from 	broekemeier 	and 	“[f]rom
research.” broekemeier told okoruwa that 50 sales were lost as
soon as purchasers became aware of the water mains and that
Liberty had sold only 3 lots in the 4 years since the taking.
okoruwa attributed the failure of the sales to the easements.
okoruwa did not set forth the method or “research” he
used to determine the value of the lots subject to the taking.
his basis for determining that the highest and best use of the
lots had changed from residential to recreational was because
broekemeier had lost presales. because broekemeier could not
sell these lots, okoruwa concluded that the lost sales were
caused by the easements.
When asked how he estimated the damage, okoruwa said
that if there was a low market for residential lots, the highest
and best use changed. because there was a low market for these
lots, he stated the use of the lots changed from residential to
recreational or open space. his foundation for this opinion was
broekemeier’s claim that he had lost some 50 contracts. there
34 	276 nebraska reports

was no evidence that okoruwa had researched any comparable
properties subject to similar easements or conducted any market
data analysis of the highest and best use of similar properties.
moreover, okoruwa did not testify that he had confirmed with
any of the alleged prepurchasers that the contracts were actu-
ally lost due to the easements. on cross-examination, okoruwa
admitted that he “did not find comparable sales with aqueducts
on them” and that he did not rely on any studies or publications
relating to water mains to determine Liberty’s damages. he con-
cluded that the lots adjacent to the lots with easements changed
in value from residential to recreational. therefore, he valued all
of these lots as recreational. he had no comparable sales for this
change in valuation.
okoruwa also concluded that because of the temporary con-
struction easements, broekemeier could not sell all the lots for at
least  year. okoruwa relied on this fact to determine the dam-
age from the temporary easements. since the lots could not be
sold for at least  year, he computed a reasonable rate of return
on the property at 5 percent. he applied this computation to
the entire subdivision. over mud’s objection, the district court
permitted okoruwa to testify that the rental value of the property
before the temporary easements was $2,59,000 and the value
after was $,877,000—a difference of $282,000.
[] When real property is temporarily taken by eminent
domain, the value of compensation is determined by one of sev-
eral methods: () ascertaining the value of the property for the
period it is held by the condemnor, (2) ascertaining the differ-
ence in the value of the property before and after the taking, or
(3) looking at the fair market rental value of the property during
the time it was taken. 4 Julius L. sackman, nichols on eminent
domain § 2e.0[] (rev. 3d ed. 2007), citing david schultz,
The Price is Right! Property Valuation for Temporary Takings,
22 hamline L. rev. 28 (998).
okoruwa concluded that because of the temporary construc-
tion easement, Liberty could not sell those lots and that those
lots could not be marketed for at least  year. he proceeded
to determine what he opined as the appropriate rental rate for
those lots because they could not be sold. he concluded that a
reasonable rate of return of 5 percent applied to the value of
LibertY deV. corp. v. metropoLitan utiL. dist. 	35
cite as 276 neb. 23

all the lots that could not be sold, which was basically the whole
subdivision. over mud’s objection, okoruwa stated: “the value
before was $2,59,000, and the value after, $,877,000, and the
difference [$]282,000.” this was “[t]he damage to the subdivi-
sion for taking out the whole subdivision from the market for at
least one year.”
the evidence was undisputed that the temporary construction
easements were located on only the 9 lots that were subject to
the permanent easements. however, applying a rate of return for
the whole subdivision was the equivalent of claiming the whole
subdivision was part of the temporary easement, which, in fact,
involved only .654 acres.
the valuation of permanent easements is a difficult task, and
the valuation of temporary easements is even more difficult. see
9 patrick J. rohan & melvin a. reskin, nichols on eminent
domain § G32.08[][a] (rev. 3d ed. 2007). in the case at bar,
okoruwa attempted to value the temporary easements in terms
of a rate of return for the entire property based upon rental value
of the property before and after the temporary easements. in
effect, he opined that the damages for the temporary taking of
9 lots for the temporary construction easements was $282,000.
We conclude that it was error for the district court to allow
such testimony.
on direct examination, okoruwa was asked to calculate the
total of all damages about which he had testified. he opined that
the total damages were $2,48,000. this was despite the fact
that the damages he testified to on direct examination totaled
only $,948,000. over mud’s objection as to proper and suf-
ficient foundation, okoruwa stated that this amount should be
awarded to Liberty to compensate it for the takings.
[2,3] Generally, evidence as to the sale of comparable prop-
erty is admissible as evidence of market value, provided there
is adequate foundation to show the evidence is material and
relevant. Wear v. State of Nebraska, 25 neb. 69, 337 n.W.2d
708 (983), citing Clearwater Corp. v. City of Lincoln, 202 neb.
796, 277 n.W.2d 236 (979). the foundation evidence should
show the time of the sale, the similarity or dissimilarity of mar-
ket conditions, the circumstances surrounding the sale, and other
relevant factors affecting the market conditions at the time. Id.
36 	276 nebraska reports

Whether properties, the subject of other sales, are sufficiently
similar to the property condemned to have some bearing on the
value under consideration, and to be of aid to the jury, must
necessarily rest largely in the sound discretion of the trial court.
Wear v. State of Nebraska, supra, citing Langfeld v. Department
of Roads, 23 neb. 5, 328 n.W.2d 452 (982).
okoruwa’s opinions lacked sufficient foundation, and the
district court abused its discretion in admitting okoruwa’s
testimony. except for Lot , which had an additional 50-foot
easement, the permanent easements were 20 to 25 feet in width
on each lot and totaled .486 acres. the temporary construc-
tion easements were 20 to 30 feet in width and totaled an
additional .654 acres. okoruwa’s conclusion that the ease-
ments changed the highest and best use of the property from
residential to recreational was without sufficient foundation.
his testimony as to Liberty’s damages was therefore specula-
tive and conjectural.
Vii. concLusion
the order of the court of appeals that dismissed the appeal is
reversed. the trial court erred in admitting okoruwa’s testimony.
We therefore reverse the judgment and remand the cause for a
new trial. Liberty’s motion for attorney fees is denied, and its
cross-appeal is dismissed.
reverSeD aND reMaNDeD for a New trIal .
S tate of N ebraSka , appellee aND CroSS- appellaNt , v .
J ohN C. eptINg , S r ., appellaNt aND CroSS- appellee .
75 n.W.2d 66
filed July 3, 2008. 	no. s-07-886.
. Statutes: Appeal and Error. statutory interpretation presents a question of
law, and an appellate court resolves such issues independently of the lower
court’s conclusions.
appeal 	from 	the 	district 	court 	for 	Lincoln 	county:
J ohN p. M urphy, Judge. reversed and remanded for further
proceedings.
state v. eptinG 	37
cite as 276 neb. 37