Henderson v. City of Columbus

482 	285 NEBRASKA REPORTS
James H enderson and Jamie H enderson, Husband
and wife, appellants, v. C ity of C olumbus,
a muniCipal Corporation, appellee.
827 N.W.2d 486
Filed March 15, 2013. 	No. S-11-060.
1. Constitutional Law: Appeal and Error. Constitutional interpretation is a ques-
tion of law on which the Nebraska Supreme Court is obligated to reach a conclu-
sion independent of the decision by the trial court.
2. Trial: Witnesses. In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony.
3. Witnesses: Evidence: Appeal and Error. An appellate court will not reevaluate
the credibility of the witnesses or reweigh testimony but will review the evidence
for clear error.
4. Judgments: Appeal and Error. The trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
5. Constitutional Law: Eminent Domain. Inverse condemnation is a shorthand
description for a landowner suit to recover just compensation for a govern-
mental taking of the landowner’s property without the benefit of condemna-
tion proceedings.
6. Eminent Domain: Property: Intent. Inverse condemnation has been character-
ized as an action or eminent domain proceeding initiated by the property owner
rather than the condemnor, and has been deemed to be available where private
property has been actually taken for public use without formal condemnation
proceedings and where it appears that there is no intention or willingness of the
taker to bring such proceedings.
7. Constitutional Law: Eminent Domain: Damages. Because the governmental
entity has the power of eminent domain, the property owner in an inverse con-
demnation cannot compel the return of the property taken; however, as a substi-
tute, the property owner has a constitutional right to just compensation for what
was taken.
8. Eminent Domain: Property: Intent. The threshold issue in an inverse condem-
nation case is to determine whether the property allegedly taken or damaged
was taken or damaged as the result of the exercise of the governmental entity’s
exercise of its power of eminent domain; that is, was the taking or damaging for
public use.
9. Constitutional Law: Eminent Domain: Damages. The words “or damaged”
in Neb. Const. art. I, § 21, include all actual damages resulting from the exer-
cise of the right of eminent domain which diminish the market value of pri-
vate property.
10. ____: ____: ____. Neb. Const. art. I, § 21, is not a source of compensation
for every action or inaction by a governmental entity that causes damage to
property. Instead, it provides compensation only for the taking or damaging
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

HENDERSON v. CITY OF COLUMBUS 	483
Cite as 285 Neb. 482
of property that occurs as the result of an entity’s exercise of its right of emi-
nent domain.
11. 	Eminent Domain: Property: Proof. In order to meet the initial threshold in an
inverse condemnation case that the property has been taken or damaged for pub-
lic use, it must be shown that there was an invasion of property rights that was
intended or was the foreseeable result of authorized governmental action.
Petition for further review from the Court of Appeals, irwin,
sievers, and moore, Judges, on appeal thereto from the District
Court for Platte County, robert r. steinke, Judge. Judgment
of Court of Appeals affirmed in part and in part reversed, and
cause remanded with directions.
George H. Moyer, of Moyer & Moyer, for appellants.
Erik C. Klutman and Mark M. Sipple, of Sipple, Hansen,
Emerson, Schumacher & Klutman, for appellee.
Renee Eveland, of Wolfe, Snowden, Hurd, Luers & Ahl,
L.L.P., for amici curiae Marlin G. Delimont et al.
William F. Austin, of Erickson & Sederstrom, P.C., for
amicus curiae League of Nebraska Municipalities.
H eaviCan, C.J., wrigHt, C onnolly, stepHan, mCC ormaCk,
and miller-lerman, JJ.
miller-lerman, J.
NATURE OF CASE
James Henderson and Jamie Henderson sued the City of
Columbus (the City) after raw sewage flooded into their home.
They claimed that the flooding damaged their home and was
the result of a malfunction of the city-run sanitary sewage
system. After a bench trial on liability, the district court for
Platte County found in favor of the City and dismissed the
Hendersons’ complaint, in which they had alleged theories of
recovery based on negligence, inverse condemnation, nuisance,
and trespass. The Hendersons appealed to the Nebraska Court
of Appeals and assigned error to the district court’s rulings with
respect to negligence and inverse condemnation. The Court of
Appeals affirmed the district court’s order with respect to
negligence, but reversed the portion of the order in which

484 	285 NEBRASKA REPORTS
the district court had found in the City’s favor with regard
to inverse condemnation. The Court of Appeals remanded
the cause for further proceedings with respect to damages
related to the inverse condemnation claim. Henderson v. City of
Columbus, 19 Neb. App. 668, 811 N.W.2d 699 (2012).
We granted the City’s petition for further review of inverse
condemnation issues. We conclude, for reasons different than
those relied on by the district court, that the Hendersons did
not establish an inverse condemnation claim. We therefore
reverse that part of the Court of Appeals’ decision regarding
inverse condemnation, and we remand the cause to the Court of
Appeals with directions to affirm the district court’s judgment
in favor of the City and against the Hendersons on all theories
of recovery.
STATEMENT OF FACTS
The evidence and facts are set forth in greater detail in the
Court of Appeals’ published opinion, Henderson v. City of
Columbus, supra. We provide here a brief summary of facts
relevant to the issues on further review. A heavy rainstorm hit
Columbus, Nebraska, in the early morning hours of July 9,
2004. Later that morning, James went to his basement and saw
that water mixed with raw sewage was flooding the basement.
The sewage appeared to James to be coming from the base-
ment floor drain, which was connected to the City’s sanitary
sewer system.
The Hendersons filed this action against the City and alleged
that the sewer backup and subsequent damage were caused
by a malfunction of the city-run sanitary sewage disposal
system. They further alleged that 15 other homes suffered
similar property damage on July 9, 2004, and that all the other
homeowners had assigned their rights to sue the City to the
Hendersons. As theories of recovery, they asserted negligence,
inverse condemnation under the Nebraska Constitution, nui-
sance, and trespass.
At trial, the City’s utility supervisor testified that in the
early hours of July 9, 2004, he was called to respond to a
“high alarm” at the sewer system’s 26th Avenue lift sta-
tion. The “high alarm” meant that sewage in the lift station

HENDERSON v. CITY OF COLUMBUS 	485
Cite as 285 Neb. 482
had exceeded a certain level and that action was needed to
avoid an overflow. Records showed that a power failure had
occurred, and evidence indicated that the power failure may
have been the result of lightning. The supervisor took action,
including resetting circuit breakers and starting the two pumps
at the site, in order to handle the high volume of sewage in
the lift station. After he reactivated the power, he believed
the pumps were working properly. He checked manholes
upstream of the lift station and found no backup; he did not
check manholes downstream because he feared that removing
manhole lids would allow rainwater to flood into the sys-
tem. The Hendersons’ home is located downstream from the
lift station.
An expert retained by the Hendersons testified that sew-
age backups into homes including the Hendersons’ could have
been avoided if the utility supervisor had checked manholes
downstream of the lift station before activating the pumps. He
opined that turning on the two high-volume pumps overloaded
the sanitary sewer system, forcing raw sewage into homes, and
that the overload would not have occurred if the supervisor had
taken alternative action such as turning on only one pump or
pumping the sewage toward alternate routes.
The public works environmental services director for the
City testified that during a high alarm, both pumps generally
should be turned on because if only one pump were turned on
it could cause backups upstream from the lift station. He testi-
fied at the August 2010 trial that he had worked for the City
since February 2001 and had not seen issues like those that
occurred in this case either before or since.
An expert retained by the City opined that excess water
may have gotten into the sewer system as a result of flooding
and that activation of the pumps at the 26th Avenue lift station
was not a primary cause of any major backups. He noted that
records indicated that the two pumps routinely worked together
without causing backups. He stated that there were “decades
of history” indicating that the pumps “had not caused those
kinds of problems.” He further stated that “over a long period
of time,” the pumps had been shown to “function quite well
without ever causing backups.”

486 	285 NEBRASKA REPORTS
Following a bench trial on liability, the district court found
in favor of the City on all theories of recovery and dismissed
the Hendersons’ complaint with prejudice. With regard to
inverse condemnation, the court found that the Hendersons
had failed to prove what caused the sanitary sewer system to
be overloaded with floodwater. The court further noted that
there “exists no evidence showing that the [Hendersons] or
any of their assignors have suffered property damage as a
result of reoccurring, permanent, or chronic sewer backups,
or that the damage suffered was intentionally caused by the
City.” The court concluded that the Hendersons had failed to
prove that the City’s “actions or inactions were the proximate
cause of their damages,” and the court therefore found in
favor of the City and against the Hendersons with respect to
inverse condemnation.
The Hendersons appealed to the Court of Appeals and
claimed that the district court erred when it rejected their theo-
ries of recovery based on negligence and inverse condemna-
tion. The Court of Appeals found no error in the district court’s
finding that there was no merit to the Hendersons’ negligence
theory of recovery and therefore affirmed that portion of the
district court’s order which had rejected the negligence theory
and the other theories to which the Hendersons did not assign
error on appeal. However, the Court of Appeals concluded
that the district court erred when it rejected the Hendersons’
inverse condemnation claim.
The Court of Appeals drew attention to a portion of the
district court’s order in which the court stated, “‘When both
pumps at the 26th Avenue lift station were reactivated to
address the high alarm, it caused the already overloaded down-
stream system to back up.’” Henderson v. City of Columbus,
19 Neb. App. 668, 687, 811 N.W.2d 699, 714 (2012) (empha-
sis omitted). The Court of Appeals determined that the finding
was supported by the evidence and concluded that the City’s
action in reactivating the pumps caused the system which was
already overloaded to back up and therefore was the proxi-
mate cause of damage to the Hendersons’ property. The Court
of Appeals reversed the portion of the district court’s order
in which it had rejected the inverse condemnation theory of

HENDERSON v. CITY OF COLUMBUS 	487
Cite as 285 Neb. 482
recovery and remanded the cause for a determination of dam-
ages related to inverse condemnation. Henderson v. City of
Columbus, supra.
We granted the City’s petition for further review.
ASSIGNMENTS OF ERROR
The City generally asserts that the Court of Appeals erred
when it reversed the district court’s order dismissing the inverse
condemnation theory of recovery. The City’s assignments of
error focus on the district court’s conclusions with regard to
proximate cause.
We note that the Hendersons did not file a cross-petition
seeking further review of the Court of Appeals’ decision which
affirmed the portion of the district court’s order rejecting their
theories of negligence, nuisance, and trespass.
STANDARDS OF REVIEW
[1] Constitutional interpretation is a question of law on
which the Nebraska Supreme Court is obligated to reach a
conclusion independent of the decision by the trial court. Pony
Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173,
710 N.W.2d 609 (2006).
[2-4] In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to
be given their testimony. McCully, Inc. v. Baccaro Ranch, 284
Neb. 160, 816 N.W.2d 728 (2012). An appellate court will not
reevaluate the credibility of the witnesses or reweigh testimony
but will review the evidence for clear error. Id. Similarly, the
trial court’s factual findings in a bench trial of an action at law
have the effect of a jury verdict and will not be set aside unless
clearly erroneous. Id.
ANALYSIS
A Viable Inverse Condemnation Case
Requires the Exercise of the Power
of Eminent Domain.
The eminent domain provision of the Nebraska Constitution
is central to our disposition of this case. Neb. Const. art. I,
§ 21, provides: “The property of no person shall be taken or
damaged for public use without just compensation therefor.”

488 	285 NEBRASKA REPORTS
We also refer to the Fifth Amendment to the U.S. Constitution,
which provides: “[N]or shall private property be taken for pub-
lic use, without just compensation.”
[5-8] We have stated that inverse condemnation is a short-
hand description for a landowner suit to recover just compen-
sation for a governmental taking of the landowner’s property
without the benefit of condemnation proceedings. Strom v. City
of Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998). Inverse
condemnation has been characterized as an action or eminent
domain proceeding initiated by the property owner rather than
the condemnor, and has been deemed to be available where
private property has been actually taken for public use without
formal condemnation proceedings and where it appears that
there is no intention or willingness of the taker to bring such
proceedings. Krambeck v. City of Gretna, 198 Neb. 608, 254
N.W.2d 691 (1977). Because the governmental entity has the
power of eminent domain, the property owner cannot compel
the return of the property taken; however, as a substitute, the
property owner has a constitutional right to just compensation
for what was taken. Id. As discussed below, the threshold issue
in an inverse condemnation case is to determine whether the
property allegedly taken or damaged was taken or damaged as
the result of the exercise of the governmental entity’s exercise
of its power of eminent domain; that is, was the taking or dam-
aging for “public use.”
In concluding that the Hendersons had failed to prove a
cause of action based on inverse condemnation, the district
court determined that the Hendersons had not met “their bur-
den to prove the City’s actions or inactions were the proximate
cause of their damages.” The district court cited Steuben v.
City of Lincoln, 249 Neb. 270, 543 N.W.2d 161 (1996), in
which this court determined that there was no evidence that
any actions or inactions on the part of the City of Lincoln
were the proximate cause of the plaintiff’s damages. Given
the reasoning of the district court in the present case, the par-
ties’ arguments on appeal as well as the Court of Appeals’
resolution of the appeal focus on proximate cause. The parties
and the Court of Appeals explored whether the district court
used the proper standards to determine proximate cause and

HENDERSON v. CITY OF COLUMBUS 	489
Cite as 285 Neb. 482
whether the evidence in this case established that the City’s
actions on July 9, 2004, proximately caused the damages to the
Hendersons’ property. Much of the argument addressed to this
court also concerns proximate cause. However, we believe the
focus on proximate cause is premature.
The initial question in an inverse condemnation case is not
whether the actions of the governmental entity were the proxi-
mate cause of the plaintiff’s damages. Instead, the initial ques-
tion is whether the governmental entity’s actions constituted
the taking or damaging of property for public use. That is, it
must first be determined whether the taking or damaging was
occasioned by the governmental entity’s exercise of its power
of eminent domain. Only after it has been established that a
compensable taking or damage has occurred should consider-
ation be given to what damages were proximately caused by
the taking or damaging for public use.
In the present case, we conclude below that regardless of
whether the City’s “actions or inactions” proximately caused
the Hendersons’ damages, given the district court’s findings of
fact, the Hendersons failed to establish the threshold element
that their property was “taken or damaged for public use” by
the City in the exercise of its power of eminent domain. See
Neb. Const. art. I, § 21. Therefore, the Hendersons failed to
establish that they were entitled to just compensation under the
Nebraska constitutional clause regarding the taking or damage
for public use. Albeit for different reasons, the district court’s
judgment in favor of the City on the Hendersons’ inverse con-
demnation claim was correct and the Court of Appeals’ reversal
was error.
The Hendersons asserted as one of their theories of recovery
that their property had been damaged for public use by the City
and that they were entitled to just compensation under Neb.
Const. art. I, § 21. We note that the Hendersons also advanced
theories of recovery based on negligence, nuisance, and tres-
pass. However, issues related to those theories of recovery
are not presented to us on further review and we therefore
do not consider the merits of any of those alternate theories.
Because we consider only whether the Hendersons established
that they were entitled to just compensation under Neb. Const.

490 	285 NEBRASKA REPORTS
art. I, § 21, we review the jurisprudence related to actions for
inverse condemnation.
As we have noted, the right to bring an inverse condemna-
tion action derives from Neb. Const. art. I, § 21, which pro-
vides: “The property of no person shall be taken or damaged
for public use without just compensation therefor.” The 5th
Amendment to the U.S. Constitution, made applicable to the
states through the 14th Amendment, provides: “[N]or shall
private property be taken for public use, without just compen-
sation.” A landowner is entitled to bring an action in inverse
condemnation as a result of the self-executing character of
the takings clauses of the U.S. and Nebraska Constitutions.
Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515
N.W.2d 401 (1994).
Nebraska’s constitutional right to compensation includes
just compensation where property has been “taken or dam-
aged” in the exercise of eminent domain, whereas the federal
Constitution is limited to property that has been “taken.”
Therefore, the Nebraska right is broader than the federal right.
Scofield v. State, 276 Neb. 215, 753 N.W.2d 345 (2008).
Notwithstanding this difference in language between the state
and federal Constitutions, we have analyzed other state consti-
tutional issues related to eminent domain—including whether
there has been a compensable taking or damaging for public
use—by treating federal constitutional case law and our state
constitutional case law as coterminous. Id.
[9] We have stated that the words “or damaged” in Neb.
Const. art. I, § 21, include all actual damages resulting from
the exercise of the right of eminent domain which diminish the
market value of private property. Strom v. City of Oakland, 255
Neb. 210, 583 N.W.2d 311 (1998). The Nebraska constitutional
clause broadens the entitlement for just compensation beyond
property that is actually “taken” by the governmental entity
and includes compensation for property that is damaged in the
sense that the market value of the property has been diminished
even if the property is not actually taken.
Under the Nebraska Constitution, the requirement that prop-
erty was taken or damaged “for public use” means that the
taking or damage must be the result of the governmental

HENDERSON v. CITY OF COLUMBUS 	491
Cite as 285 Neb. 482
entity’s exercise of its right of eminent domain. Not all dam-
age to property by a governmental entity in the performance
of its duties occurs as a result of the exercise of eminent
domain. As the Wyoming Supreme Court stated in an unsuc-
cessful inverse condemnation case: “It certainly will not be
contended that every destruction of property or injury thereto
by public officers or their agents, in the discharge of govern-
mental functions, is covered by the constitutional guaranty [in
Wyoming State Constitution providing for compensation in
the exercise of eminent domain].” Chavez v. City of Laramie,
389 P.2d 23, 25 (Wyo. 1964). Earlier in Chavez, the opinion
states: “Certainly the accident and consequent damage [in the
case] served no public purpose, and there was absent a taking
or damaging of property for public use.” Id. at 24 (empha-
sis in original). The reasoning in this Wyoming case applies
in Nebraska.
[10] To summarize, Neb. Const. art. I, § 21, is not a source
of compensation for every action or inaction by a governmen-
tal entity that causes damage to property. Instead, it provides
compensation only for the taking or damaging of property
that occurs as the result of an entity’s exercise of its right of
eminent domain. Therefore, a threshold issue in an inverse con-
demnation case seeking compensation for damage to property
is whether the actions that are alleged to have caused damage
to property constitute an exercise of the governmental entity’s
right of eminent domain.
The City Did Not Exercise Its
Power of Eminent Domain.
As we explained above, because both the federal and state
Constitutions involve a “public use,” we analyze the state
constitutional issue of whether there has been a physical tak-
ing or damage “for public use” as the result of the exercise of
eminent domain, as coterminous with federal constitutional
law. The U.S. Supreme Court recently reiterated requirements
for determining whether there has been a taking under the
Fifth Amendment to the U.S. Constitution in Arkansas Game
and Fish Com’n v. U.S., ___ U.S. ___, 133 S. Ct. 511, 184
L. Ed. 2d 417 (2012). As an initial matter, the Court repeated

492 	285 NEBRASKA REPORTS
the fundamental principles in its Takings Clause jurispru-
dence, noting that “[t]he Takings Clause is ‘designed to bar
Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by
the public as a whole.’” 133 S. Ct. at 518 (quoting Armstrong
v. United States, 364 U.S. 40, 80 S. Ct. 1563, 4 L. E. 2d 1554
(1960)). The Court continued that “‘[w]hen the government
physically takes possession of an interest in property for some
public purpose, it has a categorical duty to compensate the for-
mer owner.’” Id. (quoting Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.
Ct. 1465, 152 L. Ed. 2d 517 (2002)). Given the issue in the
case, the opinion in Arkansas Game and Fish Com’n focused
on the duration and foreseeability of the alleged taking. The
discussion of these considerations is helpful to the resolution
of the present case.
At issue in Arkansas Game and Fish Com’n was “whether
government actions that cause repeated floodings must be per-
manent or inevitably recurring to constitute a taking of prop-
erty.” 133 S. Ct. at 518. The Court concluded that government-
induced “recurrent floodings, even if of a finite duration, are
not categorically exempt from Takings Clause liability.” 133
S. Ct. at 515. The temporary nature of the flooding at issue in
Arkansas Game and Fish Com’n did not automatically exclude
it from being a compensable event under the Takings Clause
and the order of dismissal therein was reversed and the cause
remanded. While time or duration was the relevant factor in
determining the existence of a compensable taking at issue in
Arkansas Game and Fish Com’n, the Court further stated that
“[a]lso relevant to the takings inquiry is the degree to which
the invasion is intended or is the foreseeable result of autho-
rized government action.” 133 S. Ct. at 522. This additional
factor of intention or foreseeability is of particular importance
in the case before us.
With regard to the intentional or foreseeable results of the
acts of the governmental entity, the Court in Arkansas Game
and Fish Com’n cited Ridge Line, Inc. v. U.S., 346 F.3d 1346,
1355 (Fed. Cir. 2003), in which the U.S. Court of Appeals for
the Federal Circuit distinguished takings cases from tort cases

HENDERSON v. CITY OF COLUMBUS 	493
Cite as 285 Neb. 482
and stated that “a property loss compensable as a taking only
results when the government intends to invade a protected
property interest or the asserted invasion is the ‘direct, natural,
or probable result of an authorized activity and not the inci-
dental or consequential injury inflicted by the action.’” This is
consistent with Horstmann Co. v. United States, 257 U.S. 138,
146, 42 S. Ct. 58, 66 L. Ed. 171 (1921), in which the Court
stated that “it would border on the extreme to say that the
Government intended a taking by that which no human knowl-
edge could even predict.”
The Court in Arkansas Game and Fish Com’n also cited
Matter of Chicago, Milwaukee, St. Paul and Pacific, 799
F.2d 317, 325-26 (7th Cir. 1986), in which the U.S. Court
of Appeals for the Seventh Circuit stated that “despite the
contention that all torts by the government are takings . . .
the [U.S.] Supreme Court has distinguished the two” and that
“[a]ccidental, unintended injuries inflicted by governmental
actors are treated as torts, not takings.” For completeness, we
note that the observation in Matter of Chicago, Milwaukee,
St. Paul and Pacific outlining a distinction between inverse
condemnation and torts is consistent with Nebraska jurispru-
dence. See, Western Fertilizer v. City of Alliance, 244 Neb.
95, 504 N.W.2d 808 (1993); Dishman v. Nebraska Pub. Power
Dist., 240 Neb. 452, 482 N.W.2d 580 (1992); Kula v. Prososki,
219 Neb. 626, 365 N.W.2d 441 (1985) (under certain facts,
plaintiff may bring both tort action and inverse condemnation
action, but not every tort action is viable inverse condemna-
tion case).
[11] Under the federal cases referred to above, in order to
meet the initial threshold in an inverse condemnation case
that the property has been taken or damaged “for public
use,” it must be shown that there was an invasion of prop-
erty rights that was intended or was the foreseeable result of
authorized governmental action. The reasoning in these fed-
eral cases is applicable to the present case brought under the
Nebraska Constitution.
The City refers us to cases from other states that support the
foregoing principles of inverse condemnation. City of Dallas
v. Jennings, 142 S.W.3d 310 (Tex. 2004), involved sewage

494 	285 NEBRASKA REPORTS
which backed up into the homeowners’ property. The Texas
Supreme Court rejected an argument that “any intentional act
can give rise to liability for an intentional taking” and instead
held that
when a governmental entity physically damages private
property in order to confer a public benefit, that entity
may be liable under [the Texas Constitution’s takings
clause] if it (1) knows that a specific act is causing identi-
fiable harm; or (2) knows that the specific property dam-
age is substantially certain to result from an authorized
government action—that is, that the damage is “necessar-
ily an incident to, or necessarily a consequential result of”
the government’s action.
142 S.W.3d at 313-14. Article I, § 17, of the Texas Constitution
refers to property that has been “taken, damaged, or destroyed
for or applied to public use.” The Texas constitutional provi-
sion is broader than the federal provision but similar to the
Nebraska provision, and we find Jennings useful.
Other states take a similar view to that of Texas under their
state constitutions’ takings clauses. Electro-Jet Tool Mfg. v.
Albuquerque, 114 N.M. 676, 845 P.2d 770 (1992), involved
damage resulting from drainage ditches. The New Mexico
Supreme Court held that for an act to give rise to a claim
under the state’s just compensation clause, “the act must at
least be one in which the risk of damage . . . is so obvious
that its incurrence amounts to the deliberate infliction of harm
for the purpose of carrying out the governmental projects.”
114 N.M. at 683, 845 P.2d at 777. The New Mexico Supreme
Court stated that the standard would be met where damage
was intentionally caused or where the governmental entity was
“acting with knowledge that the damage [from a public use]
was substantially certain to result from the conduct.” Id. Like
Nebraska, article II, § 20, of the New Mexico Constitution pro-
vides for just compensation when private property is “taken or
damaged for public use.”
We note that our case law and that of other courts indicate
that flooding may be a compensable taking when it is fre-
quent. In Dishman v. Nebraska Pub. Power Dist., 240 Neb.
452, 482 N.W.2d 580 (1992), this court determined that there

HENDERSON v. CITY OF COLUMBUS 	495
Cite as 285 Neb. 482
was a compensable taking when there was frequent flood-
ing. Other states have also found viable inverse condemna-
tion actions where there was recurring overflow onto private
property. Robinson v. City of Ashdown, 301 Ark. 226, 783
S.W.2d 53 (1990), involved recurring sewage overflows onto
the homeowners’ property. The Supreme Court of Arkansas
stated that the “benefit to the public in this case has been
its use of the [homeowners’] home as an overflow dump
for sewage” and “by failing to remedy the problem the city
effectively chose to purchase the [homeowners’] property to
the extent the value of that property was diminished by its
actions.” 301 Ark. at 232, 783 S.W.2d at 56. This is consistent
with the statement in Arkansas Game and Fish Com’n v. U.S.,
___ U.S. ___, 133 S. Ct. 511, 184 L. Ed. 2d 417 (2012), that
intention or foreseeability is a factor in determining whether
there has been a taking, because the frequency of flooding
could indicate that the taking or damaging of property is a
known or foreseeable result of government action for pub-
lic use.
In the present case, the district court determined that the
Hendersons failed to establish a case for inverse condemnation
by virtue of a failure of proof of proximate cause, but it also
made certain findings of fact that are relevant to the factors
we set forth above and important to the resolution of this case.
Specifically, the court found that there “exists no evidence
showing that the [Hendersons] or any of their assignors have
suffered property damage as a result of reoccurring, permanent,
or chronic sewer backups, or that the damage suffered was
intentionally caused by the City.”
The trial court’s factual findings in a bench trial of an action
at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous. McCully, Inc. v. Baccaro Ranch, 284
Neb. 160, 816 N.W.2d 728 (2012). The findings are supported
by the evidence and are not clearly erroneous. The district
court’s findings support a conclusion that this was not a case
where the City exercised its right of eminent domain, because
when the City took action, there had not been recurring sewage
backup, nor was it known or foreseeable that the action would
take or damage private property.

496 	285 NEBRASKA REPORTS
In the present case, there was only evidence of a sin-
gle event in which sewage flooded. The testimonial evidence
shows that similar actions taken by the City had not caused
a sewage backup at other times. The Hendersons did not pre-
sent evidence that the City knew damage would occur or could
have foreseen that its actions could cause damage to private
property. Thus, the Hendersons did not establish that the City
exercised its right of eminent domain by taking action that it
knew or could foresee would result in the taking or damaging
of private property. Although our reasoning differs from that
of the district court, we conclude that it did not err when it
concluded that the Hendersons failed to establish a claim for
inverse condemnation under the Nebraska Constitution. The
Court of Appeals erred when it reversed that portion of the
district court’s order rejecting the inverse condemnation theory
of recovery.
CONCLUSION
Although our reasoning is based on the Hendersons’ fail-
ure to show that the City exercised its right of eminent
domain, and the district court’s reasoning was based on the
Hendersons’ purported failure to show proximate cause, the
district court correctly concluded that the Hendersons did
not establish inverse condemnation. We therefore conclude
that the Court of Appeals erred when it determined that the
district court had erred in rejecting the Hendersons’ inverse
condemnation claim and reversed the district court’s ruling
and remanded the cause for a determination of damages for
inverse condemnation.
Neither party sought further review of the Court of Appeals’
decisions regarding issues other than inverse condemnation.
We therefore affirm those portions of the Court of Appeals’
decision in which it affirmed the district court’s rejection
of theories of recovery other than inverse condemnation.
However, we reverse that portion of the Court of Appeals’
decision in which it reversed the district court’s rejection of
the Hendersons’ inverse condemnation claim. We remand the
cause to the Court of Appeals with directions to affirm the

STATE v. WATSON 	497
Cite as 285 Neb. 497
district court’s order in which it rejected the entirety of the
Hendersons’ claims.
affirmed in part, and in part reversed
and remanded witH direCtions.
Cassel, J., not participating.
state of nebraska, appellee, v.
Jerry watson, appellant.
827 N.W.2d 507
Filed March 15, 2013. 	No. S-11-912.
1. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded by
the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
2. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Judgments: Appeal and Error. On questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by the
lower courts.
4. Criminal Law: Due Process: Time. A criminal defendant’s claim of denial of
due process resulting from preindictment delay presents a mixed question of law
and fact.
5. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact.
6. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
7. Constitutional Law: Witnesses: Appeal and Error. The Sixth Amendment to
the U.S. Constitution guarantees the right of an accused in a criminal prosecution
to be confronted with the witnesses against him or her, and the main and essential
purpose of confrontation is to secure the opportunity for cross-examination.
8. Criminal Law: Constitutional Law. The federal Constitution guarantees crimi-
nal defendants a meaningful opportunity to present a complete defense.
9. Constitutional Law: Criminal Law: Due Process: Time. The Due Process
Clause of the Fifth Amendment protects a criminal defendant against unreason-
able preindictment delay.