1. Champion v. Sessions, 1 Nev. 404 (1865)
a. Injunction: A court may enjoin the opening of a road through private property where the injury to the land would be continuous and irreparable and where construction of the road would amount to a trespass. (406-407)
b. Injunction/Just Compensation: "The legislature
has an undoubted right to confer upon the county commissioners the power
to open roads whenever they may deem it necessary, upon a proper compensation
being made to those whose property is taken for such purposes. But until
such compensation is made, there is no power within the State which can
legally appropriate the property of the citizen for such purposes, except
in certain cases mentioned in section 8, article I. of the Constitution
of the state." (408)
2. Gibson v. Mason, 5 Nev. 283 (1869)
a. Taxes: The proscription against taking
private property without just compensation does not apply to taxes.
3. Hobart v. Ford, 5 Nev. 77 (1870)
a. Taking: It is not a taking of private property
for public use for the state legislature to grant a person a right of entry
upon property belonging to the federal government, even though Congress
has allowed another to construct ditches and canals (43 U.S.C.).
4. The Virginia and Truckee Railroad Company v. Elliott, 5 Nev. 358 (1870)
a. Necessity: (Deferred to trial court.)
1) Just compensation equals actual value in money "to be ascertained by its location, the price at which similar land may be or has been sold in its vicinity, or what it would itself sell at...." (367)
2) "(G)enerally everything which actually enhances its present worth should be taken into consideration; not, however, the fact that it is necessary or indispensable for the purposes for which it is claimed by the public." (367)
5. Virginia and Truckee Railroad Company v. Lovejoy, 8 Nev. 100 (1872)
a. Valuation/Benefits: When land is condemned
for a railroad after its original construction, the owner is entitled to
the actual market value of the property at the time of the taking, without
deduction for any appreciation in value caused by the previous location
and construction of the road.
6. The Virginia and Truckee Railroad Company v. John Henry, 8 Nev. 165 (1873)
a. Severance: "(T)he damage to the residue of a tract of land from which a portion is taken for public use is always an element of estimate in arriving at the compensation for the land taken...." (171)
b. Severance: "'(T)he appraisers are not to
go into conjectural and speculative estimations of consequential damages,
but confine themselves to estimating the value of the land taken to the
owner. This is most readily and fairly ascertained by determining the value
of the whole land without the railway and of the portion remaining after
the railway is built. The difference is the true compensation to which
the party is entitled.'" (175)
7. Dayton Mining Co. v. Seawell, 11 Nev. 394 (1876)
a. Public use: "The property of a citizen can only be taken by an act of the legislature for a public use, when a necessity exists therefor, and when compensation to the owner has first been made or secured." (399)
b. Public use: "(P)rivate property cannot be taken for a private use." (399)
c. Public use: The decision or declaration of the legislature is not conclusive, but should be "treated by the courts with the consideration which is due to a co-ordinate department of the state government...." (400)
d. Public use: The court agrees with the petitioner that the term "public use" should be given a broad meaning - "any purpose of great public benefit, interest or advantage to the community is a taking for a public use." (400; 402)
e. Public use: "That the purposes mentioned in the act 'are of vital necessity to the people of this state,' cannot be denied; that mining is the paramount interest of the state is not questioned; that anything which tends directly to encourage mineral developments and increase the mineral resources of the state is for the benefit of the public and is calculated to advance the general welfare and prosperity of the people of this state, is a self-evident proposition." (402)
f. Public use: Approving following language: "If land is taken for a fort, a canal, or a highway, it would clearly fall within the first-class [public use]; if it is transferred from one person to another, or to several persons solely for their peculiar benefit and advantage, it would as clearly come within the second-class [private use]. But there are intermediate cases where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must necessarily depend upon its own peculiar circumstances.... (E)verything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community." (404-405)
g. Public use: "Mining is the greatest of the industrial pursuits in this state. All other interests are subservient to it.... The mines are fixed by the laws of nature...." (411)
h. Public use: "It is certain that this view,
if literally carried out to the utmost extent, would lead to very absurd
results, if it did not entirely destroy the security of the private rights
of individuals. Now while it may be admitted that hotels, theaters, stage
coaches, and city hacks, are a benefit to the public, it does not, by any
means, necessarily follow that the right of eminent domain can be exercised
in their favor. The truth is, that there is a wide distinctiion between
railroads and hotels, and, also, between the business of mining and that
of conducting theaters. A railroad, to be successfully operated, must be
constructed upon the most feasible and direct route; it cannot run around
the land of every individual who refuses to dispose of his private property
upon reasonable terms. In such cases the law interferes, and takes the
private property of the citizen upon payment of a just compensation, in
order to promote an interest of great public benefit to the community,
which could not be successfully carried on without the exercise of this
power of eminent domain. The same principle applies to the business of
mining; but it cannot reasonably be applied to the building of hotels or
theaters. In the building of hotels and theaters the location is not necessarily
confined to any particular spot, and it is always within the reach of capital
to make the proper selection, and nevere within the power of any individual,
or individuals, however stubborn or unreasonable, to prevent the erection
of such buildings. The object for which private property is to be taken
must not only be of great public benefit and for the paramount interest
of the community, but the necessity must exist for the exercise of the
right of eminent domain...." The court, however, may be "powerless to furnish
the remedy" for absurd results, since "the protection which the people
of the state enjoy against unjust and absurd legislation, 'is not derived
from constitutional restrictions, but from the force of public opinion
and the character of our representatives.'" (410-412)
8. Thorn v. Sweeney, 12 Nev. 251 (1877)
a. Water: "(I)t is within the power of the legislature to pass
an act providing for the condemnation of land for the purpose of bringing
water into cities and towns...." (255-256)
9. V. & T.R.R. Co. v. Lynch, 13 Nev. 92 (1878)
a. Access: Restriction of access is not compensable where it is no more "than that which usually results from the mere ordinary use of a street." (97)
b. Statutory Construction: "'In construing
a grant of power (eminent domain) to a private corporation the power must
be given in plain language or by necessary implication. Whatever is doubtful
is against the corporation.'" (99)
10. Overman S.M. Co. v. Corcoran, 15 Nev. 147 (1880)
a. Public use: (Definition) "'where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience or welfare, which, on account of their peculiar character and the difficulty, perhaps impossibility, of making provision for them otherwise, it is alike proper, useful and needful for the government to provide.'" (152)
b. Necessity: "The law does not contemplate
that an 'absolute necessity' should exist for the identical lands sought
to be condemned. The selection of any site for the purposes specified must
necessarily, to some extent, be arbitrary." (156)
11. Godchaux v. Carpenter, 19 Nev. 415 (1887)
a. Necessity: A legislative act declaring the necessity is the law of the land. (419)
b. Procedures: Eminent domain procedures for
the protection of the landowner must be strictly complied with. (4l9)
12. Byrnes v. Douglas, 23 Nev. 83 (1895)
a. Occupancy: "Section 267 (former) provides
that at any stage of the proceedings the court may make an order placing
the (condemnation) petitioner in possession of the property upon his giving
a sufficient bond." (86)
13. State v. Boyd, 27 Nev. 249 (1903)
a. Taxes/Taking: "'To any extent that one man is compelled to pay in order to relieve others of a public burden properly resting upon them, his property is taken for private purposes...." (256)
b. Taxes/Taking/Mandamus: Mandamus will issue
to require the county treasurer to place all moneys collected from city
licenses in the city's general fund; a locality cannot be compelled to
pay the debts of another, for this would be a taking of private property
for public use without compensation. "'A state purpose must be accomplished
by state taxation, a county purpose by county taxation,'" etc. (256-257)
14. L.V. & T.R.R. v. Summerfield, 35 Nev. 229 (1912)
a. Intervention: Persons claiming an interest
in land sought to be condemned may intervene.
15. T.R.G.E. Co. v. Durham, 38 Nev. 311, 149 P. 61 (1915)
a. Burden: The burden to prove the amount to be paid is on the landowner. (318)
b. Offers: "Since such testimony can be so
easily manufactured, and since it is so easy to show the value of property
by testimony of unquestionable character, every reason exists why testimony
of an offer for property should not be received." (321)
16. Goldfield Con. v. O.S.A. Co., 38 Nev. 426, 150 P. 313 (1915)
a. Public use: Whether mining is a public use may depend upon "the situation of the state and its possibilities for land cultivation, or the successful prosecution of its mining or other industries." Always strongly inclined to uphold "where it can be fairly done." Factors must be "general, notorious, and acknowledged in the state, and the state courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand for the enactment of the statute, and they also appreciate the results upon the growth and prosperity of the state...." (437)
b. Public use: "Public use is in every case a matter of local policy." (438)
c. Necessity: The rule in Overman "is sustained by the great weight of authority," i.e., "'(t)he law does not contemplate that an 'absolute necessity' should exist for the identical lands sought to be condemned. The selection of any site for the purposes specified must, necessarily, to some extent, be arbitrary.'" (444)
d. Necessity: Clearly stated in Overman: fact that other lands are also available for the purpose does not negate necessity unless motive is unworthy or malicious. (445) "It is the general rule that, when a corporation seeks to exercise the right of eminent domain, its discretion in the selection of land for its use will not be questioned where it acts in good faith and not capriciously." (446)
e. Estates in land: The statute states only that a fee simple is "subject to be taken." "Under such statutes, only such an interest as is necessary can be taken." (447)
f. Trespass: The common-law rule that a structure erected by a tortfeasor becomes a part of the land does not apply where the trespasser has the power of eminent domain. (442)
g. Public Use/More necessary: "The evidence
shows that,while the property was located and patented as mining ground,
it was not in fact being worked, and had not been worked for several years.
The mere possibility that the land may some time in the future be used
by appellants for mining purposes will not prevent condemnation." (446)
17. V.L. & S. Co. v. District Court, 42 Nev. 1 (1918)
a. Water: A statute declaring that, subject
to existing rights, the water of all sources of supply belongs to the public,
does not take private property for public use without just compensation.
18. Schrader v. District Court, 58 Nev. 188, 73 P.2d 493 (1937)
a. Sovereign power: The power of eminent domain is an attribute of sovereignty; "the authority of the state to take private property for public use is plenary, except where restricted by constitutional limitations...." (195-196)
b. Notice: Occupying land without notice does
not deny due process; differentiate occupation of the property from the
final decree and adjudication of just compensation.
19. Standard Slag Co. v. Court, 62 Nev. 113 (1943)
a. Public Use: "It is well established in this state that mining, being a paramount industry, is a public use, and the power of eminent domain can be exercised in the furtherance of the development of mines and the extraction and reduction of ores contained therein." (114-115)
b. Statutory Construction: "'(W)here the right of eminent domain is granted for a particular purpose, then the statute must be given a liberal construction in furtherance of such purpose.'" (117)
c. Public Use: Open pit mining is included
within the statute authorizing eminent domain for all mining purposes.
20. State v. Pinson, 66 Nev. 227, 207 P.2d 1105 (1949)
a. Necessity: Available alternate route does not negate necessity where the land sought would offer a safer highway. "The word 'necessity...does not mean an absolute and unconditional necessity...." "The word 'necessity' must be deemed to mean a reasonable necessity under all of the circumstances of the particular case." (231)
b. Necessity: "largely in the (trial) court's discretion." (235)
1) to prove necessity - on the condemnor.
2) "(T)he burden of proof (once the necessity for the taking has been proved by the condemnor) is upon the condemnee or landowner to prove the value of the land taken and also the damage resulting to other lands of the landowner by reason of the severance." (236)
3) benefits - "The burden of proof as to benefits accruing to the landowner is naturally upon the condemnor." (238)
4) Placing the burden of proof on the landowner does little more than allow him to open and close. (238)
21. McLaughlin v. L.V.H.A., 68 Nev. 84, 227 P.2d
a. Public Use: City housing authority created for development of low-rent housing and slum-clearance projects may be invested with power of eminent domain, for it is a municipal corporation created for a public governmental purpose.
22. Bushard v. Washoe County, 68 Nev. 217,
236 P.2d 793 (1951)
1) It is not necessary to allege adoption of a resolution by the commissioners. (226-227)
2) It is not necessary to allege the precise sections of the code giving the right of condemnation. (227)
3) It is sufficient to plead the conclusion that the use is public. (227-228); and it is sufficient to allege that the use is necessary to construct, maintain, or operate a road, without alleging that the use is public. (228)
b. Upholds the taking of a wild, unimproved, uninhabited mountainous region for a public park.
23. Saunders v. State, 70 Nev. 480, 273 P.2d
a. Waiver: The constitutional right to be paid just compensation prior to the taking "is a personal one for the benefit of the property owner and subject to being waived by him." (485)
b. Interest/Prejudgment: The landowner is entitled to interest from the date of the taking (order for immediate occupancy). (485)
24. St. Ex Rel. Mathews v. City of Reno, 71
Nev. 208, 285 P.2d 551 (1955)
a. Taking: In considering whether an annexation ordinance is so unreasonable that it constitutes the taking of property for public use without just compensation, the court should not approach the problem in a narrow and restricted view of the needs of the city or of the property itself, but broadly and in a manner commensurate with the history of the city's growth, its present necessities and its promise of future development.
25. Aeroville v. Lincoln Power, 71 Nev.
320, 290 P.2d 970 (1955)
a. Public use: Eminent domain is proper for a change of location, as well as original construction. (322-323)
b. Necessity: "It is well settled, however, that the choice of lands to be used for a particular public improvement generally lies within the discretion of the agency exercising the right of eminent domain and that such discretion will be respected save where malice or lack of good faith appears or where oppressive overreaching or public injury results." (325)
c. Judgment/Reduction: The trial judge may exercise discretion to reduce an award determined to be excessive, unless "clearly wrong." (325-326)
26. State v. Olsen, 75 Nev. 75, 334 P.2d
a. Judgment/Execution: After condemnation judgment favorable to landowner, a writ of execution cannot be levied against the state in the absence of a statute granting such a right.
27. City Motel, Inc. v. State, 75 Nev. 137,
336 P.2d 375 (1959)
a. Estates In Land/Easements: "A railroad ordinarily does not hold in fee the land over which its right of way is constructed and maintained but merely an easement for such right of way whether such land is acquired by eminent domain or otherwise; that it might hold more than an easement is never presumed." (140-141)
b. Estates In Land/Right of Way: A deed conveying a "right of way" creates only an easement; even a grant of a particular parcel with the designated purpose that it be used as a right of way creates only an easement. (141-143)
28. State v. Second Judicial Dist. Ct., 75
Nev. 200, 337 P.2d 274 (1959)
a. Appeal: Where the State appeals an award as excessive, and where the State is already in possession, the court may require that the award be deposited, although a lesser amount has already been paid, and although the landowner may squander the money. (204-205)
1) "Although compensation need not first be made, but need only be secured, payment should not be unduly delayed in those cases where the condemnee has already lost the possession and use of his property." (205)
2) The State may have restitution of any amount determined to be excessive. (206)
29. State v. Shaddock, 75 Nev. 392, 344 P.2d
a. Juries/Voir dire: If the State asks whether the wealth of the State might influence the jurors, the landowner may counter with a question regarding federal participation.
b. Experts: Expert testimony that fails to take into consideration a 20-year lease limiting rentals to $300/month does not render it incompetent, but lessens its weight. (396)
c. Appraisals: Appraisals may be received into evidence (397-398)
d. Valuation/Rent: It is proper to consider the actual rent the property produces. (398)
e. Valuation/Capitalization: It is proper to capitalize the property's net income (value of an asset capable of producing the known income of the property). (399)
30. Clark Co. School Dist. v. Mueller, 76
Nev. 11, 348 P.2d 164 (1960)
a. Valuation/Discretion: The trial court has discretion to allow testimony of comparable acreage, close and remote, conditions of demand, financial conditions, availability of capital, slack purchase periods, bank loans, etc. (17-18)
b. Valuation/Prudent businessman: "'(E)lements that can fairly enter into the question of value and which an ordinarily prudent business man would consider before forming judgment in making a purchase'" are to be considered. (19)
c. Valuation/Discretion: The court has discretion to allow evidence of sales from 3 years earlier when the market was different. (19)
31. St. Ex Rel. Dept. Highways v. Olsen, 76
Nev. 176, 351 P.2d 186 (1960)
a. Witnesses/Owner: The owner is competent to testify as to value. (180-181)
b. Benefits: The trial court may limit the evidence of benefits to "'improvements that are to be constructed under the project for which the land is taken, and not something that may occur in the future.'" (185) (The Court suggests that the State could stipulate to a judgment that would include, for example, a provision awarding future access.)
c. Leaseholds: The owner of a leasehold is entitled to compensation for value lost - the difference between the cost of this lease and the cost of obtaining another, comparable one; plus the value of fixtures he is entitled to remove minus depreciation. (difference between fair rental value and the rent reserved in the lease) (187)
32. Heidenreich v. Dist. Court, 76 Nev.
249, 352 P.2d 249 (1960)
a. Occupancy: Trial court may award the State immediate occupancy without first determining compensation, supported by the pledge of the public faith and credit of the State for the payment of damages, in lieu of bond.
b. Abandonment: The condemnor, after initiating eminent domain proceedings and taking possession of the land, cannot deprive the owner of compensation by dismissing the action.
33. L.V. Valley Water v. Michelas, 77 Nev.
171, 360 P.2d 1041 (1961)
a. Taking: Although a franchise is property which cannot be taken for public use without compensation, the State does not take a franchise to provide water when the State itself creates a Water District to service the same customers, where the franchise was not clearly exclusive. "'Statutory grants of that character are to be construed strictly in favor of the public, and whatever is not unequivocally granted is withheld; nothing passes by mere implication.'" (179)
34. Mack v. Dep't. of Highways, 77 Nev. 422,
365 P.2d 1117 (1961)
a. Burden: "In a condemnation proceeding the burden is upon the landowner to prove the damage resulting to his other lands by reason of the severance." (424)
b. Severance: "In the absence of any evidence of damage to the residue an award for severance damage would be improper." (424-425)
35. Urban Renewal Agcy. v. Iacometti, 79
Nev. 113, 379 P.2d 466 (1963)
a. Public use: Legislative declaration of public interest is "'well-nigh conclusive.'" The role of the judiciary in determining whether the power of eminent domain is being exercised for a public purpose is an extremely narrow one. (120)
b. Necessity: "(T)he extremely narrow role of the courts in determining the issues of public use and necessity in condemnation cases has long been recognized in Nevada." (120)
c. Public use: "(T)hough the legislative declaration of public use may not be final, a court must pay it proper deference and, if a doubt exists, the legislative declaration shall prevail." (120-121)
d. Public use: Once an area is properly considered a blight, buildings within the area may be taken even though they may be sound by themselves. (122)
e. Public use: Eminent domain for redevelopment is not improper because private enterprise is chosen to effect the redevelopment.
f. Public use: "Possessory use by the public is not an indispensable prerequisite to the lawful exercise of the power of eminent domain." (126)
36. Dep't. of Highways v. Campbell, 80 Nev.
23, 388 P.2d 733 (1964)
a. Valuation/Capitalization: It is proper to use testimony of capitalization of income. (28)
b. Witnesses/Owner: The owner is competent to testify as to value. (31)
c. Valuation: Evidence of profits from a business conducted on the property is not admissible. (33)
37. Dep't of Hwys. v. Wells Cargo, Inc., 82
Nev. 82, 411 P.2d 120 (1966)
a. Valuation/Appeal: Valuation of land taken in eminent domain, supported by substantial evidence, will not be disturbed on appeal. (85)
b. Witnesses/Owner: A chief executive officer of a corporation is qualified to testify as to the value of the land purchased for the corporation where he purchased the property and where he was an individual owner of adjacent lands. The court need not address the so-called "Washington Rule," holding that where a particular individual is controlling and managing officer of a corporation, that should suffice to qualify his statements on that corporation's property values.
38. State ex rel. Dep't Hwys. v. LoBue, 83 Nev.
221, 427 P.2d 639 (1967)
a. Dedication/Consideration: To preserve "the finality of a deed and the integrity of title to real property," (225) a grantor is limited to the remedy of damages who claims that the consideration for the dedication of her private property failed. (that the county would build a road that would create 2900 feet of additional frontage)
39. Eikelberger v. State ex rel. Dep't Hwys.,
83 Nev. 306, 429 P.2d 555 (1967)
a. Valuation/Capitalization: A certified public accountant may give his opinion on the value of an asset producing the net income realized from the subject property when capitalized at various rates, but may not express his opinion on the market value of the property without foundation testimony establishing such expertise. (308)
b. Valuation/Capitalization: Absent foundation information about the relevant capitalization rate, a capitalization witness should not be permitted to express an opinion on market value by use of the income approach to value. (309)
c. Valuation/Capitalization: "Market value
is ascertained by the income approach by the mathematical process of dividing
the estimated annual income from the highest use of the property by a capitalization
rate appropriate to the type of investment risk involved. A slight variation
in the capitalization rate profoundly affects the value to be attributed
to the property. Accordingly, unless the components of the formula, the
annual income and the capitalization rate, are determined with reasonable
certainty, the resulting value is speculative, and of little use to the
trier of the fact." (309)
d. Valuation/Capitalization: "We have doubt about the propriety of the testimony allowed in State v. Shaddock, supra, since the appropriate capitalization rate to be used in the income approach to market value depends upon the nature of the investment risk. It seems to us that some evidence on that point may be necessary before a witness may capitalize income. However, that question is not presented for decision here." (308, n.1)
e. Jury/View: "The court in its discretion may allow the jury to view the condemned property. NRS 16.100. The view is not evidence, but may enable the jury to more fully appreciate the evidence during trial." (310) "Witnesses fully explained the change in the appearance of the surrounding area." (310)
40. Meredith v. Washoe Co. Sch. Dist., 84 Nev. 15, 435 P.2d 750 (1968)
a. Estates In Land/Restrictive Covenants: A restrictive covenant is an interest in property requiring just compensation for its taking by eminent domain. (17)
b. Estates In Land/Restrictive Covenants: "The measure of compensation is the value of the interest that is extinguished. But since the value of a restrictive covenant cannot be in the abstract, we must look to the market value of the dominant tenement before and after the taking. In substance, the value of the loss offset by the value of the benefits is the amount of compensation to be awarded. NRS 37.110." (19)
41. Andrews v. Kingsbury Gen. Improvement,
84 Nev. 88, 436 P.2d 813 (1968)
a. Valuation/Actual Use: "A landowner is entitled to compensation for the highest and best use to which his property may be put, and is not limited by the use actually made of it." (90)
b. Burden of Proof: The burden rests on the owner to prove severance damages. (90)
c. Valuation/Intent: The owners are not required to offer evidence of their intention to subdivide for single family residence use. (90)
d. Valuation/Zoning: Evidence that the appropriate authority would probably grant a variance if application were made is relevant to severance damage, if offered through a competent witness. (90)
42. City of Reno v. District Court, 84 Nev. 322,
440 P.2d 395 (1968)
a. Abandonment: Mandamus will issue to enforce NRS 37.180, requiring dismissal of the case upon abandonment of the condemnation proceedings. (324)
b. Abandonment: After abandonment, a counterclaim for damage to contiguous lands will remain for independent adjudication. (325-326)
43. Milchem Inc. v. District Court, 84 Nev.
541, 445 P.2d 148 (1968)
a. Constitutional Supremacy: Essential elements of just compensation cannot be excluded by legislative enactment. (548)
b. Valuation/Intent: "(O)ne may not be deprived of his property without just compensation merely because he has chosen to let it lie dormant or perhaps was unaware of the value or the existence of the minerals." (548)
44. Lamar v. Urban Renewal Agency, 84 Nev. 580,
445 P.2d 869 (1968)
a. Attorney's fees: The condemnee has no constitutional right to recover attorney's fees as a part of just compensation. (581)
b. Attorney's fees: NRS Chapter 37 does not provide for attorney's fees except upon abandonment by condemnor; NRS 18.010 allows such fees only when the defendant has not recovered more than $10,000.
45. Dep't of Hwys. v. Haapanen, 84 Nev. 722,
448 P.2d 703 (1968)
a. Juries/View: A jury view is discretionary.
b. Valuation/Prospective Use: Evidence that a prospective buyer indicated interest in building specific enterprises, but became disenchanted upon learning of contemplated condemnation, is admissible to show a change in possible use of the property.
46. Probasco v. City of Reno, 85 Nev. 563,
459 P.2d 770 (1969)
a. Estates in Land/Easements: "The extinguishment of a positive easement by public acquisition gives rise to compensation." "In Nevada, such an easement is expressly subject to condemnation for public use." (564)
b. Estates in Land/Covenants: "(T)he extinguishment of a restrictive covenant by public authority for public use is compensable..., since...in large measure identical with the express grant of a positive easement." (564-565)
c. Estates in Land/Easements: There is no compensation for extinguishment of implied negative easements of light, air and view. "We now expressly repudiate the doctrine of implied negative easements in the context of eminent domain." (565) Distinguish acquisition of a right to light, air and view by express covenant. (566)
47. City of Reno v. Folsom, 86 Nev. 39, 464
P.2d 454 (1970)
a. Taking/Special Assessments: A local assessment beyond the special benefits conferred is a taking of private property for public use without compensation. The return to the property owner of the benefit is the foundation of special assessments. (41)
b. Taking/Special Assessments: "'(T)he exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.' (Emphasis in original.)" (42)
c. Taking/Special Assessments: "It is well established that a special assessment, absent a benefit to the property assessed, is illegal and void." (42)
d. Benefits: "'It cannot be assumed in light of modern day highway transportation that the mere improvement of a street will bring benefit to abutting property owners and subject them to assessment.'" (43)
48. State ex rel. Dep't Hwys. v. Linnecke,
86 Nev. 257, 468 P.2d 8 (1970)
a. Access: The landowner is entitled to compensation where an abutting public highway is converted to a freeway restricting access, requiring the landowner to travel farther to reach it, taking away direct access previously had from the old road.
b. Access: "An abutting owner of a public highway has a special right of easement in a public road for access purposes. This is a property right of easement which cannot be damaged or taken from the owner without due compensation. (cite) But an owner is not entitled to access to his land at all points in the boundary to it and the highway, although entire access to his property cannot be cut off. If he has free and convenient access to his property and his means of egress and ingress are not substantially interfered with, he has no cause for complaint." (260)
c. Access: A frontage road may mitigate damages.
49. Carson City v. Estate of Lompa, 88 Nev.
541, 501 P.2d 662 (1972)
a. Estates in land/Water rights: A water right is a real property right subject to eminent domain condemnation.
50. Tacchino v. State ex rel. Dep't Hwys.,
89 Nev. 150, 508 P.2d 1212 (1973)
a. Valuation/Subdivision: Valuation need not be based on what a willing purchaser will pay for the whole at the time of the taking, where the land is undeveloped and subdivision is imaginary or hypothetical, despite cases to the contrary in other jurisdictions. (153)
b. Valuation/Subdivision: The possibility of subdivision is a factor a well-informed buyer would use in arriving at a price he would pay for the land. (153)
c. Valuation/Subdivision: "The potential income to be derived from the sale of subdivided lots, properly discounted to show present value, is a factor and relevant to a determination of market value, since sophisticated investors make decisions on the basis of income capitalization." (154)
d. Valuation/Subdivision (Dissent): Industrial property is not conducive to being subdivided into equal lots because of the varying requirements of prospective industrial purchasers, as admitted in the evidence.
e. Valuation/Subdivision (Dissent): "[W]here the entire parcel of land is taken as a unit...the proper measure of compensation is what a willing purchaser would be willing to pay for the parcel at the time of the taking, in its then condition and not what a number of purchasers might, in the future, be induced to pay for the land as divided into lots." (155) [Editors note: This is not inconsistent with the majority holding. The possibility of subdivision is a proper element, but it would be improper to suggest that the value of the land is the value of the accumulated subdivisions, sold "retail". The dissenters noted there was no dispute below as to adaptability of the land to industrial subdivision, and the evidence was merely cumulative "and could create substantial danger of undue prejudice."]
f. Valuation/Intent (Dissent): "Evidence of what the owner might plan to do with his property is not to be considered by the jury as enhancing its market value."
51. LaPratt v. City of North Las Vegas, 91
Nev. 362, 535 P.2d 795 (1975)
a. Laches: Where the City had occupied the property as a street, and there was no final order of condemnation or determination of compensation, the S.Ct. reversed the dismissal for failure to proceed with diligence, even though the landowner allowed "several years" to pass after a trial continuance. (362) [No explanation. Constitutional supremacy? (c.g.)]
52. State ex rel. Dep't Hwys. v. Tacchino,
92 Nev. 286, 549 P.2d 755 (1976)
(appeal and cross-appeal of trial after remand from No. 27)
(We "see no useful purpose...in writing a lengthy opinion... (re) our opinion on the first appeal.")
a. Valuation/Illusory: "(T)he valuation of property is an illusory matter for which there exists no absolute mathematical formula." "Since the jury awards fall within the range of the expert testimony received, we shall not disturb them."
[Editors note: Query: Did the State raise the issue of the propriety of admitting into evidence the precise plans of the landowner to subdivide the lots, as opposed to allowing testimony that the reasonable, willing purchaser would have taken into account the reasonable possibility of subdivision?]
53. State ex rel. Dep't Hwys. v. Nev. Aggregates,
92 Nev. 370, 551 P.2d 1095 (1976)
a. Valuation/Intent: "It has been held that, when there is no evidence in the record that the land in question is suitable or naturally adapted for use, or uses, other than that to which it was applied at the time of the taking, an owner may not present evidence that he intended to put property to some specific use which would have produced a certain amount of income and that as a result of the condemnation, he has been damaged in the amount of the prospective income he allegedly has been deprived; and, under such circumstances, that a jury may not consider, as a basis for awarding damages, the fact that the owner has been prohibited from putting his property to some intended use by reason of its condemnation. See, e.g., Tibbles, 123 N.E.2d 170 (Ind. 1954).
Quite understandably, in the absence of such evidence, such damages are considered too speculative to provide a reasonable guide for the ascertainment of present fair market value. Empire Dist. Electric Co. v. Johnston, 268 S.W.2d 78 (Mo.App. 1954) Cf. Tacchino v. State ex rel. Dep't of Hwys., 89 Nev. 150, 508 P.2d 1212 (1975)." (372-373)
b. Valuation/Intent: "Prior to the commencement of these proceedings, Nevada Aggregates implemented this plan and by August of 1972 (when the complaint was filed) the company was fully engaged in the task of extracting the minerals from the first designated area." (373)
"There is a significant distinction between the cases referred to by appellant which condemn the practice of considering damages resulting from frustration of intended use and the instant case. ...we are not here concerned with a plan or intended use which had not yet been developed to fruition. Here, the plan was in effect at the time of the condemnation and income was being realized as a result of it...". (373-374)
"The plan was not a fantasy of the landowner which had not been reduced to tangible returns but was a reality. There was no need to speculate as to the amount of income the plan would produce. Under such circumstances, the rationale behind the rule prohibiting consideration of intended use obviously does not apply." (374) Cf. United States ex rel. Tennessee Valley Authority v. Powelson, 138 F.2d 343 (4th Cir. 1943); State v. Goodwyn, 133 So.2d 375 (Ala. 1961); In Re Ford, 263 N.Y.S.2d 831 (Sup.Ct.App.Div. 1965).
c. Valuation/Unit price: "Uniformly, the courts have condemned the price-unit formula as a basis for determining fair market value of condemned property." (374)
d. Valuation/Unit price: "It is recognized that a fair estimation of value cannot be reached simply by multiplying the unit market price of a given mineral by the estimated quantity thereof contained in the condemned land. Many other factors need be considered before fair value can be attached to the mineral bearing property. But, where the product of the price-unit formula is considered only as one of such factors, no prejudicial error results." (375)
54. Sorenson v. State ex rel. Dep't Hwys.,
92 Nev. 445, 552 P.2d 487 (1976)
a. Valuation/Zoning: The trial court erred in relying on present zoning as multiple-residential in determining highest and best use, when "(i)t is clear from the record that the highest and best use of the property is industrial...", as noted in the Las Vegas Master Plan. (446-447)
[Gunderson disqualified himself; no reason apparent here why the court did not defer to the findings of the trial judge. No issue of law involved, only of fact, and substantial evidence in the record. Substantial problem here as to effect of master plans, but no analysis.] (c.g.)
55. Beals v. County of Douglas, 93 Nev. 156,
560 P.2d 1373 (1977)
a. Amortization/Nonconforming signs: "Amortization of nonconforming signs has received widespread acceptance as a constitutionally permissible method of effectuating the removal of signs while properly safeguarding constitutional rights, due process, and just compensation." (157)
56. Sloat v. Turner, 93 Nev. 263, 563 P.2d 86
a. Adverse possession: The State's condemnation of property stays any period of prescriptive use, for no rights as to state property can be acquired by prescription, and State need not pay compensation for land allegedly acquired by the plaintiff from third party by adverse possession, since the land was condemned by the State one year and ten months after it was acquired by the plaintiff.
57. Alper v. Clark County, 93 Nev. 569, 571
P.2d 810 (1977)
a. Limitations: Nevada's six-month county claims statutes (NRS 244.245 and .250) cannot be constitutionally applied to a claim against the county for inverse condemnation. (574)
1) self-executing constitutional rights cannot be abridged or impaired by statute. (572)
58. Lied v. County of Clark, 94 Nev. 275, 579
P.2d 171 (1978)
a. Access: "A determination of 'substantial impairment of access' must be reached as a matter of law." (278)
b. Access: "'(A)n owner is not entitled to access to his land at all points in the boundary to it and the highway, although entire access to his property cannot be cut off. If he has free and convenient access to his property and his means of egress and ingress are not substantially interfered with, he has no cause for complaint.'" (278) quoting Linnecke, #25
59. City of Reno v. County of Washoe, 94 Nev.
327, 580 P.2d 460 (1978)
a. Political Subdivisions: The State Legislature may transfer ownership of an airport from a city to a county without compensation.
b. Political Subdivisions: "We conclude...that the City, as a political subdivision of the State, may not raise the issues of taking of property without due process of law or just compensation and the impairment of its contracts, as against the State, its creator." (331)
60. Skyland Water v. Tahoe Douglas Dist.,
95 Nev. 289, 593 P.2d 1066 (1979)
a. Valuation/Legal restrictions: Legal restrictions on use may be properly considered in determining value. (291)
b. Valuation/General: "We have previously interpreted 'just compensation' to require that property be valued in light of its highest and best use." (291) quoting Sorenson, #31
c. Valuation/Prudent businessman: "In determining this value, the finder of fact may consider such factors as would be considered by a prudent businessperson before purchasing such property." (291) quoting Shaddock, #14
61. Kuban v. McGimsey, 96 Nev. 105, 605 P.2d
a. Regulatory taking: "A regulation of business which actually prohibits such business does not constitute a taking when, as here, such regulation promotes the health, safety, welfare or morals of the community and thus is a valid exercise of police powers." (112) (ordinance banning houses of prostitution)
b. Regulatory taking: "Here, the ordinance, although having a significantly adverse economic impact upon appellants' ventures, does not deprive appellants of all reasonable uses of their property." (112)
62. Sproul Homes v. State ex rel. Dep't Hwys.,
96 Nev. 441, 611 P.2d 620 (1980)
a. Taking/Precondemnation Activities: "It is well-established that the mere planning of a project is insufficient to constitute a taking for which an inverse condemnation action will lie." (443)
b. Taking/Precondemnation Activities: "Nevertheless, when the precondemnation activities of the government are unreasonable or oppressive and the affected property has diminished in market value as a result of the governmental misconduct, the owner of the property may be entitled to compensation." (444)
c. Taking/Precondemnation Activities: Announcing a need for construction of a highway, announcing the location of the highway through a landowner's property, and refusing to institute condemnation proceedings, while discussing with the landowner the intent of the State to acquire the land, does not establish a claim in inverse condemnation for coercing the landowner into selling his land for less than fair market value. (443)
d. Taking/Precondemnation Activities: "'If a governmental entity and its responsible officials were held subject to a claim for inverse condemnation merely because a parcel of land was designated for potential public use on one of these several authorized plans, the process of community planning would either grind to a halt, or deteriorate to publication of vacuous generalizations regarding the future use of land.'" (444) quoting Selby Realty Co. v. City of San Buenaventura, 514 P.2d 111, 116 (Cal. 1973)
63. Rainbow Blvd. v. State ex rel. Dep't Hwys.,
96 Nev. 637, 615 P.2d 931 (1980)
a. Severance: A dedication to the City of land for highway use may not necessarily preclude the landowner from demonstrating new and uncontemplated damages. (642)
64. County of Clark v. Bonanza No. 1, 96 Nev.
643, 615 P.2d 939 (1980)
a. Contracts/Public Policy: "A contract with a public body to locate public facilities or highways in a certain place tends to prevent the change or removal of such facilities when the needs or convenience of the public demand. All such contracts tend to operate to the detriment of the public interest and are against public policy and void." (652)
b. Indemnity: "Private parties may legitimately share the cost of eminent domain" with an indemnity agreement. (652)
c. Valuation/Date: "The valuation date is the trial date." (653, n. 8)
65. Halfon v. Title Ins. & Trust Co., 97
Nev. 421, 634 P.2d 660 (1981)
a. Appeal/Standard: "The district court's determination as to the fair market value of real property will not be disturbed on appeal if it is supported by substantial evidence." (423)
b. Mortgage: "(W)hen property subject to a mortgage or deed of trust is taken in eminent domain proceedings, the condemnation award becomes a substitute for the property, and the mortgagee or beneficiary has an equitable lien on the award. (cite) The secured party, however, is only entitled to that portion of the condemnation award necessary to satisfy his lien." (424)
66. NL Industries v. Eisenman Chemical Co., 98
Nev. 253, 645 P.2d 976 (1982)
a. Public use/More necessary: "'(P)roperty of a private corporation devoted to a public use, although not clothed with a specific exemption from subsequent condemnation, cannot be taken to be used in the same manner for the same purpose by a different corporation, even by express enactment of the legislature.'" (258)
b. Public use/More necessary: "NRS 37.030(3) permits condemnation of property already appropriated for public use if a more necessary public use is contemplated by the condemnor." (259)
c. Public use/More necessary: Eminent domain may be exercised for mining purposes, even to the extent of condemning mineral deposits, but mining minerals is not a more necessary public use than holding them in reserve for future mining.
67. City of Elko v. Zillich, 100 Nev. 366,
683 P.2d 5 (1984)
a. Valuation/Later comparable sales: "Although...'the best evidence...is found in sales of comparable property within a reasonable time before the taking,'" the trial court may properly admit testimony of sales subsequent to the service of summons where the figures are adjusted for differences in the date of sale - affects the weight of the evidence, not its admissibility. (369-370)
b. Valuation/General: "Generally, the value of property taken in condemnation proceedings is its market value, defined as 'the highest price estimated in terms of money which the land would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all the uses and purposes to which it was adopted (sic) and for which it was capable.'" (370)
c. Valuation/Prudent businessman: "The court and jury may consider 'other elements that can fairly enter into the question of value and which an ordinarily prudent businessman would consider before forming judgment in making a purchase.'" quoting Tacchino, #27 (370)
d. Valuation/Zoning: A transferable grandfathered right to use a parcel in variance with zoning would be considered by a prospective purchaser and is admissible. (370-371)
e. Witnesses/Owner: "The general rule is that an owner, because of his ownership, is presumed to have special knowledge of the property and may testify as to its value." (371)
f. Witnesses/Owner: "The question of the landowner's competency to form an opinion of the land's value may be exposed on cross examination and affects the weight to be given to the testimony, not its admissibility." (371)
68. County of Clark v. Alper, 100 Nev. 382,
685 P.2d 943 (1984)
a. Valuation/General: "The term 'just compensation' requires that the market value of the property should be determined by reference to the highest and best use for which the land is available and for which it is plainly adaptable." (Skyland, #36; Sorenson, #31) (387)
b. Valuation/Factors: "Every factor which affects the value of the property and which would influence a prudent purchaser should be considered."(Tacchino, #27) (386-387)
c. Valuation/Zoning: "As a restriction on land use, an existing zoning ordinance is generally regarded as a proper matter for the jury's consideration." (387)
d. Setbacks: In calculating setbacks, the centerline must be determined before the street was widened. (388)
e. Valuation/Zoning: "Ordinarily, zoning restrictions permitting a viable economic use of the property may be considered for valuation purposes." (389)
f. Valuation/Precondemnation activities: Depreciation caused by the prospective taking once the government has announced its commitment to the project is not admissible evidence. (389)
g. Valuation/Precondemnation activities: "It would be manifestly unjust to permit a public authority to depreciate property values by a threat of a construction of a government project and then to take advantage of this depression in price when the property is eventually condemned." (389) Codified in NRS 342.230(3). "The property is to be valued as if the government project that resulted in the taking was neither contemplated nor carried out." (390)
h. Valuation/Zoning: "(D)ue consideration should be given to those zoning ordinances that would be taken into account by a prudent and willing buyer," but a reasonable possibility of obtaining a zoning change may also be considered. (390, n. 6)
i. Valuation/Date: "In formal condemnation proceedings, NRS 37.120(1)(b) places the burden on the government to move the case to trial within two years after the action is commenced. If it does not, and the delay is not primarily caused by the actions of the landowner, the government must account for the increased value of the property." This rule applies equally to claims for inverse condemnation! (391)
j. Valuation/Date: "We hold that the county cannot delay formal eminent domain proceedings on the expectation that the landowner will file an action for inverse condemnation and thereby avoid its obligation to bring the matter to trial within two years." (391)
k. Inverse condemnation: "Inverse condemnation proceedings are the constitutional equivalent to eminent domain actions and are governed by the same rules and principles that are applied to formal condemnation proceedings." (391)
l. Interest/Prejudgment: "Where the market value of the property is not paid contemporaneously with the taking, the owner is entitled to interest for the delay in payment from the date of the taking until the date of the payment." Even where the court has also given the landowner the benefit of the appreciated later value at the time of trial! Interest compensates for the delay and deprivation of use of the proceeds; time of trial valuation "is merely an alternative method of valuing land in protracted condemnation proceedings." (392-393)
m. Interest/Prejudgment: "The statutory interest rate establishes at least a prima facie basis for determining a fair rate and is not controlling if some other rate is required to meet the constitutional requirements of just compensation." (394)
n. Interest/Prejudgment: "Statutory interest rates as applied to prejudgment interest are generally considered as a "floor" on the rate allowable for compensation under the fifth amendment." (394)
o. Interest/Postjudgment: "(O)nce a 'taking' has been properly reduced to a judgment, the constitutional requirement of 'just compensation' has been satisfied." Ergo, postjudgment interest is statutory, not constitutionally required, and the applicable statute is the one in effect at the time of the commencement of the action. (394-395)
p. Taxes: "An owner who is dispossessed from his or her land when it is taken for public use is no longer obligated to pay taxes." Ergo, entitled to reimbursement for taxes paid after that time. (395)
69. First Western v. Vegas Continental,
100 Nev. 710, 692 P.2d 1279 (1984)
a. Mortgage/Assignment of Award: "Despite a clause...purporting to assign an entire condemnation award to a mortgagee or beneficiary of a deed of trust, the effectiveness of such a contract term is limited by the legal and equitable interest of the mortgagee or beneficiary in the award." "The effectiveness of such a clause is limited to the extent to which a mortgagee or beneficiary can demonstrate that its security has actually been impaired." (712)
b. Mortgage/Assignment of Award: Where a taking in eminent domain reduces the value of the property, the holder of a trust deed (securing a debt) is entitled to a part of the compensation award that will maintain the same ratio or margin (value of property to the amount of the secured debt).
70. Manke v. Airport Authority, 101 Nev. 755,
710 P.2d 80 (1985)
a. Prejudgment/Interest: Because NRS 37.120(1) and 37.120(2) operate to destroy the only value of vacant, unimproved property, the taking occurs on the date of the service of summons, and interest shall be calculated from that time. (758)
b. Prejudgment/Interest: "If the condemned property is neither vacant, nor unimproved, nor of value to the condemnee for purposes of investment or development, the condemnee is only entitled to interest pursuant to NRS 37.175(2). (759, n. 6)
c. Prejudgment/Interest: Incidental rents or profits from basically unimproved land accrued after the date of the service of summons, is to be subtracted from the interest, but the interest is still to run from the date of the service of summons. (759, n. 6)
71. Culley v. County of Elko, 101 Nev. 838,
711 P.2d 864 (1985)
a. Access: The district court must determine whether substantial impairment of access has been established as a matter of law in inverse condemnation actions. (840-841)
b. Access: The court may not base its determination of impairment of access on the district court's view of a new access road. "The district court determination whether substantial impairment of access has been established as a matter of law must be based upon the evidence presented at trial." (841)
72. Stagecoach Util. v. Stagecoach Gen. Imp.
Dist., 102 Nev. 363, 724 P.2d 205 (1986)
a. Just compensation: "'The word 'just' is used to intensify the meaning of the word 'compensation' and conveys the idea that the equivalent to be rendered for the property taken shall be real, substantial, full and ample.'" (364, quoting Sorenson, #31) (Originating in Henry, #2, 8 Nev. at 171-172; also in Tacchino, #27, 89 Nev. at 152, and Alper, #43, 100 Nev. at 392)
b. Valuation/Utilities: Valuing a utility is difficult since there is no established market, especially where it is losing money. (364)
c. Valuation/Utilities: Although normally we determine the value of the property to the condemnee, not the condemnor, where a utility has been relieved of the burden of an unprofitable water system by condemnation, the court should look to the value that the utility has to the condemnor to arrive at a damage amount. (364) Accordingly, compensation "lies between an amount equal to the salvage value of the water system and an amount equivalent to the reproduction cost of the water system minus depreciation." (365) Plus interest from date of taking. (366)
73. M & R Investment Co. v. State Dep't Transp.,
103 Nev. 455, 744 P.2d 531 (1987)
a. Severance: Severance damages are awarded in partial taking cases to compensate for diminution in value to remaining parcels. (449)
b. Severance: "Severance damages will not be awarded for injury to separate and independent parcels owned by the condemnee." (449)
c. Severance/Larger parcel: "The concept of large parcel is instrumental in determining both the value of the property condemned and whether severance damages are to be awarded in an eminent domain action." (449)
d. Severance/Larger parcel: "In order to show that a parcel condemned is part of a larger parcel, it is generally held that there must be unity of title, contiguity, and unity of use of the property." (449) Physical contiguity is not necessary "so long as the evidence discloses an actual and existing unity of use and purpose and an existing, lawful and utilized access between the parcels." (450)
e. Severance/Larger parcel/Questions of Fact and Law: "Under the prevailing rule, identification of the larger tract is an issue of fact to be decided by the trier of fact." (450) Although "there may be instances wherein the facts are so compellingly clear that the issue becomes one of law for determination by the trial court." (450)
f. Joinder/Prospective use: "If the highest and best use of separate parcels would involve a prospective, integrated, unitary use, then such prospective use may be considered in fixing the value of the property condemned providing joinder of the parcels is reasonably practicable." (451)
g. Joinder/Prospective use: "Hence, when valuating the condemned parcel as part of a large parcel or assemblage, the requisite unity of use may be merely prospective; whereas, when assessing severance damages to the remaining part of a large parcel, the requisite unity of use must be actual and present." (451)
h. Joinder/Severance: "(E)ven where severance damages to a remaining parcel may not be appropriate, the possibility of joinder may still be a proper consideration in the valuation of the property taken." (451)
i. Joinder/Factors: "Factors considered (in determining whether joinder would be reasonably practicable) include time and costs of uniting the land and willingness of other owners to participate in the assemblage." (452)
j. Joinder/Burden: "The party urging (joinder) must lay a foundation showing some probability of joinder and carry the burden of proof. In laying such a foundation, elements affecting value which are possible, but not reasonably probable, should be excluded." (451-452)
k. Joinder/Questions of Fact and Law: "Whether the combination of two parcels is 'reasonably practicable' is clearly a question of fact for the jury." (452)
74. City of Sparks v. Armstrong, 103 Nev.
619, 748 P.2d 7 (1987)
a. Precondemnation activities/Taking: "Although the mere planning of a project is generally insufficient to constitute a taking, when precondemnation activities of the government become unreasonable or oppressive in such a manner that those activities adversely affect the market value of the property, then the property owner is entitled to compensation." (621)
b. Precondemnation activities/Taking: Government action that makes it "clear that future development on such parcels would not be permitted," supports a finding that the taking occurred at that time. (621-622)
c. Experts: "The methods used to evaluate the worth of condemned property are not highly regulated. It is a field dominated by expert opinion. Triers of fact should not be limited in their exposure to such expert opinion where such opinion may shed light on the true value of the condemned property." (622)
d. Valuation/General: "It is often appropriate to determine the fair market value of property which has no relevant market by any method of valuation that is just and equitable." (622)
e. Interest/Prejudgment: "The term 'just compensation' includes interest from the date of the taking." (623) citing Manke, #44
f. ((The Supreme Court leaves the facts of this decision to mystery.))
75. State, Dep't of Transp. v. Las Vegas Bldg.,
104 Nev. 479, 76l P.2d 843 (1988)
a. Valuation/minerals: "(T)he existence of mineral deposits in or on land is an element to be considered in determining the land's value. Nevertheless, where the property is not taken for the purpose of obtaining the minerals or as an ongoing business it is improper to appraise the mineral deposits separately and add the mineral value to the value of the land." (3) Testimony should be restricted to the effect the presence of the minerals would have on market value.
b. Benefits: NRS 37.110 "does not permit the State to offset damages via special benefits which may accrue to the property as a result of a separate planned project by a third party." (4) ("a speculative source of benefits from a third party") (5)
c. Options: "(T)he right to purchase created by an option may be a substantial and valuable right.... although we decline to rule that any option to purchase land is of value compensable in a condemnation action, where the exercise of the option is a foregone conclusion we hold that the option is a valuable right compensable in such an action." (7) [as where, after 22 years, the value appreciated considerably from the option price of $400 per acre - although, it would seem that the prospect of exercising the option should go to its weight, not its admissibility. This deviates from the concept of the "market value of the property", for the option will not pass with the title. (c.g.)]
d. Contracts: Although the majority approach is to distinguish between contract rights and property interests, this Court will follow County of San Diego v. Miller, 119 Cal.Rptr. 491, 532 P.2d 139 (1975) where it held that "the right to compensation is to be determined by whether the condemnation has deprived the claimant of a valuable right rather than by whether his right can technically be called an 'estate' or 'interest' in his land." 532 P.2d at 143. [The landowner is deprived of the option only if it is of no value without the land and if he cannot sell it to the State. The decision misses or evades this point; the facts may not be in the record. Did the optionor here get a windfall? Can the State condemn the option? (c.g.)]
e. [The property was more valuable to these owners than any prospective purchaser, because they also owned an option contract for adjacent lands. This decision effectively allows compensation for this loss of business venture, contrary to all prior law limiting 'just compensation to market value - what a willing purchaser would pay to a willing seller, irrespective of considerations of tangential business loss. (c.g.)]
76. Pappas v. State, Dep't Transp., 104 Nev.
572, 763 P.2d 348 (1988)
a. Juries/Impeachment of Verdict: "This court has long held that, as a general rule, jurors are not permitted to impeach their own verdict." (3)
b. Juries/Impeachment of Verdict: Affidavits of jurors are admissible to show what physically transpired, but not for proving their mental processes, e.g., as to what effect an unanswered question had upon the outcome of their deliberation.
c. Juries/Compromise Verdict: An instruction that stated: "You must determine the fair market value of the subject property only from the opinions of the witnesses.... you may not find the market value of the subject property to be either less than or more than that testified to by the witnesses..." apparently induced the jury to think that it could not come to a compromise verdict, but had to pick one of the valuations.
d. Burden: The Uniform Eminent Domain Code Section 904, providing that "(n)o party has the burden of proof on the issue of the amount of compensation," is "well reasoned and persuasive," but "such a statutory change must be instituted through the legislature, not the court." (4) [the landowner was not arguing for a statutory change, and none is needed! (c.g.)]
77. Wheeler v. State, Dep't Transportation,
105 Nev.Adv.Op. 46 (1989)
a. Valuation/General: "We have clearly defined the term 'fair market value' that is to be used in condemnation cases." "Generally the value of property taken in condemnation proceedings is its market value, defined as 'the highest price estimated in terms of money which the land would bring if exposed for sale on the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all the uses and purposes to which it was adopted (sic) and for which it was capable.'" quoting Zillich, #42 (1-2)
b. Valuation/General: An appraiser may testify as to "most probable price" where he states that this is equivalent to "the highest price". (2)
c. Experts: "A trial court is allowed wide discretion in passing on matters relating to expert testimony in these cases." citing Zillich, #42 (2)
78. White Pine Lumber v. City of Reno, 106 Nev. 778, 801 P.2d 1370 (1990)
a. Statute of Limitations: "(W)e hold that the fifteen-year period provided in NRS 40.090 is the appropriate limitations period in 'takings' actions," at least where the taking entity has not paid the taxes. (780)
b. Statute of Limitations: Because the right
of recovery grows out of title to property, or because "takings" claims
are of a constitutional magnitude, in the absence of a specifically applicable
statute of limitations, only the period required to obtain title by adverse
possession may bar an inverse condemnation action. (779-780)
79. Kelly v. TRPA, 109 Nev. 638, 855 P.2d 1027 (1993) (certiorari denied, 510 U.S. 1041, 114 S.Ct. 684, 126 L.Ed.2d 652)
a. Regulatory takings: In Lucas v. S. Carolina
Coastal Council, ..... U.S. ....., 112 S.Ct. 2886 (1992):
"the United States Supreme Court...held, under certain circumstances, an ad hoc factual inquiry was not required and a landowner could "categorically" receive payment as compensation for a taking in violation of the Fifth and Fourteenth Amendments. Id. at .....,112 S.Ct. at 2893. The Supreme Court stated the general rule regarding "takings" violations: The "Fifth Amendment is violated when a land-use regulation 'does not substantially advance legitimate state interests or denies an owner economically viable use of his land." Id. at ....., 112 S.Ct. at 2894 (quoting Agins v. Tiburon, 447 U.S. 255, 260 (1980)). The Court went on to say that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking." Id. at ....., 112 S.Ct. at 2895 (footnote omitted).
The Supreme Court then discussed the history of "regulatory takings" jurisprudence. The Court noted that there is no "'set formula'" for determining whether a regulatory action constitutes taking, and that in the past, the Court has preferred to "'engag[e] in . . . essentially ad hoc, factual inquiries.'" Id. at ....., 112 S.Ct. at 2893 (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978)). The Court, however, did point out two situations where regulatory actions are "compensable without case-specific inquiry into the public interest advanced in support of the restraint": (1) "regulations that compel the property owner to suffer a physical 'invasion' of his property no matter how minute the intrusion, and no matter how weighty the public purpose behind it . . . . [; and (2)] where regulation[s] den[y] all economically beneficial or productive use of land." Id. at ....., 112 S.Ct. at 2893. (648)
b. Regulatory takings: "In order to determine whether [a landowner] has been deprived of all economically viable use of his property, three essential factors must be considered in the weighing process: (1) economic impact of land-use regulations, which includes a valuation analysis; (2) interference of land-use regulations with // landowner's reasonable investment-backed expectations; and (3) character of government action. Keystone Bituminous Coal Assn. v. Benedictis, 480 U.S. 470, 495 (1987) (quoting Hodel v. Virginia Surface Mining and Recl. Assn., 452 U.S. 264, 294-95)). (649-650)
c. Regulatory takings: Regulations that temporarily limit development in environmentally sensitive areas do not effect a taking without just compensation.
d. Regulatory takings: "In weighing these three factors, we conclude that the district court properly determined that TRPA can postpone building in critical areas for a 'reasonable period of time' as long as the 'benefit received by the property from the ordinances is direct and substantial and the burden imposed is proportional." (651)
e. Regulatory takings: In determining whether
a property owner has been deprived of all economic use, the property "must
be viewed as a whole, not as thirty-nine individual lots." (650)
80. Boulder City v. Cinnamon Hills Assocs., 110 Nev. 238, 245-246, 871 P.2d 320 (1994)
a. Regulatory takings: "(D)enial of a building
permit to build living quarters for the elderly did not destroy all viable
economic value // of the prospective development property. ... Hence, there
was no Fifth Amendment takings violation." (245-246)
81. Schwartz v. State, Dep't of Transp., 111 Nev. 998, 900 P.2d 939 (1995)
a. Access: We held in State ex rel. Dep't
of Highways v. Linnecke, 86 Nev. 257, 468 P.2d 8 (1907):
"An abutting owner of a public highway has a special right of easement in a public road for access purposes. This is a property right of easement which cannot be damaged or taken from the owner without due compensation. People v. Murray, 342 P.2d 485, 488 (Cal. App. 1959). . . . If he has free and convenient access to his property and his means of egress and ingress are not substantially interfered wtth, he has no cause for complaint. Breidert v. So. Pac. Co., 394 P.2d 719, 722 (Cal. 1964); City of Phoenix v. Wade, 428 P.2d 450, 454 (Ariz. App. 1967). The determination of whether such substantial impairment has been established must be reached as a matter of law. The extent of such impairment must be fixed as a matter of fact." (1001)
b. Severance damages: "We held further that damages are to be calculated based on the difference in market value 'before and after' the impairment." (1001)
c. Severance damages/Frontage roads: "The construction of a frontage road providing an alternative means of ingress and egress is a factor mitigating damages." (1001)
d. Original grade doctrine: "This rule, never before applied in Nevada, shelters states from liability for damage to property caused by the establishment of the original grade of an abutting road, but only if the state acts reasonably." (1001)
e. Original grade doctrine: The incremental cost of developing access to a frontage road that is thirteen feet above the existing highway is compensable once substantial impairment of access is established as a matter of law, even if the state acted reasonably in the construction of the road and even where the landowners had not yet developed access to the existing highway when the right of access was denied.
f. Original grade doctrine: "We do not intend by our holding to effectuate a wholesale repudiation of the original grade doctrine. We hold only that state improvements causing physical damage to property or the substantial impairment of some property right directly connected to the use or ownership of the property give rise to compensation as discussed in this opinion. Beyond the existence of such damage or substantial impairment, we do not reach the merits of the original grade doctrine." (1003, n. 5)
g. Severance damages: "NRS 37.110(3) provides that the following must be ascertained and assessed: 'If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages.' We have held that this provision applies to property as a result of construction of an improvement or where a property right which is directly connected to the use or ownership of the property is substantially impaired or extinguished. See State, Dep't of Transp. v. Las Vegas Build. Materials, Inc., 104 Nev. 479, 485-486, 761 P.2d 843, 847 (1988); Sloat v. Turner, 93 Nev. 263, 269, 563 P.2d 86, 89 (1977)." (1003)
h. Access/Severance damages/Frontage roads: "As previously noted, a property owner abutting a public highway has a special right of easement in a public road for access purposes, which is a property right of the class protected by NRS 37.110(3). Such a property right may not be substantially impaired without the payrnent of damages to the affected property owner. Therefore, the jury should have been allowed to consider the Landowners' evidence on 'before and after' damages attributable to the incremental cost of developing access to the frontage road, even if the State acted reasonably in the construction of the road. This is true despite the fact that the Landowners had not yet developed access to U.S 95 when the right of access was // denied, because a right of easement nevertheless existed and was part of the 'before' factor of the fair market value consideration of the property." (1003-1004)
i. Severance damages/Diversion of traffic/Good
will/Zoning: "Some damages, of course, resulting from the orderly pursuits
of society, are simply not compensable. See Probasco v. City of
Reno, 85 Nev. 563, 566, 459 P.2d 772, 774 (1969) (there is no right to
compensation for damages resulting from reasonable zoning regulations,
or by reason of the diversion of traffic away from one's property); State
ex rel. Herman v. Schaffer, 467 P.2d 66, 73-74 (Ariz. 1970) (no measure
of compensation may be calculated based on noncompensable factors such
as diversion of traffic or loss of customers, goodwill, income or profits,
except to the extent that the highest and best use of the real estate in
question is affected thereby). The 'before and after' damages referred
to in Linnecke pertain exclusively to, those arising in connection
with a diminution in the value of the Landowners real estate caused
by the substantial impairment of access." (1003, n. 4)
82. Glenbrook Homeowners v. Pettitt, 112 Nev. 783, 919 P.2d 1061 (1996)
a. Legislative authorization: To exercise eminent
domain, an entity need not be a specifically delegated condemnation authority,
at least where the entity, such as a homeowners' association, is charged with
maintaining and improving the roadways within the community. (3-5) "Once the
public purpose was established, the power of the private company to condemn
the property for that purpose was recognized, even though the statute did not
expressly state that a private company was authorized to exercise such power."
[Editor's note: This is an extraordinary decision. We're talking here of the sovereign power of eminent domain, which now requires no legislative authorization in Nevada. For the judicial branch to put it up for grabs like this borders on a separation of powers violation. How do we now defer to the discretion of condemning "authorities" in findings of public use and necessity? Why should governmental agencies be bound by legislative strictures, while your neighbor can now condemn your property without any? I don't expect this to go beyond contractual arrangements like CC&Rs, but this case is already too far in itself and begs for legislative correction.]
83. Dermody v. City of Reno, 113 Nev. 207, 212, 931 P.2d 1354 (1997)
a. Water rights: Nevada will follow the majority and Ninth Circuit rule "that acquisition by condemnation of a fee interest in land include(s) all appurtenances despite the failure to expressly mention them in the condemnation declaration," including water rights.
b. Water rights/Easements: Nevada will follow "the long-standing rule that '[w]here the fee simple absolute title to land has been acquired, the condemnor acquires all appurtenances thereto, buildings thereon, minerals lying beneath the surface, waters thereon, and easements as to which such land constitutes the dominant estate.'"
c. Water rights: "Since appurtenant water
rights are considered a separate property interest, we find that the word "interests"
encompasses appurtenant water rights." (5)
84. State, Dep't of Transp. v. Barsy, 113 Nev. 712, 718-720, 941 P.2d 971 (1997)
a. Prejudgment interest: "In Clark County v. Alper, 100 Nev. 382, 685 P.2d 943 (1984), this court referred to the statutory rate as a floor on permissible rates...." "This court further held that the determination of the proper interest rate is a question of fact, and that the district court was not bound by the statutory interest rate." "We stated that just compensation requires that the landowner "'be put in as good position pecuniarily as he would have been if his property had not been taken.'...The purpose of awarding interest is to compensate the landowner for the delay in the monetary payment that occurred after the property had been taken." (718)
b. Prejudgment interest: "While the statutory rate should be used if unchallenged, once competent evidence is presented supporting another rate of interest as being more appropriate, the district judge must then determine which rate would permit the most reasonable interest rate." (718)
c. Just compensation: "It is, of course, fundamental that property owners who suffer the loss of their property through condemnation proceedings are entitled to receive just compensation as provided under the 'just compensation' clauses of the United States Constitution and, in the instant case, Article 1, section 8 of the Nevada Constitution." (719)
d. Precondemnation activities: "We elect to follow the leading case on the rights of property owners who sustain damages as a result of precondemnation activities by the condemning authority," i.e., Klopping v. City of Whittier, 500 P.2d 1345 (Cal. 1972). (719-720)
e. Precondemnation activities: In the case of Klopping v. City of Whittier, 500 P.2d 1345, 1355 (Cal. 1972), the California Supreme Court, basing its decision on constitutional grounds, held that where a condemnor 'acts unreasonably in issuing precondemnation statements, either by excessively delaying eminent domain action or by other oppressive conduct, our constitutional concern over property rights requires that the owner be compensated.' The Klopping court ruled that a condemnee must demonstrate that the condemnor acted improperly following a precondemnation announcement by unreasonably delaying action or by other unreasonable precondemnation conduct and that such acts resulted in a decrease in the market value of the property. We define this cause of action to give a condemnee the right to recover for damages caused by precondemnation activity when extraordinary delay or oppressive conduct by the condemnor has been shown. The condemnation process involves governmental agencies and the court system, and it is endemic with delay. Without the reasonably stringent standard we adopt today, every condemnation case would give birth to a separate cause of action based on precondemnation activity. But where the evidentiary burden is met, the condemnee must be compensated for loss of income due to precondemnation action or publicity." (720)
f. Precondemnation activities: "The courts have specifically recognized that the issue (of precondemnation activity) is a question of fact." (720)
g. Precondemnation activities: "For the
landowner to state a cause of action, he also must allege facts showing an official
action by the condemnor amounting to an announcement of intent to condemn. (citation
omitted) "'The pivotal issue...is whether the public agency's activities
have gone beyond the planning stage to reach the 'acquiring stage.'" The
public agency's activities reach the "acquring stage" when condemnation
has taken place, steps have been taken to commence eminent domain proceedings,
or there has been an official act or expression of an intent to condemn."
85. Roberts Trust v. County of Clark, 113 Nev. 832, 942 P.2d 143 (1997)
a. Prejudgment interest: "The issue presented in this appeal was decided in State, Department of Transportation v. Barsy, ..where we held that NRS 37.175 does not preclude a higher rate of interest on judgments in condemnation cases if it is shown that a higher rate of interest is necessary to provide a reasonable rate of return." (833)
b. Prejudgment interest: In Barsy, "this
court upheld a condemnee's right to receive a reasonable rate as prejudgment
interest if competent evidence showed that a reasonable rate of interest would
be other than that stated in NRS 37.175." (834)
86. Fuddy Duddy's v. State, Dep't Transp., 113 Nev. 1452, 1454, 950 P.2d 773 (1997).
a. Leaseholds: "(A) purchase made under
the threat of condemnation is the same as a judicial condemnation" for
the purpose of triggering a condemnation clause in a lease whereby the lease
terminates upon condemnation, at least where the negotiations appear to have
been "a good faith effort to agree on the amount of compensation."
87. Argier v. Nevada Power Co., 114 Nev. 137, 952 P.2d 1390 (1998).
a. Sale/Transfer: When the owner sells the property after the condemnor has taken occupancy, but prior to a final order of condemnation, the seller is entitled to the entire condemnation award, absent a contract to the contrary.
b. Taking/Sale/Transfer: "The [Supreme] Court held that when the government enters into possession of property prior to acquiring title, it is the former event which constitutes the taking. Dow [United States v. Dow, 357 U.S. 17 (1958)], 357 U.S. at 22. Therefore, the person who owned the subject land at the time the government took possession was entitled to compensation.:" (140)
c. Inverse: "(T)his court has held that the same rules that govern direct condemnation actions apply in inverse condemnation actions as well." (140, n. 2)
d. Taking: In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), "the Court explained that where governmental action has caused a permanent physical occupation of the land, the Court has consistently found a taking to the extent of the occupation." (141)
e. Taking: "Thus, where there is an entry into possession by the condemning authority prior to formal commendation (sic) proceedings, the taking which occurs at the entry must be considered the taking for all purposes." (141)
f. Transfer/Sale: "It is generally presumed that the right to compensation remains with the vendor of the land unless the contract of sale specifically provides to the contrary." (141)
g. Vesting: "We hold that equity mandates
vesting occurs when the condemning agency enters into possession of the landowner's
property. To find that no taking occurred, even though the condemning agency
was in possession of the land, would be to circumvent the constitutional standards
for what constitutes a taking." (141)
88. Musser v. Bank of America, 114 Nev. 946, 964 P.2d
1. "If there exists a prior agreement between a landlord and tenant as to allocation of condemnation proceeds, that agreement governs the disposition of those proceeds." (949)
2. "A termination clause in a lease without accompanying language regarding how any compensation award is to be allocated, is sufficient to bar a lessee's claim to aprt of the award." Id.
3. "These cases do, in fact, stand for the proposition that an automatic termination clause forecloses a lessee's right to a portion of a just compensation award. They are distinguishable from the instant case, however, in that while the present leases contain a clause to the effect that the leases will terminate upon total condemnation, they also include language dictating how any compensation award should be allocated between the Owners and Lessees in such an event." Id. at 948.
4. "Some cases, however, have looked unfavorably on clauses causing the forfeiture of the lessee's entire interest on condemnation and, where possible, have construed such provisions to avoid this harsh result." Id., n. 2.
5. "(C)ontracts should be construed so as to avoid rendering portions of them superfluous." Id. at 950.
6. "Whether the Lessees are entitled to some remedy under NRS 342 [a comprehensive statutory scheme for compensating businesses displaced by a condemnation] is irrelevant since Chapter 342 is not an exclusive remedy. Here, the parties have provided for allocation of condemnation proceeds." Id.
7. Springer dissenting: "The question in this
appeal is why parties who first agree that the lease should be ended upon any
taking of the whole of the premises would also include a later provision
for apportionment of condemnation damages for either 'a taking of the
whole of the premises or part of the premises.'" Id. at 951.
89. County of Clark v. Buckwalter, 115 Nev.Adv.Op. 11 (1999).
1. Change in definition of "value" in NRS 37.009(6),
from "highest price" to "most probable price" is constitutional.
2. "(T)o the extent that NRS 37.009(6) contradicts Wheeler, we explicitly overrule Wheeler on this issue." Id. at 3. "We conclude that these two terms have different meanings, and that the district court committed reversible error by giving the "highest price" instruction because it likely affected the jury's verdict. Id. at 4. The court "will presume a substantial change in the law when a statute is amended to change a definition previously used." Id. at 5. "In the case at bar, the landowners misused and abused the "highest price" instruction in their closing argument to justify the five million-dollar difference in value." Id. at 6. "Ironically, the landowners' closing argument exemplifies the exact type of misuse and abuse of the Wheeler instruction that the legislature was trying to eradicate by changing the law." Id. at 6-7.
3. Maupin concurring: Statute is constitutional, but does not repeal Wheeler, since the terms are synonomous. Id. at 7-8. "I take this position because the industry, that is persons in the business of appraising real estate, do not seem to regard the terms "highest price" and "most probable price" as comprising anything other than a distinction without a difference." Id. at 8. "The problem at trial was created by the failure to instruct on the statute and, later, the forensic approach taken during closing argument." Id. "Thus, it was the instruction and the arguments made in connection with the instruction that form the need for a second trial below." Id. at 9. "(T)he appraisal industry does not draw such a distinction." Id. "If juries are instructed as I suggest, and if jury arguments are kept consistent with the instructions, just compensation to all parties will be realized. For example, on re-trial, the county will certainly be free to argue that the most probable price for the subject property based upon its highest and best use should not include speculative casino development." Id
90. Nat'l Adv. Co. v. State, Dep't of Transp., 106 Nev. Adv. Op. 10 (2000)
1. When billboards "cannot be relocated to comparable, income-generating sites" within the market area, the bonus value approach to value does not sufficiently compensate the advertising companies for their leasehold interests, and the income capitalization methodology should be used.
2. "As noted by the district court, the bonus value approach is based on the assumption that the Advertising Companies may keep the benefit of their bargain with the Damontes if they can relocate their billboards under a comparable lease at market value to another comparable site. The evidence in this case, however, clearly establishes that these billboards were in valuable, unique locations, and that the billboards could not be relocated to a comparable site within the market area." (7)
3. "If the billboards cannot be relocated to a comparable site, as is the case here, then the state must compensate the billboard owners for the valuable interests taken, that is, the value of their leasehold interests, taking into account the irreplaceable, lost rental income." (7, n. 8)
4. "In order to determine the value of the leasehold
interests...the advertising rental income must be considered under the income
capitalization approach, which adjusts the anticipated net income to present
value through the capitalization process." (7, n. 7)