State Highway Commission v. American

BIEGELMEIER, Judge. This is a condemnation proceeding. In 1936 W. G. Lacey became the owner of the 30 acre tract of land involved under plans
made by persons interested therein to create a cemetery. The topography of this tract was such that approximately the west
16 acres was unsuitable for burial purposes. The east 14 acres was then bisected by U.S. Highway 16. As part of the plan defendant
Pine Lawn Memorial Park, Inc., herein referred to as Cemetery Corporation was organized to operate the cemetery and Lacey
entered into a contract for deed with it which in much detail set up their business relations. Perhaps because cemetery corporations
may not appropriate any profit to the corporation or its members, one of the many provisions was that Lacey retain title to
the real estate, but upon deposit of 50% of the proceeds of the sale of any lot or $50 if the lot sold for less than $100
he would execute a deed for that lot to the Cemetery Corporation. Pursuant thereto that part of the 14 acres west of Highway
16 was platted in 7,441 burial spaces with drives, roadways, etc. A $14,000 chapel was erected on this west tract and a well
with water distribution system installed at a cost of roughly $18,000. Later a $20,000 house in which the caretaker lived
was built. There was testimony that the chapel and house were to serve both the tracts on the east and west sides of Highway
16, though they were placed on the west side; no part of the water distribution system was ever extended to the east tract
as it was inadequate for that added area. Through November 1963, the time of trial, 2,670 burial places had been sold - all
from the tract west of the highway. There was no evidence of the number of interments. As 4,771 burial places remain unsold
west of the highway, there was no occasion for the sale or platting of the tract east of the highway, nor was the east tract
platted until August, 1957. Mr. Powers, one of defendants' witnesses and originally interested in organizing the cemetery,
testified he was a friend of the Chairman of the State Highway Commission, and was told by him in 1956 that the new highway
was to be built which would take the east tract and asked him "not to make any burials in that portion". After a public hearing
on location of the road held in the spring of 1957 a plat of the 7.46 acre tract east of Highway 16 was filed. It indicated
6,248 burial places making a total of 13,689 burial places in both tracts. Other than the filing of the plat, nothing had
been done to change or improve the east tract and it remained in its original natural state. The condemnation suit for the
proposed highway does not take any part of the tract west of the highway; does not interfere with access thereto, nor change
Highway 16. It does take practically all of the tract east of Highway 16, and for purposes of the trial and this appeal the
parties assume that the whole of the tract east of the highway was appropriated. The trial Judge stated before the trial and
in the rulings during the trial that the rule of damages for the taking of the tract east of Highway 16 would be that substantially
set out by the Supreme Court of Nebraska in Graceland Park Cemetery Company v. City of Omaha, 173 Neb. 608, 114 N.W.2d 29.