   Decisions of the Nebraska Court of Appeals
872	22 NEBRASKA APPELLATE REPORTS



failed to comply with assisting Alexis in initiating calls to or
receiving calls from Maria.
   Further, § 42-364.15(1) authorizes a trial court to enter
orders as are reasonably necessary to enforce rights of either
parent, and this includes the modification of previous court
orders relating to parenting time, visitation, or other access.
As discussed above, I would reverse the breakfast meeting
modification, but I would affirm the other two modification
provisions as being reasonably necessary to enforce matters
pertaining to telephone contact.



        6224 Fontenelle Boulevard, L.L.C., appellant, v.
           Metropolitan Utilities District, appellee.
                                    ___ N.W.2d ___

                         Filed May 5, 2015.      No. A-13-704.

 1.	 Summary Judgment. Summary judgment is proper if the pleadings and admis-
     sible evidence offered at the hearing show that there is no genuine issue as to any
     material facts or as to the ultimate inferences that may be drawn from those facts
     and that the moving party is entitled to judgment as a matter of law.
 2.	 Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
     appellate court views the evidence in the light most favorable to the party against
     whom the judgment was granted, and gives that party the benefit of all reasonable
     inferences deducible from the evidence.
 3.	 Constitutional Law: Appeal and Error. Constitutional interpretation is a ques-
     tion of law on which an appellate court is obligated to reach a conclusion inde-
     pendent of the decision by the trial court.
 4.	 Summary Judgment. Summary judgment proceedings do not resolve factual
     issues, but, instead, determine whether there is a material issue of fact in dispute.
 5.	 ____. If a genuine issue of fact exists, summary judgment may not properly
     be entered.
 6.	 Summary Judgment: Proof. The party moving for summary judgment has the
     burden to show that no genuine issue of material fact exists and must produce
     sufficient evidence to demonstrate that the moving party is entitled to judgment
     as a matter of law.
 7.	 Summary Judgment: Evidence: Proof. After the movant for summary judg-
     ment makes a prima facie case by producing enough evidence to demonstrate
     that the movant is entitled to judgment if the evidence was uncontroverted at
     trial, the burden to produce evidence showing the existence of a material issue
     of fact that prevents judgment as a matter of law shifts to the party opposing
     the motion.
           Decisions of the Nebraska Court of Appeals
	         6224 FONTENELLE BLVD. v. METROPOLITAN UTIL. DIST.	873
	                       Cite as 22 Neb. App. 872

 8.	 Summary Judgment: Words and Phrases. In the summary judgment context, a
     fact is material only if it would affect the outcome of the case.
 9.	 Eminent Domain: Words and Phrases. 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.
10.	 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 public entity and has been deemed to be available where private
     property has actually been 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.
11.	 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 property taken; however, as a substitute,
     the property owner has a constitutional right to just compensation for what
     was taken.
12.	 Judgments: Eminent Domain. The ultimate determination of whether govern-
     ment conduct constitutes a taking or damaging is a question of law for the court.
13.	 Eminent Domain. In an action for inverse condemnation due to a governmental
     taking or damaging of a landowner’s property without the benefit of condemna-
     tion proceedings, actual physical construction or physical damaging is not neces-
     sary for compensation.
14.	 Judgments: Eminent Domain. A determination of what constitutes a bur-
     den on property that is direct, substantial, and peculiar to the property itself
     requires a case-by-case analysis and cannot be defined by one specific set
     of circumstances.
15.	 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.

  Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
  Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno
& Vogt, L.L.C., for appellant.
    Ronald E. Bucher and Mark Mendenhall for appellee.
    Inbody, Chief Judge, and Irwin and Bishop, Judges.
  Inbody, Chief Judge.
                       INTRODUCTION
  6224 Fontenelle Boulevard, L.L.C. (6224 Fontenelle),
appeals the order of the Douglas County District Court granting
   Decisions of the Nebraska Court of Appeals
874	22 NEBRASKA APPELLATE REPORTS



summary judgment in favor of Metropolitan Utilities District
(MUD), denying 6224 Fontenelle’s motion for summary judg-
ment, and dismissing 6224 Fontenelle’s inverse condemnation
action. For the reasons that follow, albeit for reasons different
from those of the district court, we affirm the order dismissing
6224 Fontenelle’s motion for summary judgment and granting
MUD’s motion for summary judgment.

                    STATEMENT OF FACTS
   On March 7, 2012, MUD installed a gas regulator sta-
tion in the public right-of-way near 6224 Fontenelle’s prop-
erty located at 6224 Fontenelle Boulevard, Omaha, Douglas
County, Nebraska. A gas regulator station is a utility facility
that controls the pressure and flow of natural gas to the natu-
ral gas distribution system, consisting of aboveground pipes,
valves, regulators, and other equipment which allows for the
continuous monitoring of gas pressure.
   On March 1, 2013, 6224 Fontenelle brought an inverse
condemnation proceeding in Douglas County Court to have
damages ascertained and determined and to request an appoint-
ment of appraisers. The petition alleged that MUD engaged
in a taking which caused damage to 6224 Fontenelle’s prop-
erty through the installation of a “dangerous, obnoxious, and
unsightly” gas regulator station. The petition further alleged
that MUD had taken the property for public use without con-
demnation proceedings and that the gasline regulator station is
not functional and serves no purpose.
   In accordance with procedures set forth in the eminent
domain statutes, Neb. Rev. Stat. §§ 76-701 through 76-726
(Reissue 2009), the county court appointed three disinterested
freeholders to serve as appraisers, which appraisers inspected
the property and held a meeting to hear arguments from any
interested party. The appraisers submitted a report concluding
that no damages were incurred at the property located at 6224
Fontenelle Boulevard.
   6224 Fontenelle appealed that determination to the dis-
trict court. In the petition on appeal, 6224 Fontenelle alleged
several causes of action, including inaccurate valuation,
         Decisions of the Nebraska Court of Appeals
	       6224 FONTENELLE BLVD. v. METROPOLITAN UTIL. DIST.	875
	                     Cite as 22 Neb. App. 872

excessive taking, improper purpose, and failure to negotiate in
good faith.
   MUD filed a motion to strike and for summary judgment
which alleged that there was no genuine issue of material fact
and that MUD was entitled to judgment as a matter of law. In
response, 6224 Fontenelle filed a partial motion for summary
judgment as to its allegations of inaccurate valuation and fail-
ure to negotiate in good faith. 6224 Fontenelle alleged that it
suffered $68,000 in damages and requested that the court enter
judgment in its favor.
   Hearings were held on the pending motions, and evidence
was received by the court. A member of 6224 Fontenelle sub-
mitted an affidavit indicating that in his opinion as a licensed
real estate broker, in accordance with a 2012 appraisal, the fair
market property value was $70,500 prior to the erection of the
gas regulator station. He opined that after the erection of the
gas regulator station, the fair market value of the home was
$2,500. He also included a March 9, 2012, appraisal valuing
the property using the sales comparison approach at $40,300.
The appraisal further provides:
         In addition to the above adjustments, a further adjust-
      ment was made for the presence of the gas line regulator
      station that is located in the right-of-way right east and
      in front of the subject property. The view to the street is
      obstructed and considered unsitely [sic]. Along with this,
      is the perception of a safety hazard and the warnings
      of open flames and such in the vicinity of the station.
      With the stated regulations, the unsitely [sic] view and
      the perceived safety concerns, even though the regulator
      station in [sic] not on the subject property, it still has an
      affect [sic] on the market value of the home. Because
      of this, an adjustment of 25% of the market value
      of the property before the station construction (first
      appraisal) was made for external obsolescence under the
      feature “view”.
         Justification of the adjustment for the gas line regu-
      lator station was derived from information concerning
      other external detractors of value, including overhead
   Decisions of the Nebraska Court of Appeals
876	22 NEBRASKA APPELLATE REPORTS



      high power transmission lines, natural gas transmission
      lines, etc. Articles concerning examples of the affect [sic]
      on market values are attached in this appraisal. However,
      the appraiser was unable to find local sales data that sup-
      ports the reduction of market value by the existence of
      the station. The adjustment made herein is derived from
      articles, along with years of experience in the real estate
      sales and appraisal industry.
(Emphasis omitted.)
   A senior design engineer for MUD submitted an affidavit
indicating that she was involved in the final approval for the
design of the gas regulator station involved in this case. She
indicated that originally, the gas regulator station was to be
constructed farther east, closer to Fontenelle Boulevard, but
that the site was moved because of a reported concern related
to potential damage to existing mature trees. She indicated that
MUD and the city of Omaha had previous disputes regarding
tree damage and that MUD now makes efforts to avoid any
tree damage if possible. She indicated that the gas regulator
station was constructed within the public roadway right-of-
way; that the gas regulator was currently functioning and
had been in operation since October 16, 2012; and that MUD
has 63 aboveground gasline regulator stations in its service
territory and has had no incidents or accidents resulting in
safety concerns.
   Also received into evidence was an affidavit submitted by
the current tenant at the property located at 6224 Fontenelle
Boulevard which indicated that the tenant had given notice
to vacate the premises as a result of the installation of the
gas regulator station, because the station was “ugly and unat-
tractive,” prevented her children from playing in the front yard
because of her fear for their safety, and bore a label stating,
“‘CAUTION GAS PIPELINE. NO SMOKING, MATCHES
OR OPEN FLAMES . . .’” that prevented her family from hav-
ing barbecues in the front yard.
   The affidavit of a licensed Realtor in Omaha further indi-
cated that the gas regulator station near 6224 Fontenelle
Boulevard “radically diminishes” the value of the property and
         Decisions of the Nebraska Court of Appeals
	       6224 FONTENELLE BLVD. v. METROPOLITAN UTIL. DIST.	877
	                     Cite as 22 Neb. App. 872

“presents a significant impediment to marketing and selling
the property.”
   The district court found that 6224 Fontenelle had appealed
the determination in its inverse condemnation action where
the appraisers had determined that no damages were sustained
as a result of the construction of the gas regulator station on
a public roadway. The district court found that while 6224
Fontenelle’s property may have diminished in value as a result
of the construction of the regulator station, the construction
alone did not constitute a taking or a physical invasion of
the property, and thereby that 6224 Fontenelle’s petition did
not state a cause of action. As such, the district court found
that there was no genuine issue of material fact, sustained
MUD’s motion for summary judgment, and dismissed 6224
Fontenelle’s petition with prejudice. The district court over-
ruled MUD’s motion to strike and denied 6224 Fontenelle’s
motion for summary judgment.
   It is from that order that 6224 Fontenelle has timely appealed
to this court.
                  ASSIGNMENTS OF ERROR
   6224 Fontenelle assigns, rephrased and consolidated, that
the district court erred by granting MUD’s motion for summary
judgment and by denying its motion for summary judgment
and dismissing its petition with prejudice.
                   STANDARD OF REVIEW
   [1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law. Harris
v. O’Connor, 287 Neb. 182, 842 N.W.2d 50 (2014). In review-
ing a summary judgment, an appellate court views the evidence
in the light most favorable to the party against whom the judg-
ment was granted, and gives that party the benefit of all rea-
sonable inferences deducible from the evidence. Id.
   [3] Constitutional interpretation is a question of law on
which an appellate court is obligated to reach a conclusion
   Decisions of the Nebraska Court of Appeals
878	22 NEBRASKA APPELLATE REPORTS



independent of the decision by the trial court. See Pony Lake
Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710
N.W.2d 609 (2006).

                           ANALYSIS
   On appeal, 6224 Fontenelle argues that the district court
erred by dismissing its motion for summary judgment and
granting MUD’s motion for summary judgment.
   [4,5] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law. Harris
v. O’Connor, supra. Summary judgment proceedings do not
resolve factual issues, but, instead, determine whether there
is a material issue of fact in dispute. Peterson v. Homesite
Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013). If a gen­
uine issue of fact exists, summary judgment may not properly
be entered. Id.
   [6-8] The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the mov-
ing party is entitled to judgment as a matter of law. Id. After
the movant for summary judgment makes a prima facie case
by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion. Id. In the summary
judgment context, a fact is material only if it would affect the
outcome of the case. Id.
   [9] Neb. Const. art. I, § 21, provides: “The property of no
person shall be taken or damaged for public use without just
compensation therefor.” Inverse condemnation is a shorthand
description for a landowner suit to recover just compensa-
tion for a governmental taking of the landowner’s property
without the benefit of condemnation proceedings. Village of
Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014);
         Decisions of the Nebraska Court of Appeals
	       6224 FONTENELLE BLVD. v. METROPOLITAN UTIL. DIST.	879
	                     Cite as 22 Neb. App. 872

Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d
486 (2013).
   [10,11] Inverse condemnation has been characterized as an
action or eminent domain proceeding initiated by the property
owner rather than the public entity and has been deemed to
be available where private property has actually been 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. See Henderson v. City
of Columbus, supra. Because the governmental entity has the
power of eminent domain, the property owner cannot compel
the return of property taken; however, as a substitute, the prop-
erty owner has a constitutional right to just compensation for
what was taken. Id.
   [12] The ultimate determination of whether government
conduct constitutes a taking or damaging is a question of law
for the court. See, Rupert v. City of Rapid City, 827 N.W.2d
55 (S.D. 2013); E-L Enters. v. Milwaukee Metro. Sewer, 326
Wis. 2d 82, 785 N.W.2d 409 (2010) (ultimate determination of
whether government conduct constitutes taking is question of
law that is not properly placed before jury); G & A Land, LLC
v. City of Brighton, 233 P.3d 701 (Colo. App. 2010) (whether
taking has occurred such that action can be brought under
taken or damaged clause of state constitution is issue of law to
be decided by court); State v. Heal, 917 S.W.2d 6 (Tex. 1996)
(determinations of whether property has been damaged under
constitution generally; determination of whether there is mate-
rial and substantial impairment to property as result of taking
is question of law); Yegen v. City of Bismarck, 291 N.W.2d 422
(N.D. 1980) (determination of whether or not there has been
taking or damaging of private property for public use is ques-
tion of law).
   This case presents this court with a unique set of factual cir-
cumstances, one of which has not been addressed by Nebraska
courts, such that 6224 Fontenelle has alleged an inverse con-
demnation action where there has been no physical intrusion or
taking of its property, but only a damaging of the property by
virtue of a loss of value to the property. Thus, we ask, In an
   Decisions of the Nebraska Court of Appeals
880	22 NEBRASKA APPELLATE REPORTS



inverse condemnation action, must there be an actual physical
taking or invasion of the landowner’s property?
   In this case, the property had not been physically invaded
in a tangible manner, no physical invasion had occurred, and
the property had not been physically damaged. The district
court concluded that 6224 Fontenelle failed to state a cause of
action based on inverse condemnation, based upon the court’s
determination that “while [6224 Fontenelle’s] property may
have diminished in value as a result of the construction of the
regulator station it does not constitute a taking or a physical
invasion of the property.”
   In the case of Quest v. East Omaha Drainage Dist., 155
Neb. 538, 52 N.W.2d 417 (1952), the plaintiff filed an action
for damages allegedly caused to the plaintiff’s real estate
as a result of an excavation made by the defendant on its
land adjoining the plaintiff’s land. In Quest v. East Omaha
Drainage Dist., supra, there was no actual physical taking
by the defendant of the plaintiff’s property. Instead, evidence
was adduced that the excavation resulted in a cliff on the
defendant’s property which destroyed the use of the plaintiff’s
property for residential purposes. Id. The evidence showed
that children could and did get under the fence built along the
cliff; fires were started in the area; dirt, dust, and litter blew
into the plaintiff’s property; wind coming from the face of
the cliff blew roofing and shingles from the plaintiff’s home;
pools of stagnant water gathered in the excavated area, which
brought mosquitoes; hundreds of cliff swallows nested in the
cliff, which resulted in excessive noise and filth in the plain-
tiff’s yard; and annoying noise and vibrations from nearby
trains which were not experienced prior to the excavation
now caused cracks in the walls and ceilings. Id. The Nebraska
Supreme Court found that there had been a taking by a public
entity, because the excavation and the resulting cliff “materi-
ally depreciated the market value of plaintiff’s property and
restricted its use.” Id. at 542-43, 52 N.W.2d at 420.
   In the case of City of Omaha v. Matthews, 197 Neb. 323,
248 N.W.2d 761 (1977), landowners instituted an inverse
condemnation action for damage suffered when the sanitary
sewer connection from their buildings to a sewer on the street
         Decisions of the Nebraska Court of Appeals
	       6224 FONTENELLE BLVD. v. METROPOLITAN UTIL. DIST.	881
	                     Cite as 22 Neb. App. 872

was disrupted and destroyed by actions of the public building
commission. The Nebraska Supreme Court held that sanitary
sewer connections running from private property to the city
or district sewer main were privately owned and could not be
appropriated or destroyed by the city without compensation
to the owner. Id. The court found that “the commission had
the power of condemnation and it may be exercised when-
ever property is damaged for public use. An actual taking of
property is not required.” Id. at 327, 248 N.W.2d at 763. See,
also, Kula v. Prososki, 219 Neb. 626, 365 N.W.2d 441 (1985)
(when private property has been damaged for public use,
owner is entitled to seek compensation in direct action under
state constitutional provision); Maloley v. City of Lexington,
3 Neb. App. 976, 536 N.W.2d 916 (1995) (takings clause of
Nebraska Constitution prohibits both taking and damaging of
property without just compensation and allows recovery for
damages caused by temporary takings, as well as by perma-
nent takings).
   [13] It is clear then that the answer to our initial ques-
tion is no, in an action for inverse condemnation due to a
governmental taking or damaging of a landowner’s prop-
erty without the benefit of condemnation proceedings, actual
physical construction or physical damaging is not necessary
for compensation. As such, the district court erred, as a matter
of law, in determining that 6224 Fontenelle was not entitled
to the benefit of inverse condemnation proceedings based on
there being no actual taking or physical invasion of the prop-
erty of 6224 Fontenelle. Clearly, an actual physical taking or
physical invasion of a landowner’s property is not necessary
for a claimant to successfully bring an inverse condemna-
tion action.
   Having determined that an actual physical invasion of prop-
erty is not required, we now consider whether the property of
6224 Fontenelle was taken or damaged within the meaning of
Neb. Const. art. I, § 21, as a result of MUD’s installation of
a gas regulator station in the public right-of-way near 6224
Fontenelle’s property. As mentioned, there is little precedent in
Nebraska regarding this issue, and so we look to other states
for guidance in our review of the matter.
   Decisions of the Nebraska Court of Appeals
882	22 NEBRASKA APPELLATE REPORTS



   California courts have held that property is “‘taken or
damaged’” within the meaning of the California Constitution
(whose article I, § 19, is similar to Nebraska’s constitutional
provision) when (1) the property has been physically invaded
in a tangible manner; (2) no physical invasion has occurred,
but the property has been physically damaged; or (3) an
intangible intrusion onto the property has occurred which has
caused no damage to the property but places a burden on the
property that is direct, substantial, and peculiar to the property
itself. Oliver v. AT&T Wireless Services, 76 Cal. App. 4th 521,
530, 90 Cal. Rptr. 2d 491, 497 (1999). Accord San Diego Gas
& Elec. Co. v. Superior Ct., 13 Cal. 4th 893, 920 P.2d 669, 55
Cal. Rptr. 2d 724 (1996).
   The first two circumstances that would justify a claim of
inverse condemnation are clearly not present in this case,
which leaves the issue of whether there has been an intangible
intrusion onto the property which has caused no damage to the
property but places a burden on the property that is direct, sub-
stantial, and peculiar to the property itself.
   [14] A determination of what constitutes a burden on prop-
erty that is “direct, substantial, and peculiar to the property
itself” requires a case-by-case analysis and cannot be defined
by one specific set of circumstances. See Arkansas Game and
Fish Comm’n v. U.S., ___ U.S. ___, 133 S. Ct. 511, 518, 184
L. Ed. 2d 417 (2012) (there is “no magic formula [that] enables
a court to judge, in every case, whether a given government
interference with property is a taking”).
   The California Supreme Court has illustrated what types
of intrusions would establish a burden that is “direct, sub-
stantial, and peculiar to the property itself” by explaining that
the landowner must establish that the consequences of the
intangible intrusion are not far removed from a direct physi-
cal intrusion. Oliver v. AT&T Wireless Services, 76 Cal. App.
4th at 530, 90 Cal. Rptr. 2d at 497. See, e.g., Varjabedian v.
City of Madera, 20 Cal. 3d 285, 572 P.2d 43, 142 Cal. Rptr.
429 (1977) (recurring violation of property by gaseous efflu-
ent from sewage treatment facility and claim that land was
made untenable for residential purposes); Bauer v. County of
Ventura, 45 Cal. 2d 276, 289 P.2d 1 (1955) (invasions of water
        Decisions of the Nebraska Court of Appeals
	      6224 FONTENELLE BLVD. v. METROPOLITAN UTIL. DIST.	883
	                    Cite as 22 Neb. App. 872

or other liquid effluents provide basis for inverse liability);
Harding v. Department of Transp., 159 Cal. App. 3d 359, 205
Cal. Rptr. 561 (1984) (noise, dust, and debris from nearby
freeway and loss of light from 23-foot embankment resulting
in loss of vegetable garden made neighboring property virtu-
ally untenable).
   Other states have likewise addressed the issue, on a case-by-
case analysis, using similar determinations of whether or not
an intangible intrusion is a taking or damaging for purposes
of inverse condemnation actions. The South Dakota Supreme
Court requires that a plaintiff prove that the consequential
injury is peculiar to the land and not of a kind suffered by
the public as a whole. Krier v. Dell Rapids Tp., 709 N.W.2d
841 (S.D. 2006). See, also, Rupert v. City of Rapid City, 827
N.W.2d 55 (S.D. 2013) (city’s use of deicer on streets adja-
cent to owner’s property was direct and substantial action that
caused peculiar injury).
   The Minnesota Supreme Court has held that the test is
that the owner show “a direct and substantial invasion of his
property rights of such a magnitude [that] he is deprived of
the practical enjoyment of the property and that such invasion
results in a definite and measurable diminution of the mar-
ket value of the property.” Alevizos v. Metropolitan Airports
Comm., 298 Minn. 471, 487, 216 N.W.2d 651, 662 (1974).
The court went on to also require that the invasion of property
rights be repeated and aggravated with a reasonable probability
that it will continue into the future. Alevizos v. Metropolitan
Airports Comm., supra.
   [15] In Nebraska, 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 property rights that was intended or
was the foreseeable result of authorized governmental action.
Henderson v. City of Columbus, 285 Neb. 482, 493, 827
N.W.2d 486, 495 (2013).
   6224 Fontenelle argues that Henderson v. City of Columbus,
supra, broadens the notion of a taking beyond property that
is actually taken, to include compensation for property that is
damaged through a diminishment of the market value of the
   Decisions of the Nebraska Court of Appeals
884	22 NEBRASKA APPELLATE REPORTS



property, while MUD and the district court through its determi-
nations interpret that case to narrow the requirement for com-
pensation to the finding of a physical taking only.
   In Henderson v. City of Columbus, supra, the plaintiffs sued
the defendant after raw sewage flooded into their home after
a heavy rainstorm. The plaintiffs claimed that the flooding
damaged their home and was the result of a malfunction of
the city-run sanitary sewage system. The complaint alleged
theories of recovery based upon negligence, inverse condemna-
tion under the Nebraska Constitution, nuisance, and trespass.
After a bench trial on liability, the trial court found in favor
of the defendant and dismissed the plaintiffs’ complaint. The
plaintiffs appealed to this court, which affirmed the trial court’s
order with respect to negligence but reversed the portion of the
trial court’s order which found in favor of the defendant with
regard to inverse condemnation. Although for reasons different
from those of the trial court, the Nebraska Supreme Court held
that the plaintiffs failed to establish an inverse condemnation
claim and affirmed the trial court’s judgment in favor of the
defendant. Id.
   In the opinion, the Nebraska Supreme Court set forth that
         [t]he initial question in an inverse condemnation case
      is not whether the actions of the governmental entity were
      the proximate cause of the plaintiff’s damages. Instead,
      the initial question 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 govern-
      mental entity’s exercise of its power of eminent domain.
      Only after it has been established that a compensable tak-
      ing or damage has occurred should consideration be given
      to what damages were proximately caused by the taking
      or damaging for public use.
Id. at 489, 827 N.W.2d at 492.
   The Nebraska Supreme Court concluded that the plaintiffs
failed to establish the threshold element that their property
was “‘taken or damaged for public use’” by the defendant in
the exercise of its power of eminent domain and, therefore,
         Decisions of the Nebraska Court of Appeals
	       6224 FONTENELLE BLVD. v. METROPOLITAN UTIL. DIST.	885
	                     Cite as 22 Neb. App. 872

failed to establish that they were entitled to compensation
under the Nebraska Constitution. Id. The court found that
the flooding, which occurred in the plaintiffs’ basement, was
not a case where the defendant exercised its right of eminent
domain, insofar as the defendant had taken immediate action,
there had not been a recurring sewage backup, and it was not
foreseeable that the defendant’s action would take or damage
private property. Id.
   We find that contrary to both 6224 Fontenelle’s and MUD’s
arguments, Henderson v. City of Columbus, 285 Neb. 482, 827
N.W.2d 486 (2013), is consistent with inverse condemnation
precedent and does not broaden or narrow the requirements set
forth pursuant to the Nebraska Constitution. Henderson v. City
of Columbus, supra, involved a single event in which sewage
flooded and which the defendant did not know or could not
foresee would result in a taking or damaging of property.
   In this case, the alleged taking or damaging is permanent.
MUD built a permanent gas regulator station to control the
pressure and flow of natural gas to the natural gas distribution
system, consisting of aboveground pipes, valves, regulators,
and other equipment which allows for the continuous monitor-
ing of gas pressure near the property of 6224 Fontenelle. Thus,
Henderson v. City of Columbus, supra, is distinguishable from
these circumstances.
   Nonetheless, we are still left with the question of whether or
not the installation of the MUD gas regulator station near the
property of 6224 Fontenelle constituted a taking or damaging.
6224 Fontenelle argues that there has been a taking or damag-
ing because the value of its property has been significantly
reduced as a result of the construction of the gas regulator sta-
tion, due to the perception of a safety hazard and the unsightly
view. 6224 Fontenelle alleged that it can no longer rent the
property, insofar as the current tenant feels that the regulator
station is “ugly and unattractive” and presents a safety hazard.
On the other hand, MUD contends that there are no safety
concerns presented by the gas regulator station and that there
had been no incidents or accidents at this gas regulator station
or any other.
   Decisions of the Nebraska Court of Appeals
886	22 NEBRASKA APPELLATE REPORTS



   Other state courts have addressed similar circumstances
wherein the taking or damaging was the reduction in market
value of a property and found that a diminution in property
value alone is not a taking or damaging of the property, but,
instead, is a measure of just compensation when such tak-
ing or damaging is otherwise proved. In the case of Oliver
v. AT&T Wireless Services, 76 Cal. App. 4th 521, 90 Cal.
Rptr. 2d 491 (1999), property owners brought an action
against neighbors and a cellular telephone company after
the construction of a cellular telephone transmission tower
on property adjoining the owners’ property; the court held
that the mere displeasing appearance in size and shape of the
structure otherwise permitted by law, the only admitted effect
of which is an alleged diminution in value, cannot give rise
to an inverse condemnation claim. See, also, San Diego Gas
& Elec. Co. v. Superior Ct., 13 Cal. 4th 893, 920 P.2d 669,
55 Cal. Rptr. 2d 724 (1996) (homeowners brought action
against public utility, claiming that powerlines on property
adjoining theirs ran electric currents which emitted high
and unreasonably dangerous levels of radiation onto their
property; court held that intangible intrusion must result in
direct, substantial, and peculiar burden on property); M.T.A.
v. Continental Develop. Corp., 16 Cal. 4th 694, 941 P.2d 809,
66 Cal. Rptr. 2d 630 (1997) (recovery of neighboring land-
owners in inverse condemnation or nuisance action requires
more than showing that value of property has diminished as
result of project).
   The only evidence 6224 Fontenelle presented in this case
was that there was a perception of a safety hazard and that
the gas regulator station was unsightly. This is not a direct,
substantial, and peculiar burden on the property. We likewise
find that a diminution in property value alone is not a taking
or damaging of the property, but, instead, is a measure of just
compensation when such taking or damaging is otherwise
proved. A claimed loss of value in property, in and of itself,
cannot establish a taking or damaging for purposes of inverse
condemnation, but, instead, is an element of a measure of
damages for just compensation when a taking or damaging is
           Decisions      of the   Nebraska Court of Appeals
	                                STATE v. COBOS	887
	                             Cite as 22 Neb. App. 887

otherwise proved. Thus, while the district court erred in con-
cluding that inverse condemnation required an actual physical
taking, it did not err in finding that there were no genuine
issues of material fact, dismissing 6224 Fontenelle’s motion
for summary judgment, and granting MUD’s motion for sum-
mary judgment.

                         CONCLUSION
   In conclusion, we find that summary judgment in this case
is proper, although for reasons different from those of the dis-
trict court. We find that contrary to the district court’s findings,
an actual physical taking or physical damage is not required
in order to receive just compensation in an inverse condemna-
tion action. However, we find that a diminution in property
value alone is not a taking or damaging of the property, but,
instead, is a measure of just compensation when such taking
or damaging is otherwise proved. 6224 Fontenelle has failed
to show that MUD engaged in a taking or damaging as a mat-
ter of law, and there exist no genuine issues of material fact.
As such, we affirm the order of the district court dismissing
6224 Fontenelle’s motion for summary judgment and granting
MUD’s motion for summary judgment.
                                                        Affirmed.



                     State of Nebraska, appellee, v.
                    Richard R. Cobos, Jr., appellant.
                                   ___ N.W.2d ___

                         Filed May 5, 2015.    No. A-14-505.

 1.	 Jury Instructions: Proof: Appeal and Error. To establish reversible error from
     a court’s refusal to give a requested instruction, an appellant has the burden to
     show that (1) the tendered instruction is a correct statement of the law, (2) the
     tendered instruction is warranted by the evidence, and (3) the appellant was
     prejudiced by the court’s refusal to give the tendered instruction.
 2.	 Criminal Law: Evidence: Proof. In order to justify an alibi instruction, there
     must be evidence that the defendant was at some other place during the commis-
     sion of the crime for a length of time that it was impossible for him to have been
