
    386 F. 2d 453
    COUNTY OF SARPY, NEBRASKA, v. THE UNITED STATES
    [No. 362-64.
    Decided November 9, 1967]
    
      
      Dixon G. Adams, attorney of record, for plaintiff.
    
      Howard 0. Sigmond, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before CoweN, Chief Judge, Laeamore, Dureee, Davis, ColliNS, SkeltoN, and Nichols, Judges.
    
   Per Curiam :

This case was referred to Trial Commissioner Saul Richard Gamer with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on February 16,1967. Exceptions to the commissioner’s opinion and report were filed by the parties. The case has been submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion, and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is, therefore, entitled to recover and judgment is entered for plaintiff in the sum of $75,628, plus interest, as part of just compensation, at the rate of 4 percent from the date of taking in 1954, the amount to be determined pursuant to Rule 47 (c).

Commissioner Gamer’s opinion, as modified by the court, is as follows:

Plaintiff seeks, pursuant to a Private Act, $135,560 as compensation for the closing by defendant of a segment of one of its roads.

For many years prior to 1954 there existed in Sarpy County, Nebraska, a public road, maintained by the county, which originated in the western part of the town of Bellevue as an extension of one of its streets (Calhoun). The road ran generally south, bordering the then eastern boundary of the Offutt Air Force Base, and then continuing in a southerly direction to cross, by way of a steel truss bridge, a rather large stream in the area, Papillion Creek.

During World War II, the Martin Bomber Modification' Plant was located on the grounds of the Base, and the part of the road between Bellevue and the Base, which part was paved (the balance of the road having a gravel surface), was used extensively to serve the plant. Consequently, it was then, and still is, frequently referred to as Modification Road (although the use of the plant was discontinued after the war). However, a county road in generally the same location as Modification Road has existed ever since 1870.

At the south end of the bridge, Modification Road connects with another county road, H-9, which, although arching to the east, continues to run in a southerly direction through the village of La Platte, which is also in the county, and then connects with U.S. Highway 73-78 (hereafter “Highway 75”).

Highway 75 is one of the main north-south highways in Nebraska. It generally serves the traffic between Omaha and Topeka, Kansas. Bellevue, the Offutt Air Force Base, La Platte, Modification Road, and the above-described part of County Road H-9, all lie east of the highway. The western edge of Bellevue is a little over a mile east of Highway 75, the western boundary of the Base borders it, Modification Road and its bridge crossing Papillion Creek are approximately three-fourths of a mile away, and La Platte lies about one-fourth of a mile away.

This area east of the highway is pocketed in on the east by the Missouri River, which is approximately 3 miles from Highway 75, and on the south by the Platte River, approximately 1 mile below La Platte. The Platte River enters the Missouri River around 2^4 miles east of La Platte. The only way to cross the Platte River in this area is by Highway 75. Papillion Creek divides this pocketed area in two. The creek enters the area at the southwest comer of the Base where Highway 75 bridges over it, then meanders first southeasterly and then southerly, and then sharply curves to run east-west and to enter the Missouri River around 1% miles north of the Platte River.

In this area east of Highway 75, the only bridge crossing Papillion Creek is the Modification Road bridge. Thus, unless one went west all the way over to the highway, the only way to get from the lands on one side of the creek to the lands on the other was by way of Modification Eoad and its bridge.

Both before and after World War II, Modification Road with its bridge was frequently and regularly used by the residents and farmers of the area, as well as by others. In conjunction with County Road H-9, it formed a direct, short, through route between Bellevue and La Platte, all lying entirely east of Highway 75. It enabled those living north of the creek and south of Bellevue to go south to La Platte or points beyond simply by crossing the bridge. Similarly, it so enabled those living south of the creek to go north to Bellevue and points beyond (Bellevue being in the Omaha metropolitan area). Some farmers farmed lands on both sides of the creek. Some resided on one side and worked or farmed land on the other. La Platte was used for area voting purposes. In addition, the area school house for the lower grades was in this village. Farmers in the area north of the creek frequently used the road to transport farm machinery south to Plattsmouth, Nebraska for repairs, no such repair business being available in Bellevue. The road was frequently used to haul produce from farm to market, and supplies to the farms. A rendering plant was located just south of the bridge, and the road and the bridge were regularly used by persons from Bellevue going to and from the plant, as well as by the company’s trucks. The Allied Chemical and Dye Corporation was, in 1954, building a plant east of La Platte and this activity also generated traffic over the road. And the county’s employees themselves used the road frequently to travel south from the county garage located southeast of Bellevue to the county gravel pits and quarries located on the other side of the creek and beyond La Platte, and then to return to the garage, where the maintenance materials were stockpiled.

In 1954, the main east-west runway at the Base was extended to the east and the entire Base consequently enlarged. The runway extension work resulted in the severing of that part of Modification Eoad which lay in the path of the runway. Modification Eoad had formerly bordered on the eastern edge of the Base. Now the Base extended farther east approximately a mile. The part of the road lying south of the Base, as well as the bridge over Papillion Creek, was left intact, but, going north, the road now ended at the Base, and there was no way from such point to get around the Base.

Thus, the Modification Road-County Road H-9 through route from the Bellevue to the La Platte areas was destroyed. Furthermore, the only way most of those in the pocketed area could thereafter reach lands on the other side of the creek was to go west to use Highway 75 and then come back east. This has caused inconvenience and financial hardship. No compensation has been paid for the severance of the road.

It is true that Highway 75 was then (and is now) a good high-speed expressway, and that some persons in the area with easy access to it who formerly used the more direct route to the east are not unduly inconvenienced. However, those living, for instance, south and east of Bellevue, but north of the creek, would, after the taking, have to go first on East Road and enter Bellevue on the eastern edge of the town (East Road being an extension of Hancock Street) by way of a steep grade, and continue north through the town and its business district, in order to obtain access to the road which led out of Bellevue to Highway 75. Only then could he proceed south on Highway 75 to go to La Platte or points beyond. This circuitous route would be miles longer. If he lived just south of Bellevue, it might only be 3-4 miles longer. However, some one who lived or worked just north of the creek and simply wanted to get to lands directly south of the creek would first have to go north to and through Bellevue, west to Highway 75, south on the highway, then east at La Platte, and north again, just to get over the creek. Plis extra mileage would go as high as 10.

The destruction of Modification Road as an area through route and as the only way to traverse Papillion Creek east of Highway 75 created additional problems. During rush hours, long waits—sometimes from 15-30 minutes— were encountered before being able to gain entrance to Highway 75 from the access road leading out of Bellevue. The time lost by farmer-businessmen, both because of the extra distance and the nature of the Bellevue-Highway 75 route, resulted in substantial additional expenses. And for farmers moving large pieces of farm equipment and machinery, the route through Bellevue and Highway 75 presented further problems. Entering the town on the west by the steep Hancock Street grade was often difficult. Moving wide equipment through city streets, narrowed by parked cars, with all the incident traffic hazards, was troublesome. Damage was caused by the striking of equipment parts against street curbs, blades being dulled or broken. Police escorts were sometimes necessary. And, after finally gaining access to Highway 75, the special hazards of large, slow-moving farm machinery on a high-speed highway were encountered. Accidents occurred from fast-moving passenger cars running into slow-moving farm equipment. Up to the Base, the highway was at that time a divided four-lane one, but thereafter and proceeding south it narrowed to two lanes. No one could pass a 16-foot-wide cultivator moving on this two-lane portion of the highway. And where the highway crossed Papillion Creek just south of the Base there was a narrow, blind, overpass. It became necessary to have a flag man assist the movement of farm machinery across the overpass. The Modification Road-County Road H-9 route had been an excellent one for the safe movement of such farm equipment.

Although, insofar as the governing authority is concerned, public highway easements are not like private property, there being no private gain or advantage involved, the members of the public who use the highways similarly having no proprietary interest in them, nevertheless the appropriate governmental unit, such as a county, having the responsibility of constructing, maintaining or preserving the highways, has a sufficient property interest to maintain an action when one of its highways is taken. Such a taking is within the protection of the Fifth Amendment. Jefferson County v. Tennessee Valley Authority, 146 F. 2d 564 (6th Cir. 1945), cert. denied, 324 U.S. 871; Wayne County, Kentukcy v. United States, 53 Ct. Cl. 417 (1918), aff'd per curiam, 252 U.S. 574 (1920); United States v. Town of Nahant, 153 Fed. 520 (1st Cir. 1907). Therefore, because of the special nature of the property involved, when a public street or highway is so taken the measure of just compensation is not, in accordance with the usual rule, the fair market value of the land or improvements taken, but is instead the reasonable cost of furnishing necessary substitute facilities. City of Fort Worth, Tex. v. United States, 188 F. 2d 217 (5th Cir. 1951); United States v. State of Arkansas, 164 F. 2d 943 (8th Cir. 1947); United States v. Los Angeles County, 163 F. 2d 124 (9th Cir. 1947); Mayor and City Council of Baltimore v. United States, 147 F. 2d 786 (4th Cir. 1945); Jefferson County v. Tennessee Talley Authority, supra. It is a “method of compensation by substitution * * Brown v. United States, 263 U.S. 78, 83 (1923).

There is no dispute between the parties concerning these basic legal principles. There is controversy, however, as to their application to the facts of this case. For the rule compels compensation only when the facts of the individual case show that substitute facilities are reasonably “necessary”. Lacking such a showing, compensation will be denied. State of California v. United States, 169 F. 2d 914 (9th Cir. 1948); United States v. 0.886 of an Acre of Land, etc., 65 F. Supp. 827 (D.C.E.D.N.Y. 1946); Jefferson County v. Tennessee Talley Authority, supra. Thus, no compensation is due when reasonable alternate facilities already exist, or satisfactory substitute facilities are provided by the taking-authority at the time of or within a reasonable time after the taking. Franklin County, Ga. v. United States, 341 F. 2d 106 (5th Cir. 1965); United States v. Certain Lands, etc., 246 F. 2d 823 (3d Cir. 1957) ; State of Washington v. United States, 214 F. 2d 33 (9th Cir. 1954), cert. denied, 348 U. S. 862; United States v. City of New York, 168 F. 2d 387 (2d Cir. 1948); United States v. State of Arkansas, 164 F. 2d 943 (8th Cir. 1947).

Defendant here admits the taking and the destruction of the Modification Road-County Road H-9 through route as the only direct means east of Highway 75 to traverse Papil-lion Creek and to connect the bulk of the lands lying on the opposite sides of the creek. It argues, however, that Highway 75 then offered, and still does, a satisfactory, alternate route. Though it may involve extra time and mileage to reach by those living or working well east of it, including the additional mileage involved for those living south of Bellevue who would, in order to go south, first have to go north to Bellevue, and then further north through the town to reach the highway leading to Highway 75, at least some of the lost time would, defendant points out, be made up by the higher traveling speed possible on this main highway. By using the highway and the roads leading from and to it, it would be possible for anyone ultimately to reach every point that could formerly be reached through the more direct Modification Boad-County Boad H-9 route. The character of Highway 75, its paving and its design, was far superior to Modification Boad and County Boad H-9.

Furthermore, defendant points to the various improvements that have been made since the taking in 1954 and which have served to reduce some of the problems arising that existed as of the taking date. Around 1957, the section of Highway 75 south of the Base was also converted from a two lane to a four-lane highway. At about the same time, the long delays in entering the highway where the access road leading from Bellevue connected with it were eliminated by the construction of an overpass. Around 1960, a new road, State Boad 370, was constructed leading from Bellevue to Highway 75 which was south of, and therefore easier to reach, than the old access road. And in 1962, the steep graded, unimproved entrance into Bellevue on the eastern edge of town (Hancock Street extended) was improved, regraded, and paved with concrete. This improvement, upon which defendant spent $278,000, was designed to serve as an access to the new southeast entrance to the enlarged Base, to which Hancock Street and its extension, East Boad, directly led.

However, the substitute facility situation must be viewed as of the taking date, or, at the most, a short time thereafter. State of Washington v. United States, supra. Improvements made many years after the date of taking' may not properly be considered. “A condemnation case involves a taking, as of a certain date, and the case is tried with the eyes of the court and jury fastened to the date of taking, and some short but reasonable period before or after the taking.” State of Washington v. United States, supra, at 47. The improvements here relied on are, at least for the most part, too remote from the date of taking. In any eyent, even considering, in this particular case, the improvements in the situation over the years, on the possible supposition that Congress, in passing the Private Act here involved, so contemplated (although the act and its legislative history appear to make clear that only a lifting of the bar of the statute of limitations was intended), they still do not eliminate the basic need of the comity for a direct through Bellevue-La Platte route east of Highway 75, and a convenient, timesaving method for those living and working in the area of crossing Papillion Creek in order to reach lands directly on the opposite side of the creek.

Ever since at least 1870, Modification Eoad had provided the county and the residents in this particular area with such a route and creek crossing. Highway 75, even as improved, and all of the other access improvements in recent years, do not solve the circuity and extra time problems. Nor do they solve the problem of the dangers inherent in the throwing of slow-moving farm equipment engaging in essentially local movements onto a high-speed interstate expressway. In a farming, rural, area, a country type of county road is obviously often more suitable for the residents and the conduct of their type of business than a high-speed highway. And this would especially be true where, as here, the county road affords more direct access between various county areas separated by a large stream. Plaintiff has here demonstrated the reasonable need for the reestablishment of a route in the county that will serve its residents as adequately as did Modification Eoad for such a long period of time. The test is not whether some other existing expressway can somehow handle all the traffic, including the increased traffic generated by the closed road.

* * * it will not at all do to say that in determining the cost of providing any necessary substitutes, an award in condemnation may be denied because there are already in existence other available routes which will in some fashion handle the traffic diverted by the condemnation. City of Fort Worth, Tex. v. United States, supra, at 222.

A compensatory taking having occurred, the parties are in further dispute as to what would constitute a proper substitute facility, and what amount, therefore, should fairly be awarded as just compensation. Despite demands therefor, no such substitute has as yet been constructed.

Plaintiff proposes the construction of a new gravel road approximately 1% miles long which would include a new 220-foot concrete three-span bridge over Papillion Creek. The road would run north-south on section lines almost due south of.East Hoad (Hancock Street extended) and the east gate entrance to the Base. Thus, one could cross the creek, go north and enter Bellevue through the improved East Road-Hancock Street extension, all by traveling in an almost straight north-south line. And going south from Bellevue over such proposed route, there are road connections running west from the southern end of the proposed new bridge to La Platte and Highway 75. This new road and bridge would run approximately 1-2 miles east and southeast of Modification Road-County Road H-9. The new bridge would be approximately 2 miles southeast of the present bridge. The reasonable current cost of building this proposed new road and bridge is $135,560, for which plaintiff sues. As of the taking date, however, such cost would have been only $92,913.

Almost immediately after the severance of Modification Road, plaintiff considered the construction of a different substitute road and retained consulting engineers with respect thereto. This proposed road (sometimes referred to by the parties as “the alternate proposed county replacement road”) would have tied into the remaining existing part of Modification Road just north of the present bridge, and would then run due east-west about 7,811 feet, skirting the south boundary of the Base. It would thus provide a method of getting around the Base from the point where the intersected road now terminates at the Base. The new road would end at the same point as the north-south proposed replacement road, so that, from such point, entrance could then also be made to Bellevue on East Boad and Hancock Street. No new bridge would be required for this plan, since it would make use of the presently existing bridge. The reasonable cost of this alternate proposal at or shortly after the taking date, as contemporaneously calculated by the consulting engineers, would have been $75,628.

Defendant says that, if substitute facilities are found to be necessary, this east-west road which plaintiff first considered in 1955 would be the closer and more appropriate substitute and compensation should, therefore, be measured by the cost thereof. On this aspect of the case, it seems plain that defendant is correct. It is true that the rule applicable in these cases does not require a “duplicate reproduction” or “the restoration of each feature or form of the facility taken.” City of Fort Worth, Tex. v. United States, supra, at 223. If it is necessary for a county to readjust its highway system by providing a substitute road for one taken, it is entitled to the cost of the substitute even if it be a more expensive road than the one taken. United States v. Des Moines County, 148 F. 2d 448 (8th Cir. 1945), cert denied, 326 U.S. 743. Thus, where there is no alternative but to build a substitute that, because of its necessary location and layout, would consequently be a better and more expensive road than the one taken, the county would nevertheless be entitled to the full cost of such substitute. Wayne County, Kentucky v. United States, supra. Similarly, where the old road was inadequate, and present standards dictate the necessity of building a better type of road, the old “status is not controlling”, and the condemnor must shoulder the added expense. United States v. Wheeler Tp., 66 F. 2d 977, 985 (8th Cir. 1933).

However, these are not the circumstances here involved. There is no complaint here that the old road and route were inadequate or dangerous. They were lauded throughout this proceeding as having been most satisfactory. The 1955 proposed east-west substitute road would preserve the same traffic pattern as before since it would use the old bridge and the existing part of Modification Eoad. It would eliminate the necessity for building another bridge. While the new north-south substitute facilities which plaintiff now proposes would generally serve the same people in the area as were served by the old route, it would create quite a different traffic pattern since it would be located so far to the east of the old Modification Eoad-County Road H-9 route, and would make unnecessary the use of a large part of County Road H-9. The 1955 alternate proposed east-west county replacement road would, obviously, be a more direct substitute. With this replacement, the county’s road facilities would be fully equal in utility to those destroyed and the county’s residents would be served as adequately and in the same maimer as they were previously. The test is what is reasonable under all the circumstances to restore the county to substantially as good a position as it was in prior to the taking, not what the county would prefer to have for long-range planning purposes, or what would be the most desirable improvement. United States v. Alderson, 53 F. Supp. 528 (S.D. W. Va. 1944); United States v. 0.886 of an Acre of Land, etc., supra.

Although there are several alleged advantages which plaintiff urges as justification for the construction of the proposed north-south substitute, the principal one appears to be its freedom from railroad crossings. It is true that as of the taking date, the alternate proposed east-west county replacement road would have involved three railroad crossings at grade. There are no railroad crossings involved in the proposed north-south substitute. However, there is no showing that the crossings in question entail any hazards of a nature more unusual than ordinarily encountered in this type of country road in this area. The previous Modification Eoad route for the destruction of which this proceeding is instituted also involved two railroad crossings. Cf. United States v. 0.886 of an Acre of Land, etc., supra, at 830 (area involved accustomed to such crossings) .

Plaintiff points out that $75,628 represents the 1955 cost of building the east-west substitute road but that it would now cost at least $110,600 to build its equivalent. (In the same manner, it seeks the current cost of $135,560 for the proposed north-south substitute with the new bridge, although the 1955 cost would have been only $92,913.) However, in these cases, as is normally the rule in taking cases, the compensation is measured as of the date of the taking. United States v. Certain Lands, etc., supra; United States v. 147.7646 Miles of Roads, Streets and Highways in Aiken, Allendale and Barnwell Counties, South Carolina, etc., 154 F. Supp. 383 (E.D. S.C. 1956). In fixing “just” compensation, it would hardly be fair to impose costs on the taker which have been inflated by the long delay either in constructing the substitute facilities or in bringing an appropriate action.

The factor of inflated costs will be at least partially compensated for by the allowance of interest from the date of taking as part of just compensation. This is in accordance with the usual rule in this type of case. United States v. Certain Lands, supra. In the instant case, we feel that the long delay in bringing the action is excused by the fact that the Congress, in its special jurisdictional act referring the case to this court, saw fit to waive “any statute of limitations pertaining to suits against the United States, or any lapse of time, or bars of laches,” so that just and equitable compensation, as found by this court, could be paid. (See finding 1.) We hold, as the United States Court of Appeals for the Third Circuit held in United States v. Certain Lands, supra (where there was also a substantial delay between the taking and the trial and where the county had not yet constructed a sub-stitnte road), the plaintiff is entitled to interest from the date of taking.

Judgment should be entered for plaintiff in the sum of $75,628, the reasonable cost as of the taking date of constructing the east-west alternate proposed county replacement road, plus interest, as part of just compensation, at the rate of 4 percent from the date of taking in 1954, the amount to be determined pursuant to Rule 47 (c) .

Fiotungs op Fact

1. This case is authorized by, and was instituted pursuant to, Public Law 88-425, 88th Congress, 2d Session, approved August 13,1964,78 Stat. 399. Such act provides:

An Act
Conferring jurisdiction upon the United States Court of Claims to hear, determine, and render judgment upon the claim of Sarpy County, Nebraska.
Be it enacted by the Senate and House of Bepresenta-tives of the United States of America in Congress assembled, That, notwithstanding any statute of limitations pertaining to suits against the United States, or any lapse of time, or bars of laches, jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment upon any claim of Sarpy County, Nebraska, arising out of the closing of the north-south county road connecting Bellevue and La Platte to malee way for the principal east-west runway at Offutt Air Force Base, in said county.
Sec. 2. Suit upon any such claim may be instituted at any time within one year after the date of the enactment of this Act. Nothing in this Act shall be construed as an inference of liability on the part of the United States. Except as otherwise provided herein, proceedings for the determination of such claim, and review and payment of any judgment or judgments thereon shall be had in the same maimer as in the case of claims over which such Court has jurisdiction under section 1491 of title 28 of the United States Code.

2. Plaintiff is a body politic and corporate, created, organized and existing under and by virtue of the laws of the State of Nebraska.

3. In 1954 and prior thereto, a public road existed in Sarpy County, Nebraska, which commenced in Section 1, Township 13 North, Range 13 East. It ran south in said section to the south line thereof between sections 1 and 12, then west along such line and into the south line of section 2 in said township and range, between sections 2 and 11, for approximately 800 feet; then southwesterly and southerly into sections 11 and 14, respectively, of said township and range, to a point where it intersected with County Road H-9 at a point approximately 830 feet south of the north line of section 14. A plat of said public road is attached to plaintiff’s petition and is incorporated herein by reference.

4. Part of the road ran along the then east boundary of Offutt Air Force Base (the “Base”). During World War II a plant called the Martin Bomber Modification Plant was located on the grounds of the Base. Although the road had been in existence for many years prior thereto, it was, 'because of its extensive use during the war years to serve such plant, then, and still is, frequently referred to as “Modification Road”. During the war period, many people used the northern portion of the road to travel to and from their homes in Bellevue to their jobs at the plant. The use of the plant was discontinued after the war.

There was a county road in generally the same location as Modification Road since 1870.

5. Modification Road actually commenced in the town of Bellevue, Nebraska, as an extension of Calhoun Street near the western edge of the city. The point where the road reached the section line between sections 1 and 12 was near the end of the original runway located on the Base. In 1954, the road was paved with concrete to such point in order to serve the Modification Plant. Thereafter, as it turned first westerly on said section line, and then southwesterly and southerly along the east, edge of the Base, and then beyond the Base until it intersected with County Road H-9, it was constructed of gravel.

6. Near the southern end of the road in section 14, it crossed Papillion Creek by way of a steel truss bridge. Immediately after crossing the creek, the road connected with County Road H-9.

7. The portion of County Road H-9 with which Modification Road connects runs generally north and south alongside the Missouri Pacific and the Chicago, Burlington and Quincy Railroad tracks with, however, a distinct bow or curve to the east. It intersects and connects with U.S. Highway 73-75, which runs directly north-south, at two points of the bow. The northernmost point is about % mile south of the main gate to the Base at the western edge of the Base, Highway 73-75 running along such western edge. The southernmost point is to the west of and near the village of La Platte, Nebraska, approximately 2% miles south of such main gate. Thus, this “bow” part of County Road H-9 is east of Highway 73-75 and, at its farthest points from such highway runs approximately one-half to three-fourths of a mile east thereof. La Platte, in 1954 a village of 200-300 population, lies approximately % mile east of Highway 73-75.

8. County Road H-9 ran to and through the village of La Platte on its way to its southern intersection with Highway 73-75. Thus, Modification Road, commencing in the town of Bellevue, and County Road H-9, with which it connected after the Papillion Creek bridge crossing, together formed a direct route from Bellevue to the village of La Platte, both being in Sarpy County, all to the east of Highway 73-75, and without the necessity of first going west from Bellevue to said highway, then traveling south thereon and then going east therefrom to La Platte.

9. Modification Load, as well as County Load PI-9, was open to the public in the year 1954 and for many years prior thereto, was part of the public road system of the county, and was maintained by the county.

10. There exists no other bridge over and across Papillion Creek that is south and east of the Base. The creek divides several farms and also cuts across Modification Load. Thus, the bridge and County Boad H-9 together provided a route between such farms, as well as from the farms to and from Bellevue and La Platte.

H. Bellevue lies immediately northeast of the Base. It is located near the west bank of the Missouri Biver. Papillion Creek flows generally south at a point about iy2 to 2 miles west of Bellevue and then turns in a southeasterly direction to flow south of the Base and to continue on in a southeasterly direction to enter the Missouri Biver at a point about 1 y2 miles south and 1 mile east of the Base as extended. The Platte Biver flows due east and enters the Missouri Biver at a point about 1 y% miles south of Papillion Creek. Insofar as this case is concerned, the only bridges crossing Papillion Creek are those on U.S. Highway 73-75 and on Modification Boad. The only bridge crossing the Platte Biver is that on U.S. Highway 73-75. The area south of Papillion Creek has, in addition to County Boad H-9, also been served with an east-west county road which runs from La Platte east to the Missouri Biver. Some few north and south service roads stem from such east-west county road. From La Platte the traveling public may use either County Boad H-9 or U.S. Highway 73-75. The area south of the Base and north of Papillion Creek has, for the purpose of proceeding north to Bellevue, been served by both the aforementioned Calhoun Street on the western edge of the city, to which access was obtained by a county road running east-west between sections 1 and 12, and with a north-south county road which is referred to herein as an extension of Hancock Street, which is' near the eastern edge of the city. This extension runs roughly parallel with and at a distance between y2 and 1 mile west of the Missouri Biver. Some few county roads are available toward the east to reach the banks of the Missouri River. The county roads both north and south of Papillion Creek were gravel roads becoming gradually unimproved.

12. Prior to 1954, Modification Road was used for many purposes. It was part of a through route from Bellevue to La Platte, as above set forth. It furnished an access for persons living south and east of the Base, and north of Papil-lion Creek, such as those living in sections 13 and 18, to travel from their homes to La Platte, which was south of the creek, and from there, if necessary, to Highway 73-75 to continue south. At that time, La Platte was used for voting purposes. Farmers living in such area north of the creek often used the road, for instance, to travel farther south to Platts-mouth, Nebraska, which is around 9-10 miles south of the Base and just east of Highway 73-75, for the purpose, among others, of transporting farm machinery for repairs. No such repair business was available in Bellevue.

The road was also frequently used by farmers for hauling produce from their farms to market, as well as supplies to their farms. The school house for the lower grades was in La Platte and the road would also be used to take children to and from school. There was no other way to get across the creek from north of the creek and east of the Base except by using the road and the bridge thereon. The alternative would be to go north to Bellevue, then west to Highway 73-75, then south thereon, then east to La Platte. For instance, to travel from sections 1 and 6 which were east of the Base and north of the creek, to section 14 south of the Base and the creek, the road gave quick, short and easy access. The Bellevue-Highway 75 route would be longer and more time-consuming.

Modification Road was, in addition, used by persons living south of the creek and east of Highway 73-75 to travel to Bellevue, the bridge at the south end of Modification Road enabling a direct route north to Bellevue. Farmers who owned or cultivated land in sections 11, 13, and 14 south of the creek would cross the creek at the bridge and go to Belle-vue or beyond for various purposes. Some of them maintained residences or farm service buildings in Bellevue. Others located in such section used the bridge and road to reach their farmlands or to work on farms located in sections 6, 7, and 12 north of the creek. Some farmers owned lands on both sides of the creek. If one farmed lands in both section 14 on one side of the creek, and adjoining sections 13 or 18 on the other, crossing the creek at the bridge gave a quick and easy route between the farms.

There was a National By-Products Company rendering plant just beyond the bridge, and the road and bridge were often used by persons going to and from the plant from Bellevue. The company’s trucks regularly traveled to Belle-vue to pick up fat wastes from restaurants.

In 1954, the Allied Chemical and Dye Corporation was building a plant just east of La Platte and during the construction period many people used the road to travel from Bellevue to and from the plant. This was the shortest route from Bellevue to the plant.

Modification Eoad was also used by the county itself in its highway maintenance operations, the county employees using the road to go from the county garage, located near the east gate to the Base and north of the creek, to the county gravel pits and quarries located south of the creek and west of La Platte and Highway 73-75. Eoad maintenance materials obtained from such pits and quarries were stockpiled at the garage.

13. The main east-west runway at Offutt Air Force Base was extended in 1954, resulting in the severing of that part of Modification Eoad which is near the section lines between sections 1 and 12. Modification Eoad was thereafter permanently closed to through traffic.

14. That part of Modification Eoad lying between the southern boundary of Offutt Air Force Base as extended and County Eoad H-9 was left undisturbed and remained open to and is used by the public. The steel truss bridge over Papillion Creek was undisturbed and left in place. There are two houses presently located on the remaining portion of Modification Eoad.

15. Section 12 and a part of section 7 were acquired by defendant in connection with the extension of the runway and the resulting expansion of the Base, thereby eliminating some of the farmlands which Modification Eoad had been used to reach. However, only two residences were moved as a result of the runway extension and the general Base expansion. Other than these two, generally the same people live in the area now as then.

16. No payment of compensation has been made to plaintiff by defendant either in eminent domain proceedings or otherwise for the severing of Modification Eoad and its destruction as a through route from points north and east of the steel truss bridge in section 14 connecting the road with County Eoad H-9, and points south thereof, by way of such county road.

17. Farmers living east and southeast of the Base and north of Papillion Creek, such as in sections 6 and 7, and having to travel across Papillion Creek and south to La Platte or beyond on Highway 78-75, were able to take an alternative route without using Modification Eoad and County Eoad H-9. They could, by first going north, enter Bellevue by way of Hancock Street extended on the eastern edge of the city, go north through the city, then east on 'an access highway leading out of Bellevue and connecting with Highway No. 73-75, and then south on such highway, which also crossed the creek at the beginning of the aforesaid County Eoad H-9 “bow”. There was no direct way of going from such areas to Highway 73-75 by traveling straight west, since the Base lay between. Thus it was necessary first to go north through Bellevue, and then west to the highway, and then south on the highway. However, this route would be at least 3-4 miles longer. Also, the extension of Hancock Street leading into Bellevue was unimproved and of steep grade, presenting problems when heavy farm machinery was being moved, especially in bad weather. The moving of such machinery in the town of Bellevue itself was also a problem with the wide machinery possibly striking street curbs and causing damage, and with the difficulties of moving such equipment in city traffic and through the business district. Blades on such farm machinery would be dulled or broken as a result of striking the curbs. Parked cars narrowed the streets and made it difficult to move farm equipment through the town.

There were also considerable traffic hazards involved in taking slow-moving farm machinery on a fast-moving heavily traveled highway. The highway was so heavily traveled that long waits of 15-30 minutes were frequently incurred before it was even possible to enter it from Bellevue. During heavy traffic hours, it would take an average of 15 minutes to enter the highway. There were in 1954 and prior thereto other hazards in moving such machinery on the highway. For instance, there was a narrow overpass or viaduct where the highway crossed Papillion Creek just below the Base. Because of the arch of the overpass the view of oncoming traffic was obscured. It was, therefore, necessary to have a flag man assist the movement of farm machinery across the overpass. South of the Base, the highway was at that túne only a two-lane road. Moving large farm equipment slowly on such a narrow high-speed road would tend to block traffic and create traffic hazards. For instance, no one could pass a 16-foot-wide cultivator moving on this two-lane portion of the highway. Accidents sometimes resulted from fast-moving passenger cars running into slow-moving large farm equipment. The Modification Boad-County Boad H-9 route was excellent for the movement of such equipment.

In addition, farmers with closely adjoining lands on both sides of the creek would not take the roundabout Highway 75-Bellevue route to travel from one farm to the other. For instance, to travel from lands in section 14 on one side of the creek to sections 13 and 18 on the other would, by using the County Boad H-9 and Modification Boad route, necessitate traveling around 2 miles. The roundabout route would mean going around 12 miles.

18. U.S. Highway 73-75 is one of the main north-south highways in the State of Nebraska. It generally serves the traffic leading to and from Omaha south to Topeka, Kansas. It serves as one of the main north and south traffic thoroughfares of the eastern part of Nebraska. Bellevue is within the metropolitan area of Omaha.

19. At the time Modification Boad was severed, U.S. Highway 73-75 consisted of a four-lane road leading from the city of Omaha in a southerly direction to the main gate of the Base. From the main gate the highway consisted of a two-lane improved road leading south across the Platte Biver. Within about 2 years after Modification Boad was closed, the highway was made a four-lane highway south of the Base and the access to the highway from Bellevue and the Base was improved to avoid traffic congestion at the intersections.

20. In 1954, when Modification Boad was intersected, as well as currently, U.S. Highway 73-75 could in some respects serve as an adequate high-speed substitute road for some persons formerly using Modification Boad and the bridge at its southern end crossing Papillion Creek. The character of the road, its paving and design, was and is far superior to Modification Boad and connecting County Boad H-9.

However, in many respects, such highway is not an adequate substitute. Those persons living north of the creek and east of the Base who wish to go south of the creek have to go several miles farther in going north through Bellevue and then west to the highway. Modification Boad offered a shortcut to the east of the road. Also, those living south of the creek and east of the highway who wanted to travel to points north of the creek to Bellevue or other areas east of the Base also formerly used the bridge and Modification Boad as a shorter and more direct route. Modification Boad together with County Boad H-9 made it possible for persons residing in the large general area between Bellevue and La Platte and east of Highway 73-75, to travel directly between areas on the opposite sides of Papillion Creek without first having to go west to Highway 73-75 and then back east again. It thus served as a direct, convenient rural road connecting such area.

The only way farmers now have to move their heavy, large, farm machinery and equipment across the creek to and from such areas, including moving such equipment to Plattsmouth for repairs, is on U.S. Highway 73-75. However, as noted, this highway is a high-speed one. Slow-moving farm equipment on such a highway creates a traffic hazard. The former Modification Boad-County Boad H-9 route provided a safe and suitable means of travel for such purpose. In addition, there are the hazards and difficulties, as set forth above, of moving heavy farm equipment through the streets and traffic of Bellevue in order to reach Highway 73-75.

The longer, more indirect route, for those living or working east of the Base and north of the creek but having to travel south of the creek, of first going north through Bellevue, then west to Highway 73-75, and then south on the highway, had an adverse effect on many persons and businesses. The extra time involved has been costly to businessmen. It has partially disrupted the operations of the County’s Highway Department in getting to and from the gravel pits and quarries because of time lost in traffic.

21. Some time after Modification Boad was closed, however, certain improvements were made on the highway. The narrow viaduct hereinabove refereed to was eliminated around 1963 and, as stated, the section of U.S. Highway 73-75 south of the Base was converted from a two-lane road to a four-lane highway around 1957. At about that same time, the delay in gaining access to U.S. Highway 73-75 at the intersection leading from Bellevue was eliminated by the construction of an overpass.

In 1962, Hancock Street extended was improved, regraded, and paved with concrete, the steep grade being reduced. This extension of Hancock Street, referred to as East Boad, was designed to serve as an access to the new southeast entrance to the airfield. The full cost of this improvement, amounting to $278,000 was defrayed by defendant. A map showing, among other things, the boundaries of the enlarged Base marked in brown, the location of closed Modification Boad marked in red, and the location of East Boad marked in blue, was introduced in evidence as Joint Exhibit No. 6, and is incorporated herein by reference.

After 1962, for those living north of Papillion Creek and south and east of the Base, East Boad and Hancock Street offered better access to Bellevue, on the east edge of the town, than did Modification Boad and Calhoun Street on the west side of the town.

Also, about 1960, a new road, State Boad 370, was built leading from Bellevue to Highway 73-75, which was south of the old access road.

22. Upon the basis of all the considerations hereinabove set forth, there is a necessity to supply a substitute road for the intersected Modification Boad. Plaintiff’s highway system did not, after the destruction of Modification Road as part of a through route, provide road facilities equal in utility to those destroyed. No existing roads serve the county’s requirements as adequately, and in the same manner and to the same extent, as the old Modification Road-County Road H-9 combination. There is now no bridge crossing Papil-lion Creek east of Highway 73-75 which is part of a through road system.

No such substitute road has been built, although there have been demands for one by the people of the county.

23. (a) Plaintiff here claims $135,560 as the present cost of constructing a proposed substitute road of approximately 1 y2 miles and a new bridge over Papillion Creek. This road would run north-south on the section lines between sections 13 and 24 on the west, and sections 18 and 19 on the east. It would lie due south of East Road (Hancock Street extended) , which is between sections 1 and 6. The new bridge would be almost 2 miles southeast from the old one, and the entire road would be at least 1-2 miles east and southeast of Modification Road-County Road H-9. It would not make use of County Road H-9 for through route purposes. At present East Road, leading south out of Hancock Street, extends around iy2 miles to the east gate entrance of the Base, to which point the road is paved. Beyond the gate, a gravel road continues south along the section line of section 12 about a half mile, where it ends. The proposed new road would simply continue south along the section line to the creek and the proposed new bridge. From this point there already is a road to La Platte. Thus, the proposed substitute would join two existing roads. The proposed new bridge would be a concrete 220-foot, 3-span bridge (the distance between the dikes bordering the banks of the creek at that point), with a 26-foot roadway. The road would be a 4-inch gravel one with a 100-foot right-of-way. Since the county already has a 66-foot right-of-way along the section line for road purposes, only an additional 34 feet would have to be provided for. The road itself would be 24 feet wide with a 3-foot shoulder on each side. The amount claimed is reasonable for the type of road and bridge which would be constructed.

(b) While such a route would in a general way serve the same people as before in that it would enable crossing the creek east of Highway 73-75 and reaching lands on either side of the creek (and traveling beyond) without taking the roundabout route of going west to reach Highway 73-75 and then coming back east, it would create quite a different traffic pattern than previously. After crossing the proposed new bridge going south, continuing south would lead to the Platte Eiver. To emerge from the area, one would then have to go approximately 2 miles west to reach La Platte and Highway 73-75. This north-south proposed replacement substitute is set forth on the aforementioned Joint Exhibit 6 as a green line.

(c) The 1954 equivalent cost of building the road and bridge would have been $92,913.

24. Shortly after the severance of Modification Eoad, the county in 1955 considered constructing a different substitute road than the one hereinabove described. This road (sometimes referred to as “the alternative proposed county replacement road”) would make use of the present Modification Eoad bridge over Papillion Creek. The road would connect with Modification Eoad just north of the present bridge near the point where Modification Eoad intersects the south line of section 11 and would then run due east-west approximately on the section lines between sections 11 and 12 on the north and 14 and 13 on the south. It would end at the northeast comer of section 13, the same point at which the proposed north-south replacement road would end. From there, it would lead north to East Eoad (Hancock Street extended), as would tire proposed north-south replacement route. Around 7,811 feet of new road would have to be built (as against around 8,000 feet for the north-south proposed road). It would be surfaced with gravel.

This alternate east-west proposed county replacement road is set forth on said Joint Exhibit 6 as a yellow line.

25. The alternate proposed county replacement road would be the closer and more appropriate substitute. It would use the present bridge and thus make unnecessary the building of an entirely new one. It would therefore be more economical. Most of the cost of building the proposed north-south replacement road would go into the construction of the new bridge ($96,000). In addition, it would preserve essentially tire same traffic pattern as before, in that it would make use of the already established County Eoad H-9 as the through route from Bellevue to La Platte and points beyond through Highway 73-15, to which Comity Eoad H-9 leads directly. Thus, the public would be served in much the same manner as before the closing of Modification Eoad.

While the proposed north-south replacement road would constitute a more direct and convenient route to reach Belle-vue for those living south of Papillion Creek and well east of La Platte, such as those living in sections 24 and 19, it would not appear that it would be unduly inconvenient for these people to first go west a short distance towards La Platte and then north on County Eoad H-9, the route they always took. Furthermore, the proposed north-south road would appear to be more inconvenient to those living in or close to La Platte and County Eoad H-9, such as those living in sections 25,26, and 30, for they would have to go east over 2 miles to reach it. The general area north and south of Papillion Creek which the new proposed north-south replacement road would serve is not a heavily populated one. The Missouri Eiver borders it on the east and the Platte Eiver on the south. The preservation of the old route and bridge pattern would appear to constitute a satisfactory traffic pattern and to provide all the outlets from the portions of the area involved which are reasonably necessary.

One reason plaintiff offers for preferring the proposed north-south replacement road is that the east-west alternate would have railroad crossings at grade. As of 1955, three railroad track crossings would have to be made. (Since then, one has been eliminated.) Plaintiff would prefer a route that would not involve any railroad track crossings. However, it is not shown that such crossings would, under the circumstances, create a substantial hazard. The old route also involved two such railroad crossings.

26. (a) The 1955 cost estimate of plaintiff’s consulting engineers for the construction of the alternate proposed east-west county replacement road was $75,628. This estimate is reasonable.

(b) To construct the identical road at the present time would cost $110,600. However, this road necessitated, as stated, three railroad crossings at grade. Since then, one has been eliminated. In addition some flood control work has been performed in the area (i.e., the building of a levee in 1962 along the left bank of Papillion Creek), which has changed the drainage situation and reduced the need for some of the fill which the original estimate included. (The ground at this location is somewhat lower and at the time of the original estimate presented more earth work problems than the north-south substitute. 125,000 cubic yards of excavation was estimated for the east-west road as against only 50,000 for the north-south.) It would in all probability make unnecessary a proposed 70-foot concrete slab bridge over a drainage ditch for which $18,400 was included in the estimate, two 36-inch culverts now carrying the drainage at the point involved. It appears that an extension of the two culverts would now handle the situation. Accordingly, the reasonable cost of building the road at the present time, as so changed, would be approximately the same as in 1955.

Conclusion oe Law

Upon tbe foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and judgment is therefore entered for plaintiff in the amount of seventy-five thousand six hundred twenty-eight dollars ($75,628), plus interest, as part of just compensation, at the rate of 4 percent from the date of taking in 1954, the amount to be determined under Eule 47 (c).

In accordance with the opinion of the court, a stipulation of the parties and a memorandum report of the commissioner, it was ordered on February 2, 1968, that judgment for the plaintiff be entered for $75,628, plus interest at the rate of four percent from July 1,1954, to the date of payment. 
      
      The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 67(a).
     
      
       Public Law 88-425, 88th Congress, 2d Session, 78 Stat. 399, approved August 13, 1964.
     
      
       Senate Report No. 1170, July 2, 1964, 88th Congress, 2d Session; House Report No. 1616, July 28, 1964, 88th Congress, 2d Session.
     
      
       Defendant questions the reasonableness of this figure, claiming that the amount allocated therein for obtaining rights-of-way is excessive. For the reasons set forth in finding 26, however, this criticism is rejected.
     
      
       Since tlie taking date, one crossing lias been eliminated.
     
      
       In City of Fort Worth, Tex. v. United States, 188 F. 2d 217, 219 (5th Cir. 1951), cited by plaintiff in this connection, the route previous to the taking had an underpass which avoided; a grade crossing. The substitute facilities relied on by defendant, however, provided only a grade crossing route. The situation is obviously different.
     
      
       The united States Court of Appeals for the Third Circuit held, 246 P. 2d at 826, that “We are persuaded that in the case at bar the Fifth Amendment and the equities require us to allow interest on the compensation awarded the County * * * from the time of taking to the date of the payment. We are convinced that if we do not do so the County * * * would be deprived of just compensation, * *
     
      
       Defendant contends that this alternate east-west substitute road could now be built for approximately $40,000 and seeks to limit the judgment to such sum. It points out that, since the taking date, one railroad crossing has been eliminated, and less excavation would now be necessary, as well as other savings made possible, due to drainage work that has since been performed in the area.
      However, even if it would be proper, in a case like this, to apply a current cost rule of compensation where a long, unexplained delay is involved and intervening events have served to reduce the taking date costs, nevertheless, for the reasons set forth in finding 26, it seems plain that, properly calculated, such savings made possible by the intervening events would simply result in the total current costs being approximately the same as the 1956 costs. But for these savings, the current costs would, as noted, be $110,600.
     
      
       We are unable to fix the amount of the judgment because the record does not show the exact date of taking.
     
      
       Defendant reduces the figure further, claiming that the estimated cost of acquiring rights-of-way appears to be excessive. $26,400 was allocated to this item, representing the cost of acquiring such rights over 13.2 acres at $2,000 per acre. Defendant says allocating $500 an acre for such acquisition is sufficient, and that, with such savings, as well as those resulting from the elimination of the one railroad crossing and the reduction in the fill dirt requirement, the wort, exclusive of any bridge work, could now be done for approximately $40,000. The estimates for the building of the proposed north-south replacement road do in fact allocate only $500 per acre for rights-of-way.
      However, it does not appear that defendant has given due weight to the fact that less than one-half of the alternate proposed east-west road could be built on section lines. Eor the balance, the road would have to be built entirely on private rights-of-way, the former public road lying on the section line having been closed by defendant at the time of the Base expansion. Thus, problems of severance damages are involved. Also, defendant’s $40,000 estimate appears to make no allowance at all for any extension work that would have to be done on the two culverts to make them substitute for the 70-foot concrete slab. The contemporaneous rights-of-way estimate by the consulting engineers who designed the road and worked up detailed cost estimates presumably based on then current investigations is to be preferred to general opinions expressed by defendant’s experts who had no knowledge of the specific cost of, or the problems involved in, obtaining easements over the particular lands involved.
      The elimination of the concrete slab, included in the 1955 estimate at $18,400 would, at current costs, save approximately $27,025 (there having been a cost rise over the years of about 46 percent), thus bringing the current $110,600 cost down to approximately $83,575. The further savings in excavation costs and the elimination of one railroad crossing might bring the costs below the $75,628 1955 cost figure, depending on exactly how much excavation could be eliminated ($22,500 being allocated therefor on the 1955 estimate (125,000 cubic yards at 18 cents)), but the additional work involved in extending the two drainage culverts to substitute for the eliminated concrete slab could well bring the costs back up to or over the 1955 estimate.
     