Daniel R. Shulman, David L. Shulman, Shulman, Walcott & Shulman, P.A., 2999 Norwest Center, 90 South Seventh St., Minneapolis, MN 55402 (for respondents)

Corrine H. Thomson, John B. Dean, Kennedy & Graven, Chartered, 470 Pillsbury Center, 200 South Sixth St., Minneapolis, MN 55402 (for appellant)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

In this condemnation proceeding, appellant argues that the trial court erred by denying its motions for JNOV or a new trial. Respondents allege the court erred by denying their motion for contempt and by granting appellant's motion to exclude loss-of-access evidence. We affirm.

In 1991, respondents sued appellant, alleging that the flooding constituted a compensable taking of their property. The trial court found there had been an irreversible physical taking of all property below 914 feet and ordered appellant to initiate condemnation proceedings. We affirmed that order. Johnson v. City of Shorewood, No. CX-93-2452 (Minn. App. May 17, 1994), review denied (Minn. July 15, 1994).

After condemnation commissioners awarded respondents $2,000 for the easement value of the land and $3,000 as a "cost-to-cure damage," respondents appealed to the district court. During that appeal, respondents moved to hold appellant in contempt, alleging that, because of a faulty legal description, appellant failed to condemn all property below the 914-foot elevation. The trial court denied the motion. The condemnation matter finally went to trial in 1996. Appellant brought a motion in limine, which the trial court granted, to exclude evidence that the taking deprived respondents of access to the northwest quadrant of their property.

The jury returned a special verdict awarding respondents (1) $2,000 for the easement, (2) $0 for the difference between the pre- and post-takings fair market value of their property, and (3) $63,000 for clean-up damages. Finding that the first two awards were inconsistent, the court held that respondents were not entitled to any damages for the loss of value in their property and entered judgment for $63,000.

The city moved for JNOV or a new trial. The city appeals that denial of its motion, and respondents appeal the court's denial of their contempt motion and its grant of appellant's motion to exclude loss-of-access evidence.

Appellant characterizes the jury's award to respondents as "cost-to-cure" damages and argues that respondents are precluded from collecting such damages because the jury found no difference between the pre- and post-takings market value of respondents' property. See Bulletin Publ'g Corp. v. City of Cottage Grove, 379 N.W.2d 685, 687 (Minn. App. 1986) (when cost of restoring property to natural condition is less than difference in pre- and post-takings value, property owner is entitled to collect restoration costs and nothing more); see also Alexandria Lake Area Serv. Region v. Johnson, 295 N.W.2d 588, 590 (Minn. 1980) (restoration damages awarded in certain cases to restore remaining property to usable condition).

In a partial takings case, the correct measure of damages is

the difference between the fair market value of the entire piece of property immediately before the taking and the fair market value of the remainder of the property after the taking.

State by Humphrey v. Strom, 493 N.W.2d 554, 558 (Minn. 1992).

To determine the fair market value of property in a condemnation proceeding "[a]ny competent evidence may be considered, if it legitimately bears upon the market value."

County of Ramsey v. Miller, 316 N.W.2d 917, 919 (Minn. 1982) (quoting State v. Malecker, 265 Minn. 1, 5, 120 N.W.2d 36, 38 (1963)).

Here, the court allowed the jury to consider clean-up costs because the cost of cleaning up damage from flooding "legitimately bears upon the market value" of respondents' property. Appellant argues that, because the jury found no diminution in the pre- and post-takings market value of respondents' property, respondents are precluded from collecting clean-up damages. We disagree, for the jury's response to the third special verdict question was not necessarily predicated on its response to the prior questions. The jury may have found there was no diminution in market value from the taking only because respondents prevented a diminution in market value by restoring their property to its pre-flood condition, incurring significant costs in doing so. If respondents had not cleaned up the damage, the property's fair market value would have been diminished because potential buyers would have subtracted clean-up expenses from the price they would pay for the property. The trial court did not misinterpret the rule of damages and did not err in denying appellant's motion for JNOV.

Appellant first claims the court erroneously admitted evidence of damages that occurred above the 914-foot elevation contour. But in a partial taking,

[t]he owner is entitled to compensation not only for the part taken but also for damage to the part not taken. This is implicit in the rule given to jurors that they are to measure the damages by the difference in the market value of the entire tract before the taking and the market value of the tract remaining.

State by Lord v. North Star Concrete Co., Parcel Channel Change No. 26, 265 Minn. 483, 488, 122 N.W.2d 118, 122-23 (1963) (emphasis added). If flooding of respondents' property resulted in damage to trees, vegetation, or soil outside the flooded area, the jury was entitled to consider that damage in determining the amount of compensation to be paid. Here there was evidence of such damages.

Appellant also argues that the trial court should have instructed the jury on respondents' duty to mitigate damages. A trial court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). An appellate court will reverse only when a jury instruction is an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

Although a property owner in a takings case "must exercise reasonable diligence to minimize his damages, the extent of the duty imposed by the rule depends on the facts of each case." State by Lord v. Casey, 263 Minn. 47, 54, 115 N.W.2d 749, 755 (1962). Here, Ronald Johnson testified that after the flooding occurred he spent more than 3,400 hours removing dead trees and debris and that his time was worth $20 per hour. The city presented testimony that the ditch could more reasonably have been cleaned up with a bulldozer and reseeded at a cost of $4,500.

When reviewing a jury verdict, we "consider the evidence in a light most favorable to the verdict and sustain that verdict if possible, on any reasonable theory of evidence." Dang v. St. Paul Ramsey Med. Ctr. Inc., 490 N.W.2d 653, 659 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). The record supports respondents' claim that the fragile nature of their property precluded the use of heavy machinery to remove the dead trees and debris caused by the flooding. On this record, the jury could have found that respondents' valuation of the time and effort to clean up the property was reasonable and rejected appellant's claim that these costs were unreasonable. The trial court did not err in refusing to instruct the jury on mitigation of damages, for the issue was not mitigation. Rather, the issue was the reasonableness of the means chosen to restore the property.

It was not error to deny the new trial motion.

Respondents' "temporary takings" argument cannot now be considered because it is raised for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will not consider issues that were not first presented to the trial court). Although respondents did raise the general issue of takings before the trial court, they cannot pursue the "temporary" takings argument here. See id. (party cannot raise on appeal under different theory "same general issue litigated below"); Security Bank of Pine Island v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (party cannot shift position on appeal).

In their motion for contempt, respondents alleged that the inaccurate legal description used during the takings proceedings did not cover all property below the 914-foot elevation and argued that appellant should be held in contempt for failing to condemn all such property. The trial court denied the motion and found that: (1) the original legal description was correct; (2) during the takings proceedings respondents stipulated to the accuracy of the original legal description; and (3) respondents' contempt motion, brought late in the condemnation proceedings, was untimely. The record supports these findings. The court's factual findings were not clearly erroneous and its decision was not an abuse of discretion.

Affirmed.