dissenting.
A verdict in a condemnation case which is manifestly excessive, clearly wrong, and not supported by the evidence can not be sustained. Moyer v. Nebraska E. G. & T. Coop., 171 Neb. 879, 108 N.W.2d 89 (1961).
The judgment in this case appears to be excessive on its face. The taking amounted to about 25 percent of the area of the tract, but the damages awarded amount to approximately 68 percent of the value of the entire tract, according to the plaintiffs’ evidence. The plaintiffs’ expert witness, Merker, valued the remainder after the taking at less than 20 percent of the value of the entire tract before the taking. In other words, the remaining 75 percent of the property was worth less than 20 percent of the value of the entire tract.
It further appears that the judgment is excessive because the owners were allowed to recover damages twice for the property taken. They were allowed to recover the value of the land taken plus *79the replacement cost of fill dirt that could have been removed from the land taken. The landowners should not be paid for both the value of the dirt and its replacement cost.
When only a part of a tract is condemned, the measure of damages in Nebraska is the value of the property taken plus the difference in the value of the remainder before and after the taking. See Connor v. State, 175 Neb. 140, 120 N.W.2d 916 (1963). This rule has been criticized because it may permit a double recovery. See, 1 Orgel, Valuation under Law of Eminent Domain § 64 (2d ed. 1953); Commonwealth v. Blanton, 352 S.W.2d 545 (Ky. 1961).
In Blanton, supra at 547, the court said: “It must be obvious, however, that if in valuing the land taken its use as a specific facility is considered, and the damages for the taking are thus computed on the basis that the owner is being deprived of that facility, the loss of the facility taken cannot be again considered as part of the damages to the remainder of the tract. It seems to us that the situation here is no different from that in Smick v. Commonwealth, Ky., 268 S.W.2d 424, where the landowner’s garage was taken and paid for, and he sought to recover in addition the expense of building a new garage.” (Emphasis in original.) See, also, P., B. & C. Traction Co. v. Vance, 234 Ill. 36, 84 N.E. 607 (1908); State, Dept. of Highways v. Country Club Acres, 348 So. 2d 138 (La. App. 1977). See, also, cases cited at 4A Nichols, Law of Eminent Domain § 14.06 n. 10 and § 14.08 n.24 (3d ed. 1981).
In the present case the landowners were entitled to recover the fair market value of the 18.12 acres of the land taken plus severance damages to the remainder. The evidence of the landowners relating to value can be summarized as follows:
Wear, one of the landowners, testified that the value of the property was reduced $1 million.
Merker, the expert witness, testified to the following values:
*80Value of entire 75-acre tract $1,044,569
Value of 18.12 acres taken 336,316
Value of remainder before taking 708,253
Value of remainder after taking 184,426.
Merker testified that the value of the remainder after the taking was diminished because the 18.12 acres taken contained fill necessary to develop the remaining property for commercial and residential use, and that the loss in market value was equal to the cost of obtaining replacement fill.
Merker relied upon estimates compiled by the engineer, Dreesen. Dreesen testified that to develop the remainder, 602,000 cubic yards of fill and 79,865 cubic yards of topsoil would be required; that 392,000 cubic yards of fill and 59,600 cubic yards of topsoil were on the remaining property; and therefore the landowners would be required to purchase and transport 210,000 cubic yards of fill and approximately 20,000 cubic yards of topsoil at a cost of $504,000. Dreesen calculated the onsite grading costs before the taking and subtracted these from the cost of the project when it required fill to be brought in from offsite. It was stipulated that the land taken contained 266,000 cubic yards of fill.
If it is assumed that the grading project was necessary for the development of the remainder, that the development plan was feasible, and that the damage to the remainder was equal to the cost of replacing the fill present on the 18.12 acres, the award made by the jury is still excessive. This is because the landowners were permitted to recover the fair market value of the 18.12 acres which included the value of the fill dirt, and also to recover the cost of procuring replacement fill dirt as a part of the diminution in value of the remainder. Thus, the award resulted in double compensation.
In the present case the value of the land taken included the value of the dirt in place. The landowners can not also recover the cost of replacing the dirt. An analogy can be made to trespass cases in*81volving the removal of dirt. A landowner may recover the diminution in market value of the land or the market value of the soil taken but may not recover both. See City of Atlanta v. Swiney, 20 Ga. App. 415, 93 S.E. 24 (1917) (syllabus of the court).
If the landowners were entitled to any severance damage for the loss of the dirt on the 18.12 acres, the measure would be the costs necessitated by the transportation of substitute dirt to the site.
Hastings, J., joins in this dissent.