concurring in part and dissenting in part:
As a general proposition, the undivided-fee rule governs the assessment of damages in condemnation cases brought under Nevada law. However, in those rare cases where the district court concludes that application of the undivided-fee rule may frustrate or prevent an award of just compensation, the district court should have the discretion to utilize the dissent’s “aggregate-of-interests” rule in either calculating the award in a bench trial or in crafting instructions in a jury trial. This is one of those rare cases and, as discussed below, we should affirm the judgment rendered in this matter below.
In my view, the district court correctly concluded that the value of the Pyles’ interest was artificially low based upon the long-term lease rate. For any number of reasons, business or personal, a landowner may wish to artificially create a low lease rate. The governmental taking entity should not be able to take an economic advantage of the landowner’s decision in that regard unless the low rate is dictated by some commercial necessity. Utilization of the “aggregate-of-interests” formula effected just compensation in this case and the fact finder could reasonably conclude that the Pyles’ lease rate was not truly reflective of the value of the property.
I appreciate the majority’s concern that NRS 37.115 codifies the undivided-fee rule. I believe it does as a general matter, but agree with Justice Gibbons that the “aggregate-of-interests” rule is compatible with the two-tiered approach in the statute and may be used in situations such as that presented here.1
I agree with the majority that the damages for lost profits resulting from the condemnor’s unreasonable delay in bringing the action to trial are compensable.