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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
OSTWALD v. BECK
Cite as 27 Neb. App. 763
Doris Ostwald et al., appellees,
v. Wayne H arold Beck,
appellant.
___ N.W.2d ___
Filed November 5, 2019. No. A-18-647.
1. Declaratory Judgments. An action for declaratory judgment is sui
generis; whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.
2. Easements: Equity. An adjudication of rights with respect to an easement is an equitable action.
3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an
equity action for a declaratory judgment, an appellate court decides factual issues de novo on the record and reaches conclusions independent
of the trial court. But when credible evidence is in conflict on material
issues of fact, the court may consider and give weight to the fact that the
trial court observed the witnesses and accepted one version of the facts
over another.
4. Injunction: Equity: Appeal and Error. An action for injunction sounds
in equity. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact
and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court.
5. Injunction: Motions to Vacate. When the circumstances and situation
of the parties have changed so that it would be just and equitable to
vacate or modify a permanent injunction, the court which granted the
injunction may vacate or modify it upon motion.
6. Injunction: Proof. The burden is on the party seeking modification of
a permanent injunction to show a change in circumstance or situation
sufficient to warrant such modification.
7. Easements: Abandonment: Intent: Proof. The fact that an easement
holder finds a more convenient alternative route instead of using the
easement does not deprive the easement holder of the easement that
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
OSTWALD v. BECK
Cite as 27 Neb. App. 763
remains for the holder’s use and enjoyment whenever the holder has
occasion to use the right.
Appeal from the District Court for Dodge County: Geoffrey
C. H all, Judge. Affirmed as modified.
Matthew M. Munderloh, of Johnson & Mock, P.C., L.L.O.,
for appellant.
Blake E. Johnson and Paul A. Lembrick, of Bruning Law
Group, for appellees.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Wayne Harold Beck appeals from an order of the district
court for Dodge County which declared that Wayne’s property remained subject to an easement established in 1977
and which enjoined Wayne from interfering with the use and
enjoyment of the easement by Doris Ostwald (Doris), Vernon
Vodvarka, and Becky Vodvarka (collectively appellees). Based
on the reasons that follow, we affirm as modified.
BACKGROUND
Since 1975, Doris has owned a 40-acre tract of land (the
Ostwald 40) used for farming and located in Dodge County,
Nebraska. The location of the Ostwald 40 is described as the
“Northwest quarter of the Northeast quarter (NW1/4NE1/4),
Section 13, Township 20 North, Range 5, East of the 6th P.M.”
Vernon and Becky rent the Ostwald 40 from Doris and have
been farming it for 35 years.
Wayne owns two tracts of land situated directly south and
southwest of the Ostwald 40, described as the “Southwest
quarter of the Northeast quarter (SW1/4NE1/4)” and the
“Southeast [q]uarter of the Northwest quarter (SE1/4NW1/4)”
of “Section 13, Township 20 North, Range 5[,] East of the
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
OSTWALD v. BECK
Cite as 27 Neb. App. 763
6th P.M.” The trial court referred to the southwest quarter of
the northeast quarter as the “South Beck Property,” because it
was directly south of the Ostwald 40, and the southeast quarter of the northwest quarter as the “Southwest Beck Property,”
because it was southwest of the Ostwald 40. This land was
previously owned by Harold Beck and Ruth Beck, Wayne’s
parents. Wayne acquired the property by deed of distribution
in 2007. Wayne’s son, Curtis Beck, farms the property owned
by Wayne.
In 1976, Doris filed a petition against Harold and Ruth
alleging that she had acquired an easement by prescription of a
road on the Southwest Beck property. The petition alleged that
the Ostwald 40 was landlocked and that the road on Harold
and Ruth’s property was the only way for Doris to access
her property.
In 1977, the district court for Dodge County entered a judgment finding that Doris, her agents, and her assigns,
have an easement, eighteen (18) feet in width, for purposes of ingress and egress, running north and south
along the East edge of the Southeast quarter of the
Northwest quarter (SE1⁄4NW1⁄4), Section 13, Township 20
North, Range 5, East of the 6th P.M., Dodge County,
Nebraska [the Southwest Beck property].
It further ordered that Harold, Ruth, and their agents and
employees were “perpetually enjoined and restrained from
hindering or interfering with” the use of the easement by Doris
and her agents and assigns.
In the 1990’s, Doris inherited and became the record owner
of additional property situated directly north of the Ostwald
40, described as the “Southeast Quarter (SE 1⁄4) of Section
Twelve (12), Township Twenty (20) North, Range Five (5),
East of the 6th P.M., Dodge County, Nebraska” (the Ostwald
160). The Ostwald 160 is adjacent to a county road and shares
a common boundary with the Ostwald 40. Vernon and Becky
do not rent or farm the Ostwald 160; it is rented and farmed by
a different tenant.
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27 Nebraska A ppellate R eports
OSTWALD v. BECK
Cite as 27 Neb. App. 763
In March 2017, appellees filed the present action seeking a declaratory judgment that the Southwest Beck property
remains subject to the easement ordered in 1977. They also
sought injunctive relief to bar Wayne, and any of his agents
or employees, successors, or assigns, from interfering with the
use and enjoyment of the easement. Appellees claimed Wayne
had intentionally obstructed their use of the easement, particularly during planting and harvest season.
Wayne counterclaimed, arguing that the court should vacate
the 1977 injunction due to a material change in circumstances
occurring subsequent to its entry. Specifically, he alleged
that the Ostwald 40 is no longer “landlocked,” becuase it is
accessible by and through the Ostwald 160, and that it is no
longer necessary or appropriate for appellees to access the
Ostwald 40 through any portion of Harold and Ruth’s property. Alternatively, Wayne requested that he and his lessees,
invitees, and successors be allowed to irrigate over the easement if the court determined that his property remained subject to the easement. Wayne also alleged a cause of action for
trespass, but withdrew this cause of action at trial.
Trial was held in February 2018. The evidence established that Doris had acquired additional property since the
1977 judgment—the Ostwald 160—which made it possible
to access the Ostwald 40 without using the easement. Doris
testified that the Ostwald 40 can be accessed through the
Ostwald 160. Vernon testified that he used the Ostwald 160
during harvest season in 2016 and 2017 to access the Ostwald
40 because Wayne or his son, Curtis, had blocked access to
the easement. Vernon testified that the route taken through
the Ostwald 160 is located on a wetland, making it difficult
to get vehicles across it without getting stuck. He also testified that the route across the Ostwald 160 does not extend
all the way to the Ostwald 40; he has to cross farm ground
before reaching the Ostwald 40. Vernon further testified that
improvements would have to be made to the route before it
could be used as regular access to the Ostwald 40. He added
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27 Nebraska A ppellate R eports
OSTWALD v. BECK
Cite as 27 Neb. App. 763
that the route through the Ostwald 160 is part of a restricted
wetland and would require approval by the Natural Resources
Conservation Service before any changes to the land could
be made.
Doris testified that the reason for the 1976 action was
because the Ostwald 40 was landlocked; there was no public
road to access it. She testified that after the easement was
established in 1977, she and her tenants have continually used
the easement to access the Ostwald 40 and were still doing so
at the time of trial to the extent they could.
Vernon testified that he has always accessed the Ostwald 40
using the easement during the 35 years he had farmed the property and that he enters the Ostwald 40 at its southwest corner
as provided in the 1977 judgment. Vernon further stated that
he had to “carve a corner” to reach the southwest corner of the
Ostwald 40, which meant going outside the boundaries of the
easement. He testified that is how the Ostwald 40 has always
been accessed.
The evidence also showed that Wayne or Curtis had blocked
or hindered appellees’ use of the easement at various times. For
example, Vernon testified that in 2017, a tractor was parked at
the end of the easement preventing access to the easement. He
testified that there had been other obstructions blocking the
easement in previous years. He testified that Wayne’s interference with the easement has created complications in getting
crops timely planted and harvested in the Ostwald 40. Doris
and Vernon both testified that they have tried to persuade
Wayne and Curtis to stop such conduct, to no avail.
Curtis claimed that he had not done anything to intentionally interfere with appellees’ use of the easement. He denied
parking a tractor in the easement in May 2017, but admitted
that he had parked it in such a way that it prevented appellees
from accessing the Ostwald 40 through the southwest corner
of the field.
Curtis also testified that he had an irrigation pivot near the
easement which sprays over the easement, sometimes making
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
OSTWALD v. BECK
Cite as 27 Neb. App. 763
the easement inaccessible or difficult to access because it is
wet or muddy. He stated that he was worried about not being
able to use the pivot if the easement was enforced.
Following trial, the court entered an order reaffirming the
1977 judgment, making it clear that Wayne, his agents, or
employees are permanently enjoined from engaging in any
actions which interfere with appellees’ lawful right to use the
easement, which includes reasonable ingress and egress to the
Ostwald 40. The court stated that Wayne is allowed to irrigate
“over and on the easement” and that this irrigation does not
constitute an interference of the easement. The court additionally stated that appellees have the lawful right to use the easement described by the court in the 1977 judgment, which it
further clarified as
a road 18 feet in width, running north and south along
the east edge of the Southwest Beck Property and continuing to a northeasterly direction, thereby to allow
ingress and egress of the Ostwald Property at its southwest corner by crossing the northwest corner of the
South Beck Property.
The trial court also dismissed Wayne’s counterclaim.
ASSIGNMENTS OF ERROR
Wayne assigns that the trial court erred in (1) awarding
appellees injunctive relief and permanently enjoining him and
his agents from interfering with the easement awarded in 1977,
(2) failing to vacate the 1977 injunction due to a material
change in circumstances—Doris’ acquisition of other property,
and (3) awarding declaratory relief to appellees by reaffirming the existence of the 1977 easement to include a portion of
property never before included and the scope and description
of which are uncertain.
STANDARD OF REVIEW
[1] An action for declaratory judgment is sui generis; whether
such action is to be treated as one at law or one in equity is
to be determined by the nature of the dispute. Homestead
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OSTWALD v. BECK
Cite as 27 Neb. App. 763
Estates Homeowners Assn. v. Jones,
278 Neb. 149,
768 N.W.2d
436 (2009).
[2,3] An adjudication of rights with respect to an easement
is an equitable action.
Id. In reviewing an equity action for a
declaratory judgment, an appellate court decides factual issues
de novo on the record and reaches conclusions independent of
the trial court.
Id. But when credible evidence is in conflict on
material issues of fact, the court may consider and give weight
to the fact that the trial court observed the witnesses and
accepted one version of the facts over another.
Id.
[4] An action for injunction sounds in equity. On appeal
from an equity action, an appellate court tries factual questions
de novo on the record and, as to questions of both fact and law,
is obligated to reach a conclusion independent of the conclusion reached by the trial court. Lambert v. Holmberg,
271 Neb.
443,
712 N.W.2d 268 (2006).
ANALYSIS
Wayne first assigns that the trial court erred in awarding
appellees injunctive relief. However, the trial court did not
award appellees any injunctive relief that did not already exist
in the 1977 judgment. The court noted that the 1977 judgment
provides for a permanent injunction against interference with
the easement. It further stated that the question before it was
whether the 1977 judgment continued to bind Wayne, and
it determined that it did. The evidence showed that Wayne
acquired the property by deed of distribution in 2007, and the
deed expressly provided that the real estate in the conveyance
is “subject to easements and restrictions of record.” The easement granted by the 1977 judgment was recorded in January
1977. Wayne does not dispute that the easement passed by
conveyance. Accordingly, the trial court reaffirmed the 1977
judgment, making it clear that Wayne, his agents, or employees are permanently enjoined from engaging in any actions
which interfere with appellees’ lawful right to use the easement. An injunction was already in place; the court simply
reaffirmed it.
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
OSTWALD v. BECK
Cite as 27 Neb. App. 763
Wayne next assigns that the trial court should have vacated
the 1977 injunction as requested in his counterclaim, because
the easement is no longer necessary. He contends that the
Ostwald 40 is “no longer landlocked,” because appellees can
access it by going through the Ostwald 160, and that therefore,
there is no reason for the easement to continue.
[5,6] When the circumstances and situation of the parties
have changed so that it would be just and equitable to vacate
or modify a permanent injunction, the court which granted
the injunction may vacate or modify it upon motion. Latenser
v. Intercessors of the Lamb, Inc.,
250 Neb. 789,
553 N.W.2d
458 (1996). The burden is on the party seeking modification
of a permanent injunction to show a change in circumstance
or situation sufficient to warrant such modification.
Id. Wayne
alleges that Doris’ acquisition of the Ostwald 160 is a material change in circumstances sufficient to vacate the injunction
entered in 1977.
The evidence showed that Doris and her tenants have used
the easement continually since it was granted in 1977. They
continued to use it up to the time of trial when it was not
restricted by Wayne or Curtis. The only reason Vernon used
the Ostwald 160 to access the Ostwald 40 was because the
easement was inaccessible. Vernon testified that the route he
has used across the Ostwald 160 is not a route that could be
used regularly or permanently. He testified that it is part of a
wetland, making it hard to use without getting stuck. Further,
the route does not extend all the way to the Ostwald 40, but,
rather, it requires crossing over farmland. Vernon also testified
that the route would need work before it could be used regularly and the Natural Resources Conservation Service would
have to approve any changes.
[7] We conclude that Wayne has failed to show a change
in circumstances to warrant vacating the 1977 injunction.
The Nebraska Supreme Court has stated: “‘[T]he fact that
the easement holder finds a more convenient alternative route
does not deprive the easement holder of the easement that
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OSTWALD v. BECK
Cite as 27 Neb. App. 763
remains for the holder’s use and enjoyment whenever the
holder has occasion to use the right.’” Mueller v. Bohannon,
256 Neb. 286, 296-97,
589 N.W.2d 852, 860 (1999), quoting Jackvony v. Poncelet,
584 A.2d 1112 (R.I. 1991). In this
case, the alternate route is not more convenient, but, rather,
it is less convenient and more difficult to use. Accordingly,
appellees should not be deprived of the easement and should
be able to use it without Wayne’s hindering or interfering
with their use. The trial court did not err in failing to vacate
the injunction.
Wayne next assigns that the trial court erred by expanding
the easement to include a portion of his property that was
not included in the easement awarded in 1977 and, further,
by not adequately describing the property or the scope of
the easement.
The 1977 judgment stated that Doris, her agents, and her
assigns are “entitled to use the aforesaid roadway along the
East edge of the Southeast quarter of the Northwest quarter
(SE1⁄4NW1⁄4), Section 13 . . . and to enter the above property
owned by [Doris] at its southwest corner.” In the present case,
the trial court held that appellees have the lawful right to use
the easement described in the 1977 judgment, which it
further clarified . . . as a road 18 feet in width, running
north and south along the east edge of the Southwest
Beck Property and continuing to a northeasterly direction, thereby to allow ingress and egress of the Ostwald
Property at its southwest corner by crossing the northwest corner of the South Beck Property.
As previously stated, the court referred to the southeast quarter of the northwest quarter of Section 13 as the “Southwest
Beck Property,” and the southwest quarter of the northeast
quarter of Section 13 as the “South Beck Property.”
Wayne contends that the property subject to the easement
awarded in the 1977 judgment is all within the southeast quarter of the northwest quarter, or the Southwest Beck Property.
Wayne argues the court erred when it expanded the easement
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OSTWALD v. BECK
Cite as 27 Neb. App. 763
to include the northwest corner of the southwest quarter of the
northeast quarter, or the South Beck Property, as this property was not included in the 1977 judgment and appellees
have no legal right to use such property. He further contends
that appellees did not plead or prove any entitlement to use
any additional property outside of what was described in the
1977 judgment.
Vernon testified that to enter the Ostwald 40 at its southwest
corner as provided in the easement, he has to leave the easement and cross a portion of Wayne’s other property. He testified that is the way he has always accessed the Ostwald 40.
Based on the evidence, the other land Vernon would be crossing would be the South Beck Property. However, appellees
asked the court only to reaffirm the 1977 judgment. Neither
party asked the court to modify the existing easement to
include additional property not included in the 1977 judgment.
We conclude that the trial court erred in expanding the scope
of the easement. Accordingly, we modify the court’s order to
state that appellees have the lawful right to use the easement as
described in the 1977 judgment.
CONCLUSION
We conclude that the trial court did not err in failing to
vacate the 1977 injunction, but did err in expanding the scope
of the easement to include property not included in the 1977
judgment. Accordingly, we modify the court’s description of
the easement to reflect the 1977 judgment.
A ffirmed as modified.
