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10/29/2024 09:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
EVERT V. SRB
Cite as 33 Neb. App. 244
Lewis H. Evert and Trudy N. Evert,
appellants, v. Joseph E. Srb and
Marilyn E. Srb, appellees.
___ N.W.3d ___
Filed October 22, 2024. No. A-23-771.
1. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting error to be
considered by the appellate court.
2. Easements: Equity. An adjudication of rights with respect to an easement is an equitable action.
3. Injunction: Equity. An action for injunction sounds in equity.
4. Equity: Appeal and Error. 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. 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 facts over another.
5. Easements: Real Estate: Conveyances. An easement by implication
from former use arises only where (1) the use giving rise to the easement was in existence at the time of the conveyance subdividing the
property, (2) the use has been so long continued and so obvious as to
show that it was meant to be permanent, and (3) the easement is necessary for the proper and reasonable enjoyment of the dominant tract.
6. ____: ____: ____. In determining an implied easement by former use,
courts must look to the time of the conveyance subdividing the property that first brought into question whether an implied easement was
created.
7. Injunction. An injunction is an extraordinary remedy and ordinarily
should not be granted except in a clear case where there is actual and
substantial injury. Such a remedy should not be granted unless the right
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EVERT V. SRB
Cite as 33 Neb. App. 244
is clear, the damage is irreparable, and the remedy at law is inadequate
to prevent a failure of justice.
Appeal from the District Court for Lincoln County: Michael
E. Piccolo, Judge. Affirmed.
Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for
appellants.
Brian T. McKernan and Alexander K. Shaner, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., for appellees.
Riedmann, Chief Judge, and Pirtle and Welch, Judges.
Riedmann, Chief Judge.
INTRODUCTION
Lewis H. Evert and Trudy N. Evert (collectively the Everts)
appeal from the order of the district court for Lincoln County
that denied and dismissed their request for an order enjoining
Joseph E. Srb and Marilyn E. Srb from interfering with the
Everts’ rights under an easement, denied and dismissed their
request for an order enjoining the Srbs from interfering with
the Everts’ access to their land via a gate on the Srbs’ land, and
determined that the Everts did not have an easement by implication from former use to portions of the Srbs’ land. Although
our analysis differs from that of the district court, we affirm
its order.
BACKGROUND
Lewis and Marilyn are brother and sister. Along with their
late brother John Evert, they purchased land in Lincoln County,
Nebraska, in 1996. The land had previously been under common ownership, but the parties decided to divide the land into
six sections, with each sibling receiving two sections. Although
other family members had some ownership rights, for our purposes, it is sufficient to know that Lewis owned Sections 24
and 25, John owned Sections 13 and 30, and Marilyn owned
Sections 18 and 19. The diagram below, entered into evidence
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EVERT V. SRB
Cite as 33 Neb. App. 244
at trial for demonstrative purposes, shows the section placement and ownership after the parties divided the land.
Starting in 1996, Lewis and John used the land to raise
cattle. The Srbs did not initially have cattle, but Lewis and
John would use the trail roads on Sections 18 and 19 just as
they used the trail roads on the sections they owned. They also
used a portion of Section 18 as a calving pasture. The Srbs
eventually got cattle, and although the Srbs kept their cattle
on their own sections, Lewis and John would help with vaccinating, breeding, calving, and putting up hay. They sometimes
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EVERT V. SRB
Cite as 33 Neb. App. 244
acted as a joint farm operation, but the parties kept their
finances separate.
In 2005, the Srbs filed a lawsuit against the Everts and John
to determine the proper boundary lines of Section 19. The parties eventually settled, which resulted in the Everts and the
Srbs granting each other reciprocal easements to access each
other’s property for purposes of installing, maintaining, and
repairing the common fence they shared. The Srbs granted the
Everts an easement to enter on Section 19 for this purpose.
The Srbs also granted John an easement to their land for fence
repair, along with an extended easement for John to use the
trail roads on Sections 18 and 19.
In 2018, the Everts filed this action against the Srbs, alleging the Srbs had interfered with their reciprocal easement.
They requested the district court to enter an injunction prohibiting the Srbs from obstructing or attempting to obstruct their
access to Section 19. The Everts also alleged that they had an
easement by implication from former use to cross Sections 18
and 19 to access a portion of land on Section 24 referred to
as “the Bowl” through what was known as “Beer Can Gate.”
They requested the district court enter an injunction prohibiting the Srbs from interfering with this access to the Bowl.
At trial, Lewis and Marilyn testified, and several exhibits
were entered into evidence. The evidence revealed that Lewis
and John had access to all the sections, including the trail
roads, from the time of purchase until the 2005 lawsuit. After
the 2005 lawsuit was settled, Lewis would access the trail
roads on Sections 18 and 19 with John because John had an
easement to do so. Although the Srbs placed locks over the
gates on the boundary fence between Sections 18 and 19, John
was given a key to one of the gates because of his easement.
Considerable testimony was heard regarding Lewis’ ability
to access the area referred to as the Bowl. The Bowl, located
in Section 24, is a flat area surrounded on three sides by tall
hills, canyons, and trees. Prior to 2005, Lewis would drive
through Beer Can Gate on Section 18 and access the Bowl
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approximately five or six times a year. After 2005, Lewis
accessed the Bowl through Beer Can Gate only when he was
with John, since John’s easement allowed this. Since John
died, Lewis has not used Beer Can Gate to access the Bowl
area. Lewis explained that he needed to drive a truck and
trailer into the Bowl to spray for noxious weeds but the only
way he could drive into the Bowl was by entering on the east
side, through Beer Can Gate. Lewis also believed the only way
to check the fence he shared with Section 19 was through Beer
Can Gate, unless he walked or rode a horse. Although there is
no actual road from Beer Can Gate to Section 24, there was
pastureland that Lewis had driven on to reach Section 24 from
Beer Can Gate.
On the fence between Sections 19 and 24, there were three
gates: the north, middle, and south gates. Lewis testified that
the north and middle gates were locked, but the reasons he
described for needing to pass through them were unrelated to
fence maintenance. Marilyn disputed that the middle gate was
locked at the time of trial.
The district court found that the Everts had failed to establish an easement by implication from former use, noting that
although Lewis accessed Section 24 via Section 18 prior to
the 2005 lawsuit, he failed during the settlement to request
an easement to continue this practice. It found that Lewis had
only accessed the Bowl on a couple of occasions since the
2005 lawsuit. Finally, although Lewis testified of the need to
access the Bowl with a vehicle to spray for weeds, the district
court noted that there was testimony that aerial spraying had
been done in the past, which called into question whether an
easement was necessary for reasonable enjoyment of the land.
The Everts filed a motion to alter or amend or, in the alternative, for new trial. Following a hearing, the district court
denied the motion. The Everts appeal.
ASSIGNMENTS OF ERROR
The Everts assign, renumbered, consolidated, and restated,
that the district court erred in (1) determining that the Everts
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did not have an easement by implication from former use to
the trail roads running on Sections 18 and 19 to access Beer
Can Gate and to reach the Bowl on Section 24, (2) denying the
Everts injunctive relief prohibiting the Srbs from interfering
with this implied easement, and (3) denying them injunctive
relief preventing the Srbs from interfering with the Everts’
ability to access Section 19 pursuant to the terms of their reciprocal easement.
[1] Although the Everts assign that the district court erred
in denying their motion to alter or amend or, in the alternative, for new trial, they do not argue this assigned error. As
such, we will not address it. An alleged error must be both
specifically assigned and specifically argued in the brief of
the party asserting error to be considered by the appellate
court. In re Interest of Quiotis C.,
32 Neb. App. 932,
9 N.W.3d
224 (2024).
STANDARD OF REVIEW
[2] An adjudication of rights with respect to an easement is
an equitable action. Arnold v. Arnold, 24 Neb. App. 99,
884
N.W.2d 450 (2016).
[3] An action for injunction sounds in equity. ConAgra
Foods v. Zimmerman,
288 Neb. 81,
846 N.W.2d 223 (2014).
[4] 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. Arnold
v. Arnold, supra. 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 facts over another. Id.
ANALYSIS
Easement by Implication From Former Use.
[5] The Everts assign that the district court erred in determining that they failed to prove an easement by implication
from former use to the trail roads on Sections 18 and 19 to
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access Beer Can Gate and to reach the Bowl on Section 24.
An easement by implication from former use arises only where
(1) the use giving rise to the easement was in existence at the
time of the conveyance subdividing the property, (2) the use
has been so long continued and so obvious as to show that it
was meant to be permanent, and (3) the easement is necessary
for the proper and reasonable enjoyment of the dominant tract.
Arnold v. Arnold, supra. Because we conclude the Everts did
not produce evidence regarding the use of the alleged easement at the time of the conveyance subdividing the property,
their claim for an implied easement from implication of former
use fails.
At trial, there was testimony that the property was acquired
from a single owner in 1996 and was then divided by the siblings. The record is unclear whether the Srbs initially bought
all of the land and then loaned Lewis and John the money to
buy their shares, or if all three siblings were the initial purchasers. Regardless, there was no evidence of how the land
was used while under common ownership. To establish an
easement by implication from former use, as will be discussed
more fully below, we look to how the land was being used at
the time it was conveyed to separate owners.
There was evidence presented that trail roads existed at the
time the land was conveyed from the common owner to the
parties here. The Everts argue that when the land was purchased in 1996, it was easily recognizable that the trail roads
provided access to all sections. However, Lewis described that
once he exited the main trail road, he had to drive through
pastureland to get to Beer Can Gate. There has never been
any type of gravel or maintained road from the main trail road
to Beer Can Gate. This negates a finding that at the time of
conveyance, the trail roads on Sections 18 and 19 were being
used to access Beer Can Gate and the Bowl on Section 24.
Further, there was no evidence presented regarding whether
the various gates discussed were already installed at the time
the siblings purchased the property or if they were added later.
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EVERT V. SRB
Cite as 33 Neb. App. 244
The evidence did not establish the use of the land and trail
roads at the time the land parcels were conveyed from one
owner to multiple owners.
During the trial, the parties focused primarily on the use of
the trail roads after the land was purchased and the sections
were divided among them. Lewis testified that the land was
divided into its current ownership “[a]t the beginning” and that
he would use the trail roads on Sections 18 and 19 the same
way he used the roads on the sections he owned. There was
also testimony on the use of the roads after the settlement was
reached in the 2005 lawsuit. Lewis stated that after the 2005
lawsuit, he did not continue to travel through Sections 18 and
19 until John obtained an easement to do so. From that point
on, Lewis traveled the trail roads on Sections 18 and 19 only
when he was with John. Lewis had traveled on Section 18
without John on only one occasion since 2005.
[6] The use of the land after the 1996 division is not the
relevant period to consider in determining an implied easement
by former use; rather, courts must look to the time of the conveyance subdividing the property that first brought into question whether an implied easement was created. See O’Connor
v. Kaufman,
250 Neb. 419,
550 N.W.2d 902 (1996).
In O’Connor v.
Kaufman, supra, a tract of farmland was
under common ownership until January 29, 1975, at which
time parcel A, which contained a house, and parcel D, which
contained a well, pump, and pipeline, were deeded to separate
individuals. For decades prior to the transfer, the well supplied water to the house on parcel A.
Id. Subsequent transfers
of both parcels occurred thereafter, but for the most part, the
well continued to supply water to the house on parcel A.
Id.
In 1991, the then owners of parcel D removed the well, pump,
and pipeline. The owner of parcel A filed suit, seeking an
implied easement from former use. In determining whether an
implied easement existed, the Nebraska Supreme Court stated
that we must look to the time of the conveyance subdividing the property that first brought into question whether an
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implied easement was created.
Id. It determined that date was
January 29, 1975.
Id.
Likewise, in Arnold v. Arnold,
24 Neb. App. 99,
884
N.W.2d 450 (2016), this court looked to the way the property
had been used while under common ownership to determine
whether an implied easement by former use existed when the
land was divided. In Arnold, a father owned farmland that he
leased in separate lots to his sons. One son used the underground pipeline contained on the other son’s land to irrigate
his crops.
Id. When the father passed away, the separate lots
were conveyed to the sons and a dispute arose as to the use
of the pipeline.
Id. In determining whether the first element
of an implied easement by former use was met, we looked to
the time the lots were conveyed following their father’s death.
Id. We determined that because the pipeline was being used to
service the other lot prior to that date, the first element was
met.
Id.
In the present case, the record is void of any use of the
trail roads at the time the land was divided among the siblings. Lewis, after confirming that the land was divided into
the ownership of the sections between the siblings in 1996,
testified that thereafter, he would “go through 18 and 19 just
as well we did 13 and 24.” The evidence presented was sufficient to establish that after the division of the land in 1996,
Lewis and John would use the trail roads on Sections 18 and
19. However, this is insufficient to establish that the use being
sought existed at the time of the conveyance subdividing the
property. As the Everts did not present evidence to establish
the first element of an implied easement by former use, their
claim fails.
The district court determined that the Everts failed to prove
the continuity of use and its necessity, but we need not reach
those elements, having found a lack of proof to the first element. Although our reasoning differs from that of the district
court, we agree with the district court that the Everts failed to
prove an implied easement from former use.
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EVERT V. SRB
Cite as 33 Neb. App. 244
Injunctive Relief Related to Bowl Access.
The Everts assign that the district court erred in denying their request for an injunction preventing the Srbs from
obstructing or attempting to obstruct the Everts’ access to the
Bowl. We agree with the district court that the Everts failed to
prove entitlement to such relief.
[7] An injunction is an extraordinary remedy and ordinarily should not be granted except in a clear case where there
is actual and substantial injury. Such a remedy should not be
granted unless the right is clear, the damage is irreparable, and
the remedy at law is inadequate to prevent a failure of justice.
Lambert v. Holmberg,
271 Neb. 443,
712 N.W.2d 268 (2006).
The testimony regarding access to the Bowl focused mainly
on Lewis’ need to access the Bowl to spray for noxious
weeds, specifically thistles. He had not accessed the Bowl to
spray for thistles since 2005. Lewis testified that since 2005,
he had twice used aerial spraying to control the weeds, but
that the cedar trees in the Bowl prevented the spray from
reaching all the thistles. He stated that if he did not spray for
weeds, the county would do it and he would be financially
responsible. However, Lewis admitted he had never received
any notices or complaints from the county with respect to
weeds in the Bowl.
The Everts have failed to show that irreparable harm would
occur if they were not granted the injunctive relief sought.
The evidence showed that Lewis had used aerial spraying to
control the weeds in the Bowl twice since 2005 and that he
had never received any notices or complaints from the county.
Based upon this evidence, we cannot conclude there would be
irreparable damage, or any damage at all, if he could not access
the Bowl via the trail roads on Sections 18 and 19. The district
court did not err in denying injunctive relief on this basis.
Injunctive Relief Related to Reciprocal Easement.
The Everts assign that the district court erred in failing to
grant their request for injunctive relief to prevent the Srbs
from obstructing their reciprocal easement to enter Section 19.
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EVERT V. SRB
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Based on our review of the evidence, we find the reciprocal
easement does not provide for the access the Everts seek.
As stated above, injunctive relief should not be granted
unless the right is clear, the damage is irreparable, and the
remedy at law is inadequate to prevent a failure of justice.
Lambert v.
Holmberg, supra. The parties’ settlement of the
2005 lawsuit resulted in the Everts and the Srbs granting each
other reciprocal easements. The Srbs granted the Everts “an
easement to enter on said Section 19 to install, maintain and
repair the common fence between said Sections 19 and 24.”
The Everts’ complaint alleged that the Srbs were interfering
with their use and enjoyment of the easement by relocating a
gate on the fence line, padlocking another gate, and putting a
combination lock on a third gate. On appeal, they argue that
evidence plainly and simply shows instances wherein the
Srbs have frustrated Everts [sic] ability to use the easement by forcing Everts to use a gate they installed just
west of the gate previously used on the trail road easement on the Sections 18/19 trail road thereby forcing
Everts off and around the easement . . . .
Brief for appellant at 27.
The reciprocal easement, however, did not grant use of any
specific gate to access Section 19 and did not include an easement on Section 18. The evidence established there were three
gates on the fence between Sections 19 and 24. The north
gate was locked, presumably by Marilyn; the parties disputed
whether the middle gate was locked; and Lewis never used the
south gate, which was unlocked. Lewis’ testimony was that
he had used the north gate to drive animals from one pasture
to the next and needed access to the middle gate to spray for
thistles. Neither task is related to installing, maintaining, or
repairing the boundary fence.
There was very little, if any, testimony that the locks on
the gates impaired Lewis’ ability to utilize the reciprocal easement to install, maintain, and repair the common fence. The
reciprocal easement did not provide access for the work he
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sought to perform; therefore, the Everts failed to establish a
clear right to the access they sought. Additionally, we cannot
conclude that the Srbs have interfered with the Everts’ ability
to use the easement for the purpose for which it was granted.
Consequently, their actions did not cause damage, let alone
irreparable damage, which would entitle the Everts to injunctive relief.
CONCLUSION
We find that the Everts did not establish an easement by
implication from former use or entitlement to injunctive relief.
We therefore affirm the district court’s order dismissing the
Everts’ claims.
Affirmed.
