Ahrens v. Tichota, 082719 NECA, A-18-094
|Opinion Judge:||PIRTLE, JUDGE.|
|Party Name:||Donald R. Ahrens and Kenneth L. Ahrens, appellees, v. Jason M. Tichota and Gina R. Tichota, appellants.|
|Attorney:||Mark S. Dickhute for appellants. Thomas D. Prickett, of Reinsch, Slattery, Bear & Minahan, P.C., L.L.O., for appellees.|
|Judge Panel:||Pirtle, Arterburn, and Welch, Judges.|
|Case Date:||August 27, 2019|
|Court:||Court of Appeals of Nebraska|
THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Otoe County: Michael A. Smith, Judge.
Mark S. Dickhute for appellants.
Thomas D. Prickett, of Reinsch, Slattery, Bear & Minahan, P.C., L.L.O., for appellees.
Pirtle, Arterburn, and Welch, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Jason M. Tichota and Gina R. Tichota (hereinafter the appellants) appeal from an order granting summary judgment in favor of Donald R. Ahrens and Kenneth L. Ahrens (hereinafter the appellees) entered by the district court for Otoe County. For the reasons stated below, we reverse and remand for further proceedings.
The appellees are farmers. They lease ground from the Union Pacific Railroad (UPRR) where they have constructed grain bins and other personal property. In order to access the grain bins on the leased ground they must traverse property owned by the appellants. The district court concluded there were no material facts in dispute and the appellees had established entitlement to a "public prescriptive easement" across the appellants' land in order to access the grain bins.
On September 19, 2003, the appellants purchased 8.1 acres in Otoe County, Nebraska, commonly known as 5716 Deer Road, Nebraska City, Nebraska, but legally described as part of the Northeast Quarter of Section 23, Township 9, Range 13 in Otoe County, Nebraska, more particularly described as: commencing at the SW 1/4 of said NE 1/4, thence North 576 feet to a point on the West line of said quarter section, thence East 528 feet to a point, thence Northward about 50 feet to a point on the west boundary of the Missouri Pacific right of way, thence Southeasterly along the West line of said right of way to the South line of said NE 1/4 of said Section thence West about 833 feet to the place of beginning.
The property includes a residence, a pasture, out buildings, and Deer Road. Access to the appellants' home is by way of Deer Road, which connects with North Highway 57, and Deer Road is entirely within the legal description of the appellants' property.
Margaret Ross and Clarence Ross owned the above-described property immediately prior to the appellants. The Rosses purchased the property in October 1957. Sometime in the late 1970's Loren Haveman purchased the leasehold improvements on the UPRR right of way now owned by the appellees. Haveman used the leasehold improvements to operate the Haveman Grain Company until the improvements were sold to the appellees in August 1998. Haveman's affidavit is some evidence of the early use of Deer Road as a route to the grain bins by area farmers. Haveman used Deer Road during the same time the Rosses were using Deer Road and he never heard any objection from the Rosses about his use of the road. Affidavits from other area farmers establish use of Deer Road to access Haveman Grain Company but the property which includes Deer Road was always owned by someone else dating from 1858.
When the appellants moved into the property they started noticing their adjoining neighbors to the north, Larry Starner and his wife (the Starners), were using Deer Road to access their pasture even though they had alternative access on North Highway 57. Since the Starners were good neighbors and their use had minimal impact on Deer Road, Jason advised Larry he was permitted to continue the use of Deer Road.
The appellants also noticed the appellees' use of Deer Road and in the summer of 2007, Jason approached the appellees in an effort to reach a similar "permissive use" understanding.
While the Starners use of Deer Road did no harm, Jason complained to the appellees that their use of the road by large farm equipment and fully loaded semi tractor-trailers had resulted in annual expenditures of $700 to $800 for grading and rocking expenses. Jason is an engineer by education and training and he calculated that one semi-trailer trip over Deer Road, when loaded, is...
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