City of Ashland v. Ashland Salvage, Inc., S-04-1365.
| Decision Date | 07 April 2006 |
| Docket Number | No. S-04-1365.,S-04-1365. |
| Citation | 271 Neb. 362,711 N.W.2d 861 |
| Parties | CITY OF ASHLAND, a Nebraska municipal corporation, appellee, v. ASHLAND SALVAGE, INC., a Nebraska corporation, and Arlo Remmen, appellants. |
| Court | Nebraska Supreme Court |
Terry K. Barber, Lincoln, for appellants.
Glen Th. Parks and Mark A. Fahleson, of Rembolt Ludtke, L.L.P., Lincoln, for appellee.
Plaintiff-appellee, the City of Ashland, Nebraska, brought this declaratory judgment action in the district court for Saunders County against defendants-appellants, Ashland Salvage, Inc., and Arlo Remmen, seeking a declaration as to the existence and lawful boundaries of certain public rights-of-way claimed by the city and further seeking an injunction against appellants' improper use of the public rights-of-way. Following a bench trial, the district court ruled in favor of the city, declaring the boundaries with regard to appellants' property and the city's public rights-of-way and enjoining appellants from any inappropriate use of the rights-of-way. We affirm.
This case involves the city's claim to two public rights-of-way (sometimes hereinafter referred to as "the disputed property") originally dedicated to the city in 1871. The disputed property forms a backward "L" and borders on the southern and eastern boundaries of a salvage yard operated by Ashland Salvage. The salvage yard is located south of U.S. Highway 6 in Ashland. Remmen is the president and sole shareholder of Ashland Salvage. The record reflects that in 1994, Remmen purchased the property that forms the southeast corner of the salvage yard and, by a quitclaim deed dated October 5, 1994, transferred the property to Ashland Salvage.
At issue in this case are the existence and boundaries of two rights-of-way claimed by the city. The first right-of-way runs in an east-west direction along Fir Street (formerly known as Prairie Street) as it runs along the southern edge of the salvage yard, and the second right-of-way runs in a north-south direction along 9th Street or Dennis Dean Road (formerly known as Cherry Street) as it runs along the eastern edge of the salvage yard. These claimed rights-of-way intersect at the southeast corner of the salvage yard to form a backward "L." Appellants dispute the existence of these rights-of-way and assert an ownership interest over the disputed property.
In May 2002, the city notified appellants that materials belonging to the salvage yard were being stored on portions of the Fir Street and Dennis Dean Road public rights-of-way. The city requested that appellants remove these materials. At some point, the city removed materials from the disputed property. Thereafter, the city imposed a special assessment against appellants for the cleanup costs.
In 2002, appellants filed suit in the district court for Saunders County against the city, challenging the special assessment. On July 25, 2003, the city filed in the district court a declaratory judgment action against appellants, seeking a declaratory judgment with regard to the existence and the boundaries of the Fir Street and Dennis Dean Road public rights-of-way as they abutted the southeast corner of appellants' property and requesting, in effect, an injunction enjoining appellants' storage of materials on the disputed property. Prior to trial, the district court consolidated the city's declaratory judgment action with appellants' action challenging the city's special assessment.
As part of the pretrial proceedings, the city served its "First Set of Requests for Admissions" upon appellants, which requests sought appellants' admissions or denials with regard to the boundaries for the southeast corner of appellants' salvage yard property and the Fir Street and Dennis Dean Road rights-of-way. Specifically, attached to the requests for admissions was a copy of a 2003 survey ordered by the city, which survey included the boundaries of the southeast corner of the salvage yard. The survey identified the borders of the Fir Street and Dennis Dean Road public rights-of-way as they met to form the backward "L" abutting the southeast corner of appellants' property. Moreover, the survey identified certain markers that established the original boundaries of the city's claimed public rights-of-way, including a pipe, marking the northwest corner of the intersection between Fir Street and Dennis Dean Road, and a bolt, marking the northern boundary of the Fir Street right-of-way. The survey noted that these markers were located under salvage items on property claimed by appellants. (The 2003 survey was later admitted into evidence during the trial in this case as Exhibit 14, and will hereinafter be referred to as "Exhibit 14.") In summary, the requests for admissions sought appellants' admission or denial with regard to the accuracy of the property boundaries and public rights-of-way identified in Exhibit 14.
Appellants failed to respond to the city's "First Set of Requests for Admissions" within 30 days, as required by Neb. Ct. R. of Discovery 36 (rev.2000). Appellants later moved for leave to serve responses out of time, and following a hearing, the district court denied appellants' motion.
On June 22, 2004, the consolidated cases came on for a bench trial. The city and appellants offered various evidence. During the trial, the city offered and the court received into evidence a copy of the city's "First Set of Requests for Admissions." The city also introduced into evidence the affidavit of one of the city's attorneys that sets forth the date on which the city served its requests for admissions upon appellants and that also, in effect, noted appellants had failed to provide timely responses to these requests for admissions.
Following the trial, in a file-stamped journal entry dated November 22, 2004, the district court ruled in favor of the city in the declaratory judgment action, declaring the boundaries of appellants' property and the existence of the city's public rights-of-way. Specifically, in its journal entry, the district court stated that "a public right-of-way exists and its legal boundaries are as set forth in Exhibit 14." In its journal entry, the district court "enjoined [appellants] from any use of [the disputed] property inconsistent with its use as a public right-of-way." The journal entry also directed the city to prepare an "injunction," and an "Order of Permanent Injunction" was subsequently filed on December 6. On November 30, appellants filed their notice of appeal from the November 22 adverse ruling in the declaratory judgment case. The declaratory judgment action is the subject of the present appeal,
In the special assessment case, the trial court ruled in favor of appellants, determining that the cleanup costs could not be charged against appellants as a special assessment, and no appeal was taken by the city in that case.
Appellants assign numerous errors, which in summary assert that the district court erred in determining that the city's evidence relating to its claimed public rights-of-way was sufficient to establish the existence and boundaries of the rights-of-way.
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. Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005). An action for injunction sounds in equity. Denny Wiekhorst Equip. v. Tri-State Outdoor Media, 269 Neb. 354, 693 N.W.2d 506 (2005). In reviewing an equity action for a declaratory judgment, an appellate court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court, subject to the rule that when credible evidence is in conflict on material issues of fact, the reviewing 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. Gast v. Peters, 267 Neb. 18, 671 N.W.2d 758 (2003).
Appellate Jurisdiction Exists.
In their briefs filed on appeal, the parties note that the Order of Permanent Injunction was entered after the November 30, 2004, notice of appeal that challenged the November 22 ruling. Given the December 6 entry of the Order of Permanent Injunction, the parties question the timeliness of appellants' notice of appeal and thus challenge this court's appellate jurisdiction. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Johnston v. Nebraska Dept. of Corr. Servs., 270 Neb. 987, 709 N.W.2d 321 (2006). We conclude we have appellate jurisdiction.
Neb.Rev.Stat. § 25-1301 (Cum. Supp.2004) controls our analysis and provides:
(1) A judgment is the final determination of the rights of the parties in an action.
(2) Rendition of a judgment is the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action.
(3) The entry of a judgment, decree, or final order occurs when the clerk of the court places the file stamp and date upon the judgment, decree, or final order. For purposes of determining the time for appeal, the date stamped on the judgment, decree, or final order shall be the date of entry.
(4) The clerk shall prepare and maintain the records of judgments, decrees, and final orders that are required by statute and rule of the Supreme Court.
For an appellate court to acquire jurisdiction of an appeal, there must be a judgment, decree, or final order entered by the court from which the appeal is timely taken. In the present case, we conclude that the file-stamped November 22, 2004, journal entry is a judgment under § 25-1301 and that the November...
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