City of Ashland v. Ashland Salvage, Inc., S-04-1365.

CourtSupreme Court of Nebraska
Writing for the CourtMiller-Lerman
Citation271 Neb. 362,711 N.W.2d 861
PartiesCITY OF ASHLAND, a Nebraska municipal corporation, appellee, v. ASHLAND SALVAGE, INC., a Nebraska corporation, and Arlo Remmen, appellants.
Docket NumberNo. S-04-1365.,S-04-1365.
Decision Date07 April 2006
711 N.W.2d 861
271 Neb. 362
CITY OF ASHLAND, a Nebraska municipal corporation, appellee,
v.
ASHLAND SALVAGE, INC., a Nebraska corporation, and Arlo Remmen, appellants.
No. S-04-1365.
Supreme Court of Nebraska.
April 7, 2006.

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Terry K. Barber, Lincoln, for appellants.

Glen Th. Parks and Mark A. Fahleson, of Rembolt Ludtke, L.L.P., Lincoln, for appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.


NATURE OF CASE

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

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inappropriate use of the rights-of-way. We affirm.

STATEMENT OF FACTS

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

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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.

ASSIGNMENT OF ERROR

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.

STANDARDS OF REVIEW

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

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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).

ANALYSIS

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26 practice notes
  • Coleman v. Kahler, No. A-08-333.
    • United States
    • Court of Appeals of Nebraska
    • April 14, 2009
    ...is to be treated as one at law or one in equity is to be determined by the nature of the dispute. City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 While a paternity action is one at law, the award of child support in such an action is equitable in nature. State on behalf of ......
  • Tymar, LLC v. Two Men & A Truck, No. S–10–861.
    • United States
    • Supreme Court of Nebraska
    • November 10, 2011
    ...subject matter of the request, unless, on motion, the court permits withdrawal of the admission. See City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006). See, also, Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009). We have recognized that Rule 36 is self-enforcing, ......
  • State v. Malcom, No. A-06-524 (Neb. App. 8/7/2007), No. A-06-524.
    • United States
    • Court of Appeals of Nebraska
    • August 7, 2007
    ...far as the adverse party desires to take advantage of it, and therefore is a limitation of the issues. City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006); Saberzadeh v. Shaw, 266 Neb. 196, 663 N.W.2d 612 In the instant case, the trial court found, "The most damaging evi......
  • Provident Trust Co. v. Radford (In re Estate of Radford), No. S-16-415.
    • United States
    • Supreme Court of Nebraska
    • September 15, 2017
    ...264 Neb. 682, 651 N.W.2d 224 (2002) ; Sempek v. Sempek, 198 Neb. 300, 252 N.W.2d 284 (1977).12 City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006).13 Id.14 Wolgamott v. Abramson, 253 Neb. 350, 356, 570 N.W.2d 818, 823 (1997).15 See id. See, also, Strunk v. Chromy-Strunk,......
  • Request a trial to view additional results
26 cases
  • Coleman v. Kahler, A-08-333.
    • United States
    • Court of Appeals of Nebraska
    • April 14, 2009
    ...is to be treated as one at law or one in equity is to be determined by the nature of the dispute. City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 While a paternity action is one at law, the award of child support in such an action is equitable in nature. State on behalf of ......
  • Tymar, LLC v. Two Men & A Truck, S–10–861.
    • United States
    • Supreme Court of Nebraska
    • November 10, 2011
    ...subject matter of the request, unless, on motion, the court permits withdrawal of the admission. See City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006). See, also, Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009). We have recognized that Rule 36 is self-enforcing, ......
  • State v. Malcom, No. A-06-524 (Neb. App. 8/7/2007), A-06-524.
    • United States
    • Court of Appeals of Nebraska
    • August 7, 2007
    ...far as the adverse party desires to take advantage of it, and therefore is a limitation of the issues. City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006); Saberzadeh v. Shaw, 266 Neb. 196, 663 N.W.2d 612 In the instant case, the trial court found, "The most damaging evi......
  • Peterson v. Peterson, A-04-893.
    • United States
    • Court of Appeals of Nebraska
    • May 30, 2006
    ...in this case. The Nebraska Supreme Court recently considered a nearly identical factual situation in City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006). In that case, the City of Ashland brought a declaratory judgment action against Page 798 Ashland Salvage, Inc., and A......
  • Request a trial to view additional results
2 books & journal articles
  • Admissions
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Hearsay
    • May 5, 2019
    ...was a judicial admission which dispensed wholly with the need for proof of the fact. City of Ashland v. Ashland Salvage, Inc., 711 N.W.2d 861 (Neb. 2006). An admission made in a pleading is more than an ordinary admission, it is a judicial admission and waives the controversy so far as the ......
  • Requests for admissions
    • United States
    • James Publishing Practical Law Books Guerrilla Discovery
    • April 1, 2022
    ...be taken to secure admissions for which there has been no response. (See generally, §1.61[2].) City of Ashland v. Ashland Salvage, Inc. , 711 N.W.2d 861, 271 Neb. 362 (2006). A party’s failure to make a timely and appropriate response to a request for admission constitutes an admission of t......

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