Flobert Industries, Inc. v. Stuhr, 82-780

• Decision Date: 03 February 1984
• Docket Number: No. 82-780,82-780
• Citation: 343 N.W.2d 917,216 Neb. 389
• Parties: FLOBERT INDUSTRIES, INC., a corporation, Appellant, v. John H. STUHR, Jr., et al., Appellees.
• Court: Nebraska Supreme Court

Page 917

343 N.W.2d 917

216 Neb. 389

FLOBERT INDUSTRIES, INC., a corporation, Appellant, v. John H. STUHR, Jr., et al., Appellees.

No. 82-780.

Supreme Court of Nebraska.

Feb. 3, 1984.

Syllabus by the Court

1. Issue Preclusion. For the theory of issue preclusion to bar further litigation on a specific issue, the issue concluded must be identical, must have been raised or could have been raised and litigated in the prior action, must have been material and relevant to the disposition of the prior action, and the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.

2. Judgments: Issue Preclusion. Although an issue is actually litigated and determined by a final and valid judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded where a new determination of the issue is warranted by factors relating to the allocation of jurisdiction or venue among the courts of the state.

3. Trespass. In order to maintain trespass to land the plaintiff must be the owner of, or in possession of, the land when the acts complained of were committed.

Warren L. Reimer of Ptak, Ptak & Reimer, Norfolk, for appellant.

Stanley J. Oliverius and Bernard L. McNary of Oliverius & McNary, Albion, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

HASTINGS, Justice.

Plaintiff commenced this action in the Boone County District Court to enjoin the defendants from trespassing and encroaching upon certain property and to recover damages from trespasses which occurred since September 24, 1978. The defendants answered by denying the allegations and setting up as a defense to the second cause of action that the defendants were the owners-in-fee of the land, a railroad right-of-way. The trial court found in favor of the defendants, denied the injunction, and dismissed the plaintiff's petition. We affirm.

The northwest quarter of Section 18, Township 22 North, Range 6 West, of the 6th P.M., Boone County, Nebraska, was acquired by Benton Cotterman from the United States by patent in 1884. On September 13, 1886, Benton Cotterman and his wife, Lena, conveyed by warranty deed to Fremont, Elkhorn and Missouri Valley Railroad Company, predecessor in title to Chicago and Northwestern Railway Company (C. & N.W. Ry. Co.), the railroad right-of-way consisting of a 100-foot strip of land across the middle of the quarter section. That deed contained the provision that "if at any time after said Railroad shall have been constructed, the said party of the second part, its successors and assigns, shall abandon said road, or the route thereof shall be changed so as not to be continued over said premises, the land hereby conveyed and all rights in and to the same, shall revert to the said party of the first, their heirs and assigns."

In 1903 the Fremont, Elkhorn and Missouri Valley Railroad Company conveyed the right-of-way to the C. & N.W. Ry. Co. C. & N.W. Ry. Co. used the right-of-way until 1970, when it sought approval from the Interstate Commerce Commission to abandon the line. The final order of the Commission was confirmed on July 26, 1971, effective August 23, 1971. Meanwhile, C. & N.W. Ry. Co. conveyed its interest in the right-of-way by quitclaim deed to Flobert Industries, Inc. (plaintiff), dated February 6, 1969, recorded April 10, 1972.

Between the years 1972 and 1973 the plaintiff removed the rails and ties located on the right-of-way. From 1972 to 1976 the plaintiff paid real estate taxes on the land, removed a fence across the north boundary, and occasionally inspected the land until 1978.

In September 1893 Benton Cotterman conveyed the portion of the quarter section lying west of the right-of-way to his wife, Lena. In November 1892 Benton Cotterman conveyed the east portion of the quarter section to Charles Preusser. Subsequently, in February 1902 the Cottermans conveyed the west portion of the quarter section to Charles Preusser also. In these transactions the deeds conveyed only the land on either side of the right-of-way. In other words, the land under the right-of-way was not deeded to Charles Preusser.

The northwest quarter section was by subsequent conveyances deeded to John W. Stuhr and Jane C. Stuhr. The Stuhrs obtained title to the real estate by warranty deed dated February 2, 1953, recorded February 6, 1953. Each of the deeds in the chain of title excepted the railroad right-of-way out of the balance of the quarter section.

The Stuhrs conveyed their interest in the quarter section to their sons John H. Stuhr, Jr., and Mark F. Stuhr (defendants) by warranty deed dated December 13, 1973, recorded May 4, 1976. That deed did not contain an exception to the right-of-way.

After the C. & N.W. Ry. Co. ceased to use the right-of-way in 1971, the Stuhrs fenced off the north boundary line, pastured cattle, and cut noxious weeds on the property. In 1978 the Stuhrs had the right-of-way leveled and have been farming the property since that time. Defendants have paid the property taxes for the years 1977 until the present.

In October 1978 the plaintiff brought suit in the county court of Antelope County against the defendants to recover certain salvaged railroad materials. In April 1980 the Antelope County Court found generally for the plaintiff on its petition and dismissed the defendants' cross-petition for damages when it found the plaintiff to be in actual possession of the real estate, that plaintiff was exercising control over the right-of-way and had not abandoned it, and that plaintiff was entitled to bring the action to recover the salvaged railroad materials. The county court awarded the plaintiff possession of certain steel culverts and granted no other damages or relief. The plaintiff and defendant in that action are the same parties to the present action.

After the amended petition for this trespass action was filed June 5, 1980, the defendants located and obtained quitclaim deeds to the railroad right-of-way from the heirs of Benton and Lena Cotterman.

The plaintiff assigns as error the Boone County District Court's finding that the plaintiff was not in actual possession of the subject property and not entitled to maintain an action in trespass. The basis upon which the plaintiff contends error existed is that (1) the issue of actual possession of real estate was previously adjudicated by the Antelope County Court and could not be relitigated in the Boone County District...