Fuel Exploration, Inc. v. Novotny, No. 84-433

CourtSupreme Court of Nebraska
Writing for the CourtKRIVOSHA; PER CURIAM; KRIVOSHA; CAPORALE
Citation374 N.W.2d 838,221 Neb. 17
PartiesFUEL EXPLORATION, INC., A Corporation, Appellee and Cross-Appellant, v. Richard M. NOVOTNY and Caroline E. Novotny, Husband and Wife, Appellants and Cross-Appellees, MMS Energy Investment Group I, Inc., et al., Intervenors-Appellees and Cross-Appellants.
Docket NumberNo. 84-433
Decision Date11 October 1985

Page 838

374 N.W.2d 838
221 Neb. 17
FUEL EXPLORATION, INC., A Corporation, Appellee and Cross-Appellant,
v.
Richard M. NOVOTNY and Caroline E. Novotny, Husband and Wife, Appellants and Cross-Appellees,
MMS Energy Investment Group I, Inc., et al., Intervenors-Appellees and Cross-Appellants.
No. 84-433.
Supreme Court of Nebraska.
Oct. 11, 1985.

Page 839

Syllabus by the Court

1. Directed Verdict. On a motion for directed verdict the moving party is deemed to have admitted as true all the relevant evidence received which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences which can [221 Neb. 18] reasonably be deduced from such evidence.

2. Property: Appurtenances: Words and Phrases. The term "fixture" refers to a chattel which is capable of existing separate and apart from realty, but which, by actual annexation and appropriation to the use or purpose of the realty with the intention of making it a permanent accession thereto, becomes a part of the realty.

3. Property: Appurtenances. Once a chattel becomes a fixture, it is treated as a part of the realty and may not be removed therefrom except by the owner of the realty.

4. Property: Appurtenances. A "trade fixture" is not considered part of the realty and may be removed therefrom by the trade fixture's owner, so long as the removal does not cause substantial damage to the realty.

5. Property: Appurtenances. Whether articles constructed upon realty owned by another become annexed to and

Page 840

part of the realty depends to a great extent upon the facts and circumstances of the particular case.

6. Property: Appurtenances: Intent. The intention of the party making the annexation is to be inferred from the nature of the articles affixed, the relation between the parties, the situation of the party making the annexation, the nature of the structure, the mode of annexation, and the purpose or use for which the annexation has been made.

7. Property: Appurtenances. Generally, in the absence of statute any permanent improvement placed upon land of another by one having no interest or title in the land, without the landowner's consent, prima facie becomes a part of the realty and belongs to the owner of the land, although it was placed thereon by mistake or with a view of enforcing an adverse right in the land, unless there is an express agreement which takes the case out of the rule or unless the owner is estopped to claim such ownership.

8. Replevin: Proof. In a replevin action the burden is on the plaintiff to show the facts necessary to recover existed at the time the action was commenced; what takes place thereafter is immaterial in the consideration and determination of the merits of the case.

9. Replevin: Proof. A plaintiff in replevin must prove the interest pled; proof of a special ownership interest does not support an allegation of a general ownership interest.

10. Judgments: Appeal and Error. Harmless error forms no basis for reversal of a judgment on the verdict of a jury.

11. Appeal and Error. A party cannot be heard to complain of error which he or she was instrumental in bringing about.

George P. Burke of Van Steenberg, Myers & Burke, Kimball, for appellants and cross-appellees.

Robert G. Simmons, Jr., of Wright, Simmons & Selzer, Scottsbluff, for appellee and cross-appellant.

[221 Neb. 19] KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

The appellee corporation, Fuel Exploration, Inc., brought a replevin action against the appellants, Richard M. and Caroline E. Novotny, husband and wife, seeking possession of certain oil field equipment which Fuel Exploration alleged it owned. The trial court entered a replevin order, after which Fuel Exploration took possession. Following an allegation in the Novotnys' amended answer that there were in existence others who had an interest in the equipment, a group of "working interest owners" intervened and alleged that they became owners of the equipment after the order of replevin was issued, and joined in Fuel Exploration's prayer that possession be given to it. At trial the court determined as a matter of law that Fuel Exploration did not own the equipment at the commencement of the action as it had alleged but had "at best" a security interest in it and that the Novotnys, therefore, had the right to possess the equipment as of that time. The trial court also determined as a matter of law that the equipment constituted trade fixtures and instructed the jury that it was to determine ultimate ownership and whether Fuel Exploration and the working interest owners had the right to remove the equipment from the Novotny land. The jury returned a general verdict in favor of Fuel Exploration and the working interest owners. The trial court then, pursuant to a waiver of the jury on the issue of damages, awarded the Novotnys $1 in nominal damages for their temporary loss of possession. The Novotnys have appealed and by their six assignments of error raise three issues: (1) whether the Novotnys owned the equipment, (2) whether they were entitled to more than nominal damages, and (3) whether the working interest owners should have been permitted to intervene. In their cross-appeal Fuel Exploration and the working interest owners urge that the trial court erred in holding

Page 841

as a matter of law that they were not the owners of the equipment at the commencement of this action. We affirm in part and reverse in part.

To the extent the trial court resolved questions upon motions [221 Neb. 20] for directed verdicts, we review the evidence in light of the rule that upon such a motion the moving party is deemed to have admitted as true all the relevant evidence received which is favorable to the party against whom the motion is directed and, further, that the party against whom the motion is directed is entitled to the benefit of all proper inferences which can reasonably be deduced from such evidence. Quad-States, Inc. v. Vande Mheen, 220 Neb. 161, 368 N.W.2d 795 (1985).

So reviewed, the evidence establishes that the Novotnys are the record title owners of the west half of a certain Section 7 in Kimball County. They also claim ownership, but are not the record title owners, of a portion of Section 18 adjoining the southern boundary of their half of Section 7.

Through a series of transactions which are not relevant to the present case, Fuel Exploration, as "operator," joined a number of others known as "working interest owners" or "nonoperators" in a project to complete the drilling of and to operate an oil well on the east half of Section 7, land owned by a Mrs. Spiker but farmed by the Novotnys along with their half of Section 7 and the aforesaid portion of Section 18.

An operating agreement was executed between the working interest owners and Fuel Exploration, obligating the latter to operate the well after its completion and to procure the necessary equipment for so doing. The agreement states: "[A]ll equipment and material acquired in operations on the Contract Area shall be owned by the parties as their interests are shown in Exhibit 'A'." Although we do not find an exhibit so designated in the record, the evidence establishes the identity and proportionate interests of the working interest owners. The agreement obligates the working interest owners to pay a proportionate share of the cost of the equipment within 15 days of billing by Fuel Exploration. The record establishes that at least some of the working interest owners had paid their proportionate share of the cost of the equipment. The agreement also provides:

Each Non-Operator [working interest owner] grants to Operator [Fuel Exploration] a lien upon...

To continue reading

Request your trial
11 practice notes
  • Estate of Price, In re, No. 85-007
    • United States
    • Supreme Court of Nebraska
    • 6 Junio 1986
    ...directed is entitled to the benefit of all proper inferences which can reasonably be deduced therefrom. Fuel Exploration, Inc. v. Novotny, 221 Neb. 17, 374 N.W.2d 838 We must also be mindful of the fact that not every exercise of influence will vitiate a will; it is the exercise of undue in......
  • Northern Natural Gas Co. v. State Bd. of Equalization and Assessment, No. 88-706
    • United States
    • Supreme Court of Nebraska
    • 14 Julio 1989
    ...v. U.S. Nat. Bank, supra; Pick v. Fordyce Co-op Credit Assn., 225 Neb. 714, 408 N.W.2d 248 (1987); Fuel Exploration, Inc. v. Novotny, 221 Neb. 17, 374 N.W.2d 838 In this case, the pipelines are buried in the ground. In Sulphur Springs Val. Elec. Coop. v. City of Tombstone, 1 Ariz.App. 268, ......
  • State ex rel. Nebraska State Bar Ass'n v. Miller, No. 86-108
    • United States
    • Supreme Court of Nebraska
    • 17 Abril 1987
    ...in the absence of specifically delineated injuries" to a client as the result of an attorney's misconduct. Kelly, supra 221 Neb. at 16, 374 N.W.2d at 838; McArthur, supra. In addition, we have held that mitigating circumstances shown in the record should be considered in determining an appr......
  • DENNY WIEKHORST EQUIPMENT v. TRI-STATE, No. S-03-1114.
    • United States
    • Supreme Court of Nebraska
    • 25 Febrero 2005
    ...part of the realty depends to a great extent upon the facts and circumstances of the particular case." Fuel Exploration, Inc. v. Novotny, 221 Neb. 17, 23, 374 N.W.2d 838, 842 (1985). In the case at bar, Smith testified that he believed he was selling the property and the billboard to Wiekho......
  • Request a trial to view additional results
11 cases
  • Estate of Price, In re, No. 85-007
    • United States
    • Supreme Court of Nebraska
    • 6 Junio 1986
    ...directed is entitled to the benefit of all proper inferences which can reasonably be deduced therefrom. Fuel Exploration, Inc. v. Novotny, 221 Neb. 17, 374 N.W.2d 838 We must also be mindful of the fact that not every exercise of influence will vitiate a will; it is the exercise of undue in......
  • Northern Natural Gas Co. v. State Bd. of Equalization and Assessment, No. 88-706
    • United States
    • Supreme Court of Nebraska
    • 14 Julio 1989
    ...v. U.S. Nat. Bank, supra; Pick v. Fordyce Co-op Credit Assn., 225 Neb. 714, 408 N.W.2d 248 (1987); Fuel Exploration, Inc. v. Novotny, 221 Neb. 17, 374 N.W.2d 838 In this case, the pipelines are buried in the ground. In Sulphur Springs Val. Elec. Coop. v. City of Tombstone, 1 Ariz.App. 268, ......
  • State ex rel. Nebraska State Bar Ass'n v. Miller, No. 86-108
    • United States
    • Supreme Court of Nebraska
    • 17 Abril 1987
    ...in the absence of specifically delineated injuries" to a client as the result of an attorney's misconduct. Kelly, supra 221 Neb. at 16, 374 N.W.2d at 838; McArthur, supra. In addition, we have held that mitigating circumstances shown in the record should be considered in determining an appr......
  • DENNY WIEKHORST EQUIPMENT v. TRI-STATE, No. S-03-1114.
    • United States
    • Supreme Court of Nebraska
    • 25 Febrero 2005
    ...part of the realty depends to a great extent upon the facts and circumstances of the particular case." Fuel Exploration, Inc. v. Novotny, 221 Neb. 17, 23, 374 N.W.2d 838, 842 (1985). In the case at bar, Smith testified that he believed he was selling the property and the billboard to Wiekho......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT