Harders v. Odvody, S-00-136.

• Decision Date: 01 June 2001
• Docket Number: No. S-00-136.,S-00-136.
• Citation: 261 Neb. 887,626 N.W.2d 568
• Parties: Roger E. HARDERS, Appellee, v. Marilyn J. ODVODY and Milton E. Odvody, wife and husband, appellants.
• Court: Nebraska Supreme Court

626 N.W.2d 568

261 Neb. 887

Roger E. HARDERS, Appellee, v. Marilyn J. ODVODY and Milton E. Odvody, wife and husband, appellants.

No. S-00-136.

Supreme Court of Nebraska.

June 1, 2001.

James L. Haszard, Lincoln, of McHenry, Haszard, Hansen & Roth, for appellants.

Curtis A. Bromm, Wahoo, of Edstrom, Bromm, Lindahl, Sohl & Freeman Caddy, for appellee.

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

McCORMACK, Justice.

NATURE OF CASE

Appellee, Roger E. Harders, brought an action for an injunction against appellants, Marilyn J. Odvody (Marilyn) and Milton E. Odvody (Milton), to prevent the Odvodys from using a lane or road on his land for access to the Odvodys' farm ground. The Odvodys filed a counterclaim seeking an injunction against Harders' interfering with their use of the road to access their field. The trial court determined that Harders was entitled to an injunction preventing the Odvodys from using the road and dismissed the Odvodys' counterclaim. The Odvodys appealed. We took this case under our power to regulate the caseloads of this court and the Nebraska Court of Appeals.

BACKGROUND

Harders bought a parcel of pasture land from James E. Bauer and Lorraine M. Bauer in 1988. At this time, Harders was also deeded a 66-foot-wide strip of land that included a road entering the property from the south. Allegedly contained in this 66-foot strip was a 25-foot-wide easement to the "Morse Bluff Dike and Drainage District No. 1" for ingress and egress to the dike. The easement lies in the west 25 feet of the 66-foot strip.

In 1990, Harders purchased another parcel of land from the Bauers located directly to the east of the 66-foot-wide strip. Harders later sold this second parcel of land to Michael A. Brecka in 1995. In this sale, Harders included 33 feet of the 66-foot-wide strip. Harders included this strip of land in the sale so that Brecka could put his own entrance onto that property. The remaining 33 feet, which contained the 25-foot-wide road and the dike and drainage district easement, was retained by Harders.

When Brecka decided to sell this property, Harders and Brecka made a verbal agreement that Brecka would inform any new owners that they were not to use Harders' road and would provide a culvert allowance to the new owners of the property. In exchange, Brecka would pay Harders $1 at the auction where Brecka planned to sell the property to allow the new owners to have temporary access to the road on Harders' property. The reasoning was that it was late in the year and that the new owners would not have time to put in their own lane. At the auction, an announcement was made that Harders would lease access to his road for 1 year for $1 or until a new access road was built. However, the property did not sell at the auction.

Marilyn, who was employed with the real estate agency that was doing the auction and was present at the auction when the announcement was made, and Milton bought the property in a private sale. The Odvodys bought the property for approximately $86,500, which included a $360 "Credit from Seller for Culvert." However, Marilyn stated that the culvert allowance was used to lower the price of the land.

The Odvodys did not build a new lane. Marilyn did not believe she was bound to use the lane for only 1 year because everyone in the community used the lane and she had been using it for 12 or 13 years. Marilyn testified that she and Milton travel the road to go back to the drainage dike to pick mushrooms in the spring and berries in the fall. She never asked for anyone's permission to use the lane. Since 1997, she and Milton have been up and down the road an average of 12 times a year, and prior to 1997, it was maybe 4 or 5 times a year.

Marilyn also testified that she had seen others using the road but did not ask them if they had permission. She believes that the 33 feet is "public access" that has been used since the 1930's. Marilyn also testified that she had performed maintenance on the road by filling in potholes and mowing the grass between the road and their property. Marilyn believes there is no other access to their property.

Milton testified that he has used the road for recreational purposes since 1960 and used the road probably six times a year. He never asked anybody for permission, nor was he told by anyone that you needed permission to use the lane. Milton testified that he believed he could use the road because it was used as a public place to go down to the dike for fishing. He said the lane was used that way by all of his friends. Milton also testified that he believed that the dike and drainage district's easement allowed him to use the lane. He stated that he shredded the weeds, dragged the lane, and backfilled potholes about twice a year on the lane.

Milton further testified that they decided not to build an entrance onto the county road from their land because of safety factors concerning visibility and his belief that the road which is the subject of this action was public. He also testified that he "would have to go and get the permits and go through all that" and that a new road on his land would require the use of what is now tillable farm ground.

After the first year that the Odvodys owned their parcel of land, Harders put up a fence and a gate to prevent access to the lane. Harders testified that he telephoned William "Bud" Vopalensky and Charlie Vopalensky, who own land directly to the north of the Odvody land, and their attorney, and gave all of them the combination to the lock. Harders then testified that once the Odvodys got the combination from the Vopalenskys, Harders changed the lock to a key lock and gave Charlie Vopalensky a key and extra keys for Bud Vopalensky and his tenant farmer. However, Marilyn testified that Harders supplied the combination to their attorney to access their property. Harders stated that the gates were later torn off. Harders testified the public does not use the road without his permission. Harders also testified that he and Charlie Vopalensky have an agreement whereby if Harders does give permission for people to be on his land, Harders will tear out a deposit slip from his checkbook and give written permission. This permission includes the dates to be on his land and includes use of the road.

Harders maintains that he has only experienced two times where private citizens have been traveling the lane as a public road. Harders testified that in the first instance, he told the person that it was a private lane and he never saw that person again. In the second instance, Harders testified that he could not find the person so he had the person's car towed. Harders lives 24 to 26 miles from this piece of property, however, he averages driving by it two to four times per week during the summer and winter.

Testimony was given from several witnesses concerning people using the road either to access land or for recreational purposes. There was also testimony concerning whether these people may have had either an easement or permission to use the lane. Harders testified that Bud Vopalensky and the dike and drainage district have written easements recorded at the register of deeds. Larry Dolezal, who owns property to the east of the road, has used this road at times to access his land. Dolezal is 51 years old and testified he has used the road for at least 20 years. Dolezal also testified that he has used the road every year for recreational purposes from the time he was 10 or 15 years old. He stated that he never obtained permission from anyone to use the road and was never told by anyone that he could not use the road or that he needed permission to use the road. Dolezal believed the road was public.

Dolezal also testified that he saw other people using the road for recreational purposes, although he could not say when. However, he said it was possible that those people may have had permission to use the lane. When asked if it was a common occurrence to see people using the lane when he used it, Dolezal responded, "I don't know how common you'd call it...." Dolezal was asked on cross-examination how often he saw people that he did not recognize using the lane within the last 15 years. He responded, "I'd say probably a couple times a year. But I'm not there all the time either. It's just maybe some years none and others [sic] years there would be somebody. It's hard to say. I couldn't answer that to be real accurate."

On cross-examination, it was discovered that Dolezal was a friend of the prior owners, the Bauers. Dolezal's initial use of the lane started when he was hunting and fishing with the Bauers' children. Harders stated in his brief that Dolezal had permission from the Bauers to use the lane. The Odvodys maintained that Harders misstated Dolezal's testimony. Dolezal was asked, "Would it be fair to say that your initial use of the lane started when you were hunting and fishing with the Bauer children?" He replied, "Probably that's when I first started."

Bud Vopalensky testified that he needs to use the lane to access his property. Bud Vopalensky is 74 years old and testified that his land has been in the family since 1917. He also testified that he used the lane for hunting and fishing at least once a year and "[p]robably three or four times a day...." He stated that he never asked anyone's permission and had never been told by anyone that he needed permission to use the lane. Bud Vopalensky said he also saw other people use the lane for access to the dike area but he did not know whether they had permission because "nobody even thought of asking permission cause they, everybody was each other's friend."

Bud Vopalensky said that he also performed some maintenance to the road by dragging it and filling in the potholes. He testified that he has an easement across the dike and drainage district property. However, Bud Vopalensky gave conflicting testimony on...