Hillary Corp. v. U.S. Cold Storage, Inc.

• Decision Date: 28 June 1996
• Docket Number: No. S-94-887,S-94-887
• Parties: The HILLARY CORPORATION, A Nebraska Corporation, Appellant, v. UNITED STATES COLD STORAGE, INC., a Foreign Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 889

550 N.W.2d 889

250 Neb. 397

The HILLARY CORPORATION, A Nebraska Corporation, Appellant, v. UNITED STATES COLD STORAGE, INC., a Foreign Corporation, Appellee.

No. S-94-887.

Supreme Court of Nebraska.

June 28, 1996.

Syllabus by the Court

1. Declaratory Judgments: Equity: Appeal and Error. 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 where 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.

2. Easements: Real Estate: Conveyances: Time. An easement by implication from former use arises only where (1) the use giving rise to the easement was in existence at the time of the conveyance subdividing the property, (2) the use has been so long continued and so obvious as to show that it was meant to be permanent, and (3) the easement is necessary for the proper and reasonable enjoyment of the dominant tract.

3. Easements: Real Estate: Conveyances: Time. In order to determine whether an implied easement from former use was created, courts must look to the time of the conveyance subdividing the property that first brought into question whether an implied easement was created.

4. Easements: Real Estate: Words and Phrases. Implied easements that arise by necessity are easements that are created to reach land that is otherwise landlocked and could not be utilized.

5. Easements. The rule of strict necessity is applied to easements that arise by necessity and implied reservations, but not to implied easements from former use.

6. Courts. A court's opinion controls its syllabus, the syllabus being merely explanatory of the opinion and having no more force and effect than the statements made in the opinion on which the syllabus is based.

7. Easements: Proof. The degree of necessity required to prove the existence of an implied easement from former use is "reasonable necessity."

8. Easements: Real Estate: Conveyances: Time: Appurtenances. Once it is determined that the elements required for the creation of an implied easement existed at the time of the conveyance subdividing the property, the easement becomes appurtenant to the property and the elements for creation are no longer relevant to a determination of the continued existence of that easement upon a subsequent conveyance.

9. Easements: Conveyances: Appurtenances. Once an implied easement is created, it becomes appurtenant to the dominant tenement and remains in existence upon a subsequent conveyance unless and until it is somehow terminated.

10. Easements: Abandonment: Pleadings: Proof. Abandonment of an easement must be pled and proved, the burden of proof being on the party alleging it.

11. Easements: Abandonment: Time. Nonuse of an easement for a period less than the prescriptive period of 10 years will not itself work an abandonment of the easement.

12. Easements: Abandonment: Intent: Time. Nonuse of an easement for a period less than the prescriptive period, accompanied by acts clearly indicating an intention to abandon the right, will work an extinguishment of the easement.

13. Easements: Abandonment: Intent: Time. An intention to abandon an easement cannot be inferred from the mere fact that the easement was not used for a period of years in excess of the prescriptive period.

14. Easements: Abandonment: Time: Intent: Presumptions: Proof. Nonuse of an easement for a period sufficient to create an easement by prescription will raise a presumption to defeat the right, but this nonuse is open to explanation and may be rebutted by proof that the owner had no intention to abandon his easement while thus omitting to use it.

15. Easements: Abandonment: Intent: Proof. An easement may be abandoned by unequivocal acts showing a clear intention to abandon and terminate the right, or it may be done by acts in pais without deed or other writing. The intention to abandon is the material question, and it may be proved by an infinite variety of acts. It is a question of fact to be ascertained from all the circumstances of the case.

16. Easements: Abandonment: Intent: Time. In determining whether there was an intent to abandon an easement, time is not a necessary element; it is not the duration of the nonuser, but the nature of the acts done by the dominant owner, or of the adverse acts acquiesced in by him, and the intention which the one or the other indicates, that are important.

Thomas L. Saladino and Joseph A. Jordano, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., Omaha, for appellant.

Jeffrey D. Toberer and Jennifer W. Jerram, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.

CONNOLLY, Justice.

The appellant, The Hillary Corporation (Hillary), brought this action seeking a declaratory judgment that it possesses an implied easement for railway access across the property of the appellee, United States Cold Storage, Inc. (U.S. Cold). Hillary also sought an injunction to prevent U.S. Cold from interfering with Hillary's use of the alleged easement. Hillary's claim for damages was reserved for trial at a later date.

The district court for Douglas County found that Hillary's predecessor in interest formerly possessed an implied easement for railway access across U.S. Cold's property. However, the court dismissed Hillary's petition finding that the implied easement did not exist at the time the property was transferred to Hillary. Hillary appeals.

From our de novo review, we determine that Hillary's predecessor in interest possessed an implied easement for railway access across U.S. Cold's property and did not intend to abandon the easement. Thus, we determine that the implied easement existed when the property was transferred to Hillary. We further determine that Hillary did not intend to abandon the easement. As a result, we conclude that Hillary possesses an implied easement for railway access across the property of U.S. Cold. We therefore reverse, and remand for further proceedings.

I. ASSIGNMENTS OF ERROR

Hillary alleges the district court erred in (1) finding that the easement did not exist when Hillary's predecessor in interest transferred the property to Hillary, (2) determining that the rail tracks must be necessary for the enjoyment of the dominant parcel and that the use of the easement be continuous in order for an implied easement to remain in existence, (3) applying standards for creation or establishment of an implied easement to determine the question of whether an easement by implied grant was still in existence upon retransfer of the property, (4) failing to make a finding of fact that the easement was used within 10 years prior to the filing of Hillary's petition, (5) failing to make a finding of fact that Hillary and its predecessors in interest had no intention of abandoning the easement and did not abandon the easement, (6) finding that the tracks were serviced only until April 21, 1981, and (7) finding that the last use of the tracks according to the notes of a predecessor in interest was in February 1980.

II. BACKGROUND

Below is a sketch of the parcels of land involved. The sketch is for illustrative purposes only and does not purport to be drawn to scale. See Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The parcels of property identified as A and B are owned by the appellee, U.S. Cold, a New Jersey corporation. Parcel A contains a shop building and parcel B contains a warehouse. Parcel C, which lies to the north of parcels A and B, contains a warehouse and is owned by the appellant, Hillary, a Nebraska corporation.

Parcel C adjoins parcels A and B, divided only by G Street. The railroad tracks which are the subject of the alleged implied easement run southerly across parcel C, cross G Street, and then run southeasterly across parcel B. A portion of the track runs across a 20-foot-wide strip of land along the southern boundary of parcel A.

1. OVERVIEW OF REAL ESTATE TRANSFERS

An overview of the pertinent real estate transfers is necessary to an understanding of this action. Kay Omaha Livestock Market, Inc. (Kay Omaha), formerly known as Union Stockyards Company, continually owned parcels A, B, and C from 1918 until 1975. Harold Norman, retired secretary and treasurer of the former Union Stockyards, testified that the railroad tracks were built by Union Stockyards in 1952 and were used by the company to haul grain to its warehouses. On February 28, 1975, Kay Omaha sold parcel A to U.S. Cold. On April 21, 1976, Kay Omaha sold parcel C to Stewart Seed Company. In October 1976, the chain of title of parcel B went from Kay Omaha to Omaha Holdings, Inc., then passed to William Chapman in May 1977, and finally to U.S. Cold in November 1977. In 1988, Stewart Seed Company deeded parcel C to Leora Fuller, one of the principals of Stewart Seed. In 1992, James Krueger formed Hillary and purchased parcel C from Fuller.

When Kay Omaha sold parcel A to U.S. Cold in 1975, it expressly reserved for itself, its successors, and its assigns a permanent easement to run with the land across the 20-foot-wide strip along the southern boundary of parcel A. This easement was for the express benefit of parcels B and C, which were still owned by Kay Omaha at that time. Accordingly, there is no dispute that U.S. Cold took parcel A subject to an express easement for the benefit of the owners of parcels B and C.

However, no express easement for railway access across parcel B, for the benefit of parcel C, was ever reserved throughout the chain of title of parcel B. Bill Kratvill, the current vice president of Autoliner Corporation, testified that he personally operated railroad cars over the tracks on parcels B and C...