Jackson v. Nash

• Decision Date: 30 December 1993
• Docket Number: No. 24272,24272
• Citation: 109 Nev. 1202,866 P.2d 262
• Parties: Jerald R. JACKSON, Trustee of the Jerald R. Jackson 1975 Trust, Appellant, v. George Albert NASH, II, and Kristine Ann Nash, Trustees of the George Albert Nash II and Kristine Ann Nash 1984 Family Trust, Respondents.
• Court: Nevada Supreme Court

Page 262

866 P.2d 262

109 Nev. 1202

Jerald R. JACKSON, Trustee of the Jerald R. Jackson 1975 Trust, Appellant, v. George Albert NASH, II, and Kristine Ann Nash, Trustees of the George Albert Nash II and Kristine Ann Nash 1984 Family Trust, Respondents.

No. 24272.

Supreme Court of Nevada.

Dec. 30, 1993.

Brooke & Shaw and Kelly R. Chase, Minden, for appellant.

Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Mark E. Amodei, Carson City, for respondents.

OPINION

PER CURIAM:

FACTS

Appellant Jerald R. Jackson, trustee of the Jackson Family Trust (Jackson), owns a parcel of unimproved land consisting of seven-tenths of an acre located in Alpine County, California (the parcel). Jackson acquired the parcel from E.J. McGah (McGah) in a purchase of a portion of the former Heritage Ranch. The Jackson parcel is bordered on the west by land owned primarily by the National Forest Service. The parcel is located west of and contiguous to property owned by respondents, George Nash II and Kristine Ann Nash, trustees of the George Albert Nash II and Kristine Ann Nash 1984 Family Trust (The Nashes). The Nashes own two and one-half (2.5) acres of property located in Douglas County, Nevada, which they acquired on May 24, 1991. The Nash property is one of four parcels developed as a residential cul-de-sac, the eastern-most parcels of which border on Foothill Road. The Nash parcel was also once owned by McGah.

The instant action arose on or about September 13, 1992, when the Nashes fenced their property with barbed wire. Jackson claimed the fence blocked the only road access to his parcel. Jackson filed a complaint and an application for a temporary restraining order (TRO) seeking to prevent Nash from blocking or otherwise preventing access to Jackson's parcel. Jackson claimed "an easement by way of prescription, implication and/or necessity." Jackson's affidavit in support of the TRO application stated that he had made nonconsensual, open, notorious, and continuous use of the unpaved road crossing Nash's land for approximately one year. The affidavit further stated that at the time he purchased the property from E.J. McGah, the common owner, Jackson "understood" that continuous adverse use of the unpaved road had been made to access the subject parcel in excess of five years. Nash answered and brought a counterclaim for declaratory relief and to quiet title.

On November 24, 1992, the district court granted the TRO on the grounds that Jackson "may have a prescriptive easement" and temporarily enjoined Nash from obstructing Jackson's access to his parcel. A stipulation was filed December 10, 1992, allowing Jackson to amend his complaint "to allege easement by implication and way of necessity." A bench trial was held on January 13, 1993. At trial, Jackson stipulated to the dismissal of his prescriptive easement claim.

Jackson presented the following evidence in support of his implied easement claims. Jackson testified that he met with Patricia Clark of Century 21 Realty in 1991 and made an initial offer on the Heritage Ranch property for $350,000. He stated that the selling price on the property was thereafter increased to $450,000 which he understood was to account for additional pieces of property including the seven-tenths parcel in Alpine County. After Jackson moved to Carson Valley in the spring of 1992, he crossed the Nash property several times after the close of escrow to access the parcel before Nash put up a fence blocking his access. Jackson Jackson testified that after the Nashes fenced their property, he asked the National Forest Service for an easement, to no avail. The National Forest Service indicated it was "not likely" that an easement would be granted. Jackson also testified that he had asked the Wipflis, who own a parcel adjacent to Jackson's parcel, for an easement: "I pursued all the avenues that I thought I could. An easement from their--cul-de-sac ... would work as well as an easement from Mr. Nash but the road is already in through Mr. Nash's."

stated that he used the dirt road across the Nashes' property as he was not aware of any other physical access to his parcel. Jackson never spoke to McGah regarding McGah's use of the parcel, but rather spoke to "several people in the valley" who had used the pathway, including one woman who told him she had used the pathway in excess of five years. He was not certain what use she had made of the pathway. No one at the Century 21 office told Jackson that access to the seven-tenths parcel existed; however, Jackson had seen people and horses going up and down the path in 1991 and therefore assumed it was accessible.

In addition to his own testimony, Jackson presented the testimony of Matt Benson (Benson) and respondent George Nash (Nash). Benson worked for McGah as his ranch manager, for twenty-seven years, beginning in 1964. On November 19, 1979, Benson and his wife, Joyce, purchased 13 acres of unimproved land from McGah, which included what is now the Nash property. Benson sold the 2.5 acre parcel to Dr. Benninger in November, 1989. Nash purchased the land from Dr. Benninger on or about May 24, 1991. Benson stated that he did not know exactly where the parcel was located as it was never used and "[i]t was worthless ground really as far as we were concerned."

Benson was asked if anyone used the trail over Nash's property. He replied: "I would go probably over that probably about two or three times in all the years I was there. I didn't keep track over the 27 years. Mostly on a horse. A couple of times with a jeep. It's more or less a jeep trail, or a four wheel drive pick[-]up trail. It has been somewhat altered since I sold the property to Mr. Wipfli and to Mr. Benninger ... We had very little need to use that property. I think my son was over it a time or two." Benson went on to testify that he had no use for the property as it was all high bitter brush. Benson also testified that the property could be accessed by several roads other than the one through the Nash parcel.

Benson stated that McGah was a real estate developer and builder who was very knowledgeable about real estate matters. When queried as to whether McGah had asked him for an easement to access the seven-tenths of an acre parcel when Benson bought the property in 1979, Benson replied: "Absolutely not." Benson also testified that during his twenty-seven years with Heritage Ranch "[w]e made absolutely no use of the seven-tenths of an acre." Benson further testified there were never any agricultural or residential improvements on the property. Benson stated that although he had given permission to certain people to ride horses on the trail, there was very little use of the trail until he put the Purshia Hill cul-de-sac in. Benson put up barricades and posted "no trespassing" signs. After he sold properties to Mr. Wipfli and Dr. Benninger, they cleared away brush which made access to the hill more obvious. Benson stated that he would have allowed McGah to cross his property to get to the seven-tenths of an acre lot, since he was his boss, but that "he never asked me to go there and I doubt he was ever on that seven tenths of an acre." Upon questioning by the court, Benson testified that access to the parcel through the Faye Canyon road would take a half an hour or more.

George Nash testified that he bought the property on Purshia Hills Road in May of 1991 from Dr. Benninger through Century 21 Real Estate. Nash looked at photographs of the property taken by Jackson and stated that they differed from the way the property appeared at the time he purchased it because the photographs showed "a noticeable four wheel drive trail" that was not there when he purchased the property in May of 1991. Nash attested that there was no access road when he bought the property, only a foot Patricia Clark, a real estate broker who arranged the Jackson property sale, testified on behalf of the Nashes. Ms. Clark stated that the seven-tenths of an acre parcel "was never included in Mr. Jackson[']s offer and acceptance. It was only conveyed to Mr. Jackson as a bonus or a freebie parcel within maybe a month or two prior to the close of escrow." Clark stated that McGah had told her he did not "care what you do with the California parcels. I don't want them. Throw them in with Jerry Jackson[']s. Keep them. Do what you want with them."

path. At the time of the sale, he examined title documents which contained no easements. Nash stated he saw no road and had no reason to inquire about one.

On February 8, 1993, the district court entered judgment for Nash, finding that Nash's property was not burdened by an easement for the benefit of Jackson's property. The district court found that appellant had shown neither an implied easement by necessity nor an implied easement by reservation. Accordingly, the TRO was revoked and the lis pendens was canceled. This appeal followed.

DISCUSSION

Whether the district court erred in determining that an implied easement did not exist.

Where there is substantial evidence to support factual determinations made by the district court sitting as the trier of fact, those determinations will not be disturbed on appeal. See Simons v. Donrey Inc., 94 Nev. 696, 697, 582 P.2d 795 (1978). Although an implied easement arises by operation of law, the existence of an implied easement is generally a question of fact. See Hewitt v. Meaney, 181 Cal.App.3d 361, 226 Cal.Rptr. 349, 351 (1986).

Jackson contends that the district court erred in finding that Jackson had shown neither an implied easement by necessity nor an implied easement by reservation. Jackson insists that the judgment of the district court was contrary to the substantial evidence introduced at trial. It is well-settled that an easement may be created by implication without a written instrument. See Alrich v. Bailey, 97 Nev. 342, 630 P.2d 262 (1981). The two general grounds for the creation of an easement by implication...