Kimco Addition, Inc. v. Lower Platte South Natural Resources Dist.

• Decision Date: 26 May 1989
• Docket Number: No. 87-1035,87-1035
• Citation: 440 N.W.2d 456,232 Neb. 289
• Parties: KIMCO ADDITION, INC., Appellant, v. LOWER PLATTE SOUTH NATURAL RESOURCES DISTRICT, A Political Subdivision, Appellee.
• Court: Nebraska Supreme Court

Page 456

440 N.W.2d 456

232 Neb. 289

KIMCO ADDITION, INC., Appellant, v. LOWER PLATTE SOUTH NATURAL RESOURCES DISTRICT, A Political Subdivision, Appellee.

No. 87-1035.

Supreme Court of Nebraska.

May 26, 1989.

Syllabus by the Court

1. Easements: Eminent Domain: Actions: Notice. Where the holder of an easement across property has the power of eminent domain for the use involved, an action for inverse condemnation is an appropriate remedy for a subsequent bona fide purchaser of the property who purchased without notice of the preexisting interest in land.

2. Actions: Adverse Possession: Limitations of Actions. The period of limitations for inverse condemnation actions is the 10 years within which actions for adverse possession must be brought pursuant to Neb.Rev.Stat. § 25-202 (Reissue 1985).

3. Actions: Assignments. As a general rule, a cause of action is assignable if the action would, on the death of the assignor survive to the decedent's legal representative.

4. Actions: Eminent Domain: Assignments. An action seeking compensation for the taking of property by the government is assignable.

5. Property: Vendor and Vendee: Notice. Instruments which may be but are not recorded are void as to subsequent bona fide purchasers who record first.

6. Real Estate: Vendor and Vendee: Consideration: Notice: Words and Phrases. A bona fide purchaser of land is one who purchases for valuable consideration without notice of any suspicious circumstances which would put a prudent person on inquiry.

7. Actions: Corporations: Merger: Abatement, Survival, and Revival. The cause of action of a corporation survives the corporation's merger into or consolidation with another corporation and becomes vested in the surviving or new corporation.

8. Real Estate: Vendor and Vendee: Easements: Notice. A purchaser is charged with notice of an easement, the evidence of which is apparent from the inspection of the premises.

9. Real Estate: Vendor and Vendee: Easements: Notice. One who purchases land burdened with an open, visible easement is ordinarily charged with notice that he or she is purchasing a servient estate.

10. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment is not a final order and thus not appealable, when both parties move for summary judgment and the district court sustains one of the motions, the Supreme Court obtains jurisdiction over both motions and can determine the controversy, making an order specifying the facts that appear without substantial controversy and directing such further proceedings as it deems just.

11. Summary Judgment. Summary judgment is appropriate only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from the material facts and that the moving party is entitled to judgment as a matter of law.

William G. Blake, of Pierson, Fitchett, Hunzeker, Blake & Loftis, Lincoln, for appellant.

Steven G. Seglin, of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee.

BOSLAUGH, CAPORALE, and GRANT, JJ., and SPRAGUE and MULLEN, District Judges.

CAPORALE, Justice.

In this inverse condemnation action, plaintiff-appellant, Kimco Addition, Inc., seeks damages for the expanded portion of an easement defendant-appellee, Lower Platte South Natural Resources District, exercises through a tract of land Kimco owns. The district court overruled Kimco's motion for summary judgment on the sole issue of its entitlement to damages, and sustained Lower Platte's motion for summary judgment, thereby dismissing Kimco's petition. Kimco assigns eight errors, which merge to challenge the district court's finding that (1) any cause of action which may have existed is time barred, and (2) in any event, Kimco failed to establish a cause of action. We affirm in part and in part reverse and remand for further proceedings.

The easement in question embodies a drainage channel consisting of a "cut or depression in the earth," commonly known as Dead Man's Run. The portion of the channel with which we are concerned runs across an irregular tract of land located at the southeast corner of 56th and Holdrege Streets in Lincoln, Nebraska.

The easement was created in 1929 when Emma and Ada Kuhn, then owners of the tract, granted Sanitary District No. 1 of Lancaster County and "its successors and assigns forever"

a perpetual easement and right-of-way for the construction, maintenance, building and repairing of a ditch ... including the right of ingress and egress to and from said ditch....

....

... but only so much of said strip of ground is to be used in the construction of said ditch as shall be necessary for said ditch purposes....

The Kuhn easement was not recorded, however, until August 15, 1942.

In 1959, in order to widen the drainage channel, Sanitary District No. 1 acquired and recorded an easement 88 feet wide, which was to "run with the land" and include a right of ingress and egress. On June 15, 1962, Sanitary District No. 1 assigned its rights in and to the aforesaid easement to the Salt-Wahoo Watershed District, which assignment was recorded April 16, 1963. As a natural resources district, Lower Platte succeeded, under the provisions of Neb.Rev.Stat. § 2-3206 (Reissue 1987), to the assets of Salt-Wahoo on July 1, 1972, and thereby acquired the aforesaid easement.

Between August 3, 1973, and May 1, 1974, Lower Platte again widened the drainage channel with the permission of the owner, Charleston Court, Inc. On January 7, 1974, Charleston Court granted Lower Platte an expanded 130-foot wide easement, describing it as extending "sixty five (65') Feet each side of" a specified centerline, in order that Lower Platte might "construct, reconstruct, maintain and operate a drainage channel and necessary appurtenances thereto," and giving Lower Platte the right of ingress and egress. Because the document describing this expanded Charleston Court easement was never acknowledged, it was not recorded until April 12, 1984, when Lower Platte's then general manager, Glenn D. Johnson, executed and recorded an affidavit reciting that the Charleston Court easement, which was attached to his affidavit, had been delivered to Lower Platte on or about January 7, 1974.

According to Johnson, Lower Platte considered itself to possess a 130-foot wide easement when it widened the channel. However, the construction drawings indicate that the drainage channel itself was designed to be only 59 feet on either side of the centerline specified in the Charleston Court easement, or a total of 118 feet in width. Johnson noted that the channel as built varies in width and that the 130-foot easement the construction plans contemplated "is broader than the drainage channel itself and covers an additional 5 to 10 feet on either side of the actual drainage channel [which] is necessary for access to and from the drainage canal for the purpose of inspection, repair and maintenance...." Johnson also testified that Lower Platte inspected the drainage channel and "performed weed, grass and tree control on the easement area" on an annual basis.

The servient tract underwent several changes of ownership until First Savings Company of Lincoln acquired it by sheriff's deed pursuant to a mortgage foreclosure for a stated consideration of $350,000. That deed was recorded on April 11, 1980. "Pursuant to Articles of Merger," First Savings then transferred ownership of the tract by a corporation warranty deed recorded October 13, 1983, to First National Lincoln Corporation, which subsequently became known as FirsTier, Inc. All further references to First National Lincoln Corporation shall be by the designation FirsTier, whether the reference relates to events occurring before or after the name change.

Before transferring title to FirsTier, First Savings, on August 1, 1980, applied to the city of Lincoln for a permit to subdivide the tract. On September 11, 1980, Lower Platte wrote a letter to the Lincoln City-Lancaster County Planning Department, asking that Lower Platte be granted a 130-foot wide easement across the tract "for channel construction operation and maintenance purposes on Dead Man's Run at that location" prior to approving First Savings' application for subdivision of the tract. The letter also stated that Lower Platte's "bank stabilization construction in that area has been based on having a 130' easement."

On September 25, 1980, Lower Platte unsuccessfully sought a 130-foot easement across the tract from First Savings. Lower Platte's like request of FirsTier on April 6, 1984, met the same fate.

On February 24, 1987, FirsTier transferred the tract to Kimco by corporation warranty deed recorded March 27, 1987. FirsTier also assigned to Kimco its rights in this then pending action against Lower Platte. Sometime before purchasing the tract, Kimco apparently applied for a building permit to construct carwashes along both sides of Dead Man's Run. On January 24, 1986, Lower Platte wrote a letter to Kimco's president, stating that a cross section of 60 feet on either side of the centerline of the channel was "necessary to provide the required capacity within the channel for flood flows," and this time asked for a 120-foot-wide easement.

A vice president of FirsTier testified that at the time it acquired the tract, neither it nor First Savings was aware that Lower Platte claimed an easement greater than 88 feet wide, as described in the then record. Thus, Kimco claims that it, as the assignee of FirsTier, is entitled to damages for the 42 feet by which the easement Lower Platte actually exercises exceeds the easement of record.

Neb.Rev.Stat. § 2-3234 (Reissue 1987) grants Lower Platte the power of eminent domain. It has been held that where the holder of an easement across property has the power of eminent domain for the use...