Leu v. Littell
| Decision Date | 14 December 1993 |
| Docket Number | No. A-92-055,A-92-055 |
| Citation | 513 N.W.2d 24,2 Neb.App. 323 |
| Parties | Lola LEU, Appellant and Cross-Appellee, v. Dale LITTELL and Mary Littell, Husband and Wife, and Grayce Clark, Appellees and Cross-Appellants. |
| Court | Nebraska Court of Appeals |
Charles W. Baskins and Robert E. Roeder of Baskins & Roeder, Northe Platte, for appellant.
John A. Gale of McCarthy, Gale & Moore, Northe Platte, for appellees.
This lawsuit involves a "trail road" similar to the countless other unimproved and unmaintained roads which crisscross the Sandhills ranch country of Nebraska and allow travel from ranch to ranch and to town for the people of this sparsely populated region of our state.
The plaintiff, Lola Leu, brought this action against the defendants, Grayce Clark and Clark's tenants, Dale and Mary Littell, to establish a public prescriptive easement across Clark's land. Leu also sought to permanently enjoin the defendants from placing obstructions on the public easement, to require the defendants to open certain gates across the trail road, and to further enjoin the defendants from interfering with the public's rights to use the trail road. Clark cross-petitioned, praying that Leu and all other persons be permanently enjoined from using the trail road in question for ingress, egress, or any other purpose, and to quiet title in Clark to 120 acres of land that is not directly connected to the trail road. The trial court found that Leu had established a private prescriptive easement across land belonging to Clark, but that a public prescriptive easement did not cross this land. The court also quieted title to the 120 acres of land in Clark. Leu appeals to this court, and the defendants cross-appeal.
Clark died while the case was pending in this court. The case was revived by Leu against Clark's estate and Clark's sole heir, Sandra L. Scholz.
Leu is a cattle rancher who maintains three separate ranches, which we will refer to as her "home ranch," the "Wooley ranch," and the "Tailholt ranch." Leu's home ranch and the Wooley ranch are separated from the Tailholt ranch by ranchland that was owned by Clark and known as the Frank Leu ranch. Leu and Clark were first cousins whose fathers previously ranched much of the land crossed by the trail road involved in this case. This trail road begins south of Leu's land where it meets a graded road. It meanders north across Leu's land, then across Clark's land, and then across Leu's land again for a few miles before it meets a maintained road. From the exhibits, we have constructed the diagram which appears herein and which should facilitate understanding of this case. Lola Leu's property extends north and south of that depicted in our diagram.
Clark, who was about 81 years old at the time of the trial, was raised at the Frank Leu "ranchstead," and she acquired her land from her parents and her siblings after her parents' death. She rented her land to the Littells, who kept cattle on it.
A trail road (not shown on our diagram) proceeds northwest from the Tailholt ranchstead across Leu's land for a distance that is not disclosed by the evidence. However, the aerial photograph of the area, in evidence as exhibit 4, shows that this northwest trail road and the two segments leading east and southeast from the ranchstead (shown on our diagram) are the only means of access to the Tailholt ranchstead.
When Leu was a child, Leu's parents lived south of section 18, and Leu was raised there on her home ranch. The Wooley ranch, which is located in part in sections 17 and 18, is now owned by Leu. Until about 1940, it was owned by an aunt of Leu and Clark. The Tailholt ranch was not owned by a Leu family member until it was purchased by Leu's father in the late 1920's.
Leu testified that she has been personally familiar with the trail road for 70 years. She claimed that the trail road existed before her and Clark's time, that is, before 1911. Leu has been maintaining a livestock operation since 1935, and she stated that she has personally used the trail road when traveling to North Platte and Wellfleet and to check her water, livestock, and fences. Leu further testified that she uses the trail road in her livestock operation to move cattle to and from her separate ranches. Leu stated that she has used the trail road approximately two to three times per week for the last 35 years. Leu estimated that the width of the trail road is approximately 40 feet at its widest point.
Leu stated that over the last 50 or 60 years, she has also observed other persons using the trail road. Leu testified that people had been using the trail road to cross her land and Clark's land for more than 10 years. Leu also stated that several suppliers haul supplies over the trail road. She testified that she and Clark never discussed Leu's use of the trail road, nor did Leu discuss her use of the trail road with Clark's father. Leu stated that Clark never objected when Leu moved her cattle on the trail road across Clark's land.
Leu was married to Waldo Goedeker from 1959 until 1980. Goedeker leased the Frank Leu ranch from Clark's father and then from Clark. Leu denied operating any livestock business with Goedeker, although she did admit that she watered her cattle on Goedeker's land and installed a gate which allowed her to move cattle across sections of the Frank Leu ranch. When Leu and Goedeker were divorced in 1980, Goedeker continued to lease the Frank Leu ranch from Clark and subleased part of it to Leu until 1986. In 1987, Dale and Mary Littell leased the ranch from Clark and subleased it to Leu until 1989. Clark was not aware of either of these subleasing arrangements.
Clark testified that she used the trail road regularly when she was growing up. She used the trail road south of the Frank Leu ranchstead to travel to visit her aunt Marietta Wooley until at least 1932. She admitted the trail road was used by her immediate family to travel south to Hoyt City and Marengo, but said the route was later changed. The trail road was a means of getting south to the county road to go to Dickens and Hayes Center. Clark's family did not have relatives other than the Roy Leu family to the north, but Clark's family did use the trail road north when they went to North Platte. Clark stated that from 1921 until 1932, she was not aware of anyone other than family, including the Roy Leu family, using the trail road. She stated that when she was growing up, it was rare to see a car on the trail road.
Clark did not live on the ranchstead for any length of time after she left to attend college in 1932. She did remember auto gates being installed. On the portion of the trail road in question, there are four gates, which generally are located at the section lines and where the trail road crosses the Leu-Clark boundaries. Clark's parents moved off the ranch to North Platte in 1944.
Clark testified that she was not aware that Leu was subleasing the land from either Goedeker or the Littells. Clark testified that she was not aware of anyone using the trail road, but admitted that she did not know who had used the trail road since 1941 because she did not live on the ranch.
Leu called several witnesses to testify to their use and familiarity with the trail road. Melvin Shipman, a livestock feedstore department manager, testified that he has been familiar with the trail road since 1979 and that he used the trail road to deliver feed to Leu and to Clark's tenants. Bill Rodgers is in the business of drilling and servicing water wells. He stated he has used the trail road on and off for approximately 25 years, both to get to Leu's ranches and to travel to other ranches in the area. James Griffiths testified that he has been familiar with the trail road since about 1941. He stated that he used the trail road to move cattle and to visit friends. He further testified that he had not traveled the trail road north of the Frank Leu ranch since 1966, and to the south since 1980.
Keith Lapp, a rancher, testified that he has moved cattle on the trail road since 1979 and that he also uses the trail road to haul "mineral" and to check his cattle's water. He testified that he has seen other ranchers moving cattle on this trail road.
Jerry Schultz works occasionally for Leu, but he has his own cattle. He testified that he has been familiar with the trail road since 1947 and that he moved cattle for Leu approximately 1 month prior to the trial. Schultz stated that he has used the trail road for personal reasons such as checking his cattle's water. Schultz testified that he has seen others using the trail road, including that portion on Clark's land.
All of the witnesses called by Leu testified that they have never asked anyone's permission to use the trail road, except that Lapp testified he asked for Dale Littell's permission in 1990 after Littell wired several gates closed on the trail road.
Clark called several witnesses to testify to the use of the trail road. Martin Viersen stated that he was familiar with the trail road, but testified that he had never actually used it, except that he had crossed the trail road with cattle two or three times. Leu had named several families who had allegedly used the trail road in the 1930's. Viersen testified that he did not believe that the families named by Leu had regularly used the trail road because it was located in a very isolated area. Viersen stated that he was not aware of any families in that area who had regularly used the trail road to move either cattle or vehicles during the period from the early 1900's to the 1940's. Lola Weesner testified that she grew up in Hayes County and that she and her immediate family used "a trail road" to get to Frank Leu's property, but that she was not aware of any other relatives that...
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Breiner v. Holt County
...for the full 10-year prescriptive period. Sellentin v. Terkildsen, 216 Neb. 284, 343 N.W.2d 895 (1984). See, also, Leu v. Littell, 2 Neb.App. 323, 513 N.W.2d 24 (1993). These elements must be established by clear, convincing, and satisfactory evidence. Svoboda v. Johnson, 204 Neb. 57, 281 N......