Lewis v. Board of Com'rs of Loup County
| Decision Date | 31 March 1995 |
| Docket Number | No. S-93-377,S-93-377 |
| Citation | 247 Neb. 655,529 N.W.2d 745 |
| Parties | Douglas J. LEWIS, Appellant, v. BOARD OF COMMISSIONERS OF LOUP COUNTY, Nebraska, and Tom McNeil et al., Constituting the Members of Said Board, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
2. Summary Judgment. Summary judgment is proper 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 those facts and that the moving party is entitled to judgment as a matter of law.
John A. Wolf and, on brief, Donald R. Janousek, for appellant.
Gregory G. Jensen, for appellees.
Douglas J. Lewis filed a writ of mandamus in the district court for Loup County to compel the board of commissioners of Loup County and its members (Board) to provide public access to real estate Lewis owns and claims is isolated. Lewis appeals the district court's decision granting summary judgment in favor of the Board.
We reverse the action of the district court in entering summary judgment in favor of the Board.
In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Huntwork v. Voss, 247 Neb. 184, 525 N.W.2d 632 (1995); New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25 (1994). Summary judgment is proper 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 those facts and that the moving party is entitled to judgment as a matter of law. Huntwork, supra; New Light Co., supra.
When we view the evidence in the light most favorable to Lewis and give Lewis the benefit of all reasonable inferences deducible from the evidence, the undisputed facts of the case are as follows:
In September 1948, Lewis and his wife purchased real estate in the northeast quarter of Section 21, Township 22 North, Range 17 West of the 6th P.M., in Loup County, Nebraska, together with other real estate.
In June 1986, the couple subdivided some of their land into 15 numbered lots and an outlot. The Lewises filed for record a plat and dedication of the lots in a subdivision called Beverly Hills.
At all times relevant herein, a diagonal county road traversed the northeast corner of the northeast quarter of Section 21. The legal description of the plat and dedication of the Beverly Hills Subdivision reveals that the northeast corner of the subdivision abuts the county road right-of-way line for a distance of 314.4 feet. The plat and dedication further reveals that a 60-foot stretch of the 314.4 feet abutting the county road right-of-way provides access to Beverly Hills via the subdivision's Sunset Drive.
Lewis and his wife sold and conveyed various lots in the subdivision to others, but retained ownership of several lots. Some of the lots still owned by Lewis and his wife abut the adjoining land which he claims is isolated from public access.
On August 12, 1992, Lewis filed a petition and affidavit with the Board claiming that his land was isolated and requesting that the Board provide public access to the property. After a hearing on September 9, the Board apparently denied this request.
On November 16, 1992, Lewis filed a petition for a writ of mandamus in the district court. In the prayer of his petition, Lewis asked the district court to order the Board to lay out a public road and proceed to provide public access to the land he claimed was isolated. After substantial discovery, the Board moved for a summary judgment which was denied by the district court. However, the district court granted a supplemental motion for summary judgment filed by the Board.
In entering summary judgment in favor of the Board, the district court found that (1) article 8 of the subdivision's declaration of covenants expressly provided Lewis the right to use Sunset Drive to access the property he claimed was isolated from an existing public road; (2) the outlot (Sunset Drive) was 60 feet wide and could be used by Lewis to access an existing public road; (3) Lewis failed to satisfy the requirements of Neb.Rev.Stat. § 39-1713(2) and (3) (Reissue 1978); and (4) no genuine issue concerning any material fact existed. Lewis appeals this decision.
Pursuant to our authority to regulate the caseloads of the appellate courts, this appeal was removed from the Nebraska Court of Appeals' docket to this court's docket.
Summarized and restated, Lewis claims that the district court erred in: (1) finding that article 8 of the declaration provides access to his property; (2) granting summary judgment based upon the terms of a written contract, the terms of which are ambiguous; (3) finding that Lewis failed to satisfy the requirements of § 39-1713(2) and (3); and (4) granting summary judgment in favor of the Board.
We turn immediately to Lewis' fourth assignment of error, as it is dispositive of the appeal. Lewis claims that the district court erred in granting summary judgment in favor of the Board. We must determine if there exists any material issue of fact.
Lewis' right to obtain access in the form of a public road for his allegedly isolated real estate is governed by Neb.Rev.Stat. Section 39-1713 provides that
§ § 39-1713,...
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