Moon Lake Ranch, LLC v. Gambill

• Decision Date: 21 February 2017
• Docket Number: No. A-15-785.,A-15-785.
• Citation: Moon Lake Ranch, LLC v. Gambill, No. A-15-785. (Neb. App. Feb 21, 2017)
• Parties: MOON LAKE RANCH, LLC, AND JUDY L. MILLER, APPELLEES AND CROSS-APPELLANTS, v. RICHARD AND SHIRLEY GAMBILL, HUSBAND AND WIFE, APPELLANTS AND CROSS-APPELLEES, AND GUDGEL LAND CORP., APPELLEE.
• Court: Nebraska Court of Appeals

MOON LAKE RANCH, LLC,AND JUDY L. MILLER, APPELLEES AND CROSS-APPELLANTS, v. RICHARD AND SHIRLEY GAMBILL,HUSBAND AND WIFE, APPELLANTS AND CROSS-APPELLEES,AND GUDGEL LAND CORP., APPELLEE.

No. A-15-785.

NEBRASKA COURT OF APPEALS

February 21, 2017

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Brown County: MARK D. KOZISEK, Judge. Affirmed.

Rodney J. Palmer, of Palmer Law Group, L.L.C., for appellants.

Jason B. Bottlinger, of Bottlinger Law, L.L.C., for appellees.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Richard Gambill (Richard) and Shirley Gambill (Shirley) live and ranch in Brown County, Nebraska. The "Trail Road" runs across the Gambills' land, connecting Moon Lake Avenue to land owned by Moon Lake Ranch, LLC. The Trail Road also runs over land owned by Gudgel Land Corp. and Judy L. Miller. In a summary judgment order, the district court for Brown County granted Moon Lake Ranch and Miller a prescriptive easement over the Gambills' and Gudgel Land Corp.'s land for use of the Trail Road. The Gambills appeal; Moon Lake Ranch and Miller cross-appeal the district court's failure to grant them a permanent injunction enjoining the Gambills from interfering in their use of the Trail Road. We affirm.

II. FACTUAL BACKGROUND

The Trail Road connects ranch land owned by Moon Lake Ranch and Miller to Moon Lake Road, now known as Moon Lake Avenue; the Trail Road is not paved or graveled. The Trail Road runs northwest from Moon Lake Avenue and crosses land owned by the Gudgel Land Corporation, the Gambills, Miller, and Moon Lake Ranch (in that order when traveling northwest from Moon Lake Avenue). The Gambills purchased their property at issue in 2001 from William (Bill) and Blanche Gudgel.

Moon Lake Ranch is owned by three sisters: Pam Hill (Pam), Kay Hill (Kay), and Gayleen Hill (Gayleen). Their father, Harold Hill (Harold), purchased the relevant land in 1964 (section 35). Harold also leased other property (section 3) in the 1960's from Jesse and Ivy McDaniel, which he purchased in 1973. Harold died in 2010, at which time his daughters formed Moon Lake Ranch.

The Hill family has used the Trail Road to access their land since 1964. In her affidavit, Pam said, "We [the Hills] have used the Trail Road continuously and without interruption for more than the last 49 years. I have personally and openly used the Trail Road each and every year for the last 45 years to access our land." Pam stated that she and her family had never asked permission to use the road, hidden their use of the road, and did not rely on the rights of others to use the road. Furthermore, she asserted that the surrounding landowners "know or should know that we used it, they know I have used it, and they have acquiesced in our use until recently." Pam testified in her deposition that she and her father would meet the previous owners of the Gambills' property when using the Trail Road. She stated they saw Bill Gudgel regularly when going in and out on the Trail Road when Bill was fixing fence, and there were times when she and her father would be fixing fence and would meet Bill there, with Blanche Gudgel there sometimes. In February 2013, Pam and her family received a letter from the attorney for the Gambills. This letter threatened criminal prosecution if the Hills continued to use the Trail Road. None of the Hills have used the Trail Road since receiving the letter.

According to Richard Keller's deposition and affidavit, his family formed A & K Ranch, Inc., in the 1960's; he bought into it in 1991. The corporation leases section 35 of the Hill property, and Keller's son, Bradley, leases the Hill property immediately adjacent to the south (section 3). Keller traveled the Trail Road "[m]any times[,]" with the first time occurring in 1993 to deliver "a handful of cows or bulls." At that time, Jeff Staub rented bulls from Keller, and Staub was renting the land from the Hills. Keller traveled over the Trail Road every year until 2013 to deliver bulls or cows. Keller had taken over the Hill lease in 2005. Prior to Staub leasing the land, Keller recalled helping Warren Dorsey drive cows to the Hill land in 1992, crossing over Bill and Blanche Gudgel's property "[v]irtually right down the trail because that's kind of the - that's the main way in there. That's where the gates are and the - that's just the low ground you can go over."

As to use of the Trail Road by Miller, who owns property over which the road crosses, her affidavit stated that she and her parents used the Trail Road

[C]ontinuously, openly and without interruption whenever there was any need to do so. We claimed a right to use the Trail Road that was not dependent on anyone else's right to use it. We did not ask for permission, and none was given, though the owners of the land overwhich the Trail Road crossed knew of our use and acquiesced to our use, and our use was adverse to them.

Miller's father, Marvin Lake, purchased the land from Miller's grandmother's estate in 1989; it was subsequently transferred to Miller who became the sole owner of the property after the passing of her husband and mother. Miller stated that the Trail Road crossed land owned by her, the Gambills, and Gudgel Land Corporation, and that the lands are separately fenced along the perimeter with gates where the Trail Road crosses boundaries. She stated, "Historically, and prior to February 2013, these gates did not restrict travel across the road."

Doug O'Hare stated in his deposition that he, his father, and his brother formed DCK Partnership in 1980 or 1981. In addition to their own farm and ranch operation, DCK leased land from Lavern Lake and now her daughter, Miller. O'Hare stated in his affidavit that he and his family used the Trail Road to access the leased land two to three times per week from May to October every year since the 1960's. They used the Trail Road sometimes more frequently to check the land, check on and care for cattle, and to perform repairs. O'Hare, his family, and their operating entities have used the Trail Road without restriction since the 1960's to access the leased land. O'Hare stated he never asked permission, nor had an agreement, to use the Trail Road, and that his family and operating entities have used it continuously and without interruption for more than the last 15 years, and in fact, claimed a right to use the Trail Road since before 1970. O'Hare stated their use has been open and that surrounding land owners have known of the use and acquiesced to that use until February 2013 when the letter was sent by the Gambills to stop using it. O'Hare stated that the Trail Road was the "most direct, safest and best route to access our leased land from [Moon Lake] Avenue."

The Gambills acquired the property at issue from the Gudgels in 2001. The Gambills' son, Brad Gambill, manages his parents' ranch. The first year they owned the property, Richard placed "No Hunting" and "No Trespassing" signs at the beginning of Moon Lake Road and at each gate along the Trail Road. According to Richard, he had permitted various neighbors to travel the Trail Road; however, "Notice was given on February 15, 2013[,] to all neighbors and people who have used this trail to cease and permission was revoked. Notice was also published in the newspaper on February 20, 2013."

Barbara Anderson, the daughter of the Gudgels, stated that her family owned the ranch from 1949 to 2001, at which time it was sold to the Gambills. Anderson alleged that she helped her father with ranch work when the Hills claim to have used the Trail Road. Anderson stated that she never saw any of the Hill family use the Trail Road.

III. PROCEDURAL BACKGROUND

Moon Lake Ranch and Miller raised two claims for relief in their amended complaint: a declaratory judgment establishing a prescriptive easement over the Trail Road and a permanent injunction enjoining the Gambills from interfering with their use of the Trail Road. Moon Lake Ranch and Miller filed a motion for summary judgment, as did the Gambills. At the June 9, 2015, hearing on the summary judgment motions, the court would not consider the Gambills' motion for summary judgment because they "failed to comply with [Neb. Rev. Stat.] § 25-1332, Local CourtRule 8-10, the Progression Order and Second Order Expanding Progression Deadlines[.]" The court stated that "[t]he evidence adduced by Gambill at the hearing will only be considered by the Court as evidence in opposition to plaintiffs' motion for summary judgment."

In its July 27, 2015, order, the district court concluded:

Moon Lake Ranch[,] LLC, and its predecessors in title, tenants and their employees, have used the Trail Road adversely, under a claim of right, continuously and uninterrupted, openly and notoriously, exclusively, with the knowledge and acquiescence of the defendants and their predecessors in title for the full prescriptive period of ten years commencing in 1964 and the use continued until February 2013 when the Gambills served notice upon them that they would be criminally prosecuted if they continued to use the Trail Road.

The district court reached the same conclusion as to Miller, noting that her prescriptive period commenced in the 1960's and no later than 1969. As a result, the district court ordered that Moon Lake Ranch and Miller had a private prescriptive easement for ingress and egress over and across the Gambills' and Gudgel Land Corporation's land measuring 15 feet on either side of the center line of the Trail Road for vehicle access and 75 feet on either side to drive cattle. The court taxed the Gambills $5,122.20 in costs, ordered each party to pay their own remaining costs, and concluded with the statement, "Any other claims for relief by any party, expressed or implied, are overruled...