Sjuts v. Granville Cemetary Ass'n
| Decision Date | 28 July 2006 |
| Docket Number | No. S-05-124.,S-05-124. |
| Citation | 272 Neb. 103,719 N.W.2d 236 |
| Parties | Calvin L. SJUTS, individually and as Trustee of the Calvin L. Sjuts Trust, and Barbara F. Sjuts, individually and as Trustee of the Barbara F. Sjuts Trust, appellants, v. GRANVILLE CEMETERY ASSOCIATION et al., appellees. |
| Court | Nebraska Supreme Court |
James G. Egley, of Moyer, Moyer, Egley, Fullner & Montag, Madison, for appellants.
Brian F. Beckner, Osceola, for appellee.
Appellants, Calvin L. Sjuts, individually and as the trustee of the Calvin L. Sjuts Trust, and Barbara F. Sjuts, individually and as the trustee of the Barbara F. Sjuts Trust, brought this quiet title action in the district court for Platte County against appellees, Granville Cemetery Association and all persons having or claiming some right, title, or interest in the property involved in the action (collectively Granville), seeking a prescriptive easement to operate a center-pivot irrigation system over a portion of a 123-year-old cemetery owned by Granville in Platte County, Nebraska. The cemetery property contains at least 17 graves, all of which are marked by stone monuments. Appellants and Granville filed cross-motions for summary judgment. Following an evidentiary hearing, the district court determined that pursuant to the state statutes governing cemetery associations, Granville held certain quasi-public authority with respect to the cemetery property and that as such, the cemetery property possessed a public nature that protected it from appellants' claim of a prescriptive easement. The district court sustained Granville's motion for summary judgment, overruled appellants' motion for summary judgment, and dismissed appellants' quiet title action. Appellants filed an appeal. We affirm.
There is essentially no dispute with regard to the material facts. In accordance with the state statutes then in effect, Granville was incorporated as a cemetery association on February 15, 1881. The current version of those laws is now codified at Neb.Rev.Stat. §§ 12-501 to 12-529 (Reissue 1997 & Cum.Supp.2004). A board of trustees was selected, and the incorporation document was filed with the Platte County clerk on May 5, 1881. In March 1883, Granville acquired one acre of property located in Platte County. The deed conveying the property to Granville was recorded. Granville used the property as a cemetery. Seventeen stone grave markers presently mark burial sites within the cemetery property. The most recent stone marker is dated August 16, 1896. There is evidence in the record that as many as 20 other graves may exist in the cemetery, given the existence of various unmarked depressions in the ground. At least one Civil War veteran, F. (Francis) H. Baker, who served from January 11, 1864, to June 24, 1865, is buried in the cemetery.
There is no evidence that Granville was ever dissolved or that the cemetery property was legally abandoned. At some point in time, however, Granville's board of trustees became inactive, and Granville's board was not reactivated until February 11, 2004. The record reflects that Granville is presently operated on a nonprofit basis.
In 1974, appellants took title to 160 acres, or a quarter section, in Platte County, initially individually, and later as trustees for their own individual trusts. The deeds conveying the quarter section to appellants purported to include the acre containing Granville's cemetery property. Appellants admit in their brief, however, that regardless of the language in the deeds, Granville "holds title to one square acre in the [quarter section]." Brief for appellants at 4. Appellants paid property taxes upon the entire quarter section until 2001, at which time, the cemetery property was taken off the tax rolls.
In 1976, appellants installed and began to operate a center-pivot irrigation system on the quarter section, and they have continued to operate the irrigation system annually, on a seasonal basis, since it was installed. When in operation, the irrigation system crosses a portion of the cemetery property. The two wheels that carry the last tower of the pivot system travel in a regular path across portions of the cemetery property, and the record shows that these wheels have left well-worn tracks as a result of crossing the cemetery grounds. Although appellants assert that the wheels of the pivot system do not cross any graves, they acknowledge that "irrigation pipe and sprinklers pass over the gravesites." Brief for appellants at 5.
On November 13, 2003, appellants filed their quiet title complaint, seeking a prescriptive easement across the cemetery property to operate their center-pivot irrigation system. Granville filed an answer, which in summary denied that appellants were entitled to the easement. Following discovery, the parties filed cross-motions for summary judgment. The cross-motions for summary judgment came on for an evidentiary hearing on August 13, 2004. Numerous witnesses testified by deposition and affidavit, including Mary Schott, a descendent of several persons buried in the cemetery.
On December 30, 2004, the district court filed its memorandum order, sustaining Granville's motion for summary judgment, overruling appellants' motion for summary judgment, and dismissing appellants' complaint. In its order, the district court noted that it had reviewed the statutes governing cemetery associations. The court determined that under those statutes, cemetery associations possessed several characteristics with regard to cemetery property ownership that were similar to characteristics possessed by public entities. Those characteristics included the cemetery association's authority to condemn property, restrictions on the alienation of cemetery property, and the tax-exempt status of cemetery property. The district court noted that pursuant to Neb. Rev.Stat. § 39-1404 (Reissue 2004), adverse possession actions, such as an action for a prescriptive easement, cannot be maintained against governmental properties. Given the public nature of certain characteristics possessed by cemetery associations with regard to cemetery property, the district court reasoned that property owned by cemetery associations was in the nature of public property and, thus, was not subject to prescription. As a result, the court concluded that appellants were not entitled to a prescriptive easement against Granville's cemetery property to operate their irrigation system. Appellants filed their appeal.
On appeal, appellants assign three errors that can be restated as one. Appellants claim, restated, that the district court erred in sustaining Granville's motion for summary judgment, denying appellants' motion for summary judgment, and dismissing appellants' quiet title complaint.
Summary judgment is proper when the pleadings and evidence admitted at the hearing 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. Cole v. Isherwood, 271 Neb. 684, 716 N.W.2d 36 (2006). The interpretation of a statute presents a question of law. See State ex rel. Musil v. Woodman, 271 Neb. 692, 716 N.W.2d 32 (2006). When an appeal calls for statutory interpretation, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006).
The issue presented in this case is whether appellants can obtain a prescriptive easement for the purpose of operating irrigation equipment over property that is held by a cemetery association and that has been and continues to be used for human burial purposes. Critical to our analysis in this case is the fact that this cemetery has not lost its character as a burial place throughout its existence.
On appeal, appellants challenge the district court's decision granting Granville's motion for summary judgment, denying appellants' motion for summary judgment, and dismissing appellants' quiet title action seeking the prescriptive easement. As noted above, the district court reasoned, in part, that given the provisions of the statutes governing cemetery associations, cemetery property was of a "public nature" and that thus, the property was afforded protection from a claim of prescriptive rights pursuant to § 39-1404, which provides:
No privilege, franchise, right, title, right of user, or other interest in or to any street, avenue, road, thoroughfare, alley or public grounds in any county, city, municipality, town, or village of this state, or in the space or region under, through or above such street, avenue, road, thoroughfare, alley, or public grounds, shall ever arise or be created, secured, acquired, extended, enlarged or amplified by user, occupation, acquiescence, implication, or estoppel.
Upon due consideration, we conclude under the facts of this case that given the statutes governing cemetery associations as well as other statutes, and given certain principles regarding property law and the law of cemetery property, the district court did not err. We affirm the district court's decision.
Appellants claim a prescriptive easement over the cemetery association's property. In considering appellants' claim of a prescriptive easement, we refer initially to certain principles of ordinary property law. We have noted that the use and enjoyment that will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession that will give title to real estate. See Lake Arrowhead, Inc. v. Jolliffe, 263 Neb. 354, 639 N.W.2d 905 (2002) (citing Harders v. Odvody, 261 Neb. 887, 626 N.W.2d 568 (2001)). A party...
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