State, Dept. of Roads v. Kilberg, 39411

• Decision Date: 05 December 1974
• Docket Number: No. 39411,39411
• Citation: 192 Neb. 661,223 N.W.2d 665
• Parties: STATE of Nebraska, DEPARTMENT OF ROADS, Appellant, v. Raymond L. KILBERG and Darlene Kilberg, husband and wife, et al., Appellees, Nebraska State Bank, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 665

223 N.W.2d 665

192 Neb. 661

STATE of Nebraska, DEPARTMENT OF ROADS, Appellant, v. Raymond L. KILBERG and Darlene Kilberg, husband and wife, et al., Appellees Nebraska State Bank, a corporation, Appellee.

No. 39411.

Supreme Court of Nebraska.

Dec. 5, 1974.

Syllabus by the Court

To establish a road or highway by prescription there must be use by the general public under a claim of right, adverse to the owner of the land, of some particular or defined line of travel. The use must be uninterrupted and without substantial change for a period of time necessary to bar an action to recover the land.

Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., Asst. Atty. Gen., Gary R. Welch, and Dale L. Babcock, Jr., Special Asst. Attys. Gen., Lincoln, for appellant.

Smith, Smith & Boyd, South Sioux City, for Kilberg.

Norris G. Leamer, South Sioux City, for Nebraska State Bank.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

McCOWN, Justice.

The State of Nebraska, Department of Roads, commenced this injunction proceeding to enjoin the defendants from encroaching upon a certain strip of land allegedly held by the State for public highway right-of-way purposes, and to require the defendants to remove fencing, a sign, and any other property from the disputed strip. The District Court found generally in favor of the defendants, and that the evidence was insufficient to establish plaintiff's right to the disputed strip, and dismissed plaintiff's petition.

The strip of land involved in this controversy is located on the north side of U.S. Highway No. 20 in Section 29, Township 29 North, Range 9 East of the 6th P.M., Dakota County, Nebraska. The defendants' claims stem from a warranty deed dated November 23, 1965, from Philip F. Verzani. The deed conveyed the west 22 rods of the northeast quarter of the northeast quarter of Section 29, Township 29 North, Range 9 East of the 6th P.M., Dakota County, Nebraska 'subject to right-of-way of U.S. Highway 20 which occupies the south 33 feet of this tract.' U.S. Highway No. 20 runs generally east and west at this point. The right-of-way is 66 feet wide, 33 feet on either side of the centerline. As it crosses the portion of Section 29 immediately south of the defendant's property, U.S. Highway No. 20 is angling slightly to the south. At a point immediately south of the east line of defendant's property, the centerline of U.S. Highway No. 20 is approximately 64 feet south of the south line of the northeast quarter of the northeast quarter. Twenty-two rods to the west, at a point south of the west line of defendant's property, the centerline of U.S. Highway No. 20 is approximately 72 feet south of the south line of the northeast quarter of the northeast quarter. The south line of the northeast quarter of the northeast quarter is referred to as the 16th section line in some of the testimony.

The defendants and their predecessors in title, for a period of over 40 years, treated a fence along the north line of the right-of-way actually occupied by U.S. Highway No. 20 as the south boundary of defendant's property. Shortly after the defendants took possession of the property, they tore out the old fence and put in a chain link fence, but the new fence was set back 15 feet to the north to allow for planting trees and shrubbery in the future.

The State contends that a right-of-way for a prior road known as the old Island Road had formerly been located on the 16th section line, but at sometime prior to 1925 the location of the road was changed and moved to the south to the present location of U.S. Highway No. 20. The State introduced in evidence a plat from an old plat book dated approximately 1895 which showed the Island Road on the 16th section line between the northeast quarter of the northeast quarter and the southeast quarter of the northeast quarter. The plat book was not a part of the official records of the county clerk's office. The county clerk testified that all the official records known as road records were in his possession and that there is nothing in the indexing of these volumes that makes reference to that Island Road. The State failed to introduce any evidence of any official action establishing the Island Road, either by consent or by resolution. The State conceded on oral argument that a road on the 16th section line...