Toelle v. Preuss
| Decision Date | 19 May 1961 |
| Docket Number | No. 34938,34938 |
| Citation | 172 Neb. 239,109 N.W.2d 293 |
| Parties | Edwin C. TOELLE, Appellee, v. Albert C. PREUSS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
If an owner of an easement, by his own act, renders the use of the easement impossible, or himself obstructs it in a manner inconsistent with its further enjoyment, the easement will be considered as abandoned by him.
H. M. Nicholson, Wisner, for appellant.
Moodie & Moodie, West Point, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action for equitable relief brought by the appellee as plaintiff against the appellant as defendant to enjoin the latter from interfering with the plaintiff's use of an easement across the defendant's land and quieting the title to the easement in the plaintiff. The district court found for the plaintiff and granted the relief sought. The defendant's motions for new trial were overruled and the defendant appealed.
This being an appeal in an action in equity, it is the duty of the court to try the issues of fact complained of de novo and reach an independent conclusion without reference to the findings of the district court. Section 25-1925, R.R.S.1943.
The answer alleged that the plaintiff had abandoned the easement claimed and that it was extinguished. The assignments of error which require consideration are those relating to the finding of the trial court that the easement had not been abandoned and extinguished.
There is very little conflict in the evidence in this case. The plaintiff is the owner of a 144-acre tract of land in Cumming County, Nebraska, which will be referred to herein as the plaintiff's land. In 1949 the plaintiff purchased an 80-acre tract of land lying directly west of the 144-acre tract and north of the defendant's land. The plaintiff concedes that at this time there is no issue before the court with respect to the allegations of the amended petition claiming an easement of way appurtenant to this 80-acre tract. Therefore, it will not be necessary to refer to this 80-acre tract of land again in the opinion.
The defendant owns a tract of land south and west of the plaintiff's land. A county road runs to the southwest corner of the defendant's land. A road or trail then runs generally northeast from the southwest corner of the defendant's land to a fork. At the fork, one branch runs east to the buildings on the defendant's land. The other branch runs north and then east to a point on the west boundary of the plaintiff's land.
Before 1945 the Elkhorn River crossed the west boundary of the plaintiff's land near the northwest corner of the land and then flowed generally to the east, south, and west, describing a curve or loop and separating the plaintiff's land into two tracts. That part lying west of the river at different times varied in area from 10 to 40 acres. Prior to 1945 the road across the defendant's land was the only means of access that the plaintiff had to his land lying west of the river. The road was used primarily for the purpose of taking cattle to and from this land. The evidence establishes that prior to 1945 the plaintiff had acquired by prescription the right to use the road running from the southwest corner of the defendant's land to that part of ...
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Hillary Corp. v. U.S. Cold Storage, Inc.
...Masid v. First State Bank, supra; First Investment Co. v. State Fire Marshal, 175 Neb. 66, 120 N.W.2d 549 (1963); Toelle v. Preuss, 172 Neb. 239, 109 N.W.2d 293 (1961). See, also, Lackaff v. Bogue, 158 Neb. 174, 62 N.W.2d 889 (1954). Thus, we determine that Hillary met its burden of rebutti......
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Mueller v. Bohannon
...it in a manner inconsistent with its further enjoyment, the easement will be considered as abandoned by him." Toelle v. Preuss, 172 Neb. 239, 241-42, 109 N.W.2d 293, 294 (1961). Bohannon's construction of the fence, then, is objective evidence of After considering the Muellers' arguments an......
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Masid v. First State Bank
...were vacant for a period of years in excess of the prescriptive period. Agnew v. City of Pawnee City, supra. Unlike Toelle v. Preuss, 172 Neb. 239, 109 N.W.2d 293 (1961), the plaintiff herein did not by his own act render the use of the easement impossible, nor did he obstruct it in a manne......
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Davco Realty Co. v. Picnic Foods, Inc., 40836
...864. The owner of an easement may abandon it by some affirmative act which renders the use of the easement impossible. Toelle v. Preuss, 172 Neb. 239, 109 N.W.2d 293. Title to real estate is not lost by a mere failure to assert it. Hadley v. Platte Valley Cattle Co., 143 Neb. 482, 10 N.W.2d......