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Arnold v. Arnold

Court of Appeals of Nebraska

June 21, 2016

Marvin Arnold, appellee,
v.
Harvey Arnold, appellant

         1. Easements: Equity. An adjudication of rights with respect to an easement is an equitable action.

         2. Easements: Real Estate: Conveyances. An easement by implication from former use arises only where (1) the use giving rise to the easement was in existence at the time of the conveyance subdividing the property, (2) the use has been so long continued and so obvious as to show that it was meant to be permanent, and (3) the easement is necessary for the proper and reasonable enjoyment of the dominant tract.

         3. Easements: Proof. The degree of necessity required to prove the existence of an implied easement from former use is reasonable necessity.

         4. Easements: Words and Phrases. Reasonable necessity means that the easement is necessary for the proper and reasonable enjoyment of the dominant tract as it existed when the severance was made.

         5. Easements. Every easement carries with it by implication the right of doing whatever is reasonably necessary for the full enjoyment of the easement itself, including the right of access to make repairs and enter upon the servient estate for this purpose.

         6. ___. An owner of a dominant tract may not inflict any unnecessary injury to the servient tract in making easement repairs.

         Appeal from the District Court for Frontier County: Donald E. Rowlands, Judge.

          Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier & Byrne, P.C., for appellant.

          Sally A. Rasmussen and Patricia L. Vannoy, of Mattson Ricketts Law Firm, for appellee.

         [24 Neb.App. 100] Moore, Chief Judge, and Inbody and Riedmann, Judges.

          RIEDMANN, Judge.

         INTRODUCTION

         Harvey Arnold appeals from an order of the district court for Frontier County, Nebraska, determining the boundaries of easements across his land for access to and repair of an irrigation well and underground pipeline. Following our de novo review, we find no error in the determinations of the district court and, accordingly, affirm its judgment.

         BACKGROUND

         Harvey and Marvin Arnold are brothers who own and farm adjacent parcels of land in Section 23, Township 6 North, Range 26 West of the 6th P.M., Frontier County, Nebraska. Harvey owns the southeast quarter of Section 23 and Marvin owns the west half of Section 23. Harvey and Marvin have farmed their respective tracts of land under lease agreements with their father, Dorrance ...


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