Equity: Quiet Title. A quiet title action
sounds in equity.
Equity: Appeal and Error. On appeal from an
equity action, an appellate court tries factual questions de
novo on the record and, as to questions of both fact and law,
is obligated to reach a conclusion independent of the
conclusion reached by the trial court, provided that where
credible evidence is in conflict in a material issue of fact,
the appellate court considers and may give weight to the fact
that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another.
Adverse Possession: Proof: Time. A party
claiming title through adverse possession must prove by a
preponderance of the evidence that the adverse possessor has
been in (1) actual, (2) continuous, (3) exclusive, (4)
notorious, and (5) adverse possession under a claim of
ownership for the statutory period of 10 years.
Actions: Default Judgments: Complaints: Damages:
Proof. Where a defendant is in default, the
allegations of the complaint are to be taken as true against
him, except allegations of value and amount of damage. Thus,
if the complaint states a cause of action, the plaintiff is
entitled to judgment without further proof.
Easements: Adverse Possession: Notice. Under
Nebraska law, a permissive use is not adverse and cannot
ripen into an easement. If a use begins as a permissive use,
it retains that character until notice that the use is
claimed as a matter of right is communicated to the owner of
the servient estate.
Neb. 561] Appeal from the District Court for Otoe County:
Jeffrey J. Funke, Judge. Affirmed in part, and in part
J. Pepperl, PC, L.L.O., for appellant.
C. Laughlin and Jacqueline M. DeLuca, of Fraser Stryker, PC,
L.L.O., for appellee Omaha Public Power District.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
Royal filed a quiet title action against his predecessors in
interest and against Omaha Public Power District (OPPD)
alleging fee title ownership of certain land along the
railroad right-of-way passing through his property as a
result of adverse possession. OPPD filed a counterclaim,
alleging that it had acquired fee simple title to that same
land, also under a theory of adverse possession.
district court granted Royal's motion for entry of
default as to his predecessors in interest, but following a
trial, denied both Royal's and OPPD's claims of title
under adverse possession. Royal appealed, and OPPD
cross-appealed. We affirm in part, and in part vacate.
filed a second amended complaint alleging that he was the
owner of certain real property located in Otoe County,
Nebraska. He further alleged that OPPD possessed a railroad
right-of-way easement which ran through his property.
Finally, Royal alleged that he obtained title of the railroad
right-of-way by adverse possession and that title should be
quieted in his name.
Neb. 562] OPPD filed an answer and affirmative defenses, and
a counterclaim and cross-claim. OPPD alleged that it was the
owner of 100 feet on either side of the center of the rail
line running through Royal's property, that OPPD acquired
this land by adverse possession, and that title should be
quieted in its name.
orders from the Otoe County District Court in this litigation
predate the order at issue on appeal. In one such order,
Royal had filed an action against OPPD alleging damages
incurred as a result of its construction of an electricity
transmission line within the railroad right-of-way. The
district court held that Midland Pacific Railway Company,
later Burlington Northern and Santa Fe Railway Company
(BNSF), had obtained a railroad right-of-way by eminent
domain in 1869 and that the railroad right-of-way had been
continuously used since that time for the operation of a
railroad. OPPD obtained the railroad's right-of-way from
BNSF by quitclaim deed in 1998. The district court held that
OPPD did not own fee title to the right-of-way, but acquired
an easement in the right-of-way that "traverses
across" Royal's property.
case, the district court held that OPPD's erection of
transmission lines from Lincoln, Nebraska, to Nebraska City,
Nebraska, along the railroad line was not an incidental use
associated with the operation of a railroad line, but instead
was a separate and distinct activity which was not part of
the rights acquired through the original 1869 condemnation
order issued earlier in this litigation provided that as a
result of the deeds which ultimately transferred Royal's
property to him, Royal was not the titled owner of the
railroad right-of-way. As such, Royal's appeal seeking
damages from a board of appraisers as a result of the
construction of the transmission line was dismissed.
early in the matter on appeal, an order was filed entering
default against all defendants except OPPD. The district
court then concluded that the "sole determination left
to [298 Neb. 563] be made ... is whether either Royal or OPPD
have proven by a preponderance of the evidence" that
they have acquired title to the railroad right-of-way by
ownership at issue dates back to the condemnation action
granting OPPD's predecessor in interest a railroad
right-of-way easement in 1869. OPPD took possession of its
predecessor's interest in 1998.
January 4, 1930, Loma McKee and Edmund R. McKee, wife and
husband, and Lois B. Nelson and Obel T. Nelson, wife and
husband, conveyed a portion of the land now belonging to
Royal to William E. Beecham. This conveyance specifically
excluded the right-of-way. On March 11, 1944, Loma McKee (now
widowed) and Lois B. Bennefield, formerly Lois B. Nelson, and
her husband Benny Bennefield, conveyed the remaining portion
of Royal's property to John McCarthy, again specifically
excluding the railroad right-of-way. Through various deeds
and conveyances from 1987 to 2012, Royal's property was
conveyed to him. Those deeds and conveyances always excluded
the railroad right-of-way.
result of the conveyances specifically excluding the railroad
right-of-way, Loma McKee and Lois Bennefield continued to
hold fee simple title to that portion of the subject property
located within the railroad right-of-way. Any interest that
Loma McKee, Lois Bennefield, or their heirs, devisees,
legatees, or personal representatives may have had was
extinguished by the order of default entered March 17, 2015.
Use of Property
record shows that Royal lived in a farmhouse on the property
adjacent to the right-of-way on and off from 1989 to 2012.
Royal testified that in 1989, he began to assist his father
and uncle in farming the property. In conjunction with the
farming operation, during that period of time, parts of the
right-of-way were utilized by Royal's father and uncle
[298 Neb. 564] for uses such as driving farm equipment in the
right-of-way. planting and harvesting crops in the
right-of-way, using the right-of-way to pasture and chase
livestock and to drive four-wheelers, and using the
right-of-way to store hay, hunt, and hike, and to access the
adjacent creek. Royal's father and uncle also removed
trees and brush from the right-of-way, mowed ...