The appellate court found that the record showed the plaintiffs had used Road 2 more broadly than the limit the trial court created and found the limit was not supported by substantial evidence. The facts show that the plaintiffs used Road 2 often with ATVs and small machinery that they would not have been able to use now, and they would be much more limited in how often they could use the road. The plaintiffs argued the conclusion was not supported by substantial evidence and that the trial court ignored uncontradicted evidence. The plaintiffs’ sole argument on appeal was that the trial court erred by limiting the plaintiffs’ use of Road 2 to only moving cattle back and forth on it a few times a year. The plaintiffs appealed their limited scope of use to Road 2 and the defendants appealed multiple findings about the easements. A later bench trial resulted in a finding that the plaintiffs had limited use of Road 2 and in addition to prescriptive rights found by the jury, the plaintiffs had easements of estoppel over Roads 1 and 2, and easements by necessity over Road 3 and 4. The jury determined that the plaintiffs had prescriptive easements over all four roads. The plaintiffs claimed they had easement rights to cross four roads the defendants owned. Trial Court Erred in Finding Multiple Types of Easements Over the Same Roads. Further, the plaintiff did not mitigate damages by installing a temporary fence to control their cattle. The claim for damages for not being able to graze cattle was rejected as well, because the amount of damages was just a guess and not a mathematical calculation the court could honor. The plaintiff’s evidence of damages did not conform with what they claimed they lost. § 34-115 and that is what the plaintiff was trying to claim damages for. However, the appellate court affirmed the trial court’s finding that the plaintiff could not be awarded damages because the destroyed fence was not a legal fence defined by Neb. The appellate court found there was no evidence from 1990 to 2018 that showed the plaintiff’s use was not exclusive and reversed the trial court on this issue. The plaintiff’s physical actions of farming and ranching on the property were visible and conspicuous enough to be considered notorious without an enclosure. In addition, the appellate court reversed the trial court and held a fence is not required to satisfy the notorious requirement of the statute. The appellate court acknowledged that the plaintiff had actually possessed the property because he regularly maintained it, farmed it and kept cattle on it occasionally for at least 10 years, but there was dispute about whether the use was exclusive based on the parties’ conflicting testimony. On appeal, the appellate court focused mainly on the trial court decision relating to the disputed ground not marked by a fence. The trial court also determined that the defendant had not trespassed as it was their own ground and did not award damages to the plaintiff.
The trial court found the plaintiff did adversely possess the portion of the disputed ground, but not the portion without a fence. A small portion of the disputed property was still marked by a fence. The plaintiff had used the property for farming and ranching even after the fence that marked the improper boundary partially fell. A survey indicated that the old fence was not on the property line and extended onto the defendant’s property. The trial court held the plaintiff did not notoriously possess the property because no fence used as a boundary existed. Trial testimony showed that a fence existed before the plaintiff’s purchase in 1990, but from 1990 to 2019 the remains of the old fence were not used as a boundary, and the plaintiff did not rebuild the fence to mark the property. The plaintiff also sued for trespass and related damages for the defendant’s removal of a new fence.
Under that statute, the plaintiff had to show actual, continuous, exclusive, notorious, and adverse possession of the disputed property for at least 10 years. §34-301 to quiet title to disputed land under the doctrine of adverse possession. This page contains summaries of significant recent court opinions involving legal issues related to the use of real property of importance to agricultural producers and rural landowners Posted May 1, 2023Īdverse Possession Can Be Established Without Existing Fence. The plaintiff sued under Neb.
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