Royal v. McKee
298 Neb. 560
| Neb. | 2017Background
- Royal sued to quiet title to a 200-foot railroad right-of-way running through his Otoe County property, claiming fee title by adverse possession; OPPD counterclaimed it had acquired fee by adverse possession.
- Prior orders held the railroad’s predecessor obtained an easement by condemnation in 1869; BNSF conveyed its interest to OPPD by quitclaim in 1998, and earlier deeds transferring Royal’s land expressly excluded the right-of-way.
- Default was entered against all prior record owners (service by publication); the district court’s default order extinguished their claimed interests but left OPPD as the only active defendant.
- At bench trial, evidence showed: sporadic farming and other uses by Royal and his predecessors largely in the outer 50 feet; OPPD’s continuous railroad-related uses and maintenance of the line and construction of transmission lines circa 2007.
- The district court denied both adverse-possession claims; Royal appealed and OPPD cross-appealed. The Supreme Court affirmed the denials but vacated the portion of the default order that extinguished prior owners’ rights as an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Royal) | Defendant's Argument (OPPD) | Held |
|---|---|---|---|
| Effect of the default against prior owners | Default extinguished prior owners’ interests, leaving Royal able to quiet title by adverse possession | Default should not resolve competing claims between Royal and OPPD; extinguishing prior owners produced illogical result | Vacated the portion of the default order that extinguished prior owners’ rights; trial court did not err in refusing to quiet title for Royal on that basis |
| Whether OPPD acquired fee by adverse possession | (n/a) OPPD claimed it acquired fee title to 100 ft on each side by adverse possession | OPPD relied on long-term use, maintenance, and transmission-line construction | Denied: OPPD’s historic railroad uses were permissive/incidental and not hostile; transmission-line use postdated 10-year adverse-possession period alleged, so OPPD failed to prove adverse possession |
| Whether Royal acquired fee by adverse possession | Royal argued continuous, notorious, and exclusive uses (farming, pasture, fence maintenance, tree removal) established 10-year adverse possession | OPPD argued its permissive allowance of farming and its own use defeated hostility and continuity needed for adverse possession | Denied: Court (on de novo review, giving trial-court deference on credibility) found Royal’s and predecessors’ uses were sporadic, not sufficiently continuous, exclusive, or notorious to prove adverse possession |
| Applicability of Neb. Rev. Stat. § 39-1404 (political-subdivision bar) | Royal: § 39-1404 does not prevent his claim because OPPD holds only an easement | OPPD: as a political subdivision, § 39-1404 prevents title loss by adverse possession | Court: § 39-1404 not applicable here because OPPD was held to own only an easement and Royal did not seek to extinguish that easement; court rejected § 39-1404 defense to Royal’s suit |
Key Cases Cited
- Poullous v. Pine Crest Homes, 293 Neb. 115 (discusses de novo review in equity appeals)
- Turbines Ltd. v. Transupport, Inc., 285 Neb. 129 (default-judgment allegations taken as true; exceptions and limits)
- Klein v. Oakland/Red Oak Holdings, 294 Neb. 535 (statutory prohibition against acquiring public interests by adverse possession)
- State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113 (court should avoid entering default against some defendants where inconsistent judgments could result)
- Fischer v. Grinsbergs, 198 Neb. 329 (permissive use is not adverse for acquiring easement or title)
- Gerberding v. Schnakenberg, 216 Neb. 200 (use that begins permissively retains that character until repudiation is communicated)