Royal v. McKee
298 Neb. 560
| Neb. | 2017Background
- Kevin Royal sued to quiet title to a 200-foot railroad right-of-way running through his land, claiming fee title by adverse possession; Omaha Public Power District (OPPD) counterclaimed it had acquired fee by adverse possession.
- Earlier proceedings established an 1869 condemnation created a railroad easement; BNSF obtained and later quitclaimed rights to OPPD in 1998; several deeds transferring Royal’s property expressly excluded the right-of-way.
- Default was entered against all prior owners (served by publication) who did not appear; the district court’s default order extinguished their claimed interests.
- Trial evidence: Royal and predecessors used portions (mostly outer 50 feet) of the right-of-way intermittently for farming, pasturing, fence maintenance, tree/brush removal, and recreation; OPPD used and maintained the line for railroad-related purposes and later installed transmission lines circa 2007.
- The district court denied both Royal’s and OPPD’s adverse-possession claims; Royal appealed and OPPD cross-appealed; the Supreme Court affirmed both denials but vacated the portion of the default extinguishing prior owners’ rights as an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Royal) | Defendant's Argument (OPPD) | Held |
|---|---|---|---|
| Whether Royal can quiet title to the 200-foot ROW by adverse possession | Royal argued continuous, notorious, exclusive farming and other uses for statutory period gave title | OPPD argued its possession/uses prevented hostility and Royal’s use was sporadic and not exclusive | Court: Royal failed to prove all elements (use was sporadic, limited largely to outer 50 feet; credibility issues); claim denied |
| Whether OPPD acquired fee title by adverse possession | N/A (OPPD cross-claimed fee by adverse possession) | OPPD argued long-term control, maintenance, leasing, and railroad uses supported adverse possession | Court: OPPD’s railroad/easement uses were permissive/incidental; transmission-line use post-2007 was <10 years when claim filed—no adverse possession established |
| Effect of statute (Neb. Rev. Stat. § 39-1404) barring acquisition of public-way interests by user | Royal: § 39-1404 inapplicable because he seeks title to land not affecting OPPD’s easement | OPPD: statute bars acquisition from a political subdivision by adverse possession | Court: § 39-1404 irrelevant here because OPPD only holds an easement and Royal did not seek to extinguish OPPD’s easement |
| Validity/effect of default extinguishing prior owners’ interests | Royal treated default as clearing prior title so his claim could succeed | OPPD agreed to entry but case proceeded on merits between OPPD and Royal | Court: Default extinguishing prior owners’ rights produced illogical gap if neither adverse-possession claim succeeded; vacated that part of the default as an abuse of discretion |
Key Cases Cited
- Poullous v. Pine Crest Homes, 293 Neb. 115 (standard of review in equity actions)
- Klein v. Oakland/Red Oak Holdings, 294 Neb. 535 (statute barring acquisition of public-way interests by user)
- Turbines Ltd. v. Transupport, Inc., 285 Neb. 129 (default-judgment principles)
- State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113 (rule on entering default against some defendants when inconsistent judgments may follow)
- Fischer v. Grinsbergs, 198 Neb. 329 (permissive use is not adverse)
- Gerberding v. Schnakenberg, 216 Neb. 200 (permissive use retains character until notice of claim is given)