Royal v. McKee
905 N.W.2d 51
Neb.2017Background
- Kevin Royal sued to quiet title to a 200-foot railroad right-of-way running through his property, claiming fee title by adverse possession; Omaha Public Power District (OPPD) counterclaimed, also asserting fee title by adverse possession.
- Prior proceedings established that the right-of-way originated from an 1869 condemnation, that BNSF (and predecessors) continuously used it for railroad purposes, and that OPPD acquired the railroad’s interest by quitclaim in 1998 and held an easement (not fee) per earlier district-court findings.
- Default was entered against prior record owners (served by publication) and the court’s default order stated those defendants relinquished any rights; OPPD remained a defendant and contested title.
- Evidence: Royal and predecessors used portions of the outer 50 feet of the ROW sporadically for farming, grazing, fence maintenance, and recreation; OPPD used the line for rail operations, storage, and in 2007 constructed transmission lines across the ROW.
- District court found neither Royal nor OPPD proved the five elements of adverse possession for the full 200-foot strip and denied both claims; the court’s prior default extinguishing prior owners’ rights was also entered.
- On appeal the Nebraska Supreme Court affirmed the denial of adverse-possession claims but vacated the portion of the default order that extinguished the prior owners’ property rights as leading to an illogical result.
Issues
| Issue | Plaintiff's Argument (Royal) | Defendant's Argument (OPPD) | Held |
|---|---|---|---|
| Whether § 39-1404 bars Royal’s adverse-possession claim against OPPD (political subdivision exception) | Royal asserted his adverse-possession claim could quiet fee title despite statutory language | OPPD argued land owned by political subdivisions cannot be converted by adverse possession under § 39-1404 | Court: § 39-1404 inapplicable here because OPPD already held only an easement and Royal did not seek to extinguish OPPD’s easement |
| Whether the entry of default against prior owners entitled Royal to quiet title without proving adverse possession | Royal relied on default to extinguish prior owners’ interests and thereby secure title | OPPD and court noted default alone cannot resolve competing claims between Royal and OPPD | Court: Default extinguishing prior owners’ rights was an abuse of discretion and vacated that portion; default did not obviate need to prove adverse possession |
| Whether OPPD adversely possessed the ROW (10‑year statutory period and elements) | N/A (OPPD cross-claimed fee by adverse possession) | OPPD relied on long-term use, maintenance, and post-1998 control, including construction of transmission lines | Court: OPPD’s railroad-purpose uses were permissive/incidental and not hostile; transmission-line use post‑2007 was insufficiently longstanding to meet the 10‑year requirement — OPPD failed to prove adverse possession |
| Whether Royal adversely possessed the full 200-foot ROW (actual, continuous, exclusive, notorious, adverse, 10 years) | Royal argued routine farming and other uses over many years established the elements for at least the outer portions (esp. outer 50 feet) | OPPD argued Royal’s use was sporadic, with tacit permission and insufficient exclusivity/notoriety to be adverse | Court: Evidence was insufficient as to continuity, exclusivity, notoriety, and particularity of the area claimed; trial-court credibility findings supported — Royal failed to prove adverse possession |
Key Cases Cited
- Poullous v. Pine Crest Homes, 293 Neb. 115 (discusses de novo review in equity actions)
- Turbines Ltd. v. Transupport, Inc., 285 Neb. 129 (default-judgment principles and limitations)
- Klein v. Oakland/Red Oak Holdings, 294 Neb. 535 (statutory prohibition on acquiring interests in public ways by user/acquiescence)
- State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113 (rule against obtaining title in public grounds by user/acquiescence)
- Fischer v. Grinsbergs, 198 Neb. 329 (permissive use cannot ripen into an easement by adverse use)
- Gerberding v. Schnakenberg, 216 Neb. 200 (permissive use retains character until notice of hostile claim is given)