Royal v. McKee, 298 Neb. 560

Background

Royal filed a quiet-title action claiming fee title by adverse possession to a 200-foot railroad right-of-way traversing his property; OPPD counterclaimed that it held fee title by adverse possession.
Prior litigation and recorded deeds showed the 1869 condemnation created a railroad easement; deeds explicitly excluded the right-of-way and prior owners retained fee title to that strip. OPPD obtained its predecessor’s interest by quitclaim deed in 1998.
Default was entered against all prior owners (service by publication); the district court’s default order extinguished their rights but left OPPD as the only appearing defendant.
Factual record: Royal and his predecessors occasionally farmed, mowed, removed brush, grazed livestock, stored hay, and used outer portions (roughly outer 50 feet) of the ROW sporadically; OPPD and authorized railroads continuously used the line for rail purposes and erected transmission lines along the ROW circa 2007.
The district court held neither Royal nor OPPD proved adverse possession of the full 200-foot ROW; it also concluded OPPD holds an easement (not fee). The Supreme Court affirmed those holdings but vacated the portion of the default extinguishing prior owners’ rights.

Issues

Issue	Plaintiff's Argument (Royal)	Defendant's Argument (OPPD)	Held
Whether default extinguishing prior owners’ title could permit quieting title in Royal	Default judgment extinguished prior owners’ interests, so Royal argues he should obtain title by adverse possession against remaining parties	OPPD preserved its interest by appearing; extinguishing prior owners without resolving dispute with OPPD leads to inconsistency	Court vacated the portion of the default that extinguished prior owners’ rights as an abuse of discretion; default did not automatically quiet title in Royal
Whether OPPD acquired fee title by adverse possession	N/A (Royal denies OPPD has fee)	OPPD contends it adversely possessed the ROW (claims use since 1998, transmission line in 2007)	Court affirmed district court: OPPD’s railroad use was permissive/incidental and transmission-line use postdated 10-year statutory period claimed; OPPD did not meet adverse-possession elements
Whether Royal acquired fee title by adverse possession to the 200-foot ROW	Royal contends he (and predecessors) used and maintained outer portions for farming, grazing, and removal of brush, sufficient to prove adverse possession of the ROW	OPPD argues Royal’s use was sporadic, limited mostly to outer 50 feet, often permissive, and insufficiently continuous, exclusive, or notorious for 10 years	Court affirmed district court: Royal failed to prove actual, continuous, exclusive, notorious, and adverse possession of the full 200 feet for 10 years
Whether § 39-1404 bars Royal’s adverse-possession claim against a political subdivision	Royal argues § 39-1404 does not apply because OPPD only has an easement and Royal does not seek to extinguish the easement	OPPD argues statute prohibits acquisition of public-owned land by adverse possession	Court held § 39-1404 inapplicable on these facts because OPPD only holds an easement and Royal conceded OPPD’s easement ownership

Key Cases Cited

Poullous v. Pine Crest Homes, 293 Neb. 115, 876 N.W.2d 356 (appellate de novo review in equity) (standard for de novo review in equity cases)
Klein v. Oakland/Red Oak Holdings, 294 Neb. 535, 883 N.W.2d 699 (statutory bars to acquiring certain public interests by user/acquiescence)
State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113, 602 N.W.2d 432 (trial court discretion re: default when inconsistent judgments possible)
Turbines Ltd. v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767 (default-judgment principles — allegations taken as true except damages)
Fischer v. Grinsbergs, 198 Neb. 329, 252 N.W.2d 619 (permissive use cannot ripen into adverse possession)
Gerberding v. Schnakenberg, 216 Neb. 200, 343 N.W.2d 62 (permissive use retains character until notice of adverse claim)