NAMN, LLC v. Morello ( 2015 )

- 462 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
NAMN, LLC, appellee, v. Bernard
J. Morello, appellant.
___ N.W.2d ___
Filed July 24, 2015. No. S-14-861.
1. Declaratory Judgments: Equity: Appeal and Error. In reviewing an
equity action for a declaratory judgment, an appellate court tries factual
issues de novo on the record and reaches a conclusion independent of
the findings of the trial court, subject to the rule that where credible
evidence is in conflict on material issues of fact, the reviewing court
may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over another.
2. Easements: Real Estate: Conveyances: Time. An easement by impli-
cation from prior use arises only when (1) the use giving rise to the
easement was in existence at the time of the conveyance subdividing the
property, (2) the use has been so long continued and so obvious as to
show it was meant to be permanent, and (3) the easement is necessary
for the proper and reasonable enjoyment of the dominant tract.
3. Easements: Conveyances: Appurtenances. Once an implied easement
is created, it becomes appurtenant to the dominant tenement and remains
in existence upon a subsequent conveyance unless and until it is some-
how terminated.
4. Easements: Proof. Reasonable necessity is required for implied ease-
ments in favor of the grantee (implied by grant) but strict necessity
is required for implied easements in favor of the grantor (implied
by reservation).
5. ____: ____. A greater degree of necessity is required for easement by
necessity than for easement implied from prior use.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed.
- 463 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
Larry R. Forman, of Hillman, Forman, Childers &
McCormack, for appellant.
Damien J. Wright, of Welch Law Firm, P.C., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Bernard J. Morello appeals the order of the district court for
Douglas County which ruled that NAMN, LLC, had a perma-
nent easement implied from prior use over Morello’s property
for vehicle ingress and egress and that NAMN was entitled to
make reasonable upgrades to the easement. Morello asserts,
inter alia, that equitable considerations preclude a judgment
in NAMN’s favor and that NAMN did not make an adequate
showing of necessity to establish an implied easement from
prior use. We affirm.
STATEMENT OF FACTS
Morello owns property at the northwest corner of 42d and
Center Streets in Omaha, Nebraska. NAMN owns property
immediately to the west of Morello’s property. Throughout
this litigation, and hereinafter in this opinion, NAMN’s prop-
erty is referred to as “Lot 9” and Morello’s property is referred
to as “Lot 10.” A residential home is located on Lot 9, and
there are no structures on Lot 10. Lot 10 separates Lot 9 from
42d Street, which is to the east of both properties. Both prop-
erties are bordered on the south by Center Street; however,
a retaining wall that was built by the city of Omaha (City)
stands between Lot 9 and Center Street. At one time, Lots 9
and 10 were both owned by the same person.
NAMN filed this action against Morello in the district
court on June 12, 2013. NAMN sought an order declaring
that a permanent easement exists over Lot 10 as reasonably
necessary to allow vehicular access to Lot 9 from 42d Street.
- 464 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
NAMN also sought an order allowing NAMN to construct a
concrete driveway over a portion of Lot 10 to connect Lot 9
to a curb ramp leading to 42d Street. NAMN sought other
relief, including costs of the action and an injunction prohibit-
ing Morello from interfering with NAMN’s easement. NAMN
alleged that Lot 9 was “‘landlocked,’” because Lot 10 stood
between Lot 9 and 42d Street and the City’s retaining wall
stood between Lot 9 and Center Street. In his answer, Morello
raised various affirmative defenses, including defenses he
described as “negligence” and “equitable estoppel.”
At a bench trial, the court received various pieces of evi-
dence offered by NAMN, including plats, maps, deeds, and
photographs intended to demonstrate the chain of title for the
parties’ respective properties and the situation of each property
with respect to one another and with respect to 42d and Center
Streets. The evidence indicated that Anita Fuentes acquired
title to Lot 9 in 1988, at which time, the City owned Lot 10.
The City deeded Lot 10 to Fuentes in 1993. Fuentes deeded
Lot 9 to other owners in 1999, but she retained ownership of
Lot 10 until 2012.
On May 18, 2012, a sheriff’s deed transferring ownership
of Lot 9 to a business entity was filed, and on July 2, a quit-
claim deed from the business to NAMN was filed. At the time
NAMN acquired Lot 9, the title to Lot 10 was still in Fuentes’
name. However, on August 23, a sheriff’s deed transferring
ownership of Lot 10 to the Land Reutilization Commission of
Douglas County was filed. On August 27, a special warranty
deed from the commission to Morello was filed, and thus,
Morello acquired Lot 10 after NAMN had acquired Lot 9. As
noted, NAMN filed its complaint against Morello in this action
in June 2013.
At trial, NAMN called Jeffrey Rothlisburger as a witness.
Rothlisburger testified that he and his wife were the members
of NAMN. Rothlisburger testified that he is a mortgage broker
and real estate agent and that NAMN owns several residential
properties, including Lot 9. He testified that NAMN bought
Lot 9 with the intent of fixing up the property and reselling
- 465 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
it. Rothlisburger testified that there is a single-family resi-
dence located on Lot 9 but that there is no structure located
on Lot 10. Rothlisburger described Lot 10 as a “postage stamp
[and an] abnormally small-sized lot.” With regard to access
to Lot 9 from Center Street, Rothlisburger testified that there
is no driveway from Center Street to Lot 9 and that it would
not be practical to build such a driveway, because the City had
built a retaining wall on the strip of land located between Lot 9
and Center Street, which strip of land had been deeded to the
City as part of a widening of Center Street. He testified that
Lot 9 was accessible on foot from Center Street, because the
City had built a stairway into the retaining wall.
With respect to access to Lot 9 from 42d Street, which
Lot 9 does not abut, Rothlisburger testified that a curb ramp
was cut into the sidewalk along 42d Street leading onto Lot 10
and that there was gravel on an area running from the curb
ramp west across Lot 10 and onto Lot 9. He testified that the
City had installed a sign on 42d Street north of the curb ramp.
The sign reads “driveways.”
Rothlisburger testified that if one drove a vehicle across
the graveled area on Lot 10 continuing west onto Lot 9 and
then parked, one would be able to enter the house on Lot 9
from the rear through a handicapped accessible entrance and
one would not need to walk around to the front of the house.
Rothlisburger testified that the curb ramp, the “driveways”
sign, and the gravel area were all present at the time he pur-
chased Lot 9. He further testified that there was no street park-
ing allowed on either side of Center Street and no parking on
42d Street within six blocks to a mile of Lot 9.
When asked the purpose for which NAMN needed an ease-
ment over Lot 10, Rothlisburger testified that it was needed
for vehicular access to Lot 9 and its house: “We would simply
have no place to park at all. And the property is set up by the
City this way. And it was — there’s just no other way for it
to work.” Rothlisburger further testified that NAMN had been
using the graveled area on Lot 10 to reach Lot 9 and would
- 466 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
like to pave over the area or at least continue using the gravel
for access to Lot 9.
During Rothlisburger’s testimony, NAMN offered into evi-
dence photographs consistent with his testimony regarding
the relative sizes of Lots 9 and 10, the existence or absence
of structures on each lot, and the presence of gravel on both
lots as well as the “driveways” sign on 42d Street and the
retaining wall on Center Street. NAMN did not call any
other witnesses. Morello did not present any evidence for
the defense.
In the district court’s judgment filed August 26, 2014, it
stated that NAMN sought a declaration that it possessed an
implied easement for ingress and egress across Lot 10 and
sought an order allowing NAMN to construct a concrete drive-
way over that portion of Lot 10 which connects the driveway
ramp off of 42d Street to Lot 9. The court stated that NAMN
asserted two theories to support such relief: (1) an ease-
ment implied from prior use and (2) an easement implied
by necessity.
The court first considered whether the evidence supported
a finding that there was an easement implied from prior use.
The court cited Hillary Corp. v. United States Cold Storage,
250 Neb. 397, 550 N.W.2d 889 (1996), for the proposition that
an easement implied from prior use (sometimes referred to
as “former use”) arises only where (1) the use giving rise to
the easement was in existence at the time of the conveyance
subdividing the property, (2) the use has been so long contin-
ued and so obvious as to show it was meant to be permanent,
and (3) the easement is necessary for the proper and reason-
able enjoyment of the dominant tract. The court considered
each element.
With regard to the first element, the court found that Lots 9
and 10 had both been owned by Fuentes and that the property
was subdivided when Fuentes sold Lot 9 in 1999. The court
further found that it was apparent from photographic and
other evidence that the curb along 42d Street was modified
by a permanent manmade driveway ramp and that Lot 9 was
- 467 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
connected to the driveway ramp via a gravel path running
across Lot 10. The court found that the worn appearance of
the gravel path and the condition of the driveway ramp indi-
cated that they had been present “for years” and most likely
predating the 1999 conveyance of Lot 9 for a significant
amount of time. The court found that the size and nature of
Lot 10 indicated that it would have served Fuentes “very little
purpose . . . beyond offering a means of ingress and egress for
the house located on Lot 9.” The court therefore found that the
use of the easement was in existence at the time the property
was subdivided in 1999.
With regard to the second element, the court again noted
the worn appearance of the gravel path and the driveway ramp
and stated that such appearance indicated that modifications
had been present and heavily used for years. The court further
noted that the gravel path connected to the driveway ramp in
a manner suited to provide vehicular access from 42d Street
to Lot 9 and that such easement is open and obvious to any
casual observer. The court also noted the sign installed by the
City indicated the presence of driveways. The court noted that
Morello failed to offer any evidence to contradict such evi-
dence, and it therefore found that the use of the easement had
been so long continued and so obvious as to show it was meant
to be permanent.
With regard to the third and final element, the court noted
that in Hillary Corp., supra, this court indicated that the
required degree of necessity to establish an implied easement
by prior use was “reasonable necessity.” The court found that
photographic, testimonial, and other evidence regarding Lots 9
and 10 indicated that “an easement across Lot 10 is the only
possible means of providing vehicular access to Lot 9.”
The court rejected Morello’s argument that the easement
was not necessary, because Lot 9 was close to Center Street
and was accessible on foot via the steps built into the retain-
ing wall. The court stated that although pedestrian access alone
might be sufficient to negate a claim of easement by “strict
necessity,” the theory of easement implied from prior use under
- 468 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
consideration required the lesser standard of “reasonable neces-
sity” and that the evidence showed the easement across Lot 10
was “reasonably necessary” for the convenient and comfortable
use and enjoyment of Lot 9.
The court found that NAMN had produced sufficient evi-
dence to support all the elements necessary to establish the
existence of an easement implied from prior use. The court
further noted that Morello had failed to produce any admis-
sible evidence to counter NAMN’s evidence or to support the
affirmative defenses pled in his answer. Because it found an
easement implied from prior use, the court stated that it was
not necessary to address whether an easement could also be
implied by necessity, and the court therefore refrained from
“such superfluous analysis.”
The court next concluded that because NAMN had an ease-
ment for ingress and egress over Lot 10, such easement car-
ried with it by implication the right to do what was reasonably
necessary for full enjoyment of the easement as long as the
owner of the easement did not increase the burden on the ser-
vient tenement or unreasonably interfere with the rights of the
owner of the servient tenement. The court found that NAMN
had shown that a concrete driveway was reasonably necessary
for the full enjoyment of the easement and that Morello had
not shown that a concrete driveway would unreasonably inter-
fere with his rights as owner of Lot 10.
The district court therefore ordered that NAMN, as owner
of Lot 9, possessed a permanent easement implied from prior
use over Lot 10 to allow vehicular ingress and egress to Lot 9.
The court further ordered that it was within NAMN’s rights to
make upgrades that were reasonably necessary for full enjoy-
ment of the easement as long as such upgrades did not unrea-
sonably interfere with the rights of the owner of Lot 10. The
court finally ordered that Morello was enjoined from interfer-
ing with NAMN’s use and enjoyment of the easement, and the
court awarded costs of the action to NAMN.
Morello appeals the district court’s order.
- 469 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
ASSIGNMENTS OF ERROR
We note first that although Morello assigns 11 errors, he
does not argue most of the assignments of error in his brief.
Errors assigned but not argued will not be addressed on
appeal. In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d
538 (2013).
Morello assigns and argues four assignments of error which
we consolidate into three. Morello claims, restated, that the
district court erred when it (1) granted an easement to NAMN,
because NAMN’s conduct precludes it from receiving equi-
table relief; (2) applied the incorrect legal standard as to the
degree of necessity required for an easement implied by prior
use; and (3) granted an easement in favor of NAMN where
the land abuts a public road.
STANDARD OF REVIEW
[1] In reviewing an equity action for a declaratory judgment,
an appellate court tries factual issues de novo on the record
and reaches a conclusion independent of the findings of the
trial court, subject to the rule that where credible evidence
is in conflict on material issues of fact, the reviewing court
may consider and give weight to the fact that the trial court
observed the witnesses and accepted one version of the facts
over another. Hillary Corp. v. United States Cold Storage, 250
Neb. 397, 550 N.W.2d 889 (1996).
ANALYSIS
Easement Implied From Prior Use
and District Court’s Findings.
[2] As an initial matter, we note that this case involves an
easement implied from prior use and, except for brief men-
tion of easement by necessity, we do not consider other ease-
ments, servitudes, or licenses, such as prescriptive easements,
expressly written rights, unrecorded servitudes, or adverse
possession. As noted by the district court, an easement by
implication from prior use arises only when (1) the use giv-
ing rise to the easement was in existence at the time of the
- 470 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
conveyance subdividing the property, (2) the use has been so
long continued and so obvious as to show it was meant to be
permanent, and (3) the easement is necessary for the proper
and reasonable enjoyment of the dominant tract. See Hillary
Corp., supra.
[3,4] We have noted that once an implied easement is cre-
ated, it becomes appurtenant to the dominant tenement and
remains in existence upon a subsequent conveyance unless
and until it is somehow terminated. Id. Nebraska follows the
minority rule that reasonable necessity is required for implied
easements in favor of the grantee (implied by grant) but that
strict necessity is required for implied easements in favor of
the grantor (implied by reservation). Id. See 1 Restatement
(Third) of Property: Servitudes § 2.12, comment e. (2000).
In the present case, the district court found that an ease-
ment was in existence when Fuentes subdivided the property
in 1999, that the easement was so long continued and so obvi-
ous as to be permanent, and that the easement was reasonably
necessary for the proper and reasonable enjoyment of Lot 9.
Morello’s properly assigned errors address the overall equi-
ties of the case and the “reasonably necessary” finding, but do
not address the two findings of the district court regarding the
unity of ownership and the longstanding and obvious nature
of the easement. We therefore accept these two findings as the
law of this case.
Equities.
Morello attributes great weight to the fact that Rothlisburger,
on behalf of NAMN, had considerable knowledge about real
estate matters and asserts that because Rothlisburger did not
exercise diligence prior to buying Lot 9, NAMN is not entitled
to relief. Although Morello asserted numerous defenses and
affirmative defenses in his answer encompassing his equitable
argument, Morello offered no admissible evidence at trial in
support of these allegations. We thus understand that Morello
relies on the evidence received at trial generally to the effect
that Rothlisburger bought Lot 9 on short notice and without
- 471 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
formal inspection. We do not believe these facts or others in
the record preclude granting relief to NAMN.
The district court found and the evidence shows that the
gravel path from the driveway ramp at 42d Street west across
Lot 10 to Lot 9 was open, obvious, and long standing. It was
not unreasonable for Rothlisburger to expect access to the rear
of the home on Lot 9 to continue. Similarly, when Morello
bought Lot 10 after NAMN acquired Lot 9, it would not
be unreasonable for Morello to share that expectation. And
Morello does not assert that he was assured that Lot 10 was
unencumbered by an easement. Compare Neary v. Martin, 57
Haw. 577, 579, 561 P.2d 1281, 1283 (1977) (referring to nego-
tiations in which it was agreed that land conveyed would “not
be encumbered by an easement”).
Both parties bought their lots on short notice. Both parties
acquired eccentric properties: vehicular access to Lot 9 was
not certain, and the usefulness of Lot 10 was not apparent.
The district court found that Morello failed to offer admissible
evidence that would show that recognition of an easement
would interfere with Lot 10, which the district court found to
be “a small, irregular grass lot currently devoid of any usable
structures.” We are not persuaded that the equities preclude
the relief granted to NAMN.
Degree of Necessity.
Morello asserts that the district court erred as a matter of
law when it concluded that the degree of necessity required
to grant an easement implied from prior use was governed by
the “reasonably necessary” standard, rather than the greater
degree of necessity standard required to grant an easement
by necessity. Morello contends that the district court ignored
“necessity” in its analysis. We find no merit to this assignment
of error.
In the district court’s judgment, it referred to Hillary Corp.
v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889
(1996), and summarized the elements necessary to establish an
easement implied by prior use recited earlier in this opinion.
- 472 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
After the district court found sufficient evidence of the first
two elements, it proceeded to evaluate the evidence as to the
third element, i.e., whether “the easement is necessary for
the proper and reasonable enjoyment of the dominant tract.”
The district court stated that this “degree of necessity . . . is
‘reasonable necessity’ rather than strict necessity.” The district
court used the correct standard under Nebraska jurisprudence.
See Hillary Corp., supra.
[5] As in Nebraska, it is generally agreed that a greater
degree of necessity is required for easement by necessity than
for easement implied from prior use. 28A C.J.S. Easements
§ 110 (2008). It has been stated:
This lesser showing of necessity may stem in part from
an often unspoken realization on the part of the fact
finder that a prior use indicates a need for a particular
easement. See Michael V. Hernandez, Restating Implied,
Prescriptive, and Statutory Easements, 40 Real Prop.
Prob. & Tr. J. 75 (2005) (“The easement implied by prior
use is based on the maxim . . . whatever is necessary and
related is appended . . .”).
Boyd v. BellSouth, 369 S.C. 410, 421, 633 S.E.2d 136,
142 (2006).
The district court recited the correct legal standard and
performed its review of the evidence accordingly. The district
court referred to the evidence, not repeated here, and deter-
mined that under the circumstances, vehicular access to Lot 9,
upon which the house sits, was reasonably necessary. The dis-
trict court’s understanding that vehicular access to a house
is reasonably necessary is not uncommon. See, e.g., Boyd,
supra (reversing summary judgment and noting that driveway
easement to access rear entrance could be reasonable mode
of enjoying the building at time of severance); Rosendahl v.
Nelson, 408 N.W.2d 609 (Minn. App. 1987) (affirming grant
of easement implied by prior use to permit vehicular access
to property with no driveway). We find no error in the district
court’s recitation or application of the law.
- 473 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
Abutting a Public Road.
Morello claims that the district court erred when it granted
an easement to NAMN where the evidence shows that
NAMN’s Lot 9 abuts a public road, i.e., Center Street. We
reject this claim.
In connection with this assignment of error, Morello asserts
that access to Lot 9 on foot is sufficient and that because
Lot 9 abuts Center Street where there are stairs to the house on
Lot 9, an easement is not reasonably necessary. We are aware
that there is authority for the proposition that where land abuts
a public road, no easement of necessity can be established.
See 25 Am. Jur. 2d Easements and Licenses § 33 (2014).
However, we need not consider this proposition or Morello’s
corresponding argument in this case, because the district court
decided this case based on the theory of an easement implied
by prior use rather than by strict necessity. Specifically, in
the district court’s judgment, it found an easement existed by
implication from prior use and stated that “it is not necessary
to address whether NAMN’s easement could also be implied
out of necessity.” Based on the foregoing, we analyze the
significance of Lot 9’s proximity to Center Street under the
jurisprudence of easements implied by prior use.
We have previously been presented with and rejected an
argument comparable to the one urged by Morello. In Hillary
Corp. v. United States Cold Storage, 250 Neb. 397, 411-12,
550 N.W.2d 889, 898 (1996), we stated as follows:
[I]n Hengen v. Hengen[, 211 Neb. 276, 318 N.W.2d
269 (1982)], this court addressed whether the owners
of the southwest quarter of a section of land had an
implied easement, arising from use before severance of
the section, to obtain irrigation water from a canal in the
northwest quarter. The court found an implied easement
existed, stating that “[t]he necessity involved . . . is to
transport the irrigation water from the canal in the north-
west quarter to the southwest quarter . . . .” 211 Neb. at
284, 318 N.W.2d at 275.
- 474 -
Nebraska A dvance Sheets
291 Nebraska R eports
NAMN, LLC v. MORELLO
Cite as 291 Neb. 462
Thus, the Hengen court found the easement was neces-
sary for the proper and reasonable enjoyment of the domi-
nant tract without discussing possible alternative methods
of transporting the irrigation water. [Appellant’s] argu-
ment, that the necessity element was not met because of
the existence of possible alternative methods of transpor-
tation, is an argument grounded in strict necessity instead
of the reasonable necessity standard applicable in the
instant case.
The outcome of this case is resolved by application of the
jurisprudence associated with an easement implied by prior
use, under which the existence of alternative means of access
do not preclude a finding that the easement sought is reason-
ably necessary and should be granted. See id. We therefore
reject Morello’s assertion that Lot 9’s proximity to a public
road precluded relief.
CONCLUSION
The district court found the evidence adduced at trial
showed that the gravel path across Lot 10 leading west to
Lot 9 was used as an easement when Lots 9 and 10 were
subdivided, that the use was so long and obvious that it was
meant to be permanent, and that the easement is reasonably
necessary for the proper and reasonable enjoyment of Lot 9.
We reject Morello’s assignments of error challenging the dis-
trict court’s judgment granting an easement implied by prior
use to NAMN and permitting reasonable improvement of the
easement. Accordingly, we affirm.
A ffirmed.
McCormack, J., not participating.