Harts v. County of Knox , 308 Neb. 1 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1Pat Harts et al., appellees, v. County of Knox,
Nebraska, appellant, and Epic Land and
Cattle, LLC, intervenor-appellant.
___ N.W.2d ___
Filed December 18, 2020. No. S-20-014.
1. Political Subdivisions: Judgments: Appeal and Error. In appeals
involving a conditional use permit or special exception under Neb. Rev.
Stat. § 23-114.01(5) (Reissue 2012), the findings of the district court
have the effect of a jury verdict and the court’s judgment will not be
set aside unless the court’s factual findings are clearly erroneous or the
court erred in its application of the law.
2. Decedents’ Estates: Property. The right to possession of an intestate’s
property and the right to take through intestate succession accrue imme-
diately on the death of the ancestor, subject only to the control of the
court for purposes of administering the estate.
3. Easements. Any person with a possessory interest in land may create an
easement burdening that person’s interest; however, that easement can-
not last beyond the interest held in the burdened property by the grantor
of the easement.
4. ____. Co-owners must act together to burden their land with an ease-
ment and other servitudes.
5. Estoppel: Deeds. Estoppel by deed is a defensive bar which precludes
one party to a deed and his or her privies from asserting as against
another party and his or her privies any right or title in derogation of the
deed or from denying the truth of any material facts asserted in it.
6. Ratification: Agents: Words and Phrases. Ratification is the affirm­
ance of a prior act done by another, whereby the act is given effect as if
done by an agent acting with actual authority.
Appeal from the District Court for Knox County: Mark A.
Johnson, Judge. Affirmed.
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308 Nebraska Reports
HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1John Thomas, Knox County Attorney, for appellant.
Jason S. Doele and Tracey L. Buettner, of Stratton,
DeLay, Doele, Carlson, Buettner & Stover, P.C., L.L.O., for
intervenor-appellant.
Mark D. Fitzgerald, of Fitzgerald, Vetter, Temple, Bartell &
Henderson, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
In 2003, H & H Cattle Co. (H & H Cattle), the predecessor
in interest of Epic Land and Cattle, LLC (Epic), obtained an
impact easement from Bernadette Tramp, the mother of the
plaintiffs in this action. Such an impact easement was required
by the zoning regulations of the County of Knox, Nebraska
(County), where a feedlot was to be constructed within a par-
ticular distance of a dwelling unit or other designated location.
Thereafter, the County’s board of supervisors approved a con-
ditional use permit for an expansion of H & H Cattle’s feedlot
to 6,000, and later 7,500, head of cattle.
Approximately 14 years later, H & H Cattle sought expan-
sion of its feedlot to 20,000 head of cattle. Relying in part on
the 2003 impact easement, the board of supervisors granted the
conditional use permit to allow expansion. Pat Harts, Donna
Poppe, Mardell Hochstein, Kelly Tramp, Sandee Zoucha, Allen
Tramp, Carol Norris, and Dale Tramp (collectively the chil-
dren) challenged the approval in district court. Following a
trial de novo, the district court reversed and vacated the deci-
sion approving the permit. The County and Epic (collectively
appellants) appeal. We affirm.
BACKGROUND
At issue in this appeal is an easement purportedly granted
over a quarter section of land located in the County. Prior
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1to 1951, the land was owned by Emma Tramp. Emma deeded
this quarter section to her son, Sylvester Tramp, on November
9, 1951. Sylvester married Bernadette on June 2, 1942.
Sylvester died intestate on June 3, 1997. No probate pro-
ceedings were commenced at that time. Sylvester was survived
by Bernadette and their eight children. The children are the
plaintiffs in this litigation.
On June 25, 2003, Bernadette signed a document labeled
“Waiver & Easement” concerning the quarter section of land at
issue. This quarter section contained Bernadette’s residence, of
which she was the only occupant. The document was recorded
with the County’s register of deeds. Following the signature
and recording of the easement, H & H Cattle’s application for
a confined feeding operation with 6,000 head of cattle was
approved by the County.
On July 6, 2011, Bernadette filed an application for the infor-
mal appointment of a personal representative for Sylvester’s
estate and was appointed as personal representative. The sole
asset of the estate was the quarter section of land at issue
on appeal.
On July 12, 2011, Bernadette, as personal representative,
signed a lease for two “wind towers” to be located on the
quarter section. This lease was also recorded with the register
of deeds. It appears from the record that these leases were the
impetus behind probating Sylvester’s estate.
The family reached an agreement regarding the distribu-
tion of Sylvester’s estate. On July 13, 2011, an attorney for
the estate sent Bernadette and her daughter Mardell a draft
agreement providing that the quarter section be distributed to
Bernadette for life, with the remainder interest divided among
the eight children. Bernadette and the children eventually
signed this agreement, and a copy was apparently sent to all
parties. Approval of the agreement was sought and granted by
the probate court on April 12, 2012.
On July 12, 2012, that agreement was recorded with the
register of deeds. The deed of distribution specifically stated
that the quarter section was deeded to Bernadette for life,
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HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1with the remainder to the children, “subject to easements and
restrictions of record.”
On December 12, 2017, the board of supervisors approved
H & H Cattle’s application for a conditional use permit to
increase the number of cattle at its feedlot. The expansion to
6,000 head of cattle necessitated the impact easement, and the
number of cattle at the feedlot increased to 7,500 head. The
2017 approval sought an increase to 20,000 head of cattle.
Bernadette and the children filed a challenge to this approval
in district court. Bernadette subsequently died on August 9,
2018; her estate has not been probated. The district court
reversed and vacated the board of supervisors’ grant of the con-
ditional use permit. The County and Epic both appeal.
ASSIGNMENTS OF ERROR
Although filing separate briefs, the County and Epic gener-
ally assign, restated, that the district court erred in (1) conclud-
ing that Bernadette lacked the authority to grant the easement;
(2) determining that the children did not receive the property
subject to easements and restrictions of record; (3) not apply-
ing the doctrine of estoppel by deed; (4) finding that the chil-
dren lacked notice of the easement at issue and, accordingly,
that the children did not ratify the easement; and (5) failing to
take into account “the inequities of overturning the . . . County
Board of Supervisor[s’] grant of the permit” and in not giving
consideration to the board of supervisors’ exercise of its discre-
tion and the regularity of its official acts.
STANDARD OF REVIEW
[1] In appeals involving a conditional use permit or special
exception under Neb. Rev. Stat. § 23-114.01(5) (Reissue 2012),
the findings of the district court have the effect of a jury ver-
dict and the court’s judgment will not be set aside unless the
court’s factual findings are clearly erroneous or the court erred
in its application of the law. 1
1
See In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
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HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1ANALYSIS
Validity of Easement.
The primary issue on appeal is whether the easement signed
by Bernadette in favor of H & H Cattle was effective in bind-
ing Bernadette and the children.
[2] The quarter section in question was owned by Sylvester
until his death in 1997. Sylvester died intestate. When a person
dies, the title to his or her property immediately devolves in
the heirs, subject to administration. 2 “‘Where an ancestor dies
intestate his lands descend instantly to his heirs. It does not
require settlement of his estate or a probate order declaring
heirship to vest his title.’” 3 In other words, “the right to pos-
session of an intestate’s property and the right to take through
intestate succession accrue immediately on the death of the
ancestor, subject only to the control of the court for purposes
of administering the estate.” 4
In Nebraska, the fact that an estate is not probated, as was
the case here, does not prevent an heir from taking under a
will or under intestacy. Neb. Rev. Stat. § 30-2499 (Reissue
2016) provides: “In the absence of administration, the heirs
and devisees are entitled to the estate in accordance with . . .
the laws of intestate succession. . . . Persons entitled to prop-
erty by . . . intestacy may establish title thereto by proof of
the decedent’s ownership, his death, and their relationship to
the decedent.”
At the time of Sylvester’s death in 1997, the laws of
intestate succession, specifically Neb. Rev. Stat. § 30-2302(3)
(Reissue 2008), provided that Bernadette, as Sylvester’s sur-
viving spouse, was entitled to the first $50,000, plus one-
half of the remaining estate, while under Neb. Rev. Stat.
2
Neb. Rev. Stat. § 30-2401 (Reissue 2016). See, Wilson v. Fieldgrove, 280
Neb. 548, 787 N.W.2d 707 (2010); Brtek v. Cihal, 245 Neb. 756, 515
N.W.2d 628 (1994).
3
Brtek v. Cihal, supra note 2, 245 Neb. at 771, 515 N.W.2d at 638.
4
23 Am. Jur. 2d Descent and Distribution § 13 at 706 (2013).
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308 Nebraska Reports
HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1§ 30-2303 (Reissue 2016), Sylvester’s eight children were to
divide the remainder.
[3,4] It was during this time that Bernadette signed the
easement at issue. Any person with a possessory interest in
land may create an easement burdening that person’s interest;
however, that easement cannot last beyond the interest held in
the burdened property by the grantor of the easement. 5 And
co-owners must act together to burden their land with an ease-
ment and other servitudes. 6 Since a grantor cannot establish an
easement in an estate that the grantor does not own, the holder
of an undivided interest, such as a tenant in common or a joint
tenant, cannot create an easement that binds the shares of the
other co-owners. 7
Bernadette was not the sole owner of the quarter section,
but instead co-owned the property with her children. For that
reason, Bernadette was unable to execute an easement that
bound the shares of her children. The district court did not err
in so finding.
Defenses—Overview.
The appellants argue that even if Bernadette’s easement
did not bind the children, several affirmative defenses apply
and the easement should nevertheless be enforceable. From
a review of the record, various affirmative defenses were
presented to either the lower court or this court. The children
argue that none of these defenses were raised in any responsive
pleading and thus have been waived.
We agree with the appellants that their defenses of estop-
pel by deed and ratification were raised and tried without
objection to the district court 8 and, as such, have not been
waived. We also address the more general contention that the
5
Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in
Land, § 3:4 (2020).
6
Id.
7
Id.
8
Neb. Ct. R. Pldg. § 6-1115.
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HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1appellants relied upon Bernadette’s easement. However, the
defenses of caveat emptor and adverse possession were not
raised below and we do not address them here.
Estoppel by Deed.
[5] We turn first to the contention that the children are
estopped from contending that the easement was invalid.
Estoppel by deed is a defensive bar which “precludes one
party to a deed and his or her privies from asserting as against
another party and his or her privies any right or title in deroga-
tion of the deed or from denying the truth of any material facts
asserted in it.” 9
Generally the doctrine operates by estopping a grantor “who
conveys by warranty deed an interest that he or she does not
then own, but later acquires,” from “denying the validity of
the first deed.” 10 This doctrine reasons that an “uninformed
grantee should not be penalized if the grantor did not own
the property at the time of the conveyance yet subsequently
acquired it.” 11 “Implicit in [this doctrine] is a recognition of
the possibility that the grantor may never acquire sole title to
the property and that the grantee, therefore, may never benefit
from an estoppel.” 12
At the trial level, and in their briefs on appeal, the appellants
argued that the deed of distribution was the operative deed for
purposes of the doctrine of estoppel by deed. The appellants
argued that by both its language and its status as a personal
representative’s deed, that deed gave the children their remain-
der interest in the land “subject to easements and restric-
tions of record,” which included the easement Bernadette
9
28 Am. Jur. 2d Estoppel and Waiver § 5 at 469 (2011). Cf., Stratton
v. McDermott, 89 Neb. 622, 131 N.W. 949 (1911); Omaha Bridge &
Terminal R. Co. v. Whitney, 68 Neb. 389, 99 N.W. 525 (1903); Holt
County v. Scott, 53 Neb. 176, 73 N.W. 681 (1897).
10
28 Am. Jur. 2d, supra note 9 at 469-70.
11
23 Am. Jur. 2d Deeds § 278 at 277 (2013).
12
Ianotti v. Ciccio, 219 Conn. 36, 47, 591 A.2d 797, 802 (1991).
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HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1signed in favor of H & H Cattle. It was only in its reply brief
that Epic raised as the operative deed the easement between
Bernadette and its predecessor, H & H Cattle.
As an initial matter, we conclude that the appellants are not
entitled to utilize the defense of estoppel by deed as to the deed
of distribution. Generally, “[s]trangers to the deed are neither
bound by, nor entitled to invoke, . . . estoppel [by deed].” 13
While Bernadette, individually and as personal representative,
and the children and their privies, as parties to that deed, are
eligible to utilize this defense, the appellants, as strangers,
are not.
As for the easement, Bernadette and H & H Cattle were
parties to the easement and their privies now hold those inter-
ests. Accordingly, Epic, as H & H Cattle’s successor, is not a
stranger for purposes of estoppel by deed. But the defense is
still without application, because Bernadette never held sole
title to the quarter section of property.
Upon Sylvester’s death, Bernadette owned just over one-
half of the quarter section at issue. Later, following the fam-
ily agreement, Bernadette owned a life estate in that quarter
section. As we concluded above, at no point did Bernadette
own an interest sufficient to grant an easement that would
bind her children. As a general proposition, “title cannot be
created or acquired by estoppel.” 14 Where Bernadette did not
own such an interest, she could not grant such an interest to
H & H Cattle.
For these reasons, the appellants’ arguments regarding estop-
pel by deed are without merit.
Ratification.
We turn next to the assertion that the children failed to
take issue with Bernadette’s grant of the easement, which was
recorded with the register of deeds, and later accepted the
13
31 C.J.S. Estoppel and Waiver § 62 at 405 (2019).
14
Id., § 9 at 352.
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HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1personal representative’s deed. As such, they effectively con-
sented to, or ratified, the easement.
Ianotti v. Ciccio 15 is instructive. There, the court noted that
the cotenant
never ratified the quitclaim deed by which her husband
purported to grant an easement to the defendant. She nei-
ther signed the deed, nor executed and delivered her own
deed. Significantly, although the trial court made no such
express factual finding, [the cotenant] testified that she
had been unaware of the existence of the quitclaim deed
until it had been brought to her attention by a prospec-
tive purchaser of the plaintiffs’ property. The trial court’s
express finding that the defendant had acquired none
of [the cotenant’s] interest in the plaintiffs’ property is
inconsistent with any claim of ratification. 16
[6] We find instructive, though we do not expressly adopt, the
Restatement (Third) of Agency. According to the Restatement,
ratification is the “affirmance of a prior act done by another,
whereby the act is given effect as if done by an agent acting
with actual authority.” 17 “A person ratifies an act by (a) mani-
festing assent that the act shall affect the person’s legal rela-
tions, or (b) conduct that justifies a reasonable assumption that
the person so consents.” 18
“A person is not bound by a ratification made without
knowledge of material facts involved in the original act when
the person was unaware of such lack of knowledge.” 19 Notice
in this context means actual notice, and not notice as otherwise
set forth in the Restatement. 20
15
Ianotti v. Ciccio, supra note 12.
16
Id. at 44, 591 A.2d at 801.
17
1 Restatement (Third) of Agency, § 4.01(1) at 304 (2006).
18
Id., § 4.01(2).
19
Id., § 4.06 at 336.
20
Id., § 1.04(4) at 70 (“[a] person has notice of a fact if the person knows the
fact, has reason to know the fact, has received an effective notification of
the fact, or should know the fact to fulfill a duty owed to another person”).
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HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1The parties have stipulated that the easement was filed with
the register of deeds, but the record does not show that the
children were actually aware of its existence. Though some
of the children recall seeing or hearing about the owner of
H & H Cattle visiting Bernadette around the time the easement
was signed, the record does not show that the children were
informed of the nature of the visit. Neither does the record
show that the children were informed that Bernadette later
signed the easement H & H Cattle sought. While the record
indicates that one of Bernadette’s daughters might have been
aware of the signing of the easement, as we have held above
with respect to Bernadette, that knowledge is not binding on
her siblings.
We review the district court’s findings for clear error and
find none. Given the record as outlined above, the district
court’s finding that the children were unaware that the ease-
ment had been signed was not clearly erroneous. Hence, they
could not have ratified the signature and, in turn, the ease-
ment. The appellants’ argument regarding ratification is with-
out merit.
Reliance by and Deference to
Board of Supervisors.
Finally, Epic argues that the board of supervisors reasonably
relied on the easement in granting the earlier feedlot permits,
and at this late date, the children should not be found to object.
Relatedly, the County argues that this court defers to and gives
discretion to the official acts of county officials.
That Bernadette was not record owner of the quarter sec-
tion was information available to the appellants by a record
search. Indeed, it is apparent from the record that the company
that sought to lease the property for placement of “wind tow-
ers” was able to determine that Bernadette was not record
owner. Instead, the County and the board of supervisors acted
in accordance with representations made by Epic’s predeces-
sor without independently determining whether they were
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HARTS v. COUNTY OF KNOX
Cite as 308 Neb. 1valid. On these facts, any reliance on the easement was
not reasonable.
To the extent that generally this court gives deference to
the acts of a public official, this deference and discretion is
not unlimited. In this instance, Bernadette had no authority
under the law to bind the children to the easement. The County
cannot correct this failure through an official act of its board
of supervisors.
There is no merit to these assertions or to the appel-
lants’ appeal.
CONCLUSION
The order of the district court is affirmed.
Affirmed.