Fyfe v. Tabor Turnpost ( 2015 )

Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 711
Cite as 22 Neb. App. 711B. Where two inferences may be drawn from the facts
proved, which inferences are opposed to each other but
are equally consistent with the facts proved, a party
having the burden of proof on an issue may not meet
that burden by relying solely on the inference favoring
that party.
Instruction No. 7 is a correct statement of the law. See,
NJI2d Civ. 2.12A; NJI2d Civ. 16.06. Because the question
raised by the jury was adequately covered by the instruc-
tion given, the district court did not abuse its discretion
by referring the jury to the instructions and declining fur-
ther explanation.
CONCLUSION
We find no error in the district court’s decisions and there-
fore affirm the judgment.
Affirmed.
Alan Fyfe, individually and as P ersonal R epresentative
of the Estate of Billie Fyfe, and David Wingenbach,
appellees, v. Tabor Turnpost, L.L.C., a Nebraska
limited liability company, et al., appellants.
___ N.W.2d ___
Filed February 3, 2015. No. A-13-907.
1. Easements: Adverse Possession: Equity: Jurisdiction: Appeal and Error. A
suit to confirm a prescriptive easement is one grounded in the equitable jurisdic-
tion of the district court. An appellate court’s review is de novo on the record,
subject to the rule that where credible evidence is in conflict on material issues
of fact, an appellate court will consider that the trial court observed the witnesses
and accepted one version of the facts over another.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
3. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
4. Easements: Proof: Time. A party claiming a prescriptive easement must show
that its use was exclusive, adverse, under a claim of right, continuous and unin-
terrupted, and open and notorious for the full 10-year prescriptive period.
Decisions of the Nebraska Court of Appeals
712 22 NEBRASKA APPELLATE REPORTS
5. Easements: Adverse Possession. The use and enjoyment which will give title by
prescription to an easement are substantially the same in quality and characteris-
tics as the adverse possession which will give title to real estate.
6. ____: ____. The law treats a claim of a prescriptive right with disfavor, and,
accordingly, such a claim requires that all the elements of such adverse use be
clearly, convincingly, and satisfactorily established.
7. Easements: Presumptions: Proof: Time. Generally, once a claimant has shown
open and notorious use over the 10-year prescriptive period, adverseness is pre-
sumed. At that point, the landowner must present evidence showing that the use
was permissive.
8. Easements: Proof. The party asserting a prescriptive right must also clearly
establish the nature and scope of the easement.
9. Easements. The extent and nature of an easement are determined from the use
made of the property during the prescriptive period.
10. ____. The law requires that an easement must be clearly definable and pre-
cisely measured.
11. Easements: Adverse Possession: Words and Phrases. A use is continuous and
uninterrupted if it is established that the easement was used whenever there was
any necessity to do so and with such frequency that the owner of the servient
estate would have been apprised of the right being claimed.
12. Easements. A permissive use is not adverse and cannot ripen into a prescrip-
tive easement.
13. Easements: Adverse Possession: Notice. If a use begins as a permissive one, it
retains that character until notice that the use is claimed as a matter of right is
communicated to the owner of the servient estate.
14. Easements. An easement carries with it, by implication, the right of doing what-
ever is reasonably necessary for the full enjoyment of the easement itself.
15. Injunction: Equity. A mandatory injunction is an equitable remedy that com-
mands the subject of the order to perform an affirmative act to undo a wrongful
act or injury.
16. Injunction. An injunction, in general, is an extraordinary remedy that a court
should ordinarily not grant except in a clear case where there is actual and sub-
stantial injury.
17. Injunction: Damages. A court should not grant an injunction unless the right is
clear, the damage is irreparable, and the remedy at law is inadequate to prevent a
failure of justice.
18. Injunction: Equity. Where an injury committed by one against another is contin-
uous or is being constantly repeated, so that complainant’s remedy at law requires
the bringing of successive actions, that remedy is inadequate and the injury will
be prevented by injunction.
19. Equity: Words and Phrases. An adequate remedy at law means a remedy which
is plain and complete and as practical and efficient to the ends of justice and its
prompt administration as the remedy in equity.
20. Trial: Evidence: Appeal and Error. Error may not be predicated upon a ruling
admitting or excluding evidence unless a substantial right of the party is affected
and, in cases where the ruling is one excluding evidence, the substance of the
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 713
Cite as 22 Neb. App. 711evidence was made known to the judge by offer or was apparent from the context
within which questions were asked.
21. Trial: Witnesses: Records. In order to predicate error upon a ruling of the court
refusing to permit a witness to testify, or to answer a specific question, the record
must show an offer to prove the facts sought to be elicited.
22. Easements: Equity. An adjudication of rights with respect to an easement is an
equitable action.
Appeal from the District Court for Scotts Bluff County:
Randall L. Lippstreu, Judge. Affirmed.
Bell Island, of Island, Huff & Nichols, P.C., L.L.O., for
appellants.
Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek & Ossian, P.C.,
and Howard P. Olsen, Jr., and John F. Simmons, of Simmons
Olsen Law Firm, P.C., for appellees.
Moore, Chief Judge, and Riedmann and Bishop, Judges.
Moore, Chief Judge.
In this appeal, we review a prescriptive easement for an
irrigation lateral granted by the district court to Alan Fyfe
and Billie Fyfe over a part of real estate owned by Tabor
Turnpost, L.L.C., an entity composed of Thomas W. Baker
and Juanita Baker and their two daughters. The Fyfes were
also awarded damages following a jury trial. The Bakers
assign a number of errors which relate to the court’s grant of
the prescriptive easement and an injunction, the exclusion of
certain testimony at trial, and the court’s jury instructions. We
find no merit to the Bakers’ arguments and affirm the trial
court’s judgment.
I. FACTUAL BACKGROUND
In 1896, the Minatare Mutual Canal and Irrigation Company
(Minatare Mutual) was incorporated as a nonprofit corporation
under Nebraska law. Minatare Mutual’s stated purpose is to
deliver water to the stockholders of the company. The com-
pany’s canal begins just east of Scottsbluff, Nebraska, behind
the city’s lagoon, and flows in a general southerly direction
through Minatare, Nebraska, before eventually emptying into
Decisions of the Nebraska Court of Appeals
714 22 NEBRASKA APPELLATE REPORTS
the North Platte River. Minatare Mutual delivers water to its
stockholders through a series of headgates located at various
points along the canal. If more than one landowner receives
water through a particular headgate, Minatare Mutual delivers
water to the headgate, but the landowners are responsible to
work out how each would receive the water.
The disputing parties in this action are neighboring land-
owners and stockholders in Minatare Mutual. Since 1953,
the Fyfe family has owned real property which is legally
described as “[t]he Northeast Quarter and the North Twenty
acres of the Southeast Quarter of Section 21, Township 21
North, Range 53 West of the 6th P.M., Scotts Bluff County,
Nebraska . . . .” At the time this action was instituted, Alan
Fyfe and his father, Billie Fyfe, were co-owners of this prop-
erty. Billie Fyfe died during the pendency of the action, and
Alan Fyfe, as personal representative of his father’s estate,
maintained the action. Although Billie Fyfe originally farmed
the land, the Fyfes have leased their property for approxi-
mately the past 15 years. Since approximately 2008, the Fyfes
have been leasing their property to David Wingenbach, who
was also a named plaintiff. For the convenience of the reader,
the plaintiffs in this action will be collectively referred to
hereafter as “the Fyfes.”
The Bakers have owned and farmed property to the north-
west of the Fyfes since 1974. Their property is legally described
as “[t]he West Half (W1⁄2) of Section Sixteen (16), Township
Twenty-one (21) North, Range Fifty-three (53) West of the
6th P.M., Scotts Bluff County, Nebraska.” In 1998, the Bakers
transferred the ownership of their land to Tabor Turnpost, an
entity which is composed of the Bakers and their two daugh-
ters. For the remainder of the opinion, we collectively refer to
Tabor Turnpost and the Bakers as “the Bakers.”
The focus of the Fyfes and the Bakers’ dispute is a lateral
that begins at headgate 39 on the Minatare Mutual canal
which is located on the western edge of the Baker property
and runs across the Baker property. Specifically, the lateral
runs west to east from headgate 39 until it reaches an elbow.
At the elbow, the lateral continues southeast until it reaches
the northwest corner of the Fyfe property. Included with this
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 715
Cite as 22 Neb. App. 711opinion as appendix A is a portion of exhibit 166—a drawing
of the lateral and the surrounding area—which was received
into evidence at trial. Although neither party was aware when
the lateral was originally constructed, Alan Fyfe testified that
his family had used the lateral to bring water from Minatare
Mutual’s canal to irrigate the Fyfe property since 1953. The
Bakers acknowledged that the lateral was in existence when
they purchased the property in 1974. There was also tes-
timony that four landowners utilized the lateral for irriga-
tion until approximately 2000. Since 2000, only the Fyfes
and the Bakers have used the lateral to receive water from
Minatare Mutual.
Maintenance of this lateral has been a contentious issue
between the parties. The Bakers have maintained the lateral
from headgate 39 to a cement “check” that was located just
beyond the elbow, while the Fyfes have maintained the lateral
from that check to the point where the lateral reached their
property. A check is a structure, often built of cement, which
is used to impede the flow of water so it will rise up and flow
in a different direction. The parties generally agree on the var­
ious methods that can be employed to clean the lateral, which
include burning the dried weeds in the lateral in the early
spring before water enters the lateral, spraying weedkiller on
the sides of the lateral, and using mechanical means to scrape
all the weeds from the lateral. The Bakers contend that the
Fyfes have not adequately performed the required maintenance,
causing the lateral to overflow onto the Baker property on var­
ious occasions. Over the years, the Bakers complained to the
Minatare Mutual board a number of times regarding the Fyfes’
maintenance of the lateral.
The Fyfes deny that their maintenance of the lateral has
been inadequate. Their maintenance has included a yearly
burning of the dried weeds in the lateral as well as using
mechanical means in certain years to scrape weed growth from
the lateral. The Fyfes also claim that they have always been
able to receive water through the lateral despite any weed
issues. Past and present representatives from Minatare Mutual
testified that the Fyfes have never been denied water because
of weeds.
Decisions of the Nebraska Court of Appeals
716 22 NEBRASKA APPELLATE REPORTS
In 2007, the Bakers installed four culverts on the lat-
eral. These culverts are located just past the elbow and were
installed in place of an old cement check. The Bakers utilize
two of these culverts to divert water from the lateral to irrigate
their fields on either side of the lateral. The other two culverts
allow water to flow through the lateral. The Fyfes asserted at
trial that the culverts restrict the flow of water through the lat-
eral to the point where they no longer receive enough water to
irrigate their fields.
The parties’ dispute reached its boiling point in July 2010,
when the Bakers shut down the headgate after the Fyfes
had called Minatare Mutual for water. Thomas Baker claimed
that water was running over onto his property and that he
had received permission from Minatare Mutual to lower the
headgate whenever overflowing occurred. The Fyfes did not
become aware of the existence of this purported agreement
between the Bakers and Minatare Mutual until they filed suit
against the Bakers. The Fyfes did not receive any water from
Minatare Mutual for the rest of 2010.
To prevent the previous year’s problems from repeating, the
Fyfes obtained permission from Minatare Mutual in 2011 to
utilize a more northern headgate on the canal as their diver-
sion point, and they now receive water through a different
series of laterals. The Fyfes installed a center pivot on their
property and have been able to irrigate the majority of their
property through this new system. However, even with this
new system, the Fyfes could not supply water to all of their
property, and they filed suit against the Bakers in the dis-
trict court.
The Fyfes filed their operative complaint on March 1, 2012.
They sought relief in the form of a prescriptive easement over
the Baker property to obtain irrigation water, an injunction to
prevent the Bakers from interfering with their easement, and
damages resulting from crop losses. The Bakers denied the
Fyfes’ allegations and counterclaimed, seeking to eject the
Fyfes from their property and to be compensated for damages
to their property. On July 23 and 24, the district court held a
trial on the equitable issues.
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 717
Cite as 22 Neb. App. 711On October 3, 2012, the district court entered a memoran-
dum order in which it granted the Fyfes a perpetual prescrip-
tive easement. After including the legal descriptions of the
parties’ property, the court described the prescriptive easement
as follows:
This easement shall start at Minatare Mutual . . . headgate
#39 located on [Minatare Mutual’s] main canal and end
at the southeast corner of [the Baker property]/northwest
corner of [the Fyfe property]. The easement shall follow a
well defined irrigation lateral across [the Baker property]
that has been in existence for more than fifty years. This
irrigation lateral runs generally from west to east from
headgate #39 to a well defined check box or “elbow” and
then generally southeastwardly to the southeast corner
of [the Baker property]. The extent of the easement is
10 feet on each side of the center line of the irrigation
lateral between headgate #39 and the “elbow;” and 20
feet on each side of the center line of the irrigation lat-
eral between the [elbow] and the southeast corner of [the
Baker property].
In addition to granting the Fyfes a prescriptive easement,
the district court also granted the Fyfes’ requested injunctive
relief and enjoined the Bakers from interfering with the Fyfes’
reasonable operation, use, and maintenance of the prescrip-
tive easement. The court found that the culverts the Bakers
installed in 2007 unreasonably interfered with the Fyfes’ pre-
scriptive easement and ordered their removal. The order per-
mitted the Bakers, at their option, to reinstall a cement check
at that point on the lateral. Finally, the court denied the Bakers’
counterclaim for ejectment.
On September 23 through 25, 2013, the district court held
a jury trial on the issue of damages. The jury found in favor
of the Fyfes and awarded $19,200 in damages. The jury also
found against the Bakers on their counterclaim. The Bakers
have appealed.
II. ASSIGNMENTS OF ERROR
The Bakers assert that the district court erred when it (1)
granted the Fyfes a prescriptive easement, (2) granted the
Decisions of the Nebraska Court of Appeals
718 22 NEBRASKA APPELLATE REPORTS
Fyfes injunctive relief which required the Bakers to remove
certain culverts, (3) excluded certain statements made by
Billie Fyfe as hearsay, and (4) instructed the jury that the
installation of culverts had unreasonably interfered with the
Fyfes’ water.
III. STANDARD OF REVIEW
[1] A suit to confirm a prescriptive easement is one grounded
in the equitable jurisdiction of the district court. An appellate
court’s review is de novo on the record, subject to the rule
that where credible evidence is in conflict on material issues
of fact, an appellate court will consider that the trial court
observed the witnesses and accepted one version of the facts
over another. See Teadtke v. Havranek, 279 Neb. 284, 777
N.W.2d 810 (2010).
[2] In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility.
Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (2014).
[3] Whether a jury instruction is correct is a question of
law, which an appellate court independently decides. Kuhnel
v. BNSF Railway Co., 287 Neb. 541, 844 N.W.2d 251 (2014).
IV. ANALYSIS
1. P rescriptive Easement
[4-6] A party claiming a prescriptive easement must show
that its use was exclusive, adverse, under a claim of right, con-
tinuous and uninterrupted, and open and notorious for the full
10-year prescriptive period. Feloney v. Baye, 283 Neb. 972,
815 N.W.2d 160 (2012). Although there are some differences
between the two doctrines, the use and enjoyment which will
give title by prescription to an easement are substantially the
same in quality and characteristics as the adverse possession
which will give title to real estate. See Teadtke v. Havranek,
supra. The law treats a claim of a prescriptive right with
disfavor, and, accordingly, such a claim requires that all the
elements of such adverse use be clearly, convincingly, and
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 719
Cite as 22 Neb. App. 711satisfactorily established. Lake Arrowhead, Inc. v. Jolliffe, 263
Neb. 354, 639 N.W.2d 905 (2002).
[7] Generally, once a claimant has shown open and notori-
ous use over the 10-year prescriptive period, adverseness is
presumed. Feloney v. Baye, supra. At that point, the land-
owner must present evidence showing that the use was permis-
sive. Id.
[8-10] In addition to satisfying the necessary requirements
to establish a prescriptive easement, the party asserting a
prescriptive right must also clearly establish the nature and
scope of the easement. See Werner v. Schardt, 222 Neb. 186,
382 N.W.2d 357 (1986). The extent and nature of an ease-
ment are determined from the use made of the property dur-
ing the prescriptive period. Teadtke v. Havranek, supra. The
law requires that the easement must be clearly definable and
precisely measured. Grint v. Hart, 216 Neb. 406, 343 N.W.2d
921 (1984).
The Bakers assert that the district court erred when it
granted the Fyfes a prescriptive easement. They contend that
the Fyfes’ use was not continuous and that the Fyfes’ entry
onto the Baker property was obtained by permission. The
Bakers also argue that the prescriptive easement granted by
the district court was not precisely described and was in
excess of the Fyfes’ actual use. We separately address each of
these arguments.
(a) Continuous
The Bakers assert that the Fyfes’ claim for a prescriptive
easement must fail because the Fyfes have submitted to limita-
tions on their use of the lateral. The Bakers assert that Minatare
Mutual’s limitations, as well as their own, have interrupted the
Fyfes’ use of the easement. We disagree.
[11] A use is continuous and uninterrupted if it is established
that the easement was used whenever there was any necessity
to do so and with such frequency that the owner of the servi-
ent estate would have been apprised of the right being claimed.
Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979);
Breiner v. Holt Cty., 7 Neb. App. 132, 581 N.W.2d 89 (1998).
Decisions of the Nebraska Court of Appeals
720 22 NEBRASKA APPELLATE REPORTS
There is no dispute that the Fyfes have utilized the lateral to
obtain water to irrigate their property for far longer than the
necessary 10-year prescriptive period. The fact that Minatare
Mutual has the ability to deny water to any stockholder if
a lateral is not properly cleared of weeds is not significant.
Although there was evidence that the Fyfes received notices
from Minatare Mutual that their water would be shut off if
the lateral was not cleaned, there was no evidence that anyone
associated with Minatare Mutual had ever shut off the Fyfes’
water. Further, even though Minatare Mutual had the right to
deny the Fyfes water, this had no effect on the Fyfes’ claim to
use the lateral across the Baker property.
There is evidence in the record that the Bakers at vari-
ous times restricted the Fyfes’ access to the lateral, which
has frustrated the Fyfes’ ability to perform maintenance. The
Bakers would not allow the Fyfes onto their land if crops had
been planted, or the Fyfes were forced to access the lateral in
between alfalfa cuttings. Even with these restrictions, how-
ever, the Fyfes’ use of the lateral was continuous. The Bakers
never asserted that the Fyfes could not utilize the lateral to
obtain water; rather, the Bakers’ restrictions related to the
Fyfes’ accessing the lateral via the Bakers’ surrounding land.
Finally, the fact that the Bakers interrupted the Fyfes’ receipt
of water through the lateral in June 2010 does not defeat their
continuous use of the lateral, particularly since their use of
the lateral began in 1953 and continued uninterrupted until at
least 2010.
While the Fyfes’ receipt of water and maintenance of the
lateral varied and was not a daily occurrence, such is not nec-
essary to establish their continuous use of the lateral. The Fyfes
established that their use of the lateral was continuous through-
out the prescriptive period.
(b) Permissive
At trial, the Bakers asserted that the Fyfes’ use of the
lateral was established by an agreement with the previous
landowners. The Bakers did not produce direct evidence of
the agreement, but they testified that they were informed of
the existence of the agreement prior to their purchase of the
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 721
Cite as 22 Neb. App. 711property. The Bakers also highlighted the Minatare Mutual
rules to further their claim that the Fyfes’ use of the lateral
was permissive.
[12,13] It is well established that a permissive use is not
adverse and cannot ripen into a prescriptive easement. See
Simacek v. York County Rural P.P. Dist., 220 Neb. 484, 370
N.W.2d 709 (1985). The general rule is that if a use begins as a
permissive one, it retains that character until notice that the use
is claimed as a matter of right is communicated to the owner of
the servient estate. Id.Although the Bakers claim that the Fyfes’ use of the lateral
was permissive, there is little evidence in the record to support
that claim. First, there was no evidence, other than the Bakers’
testimony, of any agreement between the Bakers’ predecessors
that permitted the Fyfes to use the lateral. Based on our reading
of the record, we agree with the district court’s characterization
of the Bakers’ testimony regarding the agreement as having
been for the “convenience of litigation.”
The Bakers also contended that the Minatare Mutual bylaws
lend support to their claim that the Fyfes’ use of the lateral
was permissive. Specifically, the Bakers highlight the follow-
ing provisions: “Any turnouts used by one or more sharehold-
ers shall share the cost of headgate and installation as per
share basis and be used by each of them. . . . No headgate
will be allowed until a permit has been issued by Minatare
Mutual.” Because joint shareholders used headgate 39, the
Bakers contend, it logically follows that the Fyfes’ use of the
lateral had to be permissive. However, these provisions in the
bylaws do not have the force that the Bakers assert. The above
provisions in the bylaws state that in order to establish a joint
headgate, the shareholders must share the cost and obtain
Minatare Mutual’s permission. Nonetheless, these provisions
do not establish that the Fyfes’ use of this particular lateral
over the Baker property was by permission. The record is
silent as to whether the headgate was originally a joint head-
gate or whether it was used first by a single landowner and
later by multiple landowners.
Additionally, we note that the evidence at trial established
that the Fyfes have used this lateral to irrigate their land since
Decisions of the Nebraska Court of Appeals
722 22 NEBRASKA APPELLATE REPORTS
at least 1959, as recited by the trial court. Thus, based on
this record, we agree with the trial court’s conclusion that the
prescriptive period began in 1959 at the latest. That being the
case, and there being no evidence to refute the Fyfes’ claim,
the Fyfes’ prescriptive right to use the lateral existed before the
Bakers purchased their property.
Finally, we observe that the Bakers’ actions throughout
their ownership of the property establish that they did not
believe the Fyfes’ use was permissive. If use of the lateral
was by permission, the Bakers could have required the Fyfes
to obtain their irrigation water through another route many
years earlier. However, the Bakers never objected to the
Fyfes’ ability to obtain water through the lateral. In fact, the
Fyfes’ entitlement to receive the water that was delivered to
the headgate and through the lateral derived from Minatare
Mutual, not the Bakers or their predecessors. Further, if
access to the lateral for maintenance was by permission of
the Bakers, they would not have prohibited the Fyfes from
entering the Baker property at various times to maintain the
lateral. Instead, the Bakers submitted numerous complaints to
the Minatare Mutual board regarding the Fyfes’ maintenance,
or lack of maintenance, of the lateral and eventually lowered
the headgate to prevent the Bakers from receiving water. Only
when this litigation was initiated did the Bakers seek to eject
the Fyfes from the land.
We conclude the record clearly shows that the Fyfes’ use of
the lateral to obtain water was not permissive.
(c) Description and Scope
of Easement
The Bakers assert that the Fyfes’ claim for a prescriptive
easement must also fail for lack of an exact description. They
claim that the district court’s description of the easement is
speculative because there are no measurements, locations, or
other fixed landmarks from which to establish the boundary
line. The Bakers assert that there must be a metes and bounds
description of the easement.
As noted above, the district court granted the Fyfes a
prescriptive easement over the irrigation lateral. The court
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 723
Cite as 22 Neb. App. 711determined there was sufficient evidence to show the location
of the lateral and noted that its location had not been a con-
tested issue. The court also determined that the scope of the
easement extended 10 feet on each side of the irrigation lateral
between headgate 39 and the elbow and 20 feet on each side
of the irrigation lateral between the elbow and the southeast
corner of the Baker property.
We reject the Bakers’ argument that the Fyfes’ claim must
fail for lack of a precise description of the easement. There
was no dispute at trial as to the location of the lateral over
which the Fyfes asserted a prescriptive right. In fact, the par-
ties agreed that the lateral had been in existence for many
years. Further, each party submitted its own depiction of the
area into evidence and each party’s exhibit showed the lateral
in the same location. A photograph submitted in evidence
shows that headgate 39 is identifiable as such on the Minatare
Mutual canal. Upon review of the record, it is clear that the
disputed lateral is the only lateral on the Baker property which
runs in a general southeastwardly direction until it reaches the
Fyfe property.
We find the Nebraska Supreme Court’s decision in Fischer
v. Grinsbergs, 198 Neb. 329, 252 N.W.2d 619 (1977), to be
instructive in this case. In Fischer, the Supreme Court reversed
the district court’s finding that the plaintiffs had not suffi-
ciently described a prescriptive easement over a driveway. In
reaching that conclusion, the court acknowledged that a claim
for an easement could not be “too indefinite for a determinate
description.” Id. at 343, 252 N.W.2d at 627. However, the court
concluded that the evidence presented at trial, which included
the deeds of the lots in question, undisputed testimony that the
driveway extended 6 feet on the defendants’ land and 3 feet
on the plaintiff’s land, and photographs showing the location
of the driveway, was sufficient to describe the easement. In so
deciding, the court emphasized that the driveway had existed
for years and that the easement would be limited to the width
of the driveway as was reasonably necessary for access to the
plaintiff’s garage. Id.As did the Supreme Court in Fischer, we acknowledge
the requirement that a prescriptive easement must have a
Decisions of the Nebraska Court of Appeals
724 22 NEBRASKA APPELLATE REPORTS
determinate description. Based on the evidence in this case,
we conclude this requirement was met. Evidence to describe
the easement over the lateral consisted of maps of the area,
photographs of the lateral and headgate in question, the deeds
to both the Fyfe property and the Baker property, and similar
testimony from both parties regarding the location and course
of the lateral. This evidence was sufficient for the court to enter
judgment in favor of the Fyfes.
[14] Finally, the evidence at trial supported the scope of
the easement granted. The Fyfes’ documentary evidence and
testimony at trial, which the district court accepted over the
Bakers’ conflicting testimony, demonstrated that an area 20
feet to each side of the lateral’s centerline was necessary to
bring in the appropriate equipment to properly clean the lat-
eral. See Homestead Estates Homeowners Assn. v. Jones, 278
Neb. 149, 768 N.W.2d 436 (2009) (easement carries with it,
by implication, right of doing whatever is reasonably neces-
sary for full enjoyment of easement itself). We find no error in
that determination.
2. R emoval of Culverts
The district court concluded that the evidence at trial estab-
lished that the Bakers’ culverts on the lateral impaired the
Fyfes’ ability to bring water to their property and ordered the
culverts to be removed. The Bakers contend that this order to
remove the culverts was beyond the scope of injunctive relief.
We conclude the injunctive relief was appropriate.
[15-17] The order compelling the Bakers to remove the
culverts is a mandatory injunction. A mandatory injunction
is an equitable remedy that commands the subject of the
order to perform an affirmative act to undo a wrongful act or
injury. Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
Further, an injunction, in general, is an extraordinary remedy
that a court should ordinarily not grant except in a clear case
where there is actual and substantial injury. Id. And a court
should not grant an injunction unless the right is clear, the
damage is irreparable, and the remedy at law is inadequate to
prevent a failure of justice. Id.Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 725
Cite as 22 Neb. App. 711[18,19] Where an injury committed by one against another
is continuous or is being constantly repeated, so that complain-
ant’s remedy at law requires the bringing of successive actions,
that remedy is inadequate and the injury will be prevented by
injunction. Lambert v. Holmberg, 271 Neb. 443, 712 N.W.2d
268 (2006). In such cases, equity looks to the nature of the
injury inflicted, together with the fact of its constant repetition,
or continuation, rather than to the magnitude of the damage
inflicted, as the ground of affording relief. Id. An adequate
remedy at law means a remedy which is plain and complete
and as practical and efficient to the ends of justice and its
prompt administration as the remedy in equity. Id.The Fyfes presented evidence at trial to show that the cul-
verts unreasonably restricted the flow of water through the
lateral. Alan Fyfe, who holds a professional engineer’s license,
testified that the cross section of the lateral is much larger than
the cross section of the culverts, causing a weak link in the lat-
eral system. Wingenbach, Fyfes’ lessee, also testified that the
culverts restricted the amount of water he received. The Fyfes
also presented evidence that silt had settled into the culverts,
further restricting the flow of water. The Bakers countered
the Fyfes’ claims with their own testimony. The Bakers’ testi-
mony demonstrated that they believed the decreased waterflow
was solely the result of weeds in the portion of the lateral the
Fyfes maintained.
Having considered this conflicting evidence, the district
court concluded that the culverts were installed after the pre-
scriptive period had run and that they unreasonably interfered
with the flow of water in the lateral. Giving weight to the fact
that the trial judge heard and observed the witnesses, we agree
with this conclusion. See Prime Home Care v. Pathways to
Compassion, 283 Neb. 77, 809 N.W.2d 751 (2012) (in appeal
of equity action, where credible evidence is in conflict on
material issue of fact, appellate court considers and may give
weight to fact that trial judge heard and observed witnesses and
accepted one version rather than another). This assigned error
is without merit.
Decisions of the Nebraska Court of Appeals
726 22 NEBRASKA APPELLATE REPORTS
3. Billie Fyfe’s Statements
The Bakers also contend that the district court erred when it
did not allow Thomas Baker to testify regarding Billie Fyfe’s
response to the Bakers’ decision to install culverts in place of
the cement check. Thomas Baker attempted to testify to the
substance of a discussion he allegedly had with Billie Fyfe.
The discussion centered on how to replace the old cement
check that had been damaged:
[Bakers’ counsel:] Did that discussion talk about install-
ing the culverts that are there?
[Thomas Baker:] Yes.
[Bakers’ counsel:] And did . . . Billie Fyfe agree or tell
you he thought that would be a good idea to install some
culverts in there?
[Fyfes’ counsel]: Objection, hearsay.
[Bakers’ counsel]: Party opponent, Your Honor.
THE COURT: He’s deceased, isn’t he?
[Bakers’ counsel]: Well, it’s his estate still involved in
the case.
THE COURT: I’m not sure, I think it’s the [personal
representative who] can waive that so I’m going to sus-
tain that.
[Bakers’ counsel]: Okay. Well, it goes to his state of
mind as to why he put it in as well, Your Honor.
THE COURT: Okay. But I’m still — my ruling stands.
Let’s just move on.
The Bakers argue that Thomas Baker should have been
allowed to answer the question because Billie Fyfe’s estate
remained a party in the litigation. Therefore, the Bakers con-
tend that Billie Fyfe’s statements were those of a party oppo-
nent and not hearsay. See, Neb. Rev. Stat. § 27-801(4)(b)
(Reissue 2008); In re Estate of Krueger, 235 Neb. 518, 455
N.W.2d 809 (1990) (in action against estate, statement made
by decedent constitutes party admission). They assert that the
exclusion of this answer was prejudicial error and led the court
to improperly order the removal of the culverts.
[20,21] The Fyfes contend that the Bakers have waived
this argument, because no offer of proof was made at trial
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 727
Cite as 22 Neb. App. 711to establish what Thomas Baker’s answer would have been
had he been allowed to answer the question. Neb. Rev. Stat.
§ 27-103 (Reissue 2008) provides that error may not be predi-
cated upon a ruling admitting or excluding evidence unless a
substantial right of the party is affected and, in cases where
the ruling is one excluding evidence, the substance of the
evidence was made known to the judge by offer or was appar-
ent from the context within which questions were asked. The
Nebraska Supreme Court has stated that in order to predicate
error upon a ruling of the court refusing to permit a witness to
testify, or to answer a specific question, the record must show
an offer to prove the facts sought to be elicited. Sturzenegger
v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008).
Although we may be able to conclude from the context of
the question asked that Thomas Baker’s answer would have
been that Billie Fyfe consented to the installation of culverts,
that answer alone does not entitle the Bakers to relief. The
problem with the culverts, as adduced by the Fyfes, was the
size and maintenance of the culverts, which impeded the water
flowing to their property. Thus, Billie Fyfe’s purported agree-
ment to the installation of the culverts does not end the inquiry.
The pertinent questions would be whether he was informed
of or involved in the details regarding the design, installation,
and maintenance of the culverts. Because there was no offer
of proof made, there is no evidence in the record to establish
that Billie Fyfe specifically approved of the design, size, or
maintenance of the culverts. We cannot say the district court’s
decision to sustain the Fyfes’ hearsay objection constituted
prejudicial error.
4. Jury Instruction
In their final assignment of error, the Bakers contend that
the district court erroneously instructed the jury. Specifically,
the Bakers take issue with the following jury instruction:
II. Court’s Findings
In an earlier proceeding the Court determined as
a matter of law that [the Fyfes] owned an easement
Decisions of the Nebraska Court of Appeals
728 22 NEBRASKA APPELLATE REPORTS
to convey irrigation water from the [Minatare Mutual]
canal across [the Bakers’] land to [the Fyfes’] land; and
that this easement followed a well defined irrigation lat-
eral across [the Bakers’] land that had been in existence
for more than fifty years. The Court further determined
as a matter of law that the width of the easement was
10 feet on either side of the centerline of the irrigation
lateral from the [Minatare Mutual] canal eastward to
the “elbow”, and 20 feet on either side of the irrigation
lateral centerline from the “elbow” on to [the Fyfes’]
land. The Court further found that in 2007 [the Bakers]
installed culverts in the irrigation lateral a short distance
southeast of the “elbow” which, in part, unreasonably
interfered with [the Fyfes’] easement to use the irriga-
tion lateral. The Court ordered Baker to remove the
culverts and restore the irrigation lateral to its prior con-
dition. The Court further determined as a matter of law
that [the Fyfes] had the right to access [the Bakers’] land
as was reasonably necessary to maintain and repair the
irrigation lateral.
The Bakers objected at the jury trial when the Fyfes offered
a portion of the prior ruling into evidence, which included
a statement similar to the instruction above, and the Bakers
also objected to the above instruction during the instruction
conference. The Bakers contend that the issue of whether
they had interfered with the Fyfes’ easement was a matter that
should have been submitted to the jury.
[22] We reject the Bakers’ arguments. As noted in the fac-
tual background above, the district court bifurcated the equi-
table and legal issues. An adjudication of rights with respect
to an easement is an equitable action. See Homestead Estates
Homeowners Assn. v. Jones, 278 Neb. 149, 768 N.W.2d 436(2009). Thus, we conclude the district court properly consid-
ered the issue of interference with the easement as an equi-
table issue.
Further, after the district court decided the Fyfes’ claim of
interference with the easement as an equitable issue, it did not
err when it informed the jury of this finding. Contrary to the
Decisions of the Nebraska Court of Appeals
FYFE v. TABOR TURNPOST 729
Cite as 22 Neb. App. 711Bakers’ assertions that this instruction left the jury with noth-
ing to decide, the jury was required to determine what dam-
ages, if any, were proximately caused by the interference with
the Fyfes’ easement. After deliberation, the jury concluded
that the Fyfes had established their damages in the amount of
$19,200. We find no merit to this assigned error.
V. CONCLUSION
The district court did not err when it granted the prescrip-
tive easement or when it ordered the culverts to be removed.
Further, we conclude there was no prejudicial error committed
when the court sustained the Fyfes’ hearsay objection, and we
do not find error with the jury instructions.
Affirmed.
(See page 730 for appendix A.)
Decisions of the Nebraska Court of Appeals
730 22 NEBRASKA APPELLATE REPORTS
N
←
APPENDIX A
(Directional information supplied.)