MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WOODLE V. CURLIS

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.

Ronald E. Reagan and Richard W. Whitworth, of Reagan, Melton & Delaney, L.L.P., for appellants.

Douglas W. Ruge II for appellees William J. Curlis and Sandy R. Curlis.

Christopher D. Curzon, of Smith, Gardner, Slusky, Lazer, Pohren & Rogers, L.L.P., for appellees David F. Zajac and Susan K. Zajac.

INBODY, Chief Judge, and SIEVERS and MOORE, Judges.

INBODY, Chief Judge.

I. INTRODUCTION

Brad Woodle and Chase Woodle appeal the decision of the district court for Sarpy County denying their action to quiet title in certain real property located in Sarpy County, Nebraska, and finding that easements by implication from former use exist on their property benefiting the two adjoining properties lying directly to the east and west of their property.

II. STATEMENT OF FACTS

This appeal deals with three adjacent properties located in the Sun Country Addition, in Sarpy County. Lot 1 lies to the east and is currently owned by William J. Curlis and Sandy R. Curlis. Lot 2, the middle lot, is currently owned by the Woodles. Lot 3, the west lot, is currently owned by the Zajac Revocable Family Trust, for the benefit of David F. Zajac and Susan K. Zajac, who also operate a custom cabinetmaking company on their lot. The principal dispute between the parties is access to a large circular driveway located on Lot 2, owned by the Woodles, which drive contains a number of spurs that branch off into roads leading to Lots 1 and 3. Both the Curlises and the Zajacs rely on portions of the circular driveway and spurs for access to portions of their lots.

1. CONVEYANCES OF LOTS IN SUN COUNTRY ADDITION

The Sun Country Addition was purchased in 1983 by Tommy and Phyllis Ogg and the Curlises, each purchasing a one-half interest. (The Oggs are the parents of Sandy Curlis and Susan Zajac.) Shortly thereafter, the parties obtained building permits and built a cabinet shop on Lot 2. The cabinet shop was used by William Thomas Custom Cabinets, Inc., a woodworking and custom cabinetmaking company owned and operated by the Oggs and the Curlises. Although the cabinetmaking company was in operation prior to 1986, the parties were unaware that a special use permit was necessary, and thus, the first special use permit was obtained in 1986 and has been renewed since that time.

Although the Sun Country Addition was initially zoned by Sarpy County as residential real estate, with a special use approved for the operation of a woodworking and custom cabinet shop on Lot 2, the lots are currently under the zoning jurisdiction of the city of Gretna, Nebraska, and are zoned as transitional agricultural real estate or residential estates with animals.

In 1986, all three lots were transferred to William Thomas Custom Cabinets. The driveway loop and spurs were already in existence, having been constructed in 1984. The cabinet company used the loop to access the cabinet shop with a truck and trailers.

In April 1992, Lot 2 was deeded by the William Thomas Cabinet Company to the Oggs, who had already built a residence on that lot in 1984. The Oggs conveyed to the Curlises an easement over the west 32 feet of the south 300 feet of Lot 2 for the purpose of ingress and egress, which easement was recorded on March 27, 1993. Later that year, in October 1993, Lot 1 was deeded by the William Thomas Cabinet Company to the Curlises, who had already built a residence on that lot in 1986. The Curlises used the west part of the driveway located on Lot 2 to access their garage, shed, septic tank, and propane tank. Sandy Curlis testified that their use of the western portion of the loop is limited to ingress and egress and has been continuous.

In November 1997, Lot 3 was deeded by the William Thomas Cabinet Company to the Zajacs through a warranty deed from the William Thomas Cabinet Company and a quitclaim deed from the Curlises. The Zajacs built a home on this lot in 1997. In 2002, the Zajacs purchased the William Thomas Cabinet Company from the Oggs, who were the sole owners at that time, which purchase was to include that portion of Lot 2 on which the cabinet shop was located. This portion of Lot 2 has been referred to as Lot 2B, but no separate lot was ever created or existed; instead, an administrative lot line adjustment was completed which moved this portion of Lot 2 into Lot 3. This administrative lot line adjustment was prepared on October 22, 2002, and was filed with the register of deeds on June 17, 2003. The Zajacs have used a portion of the driveway located on Lot 2 to access the cabinet company, specifically the south and west sides of the cabinet shop including using the area to allow their vehicles to turn around. The Zajacs contend that at the time they bought the cabinet company, which they renamed the "Cabinet Company of Nebraska," a right-of-way easement for Lot 2 for the benefit of Lot 3 was prepared. The Zajacs allege that this easement was recorded at the time that the property line between Lots 2 and 3 was adjusted; however, the records show no such recording. Legal ownership of Lot 3 was transferred to the Zajacs' family trust in 2006, with the Zajacs remaining the beneficial owners.

In August 2005, the Oggs sought to refinance Lot 2, and during this process, a series of quitclaim deeds were executed regarding the three lots. The deed that is relevant to this case relates to Lot 2, which was a quitclaim deed executed by William Thomas Cabinet Company and the Curlises to the Oggs, which deed was recorded on September 12, 2005. Sandy and William Curlis both testified that they did not believe that they were releasing their easement by executing the quitclaim deed. A little more than 2 years later, in December 2007, ownership of Lot 2 was transferred to J.P Morgan Chase Bank through foreclosure of a trust deed securing the Oggs' financing of Lot 2.

2. EVENTS OCCURRING AFTER FORECLOSURE

In 2008, Lot 2 was advertised for sale at auction to be held on November 25. Sandy Curlis and Brad and Chase Woodle attended an open house on the property 2 days before the auction was to be held. The next day, Sandy Curlis requested a preliminary title search on the property and was advised that there was a 1992 easement on the west side which was of questionable validity because of a later quitclaim deed and another easement document on file pertaining to the east side, also of questionable validity.

According to Sandy Curlis, on the evening of November 24, 2008, she and Brad and Chase Woodle went to the property and met with David Zajac, who informed them that both the adjoining lot owners had easements to use portions of the driveway on Lot 2, but were not allowed to park on it, and that he only used such part of the drive to enter and back vehicles to the cabinet shop building. Sandy Curlis and Brad and Chase Woodle all saw the existing drives on both the east and west sides of the lot prior to the auction and knew they were used by somebody. Sandy Curlis knew that there was an issue as to the easements and use of the road when they went to the auction to purchase the house. Brad Woodle testified that, prior to the auction, he knew that there was a cabinet company located on the adjacent lot and that it would generate a certain amount of noise. At the auction the next day, the Woodles were the successful bidders on Lot 2, and they closed on December 24. In conjunction with the purchase, the Woodles received a policy of title insurance which exempted from coverage the March 1993 easement in favor of the Curlises and the "right of way easement" dated July 18, 2002, which was filed by the Zajacs on April 30, 2008.

3. COMMENCEMENT OF LITIGATION

In May 2009, the Woodles filed a quiet title action alleging that although previous written easements on Lot 2 had been extinguished, the Curlises and the Zajacs continued to assert that they had continuing rights to use and travel upon Lot 2 which cast a cloud upon the title of Lot 2. The complaint also alleged trespass by the Curlises and the Zajacs.

In April 2009, the Zajacs retained a professional land surveyor to draft a description of a new easement on Lot 2 for the benefit of Lot 3. He prepared a document setting forth the legal description of the current easement and the legal description of the new easement that the Zajacs wanted described. On May 6, the Zajacs recorded a document entitled "Corrective Right of Way Easement." Thereafter, in July, the Woodles filed an amended complaint adding a cause of action for slander of title, requesting a declaratory injunction finding that the Zajacs' cabinet company was in violation of zoning provisions, requesting a declaration that the Zajacs' special use permit was void or invalid, and requesting an injunction directing the Zajacs to cease and desist their use of Lot 2B or otherwise comply with local zoning regulations. The Curlises and the Zajacs counterclaimed, inter alia, that they had an express written easement, easement by implication from former use, public easement, and/or adverse possession.

Trial in this matter was held over 4 days in April and May 2010. Evidence was adduced which will be set forth as necessary in the analysis section of this opinion.

The district court denied the Curlises and the Zajacs' claims of express easement, public easement, and adverse possession. However, the court found that the Curlises and the Zajacs did possess an implied easement arising from prior use.

The district court stated:

Due to the highly contentious nature of this case, particularly between the [Woodles] and the Defendants Zajac, the Court feels compelled to clearly delineate the nature and extent of the implied easements which the Court finds to exist on Lot 2. The evidence was clear that the entirety of the circular drive behind Lot 2 is not needed by either the Curlis[es] or the Zajacs. Therefore, the defendants and their permitees are only allowed to traverse the driveways to the extent that they are needed to access the spurs and the buildings on their respective lots. Sufficient space is granted to allow vehicles to enter, turn around, and exit down the respective driveways. They are not permitted to circle around the Woodle home. In addition, these easements are for ingress and egress only. The defendants are not to enter onto Lot 2 for any purpose other than ingress and egress to their property, except as specifically permitted by the [Woodles].

With regard to the Woodles' request for declaratory and injunctive relief regarding the operation of the cabinet company, the district court found:

Although the Court is not bound by the action (or inaction) of Sarpy County and the City of Gretna toward the Zajacs, the Court finds that the [Woodles'] evidence is insufficient for the Court to take the extraordinary step of closing the cabinet shop. It is not clear that the Court has the option to take such an extraordinary measure under Sec. 23-114.05. Even if the Court had said power, however, more substantive evidence would be needed to support such a finding. There is no independent investigation or observations by officials of Sarpy County or the City of Gretna supporting the claimed violations. While [David] Zajac does admit that he works long hours in the shop, there is no evidence of consistent operation of the cabinet shop beyond the 7:00 a.m. to 7:00 p.m.
hours by the employees of the Cabinet Company of Nebraska. Moreover, there is no expert testimony with regard to the level of dust, light or noise emanating from the cabinet shop. Therefore, given the state of the evidence, the Court finds that the plaintiffs' request for declaratory and injunctive relief as to the operation of the cabinet shop based on allegations of zoning ordinances should be denied.

III. ASSIGNMENTS OF ERROR

The Woodles' assignments of error, consolidated and restated, are that the trial court erred (a) in finding that easements by implication from former use existed over Lot 2 in favor of Lots 1 and/or 3; (b) in concluding the quitclaim deed executed by the Curlises in 2005, conveying all interest in Lot 2 to the Oggs, had no effect on any implied easement the Curlises had in Lot 2; (c) in granting easements on Lot 2 without sufficiently describing their nature and extent; (d) in denying their slander of title claim against the Zajacs; (e) in denying their claims regarding the operation of the cabinet shop; and (f) in concluding they were not entitled to their request for quiet title in Lot 2 or an injunction prohibiting trespass on Lot 2, and that the Woodles should be enjoined from interfering with the defendants' use of the driveways on Lot 2.

The Curlises have filed a cross-appeal alleging that the district court erred (a) in failing to find an easement by necessity on Lot 2 for the benefit of Lot 1, because the use of the western drive on Lot 2 was strictly necessary for access by larger vehicles to their attached garage and for servicing their septic and propane tanks; (b) in finding that the series of quitclaim deeds extinguished the Curlises' express easement for use of the westerly drive on Lot 2; and (c) in failing to expressly rule that equitable principles barred the Woodles' requested relief.

IV. STANDARD OF REVIEW

Since this is a quiet title action, it sounds in equity. See Poppleton v. Village Realty Co., 248 Neb. 353, 535 N.W.2d 400 (1995). On appeal from an equity action, the appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent from the conclusion reached by the trial court. Marten v. Staab, 249 Neb. 299, 543 N.W.2d 436 (1996); Poppleton, supra. However, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Ottaco Acceptance, Inc. v. Larkin, 273 Neb. 765, 733 N.W.2d 539 (2007).

V. ANALYSIS

1. WOODLES' APPEAL

(a) Easement by Implication From Former Use

The Woodles contend that the district court erred in finding that easements by implication from former use existed over Lot 2 in favor of Lots 1 and/or 3.

An easement by implication from 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 continued and so obvious as to show that it was meant to be permanent, and (3) the easement is necessary for the proper and reasonable enjoyment of the dominant tract. O'Connor v. Kaufman, 260 Neb. 219, 616 N.W.2d 301 (2000). In order to determine whether an implied easement from former use was created, the court looks to the time of the conveyance subdividing the property. Id.

Once an implied easement is created, it becomes appurtenant to the dominant tenement and remains in existence upon subsequent conveyance unless and until it is somehow terminated. Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996). Abandonment of an easement must be pled and proved, the burden of proof being on the party alleging it. Id.

(i) Use in Existence at Time of Conveyance

Lots 1, 2, and 3 were commonly owned by William Thomas Custom Cabinets from 1986 until 1992, when Lot 2 was conveyed to the Oggs. This marked the first time that Lots 1, 2, and 3 were not under common ownership. The evidence showed that at the time of the conveyance of Lot 2 to the Oggs, the driveway was in existence and was being used by the Curlises, who had a residence on Lot 1, for the purposes of ingress and egress. Further, the cabinet shop was built in 1984; the cabinet company used the driveway to access the cabinet shop with a truck and trailers; and the real estate on which the cabinet shop is located became part of Lot 3 in 2002, by virtue of the administrative lot line adjustment. Thus, the uses of the easements were in existence at the time of the conveyance subdividing Lots 1, 2, and 3.

(ii) Continuous and Obvious Use

The evidence established that the eastern portion of the driveway was used by the cabinet company for ingress and egress since the building was built in 1984. Likewise, the Curlises built a residence on Lot 1 in 1986 and have been using the western portion of the driveway on Lot 2 for the purposes of ingress and egress since that time. The parties' use of the driveway has been so continuous and obvious, as to show that it was meant to be permanent.

(iii) Proper and Reasonable Enjoyment

The third element of an implied easement from former use is demonstrating that the usage is necessary for the proper and reasonable enjoyment of the dominant tract. To prove the existence of an implied easement from former use, "'the easement is necessary for the proper and reasonable enjoyment of the dominant tract.'" Hillary Corp. v. United States Cold Storage, 250 Neb. at 411, 550 N.W.2d at 898 (emphasis omitted), quoting Hengen v. Hengen, 211 Neb. 276, 318 N.W.2d 269 (1982). Thus, the degree of necessity required to prove the existence of an implied easement from former use is "reasonable necessity." Id.

In Hengen v. Hengen, 211 Neb. 276, 318 N.W.2d 269 (1982), the Nebraska Supreme Court found that an implied easement from prior use existed and the easement was reasonably necessary for the use and enjoyment of the property where the necessity was to transport irrigation water to the dominant tract. The court so found without discussing possible alternative methods for transporting the irrigation water. Likewise, in Hillary Corp. v. United States Cold Storage, supra, the Nebraska Supreme Court found that an implied easement from prior use existed and that the easement was reasonably necessary for the use and enjoyment of the property where railroad tracks crossed the servient tract to the dominant tract. The court noted that the existence of possible alternative methods of transportation was an argument grounded in strict necessity, not the reasonable necessity standard that was applicable.

The Woodles argue that the evidence showed that the Curlises and the Zajacs could build new access roads to their properties. However, this argument, like the arguments in Hengen and Hillary Corp., is grounded in strict necessity instead of the reasonable necessity applicable in the instant case.

The testimony adduced at trial showed that without the easement the Curlises would not be able to get propane, service their septic tank, or access their garage or shed without putting in a new driveway which would require substantial expense. Obviously, the easement was reasonably necessary for the Curlises' convenient and comfortable enjoyment of Lot 1 at the time that Lots 1 and 2 were subdivided. As a result, an easement from former use existed for the benefit of Lot 1 at the time of the subdivision of Lots 1 and 2 in 1986.

Likewise, the evidence established that without the easement the cabinet company would have been unable to access the cabinet building without putting in a new driveway at considerable expense. Thus, the easement is reasonably necessary for the convenient and comfortable enjoyment of Lot 3 at the time that Lots 2 and 3 were subdivided. As a result, an easement from former use existed for the benefit of Lot 3 at the time of the subdivision of Lots 2 and 3 in 1986.

In sum, the Curlises and the Zajacs have shown the necessary elements to establish that they both have an implied easement from former use as the district court properly found.

(b) Effect of Quitclaim Deed on Curlises' Implied Easement

The Woodles contend that the district court erred in concluding that the quitclaim deed executed by the Curlises in 2005, conveying all interest in Lot 2 to the Oggs, had no effect on any implied easement the Curlises had in Lot 2.

Once an implied easement is created, it becomes appurtenant to the dominant tenement and remains in existence . . . unless and until it is somehow terminated. See Beloit Foundry Co. v. Ryan, 28 Ill. 2d 379, 388, 192 N.E.2d 384, 390 (1963) ("[a]n easement appurtenant passes by conveyance of the land to which it is annexed, even without being expressly mentioned, and the servient estate continues to be subject thereto until such right is terminated or abandoned").

Having found that an implied easement was created for the benefit of Lot 1, the dominant tenement, the implied easement existed until it was abandoned or terminated, which did not happen in this case. The quitclaim deed executed by the Curlises in 2005 conveying all interest in Lot 2 to the Oggs had no effect on their implied easement, because once the implied easement was created, it became appurtenant to the dominant tenement (Lot 1), not the subservient tenement (Lot 2). Thus, the issue is whether the quitclaim deed served as evidence of the Curlises' abandonment of the implied easement.

An easement may be abandoned by unequivocal acts showing a clear intention to abandon and terminate the right, or it may be done by acts in pais without deed or other writing. O'Connor v. Kaufman, 260 Neb. 219, 616 N.W.2d 301 (2000). The intent to abandon is the material question, and it may be proved by an infinite variety of acts. It is a question of fact to be ascertained from all the circumstances of the case. Id. The uncontradicted evidence in this case is that the Curlises did not intend to abandon their implied easement by executing the quitclaim deed which was executed to assist the Oggs in refinancing Lot 2. Thus, as the district court properly found, the quitclaim deed signed by the Curlises had no effect on their implied easement from former use.

(c) Sufficiency of Description of Implied Easement

The Woodles contend that the trial court erred in granting easements on Lot 2 without sufficiently describing the nature and extent of the easements. The Curlises and the Zajacs argue that the court's description of the easements were sufficient in that they clearly delineated the scope of the implied easements and that no metes and bounds description was necessary.

When a right-of-way easement is granted without fixing its exact location, the location may be subsequently fixed by express agreement between the parties, or by an implied agreement arising out of the use of a particular way. Graves v. Gerber, 208 Neb. 209, 302 N.W.2d 707 (1981). Having determined that the Curlises and the Zajacs possess an implied easement from prior use, there is no express agreement in this case; however, there is a clear pattern of use of the driveways over an extended period of time. The district court, in its order, set forth the manner in which the parties had utilized the driveways since 1984. We find that the court's order appropriately set forth the manner in which the implied easement had been utilized, and thus, we find that this assignment of error is without merit.

(d) Slander of Title

The Woodles contend that the district court erred in concluding the Zajacs' actions in preparing and filing documents with the register of deeds in April 2009, claiming an easement on Lot 2, did not constitute slander of title nor cause damage to the Woodles.

Neb. Rev. Stat. § 76-296 (Reissue 2009) provides, in part, that no person shall use the privilege of filing notices for the purpose of slandering the title to real estate. "An action for slander of title is based upon a false and malicious statement, oral or written, which disparages a person's title to real or personal property and results in special damage." Wilson v. Fieldgrove, 280 Neb. 548, 552, 787 N.W.2d 707, 711 (2010). "For slander of title claims, other jurisdictions have interpreted malice to require (1) knowledge that the statement is false or (2) reckless disregard for its truth or falsity." Id.

The district court rejected the Woodles' claim for slander of title, finding that the Zajacs' actions "constituted a misguided effort to protect the easement to which they believed themselves to be entitled." The district court had the opportunity to hear and observe the witnesses, and we give deference to the court's factual findings in this regard. From the evidence presented, it appears that the Zajacs held a good faith belief that they had a valid easement and did not file the documents with the register of deeds with malice. Therefore, we affirm the district court's denial of the Woodles' claim for slander of title.

(e) Claims Regarding Operation of Cabinet Shop

The Woodles contend that the district court erred in concluding (by implication) that the Zajacs had a valid special use permit for the continued operation of the cabinet shop on Lot 3, in concluding that the Zajacs' operation of the cabinet shop was not in violation of applicable zoning regulations, and in failing to issue an injunction prohibiting the continued operation of the cabinet shop.

An action for injunction sounds in equity. American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb 908, _ N.W.2d _ (2011). On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court; however, when credible evidence is in conflict on material issues of fact, we consider and may give weight to the fact the trial court observed the witnesses and accepted one version of the facts over another. Id.

The evidence adduced at trial established that the city of Gretna assumed jurisdictional authority of the Sun Country Addition in 2007. Although the cabinet shop would not be permitted under the current ordinances, the special use permit is honored by Gretna as a nonconforming use. In April 2010, the Gretna City Attorney sent a letter to the Zajacs notifying them that the special use permit as allowed by Sarpy County would be allowed to continue with the limits that were in place. The letter further provided that the cabinet shop's business hours of 7 a.m. to 7 p.m. as set forth in the special use permit would be enforced. Gretna has not taken any action to revoke the Zajacs' special use permit. Further, the Sarpy County planning director testified that the fact that ownership of Lot 3 was transferred from the Zajacs to their family trust did not invalidate or terminate the permit.

Although Sandy Curlis and Chase Woodle testified that on a few occasions, the cabinet shop operated as early as 5 a.m. and as late as midnight at times, there was no testimony that these hours were consistently followed. David Zajac testified that employees report to work at 7 a.m. and are typically done between 3 and 3:30 p.m., but during busy times they can work as late as 5:30 p.m. However, David Zajac testified that he will sometimes work from 4 a.m. until 10 p.m. Sandy Curlis and Chase Woodle also testified regarding what they perceived to be excessive noise, lighting that illuminated the Woodles' home and yard at night, and sawdust; there was no expert testimony regarding noise analysis, air quality, or lighting issues. The evidence is simply insufficient to support the Woodles' claims and their request for an injunction prohibiting the continued operation of the cabinet shop. Therefore, we find that this assigned error is without merit.

(f) Woodles' Requested Remedies

Finally, the Woodles contend that the district court erred in concluding they were not entitled to their request for quiet title in Lot 2 or an injunction prohibiting trespass on Lot 2 and that the Curlises and the Zajacs should be enjoined from interfering with the Woodles' use of the driveways on Lot 2. They admit that this assigned error is dependent upon our resolution of one of their other assigned errors in their favor. Having found their other assigned errors to be without merit, we likewise deny their claims that the district court erred in denying their requested remedies of quieting title in Lot 2 or of issuing an injunction prohibiting the Curlises and the Zajacs from trespassing on Lot 2 or interfering with the Woodles' use of the driveways on Lot 2.

2. CURLISES' CROSS-APPEAL

In their cross-appeal, the Curlises claim that the district court erred (1) in failing to find an easement by necessity on Lot 2 for the benefit of Lot 1 because the use of the western drive on Lot 2 was strictly necessary for access by larger vehicles to their attached garage and for servicing their septic and propane tanks, (2) in finding that the series of quitclaim deeds extinguished their express easement for use of the westerly drive on Lot 2, and (3) in failing to expressly rule that equitable principles barred the Woodles' requested relief.

Having found that the district court properly found that the Curlises had an easement by implication from former use, we need not consider the assignments of error raised in their cross-appeal because determination of these assigned errors will not affect the outcome of this appeal. An appellate court is not obligated to engage in an analysis which is not necessary to adjudicate the case and controversy before it. In re Interest of Leland B., 19 Neb. App. 17, 797 N.W.2d 282 (2011); Curtis v. Curtis, 17 Neb. App. 230, 759 N.W.2d 269 (2008).

VI. CONCLUSION

In sum, we affirm the decision of the district court finding that the Curlises and the Zajacs had an implied easement based on prior use.

AFFIRMED.