Daily Development for
Thursday, January 2, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

The reporter for today's case is Professor Daryl Wilson of Stetson University Law School.

EASEMENTS; CREATION;IMPLICATION: Nebraska court clarifies and refines implied easement principles.

Hillary Corp. v. U.S. Cold Storage, Inc., 550 N.W.2d 889 (Neb. 1996).

Plaintiff filed a declaratory judgment claiming an implied easement by reservation for railway access across the defendant's property. The easement allegedly arose on behalf of plaintiff's predecessor in interest and passed with the transfer of title. The plaintiff acquired the property at about the same time that the defendant ripped out the tracks. The defendant was fully aware throughout that the plaintiff's predecessor claimed an easement right. The court was thus forced to analyze whether the easement arose in favor of plaintiff's predecessor. The court seized upon the occasion to overrule a number of prior Nebraska cases and to clarify others. The holding appears to bring Nebraska into line with the general common law in this area, at least as promulgated by current property law casebooks and hornbooks. Here are the salient rulings:

1. When two commonly owned parcels are divided in ownership, an implied easement can arise from evidence of prior useage of the servient parcel in favor of the dominant parcel, which useage is shown by physical evidence on the burdened parcel, demonstrating the intent of the parties at the time the parcels are severed that the servient relationship will continue. (The court does not differentiate between easements implied by implied grant and those implied - as in this case - by implied reservation.)

2. Some degree of necessity for the easement must exist in order for the implication to arise, but the necessity need not be "strict necessity," as likely would be the case if there were no evidence of prior useage.

3. The degree of necessity is satisfied when the easement in question supplies the only rail access, even when other types of access, such as truck access, is readily available without the easement. It is not necessary to evaluate whether access by alternative transportation modes would satisfy all the needs of the dominant parcel. Rail access is unique.

4. The requisite necessity need exist only upon the creation of the implied easement at first severance. Thereafter, it continues when the dominant parcel is transferred, whether or not mentioned in the deed, and whether or not the necessity exists at that time.

5. Abandonment of an easement can be shown by physical changes to the dominant parcel that demonstrates unequivocally that the easement is abandoned, but mere nonuse does not establish abandonment.

6. Nonuse of an easement for the prescriptive period, however, establishes a presumption of abandonment. But the presumption of abandonment can be overcome by evidence that the dominant tenant did not intend to abandon, even though it did not use the easement. Here, the dominant tenant advertised the property for sale as having "rail access" during the ten year period, and employees of the dominant tenant during this period testified that they viewed the easement as still viable.

Reporter's Comment: The court, in allowing the plaintiff to rebut the presumption raised against abandonment, places an undue emphasis on testimony by the plaintiff's witnesses which simply says no abandonment was intended. The case will encourage parties to try and find people in the chain of title who may have a better factual scenario which might give them an interest that is unsupportable based on their own circumstances. It also guts abandonment as proof of termination.

Editor's Comment 1: The editor disagrees with the reporter, and concludes that the case is correct and a positive step in common law development in Nebraska. The editor has left the reporter's comment intact, although he has completely rewritten the report. Students of the area can study the case and reach their own conclusions.

Editor's Comment 2: The editor's views reflect his own conservatism on the question of abandonment of an easement. Where an easement claim is known to the parties, and there is no prescriptive blockage, the editor concludes that it should be treated as a property right which remains in existence, subject only to the relatively narrow abandonment concepts applied here. Where the easement is an anachronism that doesn't benefit the dominant parcel, we can rely upon the market in most cases to resolve the problem. The editor would not substitute the court's view as to what is a "useful" easement right for the view of the landowner.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.