Harts v. Cnty. of Knox

308 Neb. 1

952 N.W.2d 199

Pat HARTS et al., appellees,

v. COUNTY OF KNOX, Nebraska, appellant,andEpic Land and Cattle, LLC, intervenor-appellant.

No. S-20-014.

Supreme Court of Nebraska.

Filed December 18, 2020

John 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, Norfolk, 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 particular distance of a dwelling unit or other designated location. Thereafter, the County's board of supervisors approved a conditional 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 expansion 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 children) challenged the approval in district court. Following a trial de novo, the district court reversed and vacated the decision 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 to 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 proceedings 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 informal 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 distribution 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, with 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 conditional use permit. The County and Epic both appeal.

ASSIGNMENTS OF ERROR

Although filing separate briefs, the County and Epic generally assign, restated, that the district court erred in (1) concluding 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 applying the doctrine of estoppel by deed; (4) finding that the children 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 discretion and the regularity of its official acts.

STANDARD OF REVIEW

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.¹

ANALYSIS

Validity of Easement.

The primary issue on appeal is whether the easement signed by Bernadette in favor of H & H Cattle was effective in binding Bernadette and the children.

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 possession 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 property 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 surviving spouse, was entitled to the first $50,000, plus one-half of the remaining estate, while under Neb. Rev. Stat. § 30-2303 (Reissue 2016), Sylvester's eight children were to divide the remainder.

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 easement 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 estoppel by deed and ratification were raised and tried without objection to the district court⁸ and, as such, have not been waived. We also address the more general contention that the appellants 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.

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 derogation 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...