Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2016 09:09 AM CDT




                                                       - 99 -
                               Decisions of the Nebraska Court of A ppeals
                                     24 Nebraska A ppellate R eports
                                              ARNOLD v. ARNOLD
                                              Cite as 24 Neb. App. 99




                                        M arvin A rnold, appellee, v.
                                        H arvey A rnold, appellant.
                                                  ___ N.W.2d ___

                                        Filed June 21, 2016.    No. A-15-243.

                1.	 Easements: Equity. An adjudication of rights with respect to an ease-
                    ment is an equitable action.
                2.	 Easements: Real Estate: Conveyances. An easement by implication
                    from former use arises only where (1) the use giving rise to the ease-
                    ment 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 neces-
                    sary for the proper and reasonable enjoyment of the dominant tract.
                3.	 Easements: Proof. The degree of necessity required to prove the exis-
                    tence of an implied easement from former use is reasonable necessity.
                4.	 Easements: Words and Phrases. Reasonable necessity means that the
                    easement is necessary for the proper and reasonable enjoyment of the
                    dominant tract as it existed when the severance was made.
                5.	 Easements. Every easement carries with it by implication the right of
                    doing whatever is reasonably necessary for the full enjoyment of the
                    easement itself, including the right of access to make repairs and enter
                    upon the servient estate for this purpose.
                6.	 ____. An owner of a dominant tract may not inflict any unnecessary
                    injury to the servient tract in making easement repairs.

                  Appeal from the District Court for Frontier County: Donald
               E. Rowlands, Judge. Affirmed.
                 Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier
               & Byrne, P.C., for appellant.
                 Sally A. Rasmussen and Patricia L. Vannoy, of Mattson
               Ricketts Law Firm, for appellee.
                               - 100 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

  Moore, Chief Judge, and Inbody and R iedmann, Judges.
  R iedmann, Judge.
                       INTRODUCTION
  Harvey Arnold appeals from an order of the district court for
Frontier County, Nebraska, determining the boundaries of ease-
ments across his land for access to and repair of an irrigation
well and underground pipeline. Following our de novo review,
we find no error in the determinations of the district court and,
accordingly, affirm its judgment.
                        BACKGROUND
   Harvey and Marvin Arnold are brothers who own and farm
adjacent parcels of land in Section 23, Township 6 North,
Range 26 West of the 6th P.M., Frontier County, Nebraska.
Harvey owns the southeast quarter of Section 23 and Marvin
owns the west half of Section 23. Harvey and Marvin have
farmed their respective tracts of land under lease agreements
with their father, Dorrance Arnold, since the 1970’s, and they
received ownership of their parcels from Dorrance after he
died in 2005.
   An irrigation well that serves Marvin’s land lies on Harvey’s
land 74 feet east of the boundary line that divides the east and
west halves of Section 23. From the well, an underground pipe
carries water at a slight northwestern angle until it reaches
the northwest corner of Harvey’s property and there crosses
onto Marvin’s land. Dorrance drilled the well in 1971, and it
has been used exclusively to irrigate crops on the west half of
Section 23 since 1978.
   In addition to transferring ownership of the farmland to the
brothers, Dorrance’s will reserved for Marvin’s tract an ease-
ment against Harvey’s land “for the purposes of maintaining
and replacing the irrigation well located on [the southeast quar-
ter of Section 23] which provides irrigation water for [the west
half of Section 23].”
   Harvey and Marvin have a strained relationship, and they
do not communicate directly with each other. In 2011, the
                               - 101 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

brothers constructed a boundary fence between their tracts.
Each brother constructed a portion of the fence. In particular,
Harvey constructed a fence on the western border of his land
and left an opening directly west of the well. Marvin con-
structed a portion of the fence along the northern boundary
and installed two gates at the northwest corner of Harvey’s
land through which he could access the pipeline and well.
Marvin testified that it had been his longstanding practice
to access the well by entering Harvey’s land at its northwest
corner; continuing down the boundary line on Harvey’s side
of the land, roughly above the route taken by the underground
pipe; and then angling from the fence line to the well. Marvin
testified that he and Harvey had previously agreed on this
route when the land was still owned by Dorrance and that over
the years, he had worked to raise the dirt on this path to pre-
vent it from flooding.
   In 2012, Marvin found that Harvey had padlocked the gate
in the northwest corner of Harvey’s land and planted corn over
the path Marvin normally used to drive to the well. Until 2012,
Harvey had not planted corn in this area. Marvin removed a
pin from the hinge of the gate to open it while it was locked
and continued driving his usual route. In June 2013, Marvin
filed this action seeking an injunction, a declaratory judgment
finding that the easement in Dorrance’s will included the right
to access and maintain the pipeline, and in the alternative, an
easement by implication of former use for access to and main-
tenance of the pipeline.
   The parties submitted conflicting evidence at trial as to
whether it would be feasible for Marvin to access the well by
driving down his side of the fence line and then turning west
onto Harvey’s property. The parties disputed whether the gap
in the fence that Harvey constructed directly west of the well
would be appropriate for large equipment. Marvin argued that
flooding and topographical features would prevent his fuel
truck from taking Harvey’s proposed route. Marvin also testi-
fied that he is able to check the pipeline for leaks by utilizing
                               - 102 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

his current route. He also introduced evidence that in order
to repair or replace the pipeline, he would need an easement
extending to 20 feet on each side of the pipeline in order to
accommodate trenching machinery and dirt work. In addi-
tion to the testimony and exhibits, the district court inspected
the property.
   Following trial, the district court made findings of fact
and conclusions of law pertaining to both the well easement
granted in Dorrance’s will and the pipeline easement claimed
by Marvin. The district court determined the metes and bounds
of Marvin’s well to include 120 feet surrounding the well
for maintenance and repair. The court’s determination of the
bounds of the well easement is not at issue on appeal.
   The district court next determined that Marvin held an
easement by implication from former use for the pipeline,
including an easement of 20 feet on each side of the pipeline
to maintain, repair, and replace it. The district court ordered
that Marvin be allowed access to the pipeline easement and
the well via the two gates in the northwest corner of Harvey’s
property, and the court enjoined Harvey from interfering with
access to or utilization of either easement. Harvey appeals
from this order, assigning that the district court’s determina-
tion of the existence and extent of the pipeline easement was
in error.
                ASSIGNMENTS OF ERROR
   Harvey assigns that the district court erred in (1) holding
that Marvin was entitled to an easement to maintain, repair,
and replace the underground pipe running from the irriga-
tion well and (2) establishing that Marvin’s pipeline easement
extends 20 feet on each side of the pipe and includes access
through the gates installed by Harvey in the northwest corner
of Harvey’s property.
                  STANDARD OF REVIEW
  [1] An adjudication of rights with respect to an easement is
an equitable action. Homestead Estates Homeowners Assn. v.
                               - 103 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

Jones, 278 Neb. 149, 768 N.W.2d 436 (2009). 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. Hauxwell v. Henning, 291 Neb. 1,
863 N.W.2d 798 (2015). But when credible evidence is in con-
flict on material issues of fact, the court may consider and give
weight to the fact that the trial court observed the witnesses
and accepted one version of the facts over another. Homestead
Estates Homeowners Assn. v. Jones, supra.

                          ANALYSIS
   Before analyzing the assigned errors, we first address
Marvin’s argument that Harvey’s failure to assign as error the
granting of an injunction prohibiting Harvey from interfering
with Marvin’s access to or use of the pipeline easement is fatal
to his appeal. Marvin contends that because the injunction was
not assigned as error, it must stand, even if this court were to
find that Harvey should succeed on his assigned errors. Given
that the two assigned errors (entitlement to the easement and
the extent thereof) are the bases for the injunction, we deter-
mine that failure to separately assign as error the granting of
the injunction does not preclude us from addressing the issues
raised in this appeal.

Easement to Maintain, Repair,
and Replace Pipeline.
   Harvey first assigns that the district court erred in deter-
mining that the west half of Section 23 held an easement by
implication of former use against the southeast quarter of
Section 23 for the maintenance, repair, and replacement of the
underground pipeline. Harvey states that Marvin’s proposed
access route to the well does not include access to the pipeline
because Dorrance’s will did not grant an easement in the pipe-
line. He argues that the pipeline easement and northwest gate
access route is not reasonably necessary because the pipeline
                               - 104 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

has never previously needed repair and alternative methods
of access and repair exist. For the reasons below, we disagree
with this analysis.
   [2-4] An easement by implication from former use arises
only where (1) the use giving rise to the easement was in exis-
tence 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 ease-
ment 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). The degree of necessity required to
prove the existence of an implied easement from former use is
reasonable necessity. Id. Reasonable necessity means that the
easement is necessary for the proper and reasonable enjoyment
of the dominant tract as it existed when the severance was
made. See id.
   In O’Connor v. Kaufman, supra, a home had long been
served by a well, pump, and pipeline. In 1975, the land was
subdivided such that the well and the home were under dif-
ferent ownership. Id. The owners of the parcel containing the
well removed the well and pipeline to plant crops. Id. In the
ensuing litigation, the Nebraska Supreme Court found that the
tract containing the home enjoyed an easement by implication
of former use for maintenance of the well, pump, and pipe-
line. Id.
   The present case is similar to O’Connor v. Kaufman, supra.
With regard to the first element, use at the time of subdivision,
there is no dispute that Marvin was using the underground
pipeline to irrigate crops on the west half of Section 23 at
the time that he and Harvey received their parcels following
Dorrance’s death. Because Dorrance owned both parcels at the
time he drilled the well in 1971 and until his death, this was
the first time that the well was under separate ownership from
the west half of Section 23, which it serves. Accordingly, the
first element of an easement by implication from former use is
met in this case.
                               - 105 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

   Under the second element, we consider whether the use has
been so long continued and so obvious as to show that it was
meant to be permanent. O’Connor v. Kaufman, supra. Here,
too, the facts support such a finding. The underground pipe
has occupied its current location and carried water from the
well since the well was drilled in 1971. This well and pipeline
were meant to permanently serve the irrigation of the west half
of Section 23, as demonstrated by the pipeline’s use carrying
water to the west half of Section 23 for over 30 years, and
Dorrance’s inclusion of an easement for the well in his will.
See O’Connor v. Kaufman, supra (holding that continuous
use of well for over 25 years, up to time when property was
divided, demonstrated intent to create permanent easement).
Therefore, although Dorrance’s will does not mention an ease-
ment for the underground pipeline, we find on de novo review
that the long, obvious, and continuous use of the pipeline
shows that Dorrance intended a permanent easement for main-
tenance of the pipeline.
   [5] Harvey argues that an easement in the pipeline should
not include the right to repair or replace the pipeline because it
has never been previously repaired. Therefore, Harvey argues
that repair of the pipeline is not a use “so long continued and
so obvious as to show that it was meant to be permanent.”
O’Connor v. Kaufman, 260 Neb. 219, 227, 616 N.W.2d 301,
308 (2000). We disagree and think the applicable analysis is
whether the pipeline has been in continuous use, not whether
it has been under continuous repair. We find no case law
supporting Harvey’s apparent assertion that the holder of an
easement by implication of former use for a pipeline may
not repair the pipeline unless it has previously been repaired.
Instead, the Nebraska Supreme Court has held that every ease-
ment carries with it by implication the right of doing whatever
is reasonably necessary for the full enjoyment of the ease-
ment itself, including the right of access to make repairs and
enter upon the servient estate for this purpose. See Ricenbaw
v. Kraus, 157 Neb. 723, 61 N.W.2d 350 (1953). However, the
                               - 106 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

right to repair does not always include unconditional access to
the surface land disturbed by repairs. See id. While we con-
clude here that the easement by implication of former use for
the pipeline includes the right to repair or replace the pipeline,
we will discuss in greater detail under our analysis of the sec-
ond assignment of error whether the district court was correct
in determining that Marvin’s pipeline easement included the
rights to a surface tract extending to 20 feet on each side of
the pipeline.
   Finally, we consider whether an easement for maintenance,
repair, and replacement of the pipeline is reasonably necessary
for Marvin’s enjoyment of the west half of Section 23. We find
that it is. Although the parties submitted conflicting evidence
as to whether Marvin could access the well via a different route
and whether the pipeline could be rerouted to travel under less
of Harvey’s property, the Nebraska Supreme Court has previ-
ously recognized that the standard of necessity for an easement
by implication of prior use is only reasonable necessity and
that testimony regarding alternate routes of irrigation water are
grounded in a strict necessity standard that is not applicable.
See Hillary Corp. v. United States Cold Storage, 250 Neb. 397,
550 N.W.2d 889 (1996). Other cases have recognized that car-
rying water to adjacent land is a use reasonably necessary for
the enjoyment of that land. See O’Connor v. Kaufman, supra.
In this case, the facts demonstrate that the pipeline is neces-
sary to carry irrigation water from the well to the west half
of Section 23. For these reasons, this assignment of error is
without merit.

Extent and Route of Easement.
   Harvey next assigns that the district court erred in determin-
ing that the pipeline easement included 20 feet of surface land
on each side of the pipeline and access through the gates in the
northwest corner of Harvey’s property. Harvey argues that the
access route granted was in error because an alternate route
to the well exists. However, Harvey admits that his proposed
                               - 107 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

alternate route does not include access to the pipeline, and as
we determined above, the pipeline and access to the pipeline
are reasonably necessary for use and enjoyment of the west half
of Section 23. See O’Connor v. Kaufman, supra. Furthermore,
there was conflicting testimony as to the sufficiency of the
alternate route. Although we try factual issues de novo on the
record, when credible evidence is in conflict on material issues
of fact, we may consider and give weight to the fact that the
trial court observed the witnesses and accepted one version of
the facts over another. Homestead Estates Homeowners Assn.
v. Jones, 278 Neb. 149, 768 N.W.2d 436 (2009). We also give
weight to the fact that the trial court personally viewed the area
in question. Accordingly, we determine that it was appropriate
to grant an easement through the gates at the northwest corner
of Harvey’s property.
   [6] Harvey next argues, without citation to supporting
authority, that if Marvin is allowed access to the pipeline from
his property, he should be responsible for any damages to
Harvey’s property. We recognize that an owner of a dominant
tract may not inflict any unnecessary injury to the servient
tract in making easement repairs. See Ricenbaw v. Kraus, 157
Neb. 723, 61 N.W.2d 350 (1953). In Ricenbaw v. Kraus, this
meant that the owner of a tile drain was required to restore
the surface of the servient tract’s land to substantially the
same condition as it had been before performance of repair
work. However, the facts here are distinguishable, and after
de novo review, we determine that these facts support the
district court’s determination that the easement by implica-
tion of former use extends to the surface above the pipeline.
Marvin introduced testimony at trial that an easement of 20
feet extending on each side of the pipeline would be necessary
to repair the pipeline. Marvin testified that his longtime route
of driving above the pipeline allows him to visually inspect for
leaks and that he recently found a leak in the pipeline through
this method which will require repair. Marvin also testified
that he has long accessed the well twice per day via a route
                               - 108 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       ARNOLD v. ARNOLD
                       Cite as 24 Neb. App. 99

that roughly corresponds to the pipeline’s route. Through years
of accessing the well along this path, he has built a dirt road
that does not flood and is suitable for his fuel truck and other
machinery required to routinely service the well. Harvey had
not planted corn along this route until 2012, so the established
use of this land has been to provide an access road to the ease-
ment well. Given the long use of this general access pathway,
the fact that it assists Marvin in monitoring and maintaining
the pipeline, and the importance of suitable access to the well,
we conclude on de novo review that the district court did not
err in determining that the pipeline easement extends to the
surface above the pipeline, including 20 feet on each side of
the pipeline and access via the gate on the northwest corner of
Harvey’s property.
   Harvey finally argues that he should be allowed to determine
the location of the easement because he is the grantor of the
easement. See Graves v. Gerber, 208 Neb. 209, 302 N.W.2d
717 (1981) (failure of grant to definitely locate easement does
not give grantee right to use servient estate without limitation;
in such case, grantor may designate location, and if he fails
to do so, grantee may then make designation which, in either
case, must be reasonable). However, while Harvey owns the
servient estate, there is no evidence that he is the grantor of
the easement, nor that he ever held an ownership interest in the
easement well or pipeline that would have allowed him to be
the grantor of this easement. For the foregoing reasons, we find
this assignment of error to be without merit.
                         CONCLUSION
  Following a de novo review, we find no error in the determi-
nations of the trial court and accordingly affirm its judgment.
                                                      A ffirmed.
