S-16-708, Kevin Royal (appellant) v. OPPD (appellee and cross-appellant)
District Court for Otoe County, Hon. Jeffrey Funke.
Attorneys: Donald J. Pepperl (Donald J. Pepperl PC, LLO) (appellant); Mark C. Laughlin and Jacqueline M. DeLuca (Fraser Stryker PC LLO) (appellee and cross-appellant)
Civil: quiet title; adverse possession
Proceedings below: Royal filed a second amended complaint in which he alleged that he had adversely possessed a railroad right-of-way owned by the Omaha Public Power District (OPPD) that runs through Royal’s property, and that therefore the title should be quieted in his name. OPPD filed an answer and counterclaim in which it alleged that it had acquired the property by adverse possession and that title should quieted in OPPD’s name. After a bench trial, the district court for Otoe County determined that neither Royal nor OPPD had adversely possessed the property. Royal appeals, and OPPD cross-appeals.
Issue: 1. The Trial Court erred in not finding that on April 1, 1987, Kevin Royal's parents and grandparents were deeded all the property conveyed to by Kevin Royal by deeds dated September 29, 1997,andMarch 25, 2002. 2.The Trial court erred in not finding that the defendant OPPD moved to dismiss and the Trial Court entered an Order dismissing OPPD's cause of action claiming it own fee title to the railroad right-of-way. 3. The Trial Court erred in not finding that since the ownership interest of the fee title holders of record, Loma M McKee and Lois B Benefield, were extinguished by its Order of March 17, 2005, that neither the plaintiff Kevin Royal nor the defendant OPPD proved by the preponderance of the evidence that he/it was entitled to judgment quieting title in that party by reason of adverse possession. 4. The Trial Court erred in not finding that Kevin Royal was conveyed title to the property surrounding the railroad right-of-way in dispute by deeds dated September 29, 1997, and March 25, 2002. 5. The Trial Court erred in finding that the deed to Kevin Royal dated September 6, 2012, conveyed any additional real property to Kevin Royal other than fee title to the underlying railroad right-of-way. 6. The Trial Court erred in finding that Kevin Royal acquired real estate he owns in Otoe County from a series of deeds being completed in 2012, when in actuality the conveyances were completed on March 25, 2002. 7. The Trial Court erred in finding that Kevin Royal testified he began to assist his father and grandfather in farming the subject property in 1989, rather than his actual testimony of April 7, 1987. 8. The Trial Court erred in finding that the legal description identified as parcel number I in Exhibit 28 did not provide a legal description that accurately depicted the entire railroad right-of-way easement that Kevin Royal is claiming as being adversely possessed by him. 9. The Trial Court erred in finding that the legal description identified as parcels number 2 and 3 in Exhibit 28 did not provide a legal description that accurately depicted the two outside 50 feet tracts of the 200 foot railroad right-of-way that Kevin Royal is claiming as being adversely possessed by him.
10. The Trial Court erred in finding that claiming adverse possession through farming is not sufficient evidence in that farming is done only during "the planting, growing, and harvesting periods." 11. The Trial Court erred in not finding that pasturing cattle on the stocks of a grain field, including the adjacent grass waterways and filter strips, was evidence of adverse possession. 12. The Trial Court erred in not finding that using the railroad right-of-way inside the fence constructed by the railroad as an access road through the middle of the entire property to check fence, check cattle, check crops, maintain waterways and filter strips, and erosion control structures was an open adverse use of the railroad right-of-way inside the railroad fence. 13. The Trial Court erred in not finding that the creation and maintaining of grass filter strips and waterways are an essential part of an adverse possession farming operation. 14. The Trial Court erred in finding that the Royals' cattle only used the railroad right-of-way for access as compared to grazing, being either stocks or grass. 15. The Trial Court erred in finding that the Royals only pastured cattle for short period of time due to federal regulations when these regulations applied only to the grazing of stocks as compared to the Royals using the railroad right-of-way for pasture and hay on those areas of the property that were grassland as compared to cropland. 16. The Trial Court erred in not finding that the plaintiff Kevin Royal had proven by the preponderance of the evidence that he had been in actual, continuous, exclusive, notorious, and adverse possession under a claim of ownership for a period of 10 years of all of the parcels described in Exhibit 28.
17. The Trial Court erred in not finding that Kevin Royal had proven that his claim of adverse possession commenced on April 7, 1987. 18. The Trial Court erred in not finding that Kevin Royal and his father’s placing a No Trespassing Sign on the railroad right-of-way fence was notorious evidence of an a claim of adverse possession. 19. The Trial Court erred in finding Kevin Royals using the county road, as it intersects the railroad right-of-way on the western portion of his property, as the point of entry for ingress and egress through the access road he used for traversing through the railroad right-of-way, was only evidence of sporadic use. 20. The Trial Court erred in finding that OPPD introduced evidence that it "makes payments in lieu of real estate taxes for the right-of-way which amount to $5000 to $6000 per year." 21. The Trial Court erred in not finding that Kevin Royal and his father had been using the railroad right-of-way for the farming and other purposes described and testified to from April 7, 1987, until October 9, 1988, before OPPD acquired the railroad right-of-way easement or engaged in any possessory rights conveyed by said easement. 22. The Trial Court erred in finding that "Farrell lastly testified that OPPD had, on numerous occasions, informed Royal that it was the owner of the right-of-way...."
On cross-appeal, OPPD claims that the district court erred when it determined that OPPD did not adversely possess the land.