Posted by: Patricia Salkin | January 24, 2021

NE Sup Court Finds Landowners Lacked Actual Awareness of a Signed Impact Easement in Feedlot Expansion Dispute

This post was authored by Matthew Loescher, Esq.

In 2003, H & H Cattle Co., the predecessor in interest of Epic Land and Cattle, LLC, obtained an impact easement from Bernadette Tramp, the mother of the plaintiffs in this action. The impact easement was required by the zoning regulations of the County of Knox, Nebraska, where a feedlot was to be constructed within a particular distance of a dwelling unit or other designated location. 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. About 14 years later, H & H Cattle sought another expansion of its feedlot to 20,000 head of cattle. 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 appealed.

The court first analyzed the claim that the children were estopped from contending that the easement was invalid. The court noted that while Bernadette, individually and as personal representative, and the children and their privies, as parties to that deed, were eligible to utilize this defense, the appellants were not. The record reflected that while parties stipulated that the easement was filed with the register of deeds, there was no evidence that the children were actually aware of its existence. Furthermore, despite some of the children recall seeing or hearing about the owner of H &H Cattle visiting Bernadette around the time the easement was signed, there was nothing in the record demonstrating that the children were informed of the nature of the visit. Finally, the record failed to show that the children were informed that Bernadette later signed the easement H & H Cattle sought. Accordingly, the district court’s finding that the children were unaware that the easement had been signed was not clearly erroneous.

The court next found the fact that Bernadette was not record owner of the quarter section was information available to the appellants by a record search. Here, it was apparent from the record that the company that sought to lease the property for placement of “wind towers” was able to determine that Bernadette was not record owner. Instead of doing so, however, the County and the board of supervisors acted in accordance with representations made by Epic’s predecessor without independently determining whether they were valid. As such, the court held, any reliance on the easement was not reasonable, and the order of the district court was affirmed.

Harts v County of Knox, 301 Neb. 1 (12/18/2020)

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