Nebraska Supreme Court: Co-Owners Must Act Jointly to Encumber Property

Harts et al. v. County of Knox, 308 Neb. 1 (2020).

In 2003, landowner Bernadette Tramp granted to H & H Cattle Co. (the “Feedlot”) an “impact easement.”  The impact easement waived zoning restrictions that precluded the Feedlot from constructing a facility within a particular distance from Bernadette’s residence.  Thereafter, for H&H’s successor, Epic Land and Cattle, LLC, Knox County (the “County”) approved a conditional use permit to expand the Feedlot from 6,000 to 7,500 head of cattle.

In 2017, in partial reliance on the easement, the County approved a subsequent request to expand the Feedlot to 20,000 head of cattle.  Bernadette and her eight children (the “Children”) challenged the County’s approval in District Court.  The District Court of Knox County reversed and vacated the County’s decision granting the expansion.  The Feedlot and the County (collectively, the “Appellants”) appealed to the Nebraska Supreme Court.  The Supreme Court affirmed the District Court and found the easement, and therefore the approval of the expansion, invalid.

The primary issue on appeal was whether the easement bound the Children.  The Children received their interest in the land when Bernadette’s husband Sylvester died “intestate,” meaning he did not leave a valid will.  Pursuant to Nebraska intestate succession laws, immediately upon Sylvester’s death, Bernadette received approximately a one-half interest in the land and the Children received the remainder in equal shares.  Each received his or her interest in the land as a “tenant in common” with an individual undivided interest.  Bernadette then unilaterally granted the easement.  The Children did not consent to or execute the easement.  The family later probated Sylvester’s estate and recorded a “deed of distribution” conveying the land to Bernadette for life with a remainder interest in each of the children.

The Court held that co-owners must act together to burden their land with an easement.  A single co-owner may grant an easement, but may not grant an easement that extends beyond his or her own interest.  The Court further held that Bernadette was never the sole owner of the land and was therefore unable to grant an easement that bound the entire property, i.e., the Children’s shares.  The Court rejected the Appellants’ claims that the children had sufficient knowledge of Bernadette’s actions or ratified the easement simply by failing to object.

Finally, the Court held that the County failed to conduct an independent public record search that would have shown Bernadette lacked the authority to grant the easement.  Accordingly, the County was unjustified in relying on the easement when it issued the permits to the Feedlot.  Citing the easement’s invalidity, the Court rejected the remainder of the Appellants’ claims.