Homestead Estates Homeowners Assn. v. Jones

Homestead estates Homeowners association,
a nebraska nonprofit corporation, appellee ,
v. tHomas d. Jones and micHelle l.
peterson-Jones , Husband
and wife , appellants.
768 N.W.2d 436
Filed July 17, 2009. 	No. S-08-1042.
1. Declaratory Judgments. An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in equity is to be deter-
mined by the nature of the dispute.
2. Easements: Equity. An adjudication of rights with respect to an easement is an
equitable action.
3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an equity
action for a declaratory judgment, an appellate court decides factual issues de
novo on the record and reaches conclusions independent of the trial court. But
when credible evidence is in conflict 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.
Appeal from the District Court for Cass County: randall l.
reHmeier, Judge. Affirmed.
Grant A. Forsberg, of Forsberg & Jolly Law, P.C., L.L.O.,
for appellants.
David V. Chebatoris, of Svoboda & Chebatoris Law Office,
for appellee.
H eavican, c.J., wrigHt, connolly, gerrard, stepHan, and
miller-lerman, JJ.
stepHan, J.
This appeal questions whether the owners of property
subject to an ingress/egress easement may prevent the ease-
ment holder from upgrading the surface of a roadway over
the easement in order to preserve the “charm of the area.”
We affirm the judgment of the district court for Cass County
declaring that the easement holder had the right to upgrade
the roadway, where it was not shown that the upgrade
would damage or interfere with the enjoyment of the servi-
ent estate.
hOmeSTeAD eSTATeS hOmeOWNerS ASSN. v. JONeS 	149
Cite as 278 Neb. 149
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

FACTS
homestead estates is a subdivision of eight residential lots,
each approximately 5 acres in size, located in Cass County,
Nebraska. homestead estates is legally described as the south-
west quarter of the northeast quarter of Section 19, Township
12 North, range 12 east of the 6th P.m. The homestead estates
homeowners Association (the Association) is a Nebraska non-
profit corporation composed of the owners of property within
homestead estates.
homestead estates was developed by ronald and Jean
Barnhart in 2004. At that time, the Barnharts also owned the
land legally described as the northwest quarter of the north-
east quarter of Section 19, Township 12 North, range 12 east
of the 6th P.m. This land is immediately to the north of and
contiguous with the land on which homestead estates was
developed. The Barnharts established a 66-foot-wide ingress
and egress easement running along the east side of this prop-
erty, from homestead estates on the south to Nebraska State
highway 66 on the north. This easement is the only means of
access to homestead estates. Currently, the easement contains
a gravel road known as red Barn road.
The plat for homestead estates was filed with the Cass
County register of deeds on June 24, 2004. The easement is
set forth on the plat. The plat specifically notes that the owners
of property within homestead estates “agree to contribute to
the maintenance of the ingress and egress easements.” The plat
also contains a reference to separate covenants for homestead
estates that were filed with the register of deeds. One of the
covenants specifically references the roadway easement and
provides that the Barnharts would install “a non-hard-surfaced
roadway into the development so as to service all tracts therein.
The road will be rocked initially and at necessary intervals to
[e]nsure safe travel over the same.” The covenant further pro-
vided that the owners of the tracts in homestead estates would
“pay their equal share of the cost and expense of maintenance,
repair, upgrading or snow removal on the roadway.”
Appellants, Thomas D. Jones and michelle L. Peterson-Jones
(the Joneses), purchased their residential property in 2005.
Their home is located on a separate parcel directly east of the
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property on which red Barn road is situated; the house itself
is located approximately 150 feet east of the easement. The
parcel on which the Joneses’ home is situated does not include
homestead estates or the easement. At the time the Joneses
purchased their residential property, homestead estates and the
ingress/egress easement which included red Barn road were
in existence and the plat of homestead estates had been filed
with the register of deeds.
In September 2006, the Joneses purchased the 40-acre tract
immediately west of their residential property and to the imme-
diate north of homestead estates. This is the property over
which the easement runs. This property is undeveloped and is
generally used by the Joneses for recreational purposes.
During the fall of 2006, the Association discussed upgrading
red Barn road from a gravel road to some type of asphalt or
harder, smoother surface. The Association obtained three bids
for upgrading the road with asphalt millings. Subsequently, the
Joneses’ counsel made demand upon the Association to “cease
and desist” any upgrade of red Barn road. The Association
subsequently filed this declaratory judgment action, seeking a
determination of the respective rights and duties of the parties
with respect to the ingress/egress easement.
A bench trial was held on August 1, 2008. The Joneses testi-
fied that they wanted red Barn road to remain gravel, because
they feared an asphalt or other hard-surface road would detract
from the rural setting of their home and cause people to speed
on red Barn road. The Joneses also expressed concern for the
safety of their four children and their pets, based upon their
belief that vehicles would travel faster on a hard-surface road-
way. A real estate agent testified that paving the road might
negatively affect the property value of the Joneses’ residence.
An engineer testified about the necessity of properly construct-
ing an asphalt road and the expense of constructing and main-
taining it.
Based upon this evidence, the district court concluded that
the Association had the right to upgrade and maintain red
Barn road by installing an asphalt surface. The court deter-
mined that the Joneses’ residential property was not a part of
the servient estate, but was “merely a property located adjacent
hOmeSTeAD eSTATeS hOmeOWNerS ASSN. v. JONeS 	151
Cite as 278 Neb. 149

to” the servient estate. The court determined that although the
Joneses also owned the servient estate, they had not shown that
their use of those 40 acres of undeveloped property would be
negatively affected by the upgrade to the easement. The court
also found that the Joneses purchased both the residential prop-
erty and the undeveloped servient estate with full knowledge
of the existence of homestead estates and the easement. The
court’s judgment allowed the Association to upgrade red Barn
road with “crushed asphalt, asphalt milling, or poured asphalt”
and to “maintain, repair, upgrade, and remove snow from the
roadway” at its expense.
The Joneses filed this timely appeal.
ASSIGNmeNTS OF errOr
The Joneses assign, renumbered, that the district court
erred in (1) finding that the plan to resurface red Barn road
was reasonably necessary for the convenient enjoyment of
the servitude, (2) admitting into evidence the covenants for
homestead estates, (3) finding that the resurfacing of red
Barn road would not unreasonably interfere with the Joneses’
enjoyment of their property, and (4) finding that resurfac-
ing red Barn road would not unreasonably damage the
Joneses’ property.
STANDArD OF reVIeW
[1] An action for declaratory judgment is sui generis; whether
such action is to be treated as one at law or one in equity is to
be determined by the nature of the dispute.1
[2,3] An adjudication of rights with respect to an easement
is an equitable action.2 In reviewing an equity action for a
declaratory judgment, an appellate court decides factual issues
de novo on the record and reaches conclusions independent of
the trial court.3 But when credible evidence is in conflict on
1 City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861
(2006); Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005).
2 See, Bors v. McGowan, 159 Neb. 790, 68 N.W.2d 596 (1955); R & S
Investments v. Auto Auctions, 15 Neb. App. 267, 725 N.W.2d 871 (2006).
3 Mogensen v. Mogensen, 273 Neb. 208, 729 N.W.2d 44 (2007).
152 	278 NeBrASkA rePOrTS

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.4
ANALYSIS
In resolving this dispute, the district court relied upon the
principles set forth in the restatement (Third) of Property,5
which provides:
except as limited by the terms of the servitude . . .
the holder of an easement . . . is entitled to use the servi-
ent estate in a manner that is reasonably necessary for
the convenient enjoyment of the servitude. The manner,
frequency, and intensity of the use may change over time
to take advantage of developments in technology and
to accommodate normal development of the dominant
estate or enterprise benefitted by the servitude. Unless
authorized by the terms of the servitude, the holder is
not entitled to cause unreasonable damage to the servient
estate or interfere unreasonably with its enjoyment.
The Joneses rely upon § 4.10 in their appeal. Although we have
not previously adopted or cited this section of the restatement,
we note that it is consistent with our cases recognizing that
an easement “‘“carries with it by implication the right . . .
of doing whatever is reasonably necessary for the full enjoy-
ment of the easement itself”. . . .’”6 and that the owner of an
easement “‘may make the way as useable as possible for the
purpose of the right owned so long as he does not increase the
burden on the servient tenement or unreasonably interfere with
the rights of the owner thereof.’”7 In keeping with our general
practice of disposing of appeals on the theories which were
4 Id.
5 restatement (Third) of Property: Servitudes § 4.10 at 592 (2000).
6 Ricenbaw v. Kraus, 157 Neb. 723, 728, 61 N.W.2d 350, 355 (1953), quot-
ing Scheeler v. Dewerd, 256 Wis. 428, 41 N.W.2d 635 (1950). Accord 28A
C.J.S. Easements § 196 (2008).
7 Bors v. McGowan, supra note 2, 159 Neb. at 800, 68 N.W.2d at 602.
Accord 25 Am. Jur. 2d Easements and Licenses § 82 (2004).
hOmeSTeAD eSTATeS hOmeOWNerS ASSN. v. JONeS 	153
Cite as 278 Neb. 149

presented to the trial court,8 we apply the principles stated in
§ 4.10 of the restatement in our de novo review.
relying on § 4.10 of the restatement, the Joneses argue that
the record fails to establish that the resurfacing of red Barn
road was reasonably necessary for homestead estates’ enjoy-
ment of the servitude. The district court did not make an explicit
finding on this issue. In its order, however, the court noted that
homestead estates had developed significantly in the 4 years
since it was initially platted and that traffic had increased over
red Barn road as the area further developed. The court also
noted that various residents of homestead estates testified that
upgrading the road would improve safety, eliminate potholes,
eliminate dust, and make it easier to remove snow in the win-
ter months.
In addition, the district court noted that the homestead
estates covenants that were incorporated in the plat did not
restrict the use of red Barn road to that of a rock road, but
instead provided that the roadway could be upgraded. The
Joneses argue that these covenants should not have been admit-
ted into evidence or considered by the district court because
they are not binding on the Joneses. Clearly, the covenants
apply only to owners of property within homestead estates,
and as the Joneses are not such owners, the covenants do not
bind them. In the context of the instant case, however, the
district court properly considered the covenants as additional
evidence relating to the issue of whether the upgrade of the
roadway was a reasonable use of the easement by the owners
of residential property within homestead estates. Based upon
our de novo review, we conclude that the district court did not
err in implicitly finding that the road upgrade was reasonably
necessary or in relying in part on the covenants in reaching
that finding.
The Joneses’ primary argument is based on the last sen-
tence of § 4.10, which provides that an easement holder is
“not entitled to cause unreasonable damage to the servient
8 See, Schindler v. Walker, 256 Neb. 767, 592 N.W.2d 912 (1999); Reavis v.
Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996).
154 	278 NeBrASkA rePOrTS

estate or interfere unreasonably with its enjoyment.”9 Their
general contention at trial was that paving red Barn road
would negatively affect the aesthetic value of their rural set-
ting and would result in increased speeding along the road
and thus create safety hazards. The evidence presented by
the Joneses in support of these contentions related almost
exclusively to how paving the road might impact the Joneses’
residential property and their use of it. For example, michelle
Peterson-Jones testified that the proposed upgrade of red
Barn road
certainly would take away from the charm of the area,
and what [the Joneses are] trying to accomplish and what
we like to see out our window. You know, we like to see
that kind of dirt road area, and I . . . absolutely really
would prefer not to see an asphalt road, particularly if it’s
in disrepair.
Likewise, the Joneses’ concern regarding potential speeding on
a resurfaced red Barn road was primarily from their perspec-
tive as owners of the land adjacent to the parcel of land which
included the easement.
Section 4.10 however, prohibits only unreasonable damage
to or interference with the “servient estate,” i.e., “[a]n estate
burdened by an easement.”10 As the district court noted and
the parties do not dispute, the easement over which red Barn
road runs does not lie on the Joneses’ residential property and
thus, the concerns raised by the Joneses with respect to that
property are not properly considered in the analysis of whether
the upgrade would unreasonably affect the servient estate. The
servient estate at issue in this action is the undeveloped land
owned by the Joneses, and the record is almost entirely silent
as to the effect of the road upgrade on this property. Based
upon our de novo review, we conclude that the Joneses did not
prove that the proposed resurfacing of red Barn road would
cause unreasonable damage to the servient estate or interfere
unreasonably with its enjoyment.
9 See restatement, supra note 5, § 4.10 at 592.
10 Black’s Law Dictionary 629 (9th ed. 2009).
hOmeSTeAD eSTATeS hOmeOWNerS ASSN. v. JONeS 	155
Cite as 278 Neb. 149

CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
affirmed.
mccormack, J., participating on briefs.
James l. sack , appellant, v. carlos castillo, Jr .,
director of nebraska department of
administrative services , appellee .
768 N.W.2d 429
Filed July 17, 2009. 	No. S-08-1278.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appel-
late court resolves the questions of law independently of the trial court’s
conclusions.
4. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
5. Statutes. To the extent there is conflict between two statutes on the same subject,
the specific statute controls over the general statute.
6. Statutes: Legislature: Intent. repeal of a statute by implication is not favored
and will not be found unless the Legislature’s intent makes another construction
of the statute untenable.
7. ____: ____: ____. In the absence of clear legislative intent, the construction
of a statute will not be adopted which has the effect of nullifying or repealing
another statute.
8. Statutes. Where general and special provisions of statutes are in conflict, the
general law yields to the special, without regard to priority of dates in enacting
the same.
9. Constitutional Law: Statutes: Presumptions: Proof. Statutes are afforded a
presumption of validity, and the burden of establishing that a statute is unconsti-
tutional is on the one attacking its validity. All reasonable doubts will be resolved
in favor of its constitutionality.
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