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Real Property Annotations (Agricultural Law and Tax)

This page contains summaries of significant recent court opinions involving legal issues related to the use of real property of importance to agricultural producers and rural landowners

Posted May 1, 2023

Adverse Possession Can Be Established Without Existing Fence. The plaintiff sued under Neb. Rev. Stat. §34-301 to quiet title to disputed land under the doctrine of adverse possession. Under that statute, the plaintiff had to show actual, continuous, exclusive, notorious, and adverse possession of the disputed property for at least 10 years. The plaintiff also sued for trespass and related damages for the defendant’s removal of a new fence. Trial testimony showed that a fence existed before the plaintiff’s purchase in 1990, but from 1990 to 2019 the remains of the old fence were not used as a boundary, and the plaintiff did not rebuild the fence to mark the property. The trial court held the plaintiff did not notoriously possess the property because no fence used as a boundary existed. A survey indicated that the old fence was not on the property line and extended onto the defendant’s property. The plaintiff had used the property for farming and ranching even after the fence that marked the improper boundary partially fell. A small portion of the disputed property was still marked by a fence. The trial court found the plaintiff did adversely possess the portion of the disputed ground, but not the portion without a fence. The trial court also determined that the defendant had not trespassed as it was their own ground and did not award damages to the plaintiff. On appeal, the appellate court focused mainly on the trial court decision relating to the disputed ground not marked by a fence. The appellate court acknowledged that the plaintiff had actually possessed the property because he regularly maintained it, farmed it and kept cattle on it occasionally for at least 10 years, but there was dispute about whether the use was exclusive based on the parties’ conflicting testimony. In addition, the appellate court reversed the trial court and held a fence is not required to satisfy the notorious requirement of the statute. The plaintiff’s physical actions of farming and ranching on the property were visible and conspicuous enough to be considered notorious without an enclosure. The appellate court found there was no evidence from 1990 to 2018 that showed the plaintiff’s use was not exclusive and reversed the trial court on this issue. However, the appellate court affirmed the trial court’s finding that the plaintiff could not be awarded damages because the destroyed fence was not a legal fence defined by Neb. Rev. Stat. § 34-115 and that is what the plaintiff was trying to claim damages for. The plaintiff’s evidence of damages did not conform with what they claimed they lost. The claim for damages for not being able to graze cattle was rejected as well, because the amount of damages was just a guess and not a mathematical calculation the court could honor. Further, the plaintiff did not mitigate damages by installing a temporary fence to control their cattle. Hudkins v. Hempel, No. A-21-1011, 2023 Neb. App. LEXIS 32 (Neb. Ct. App. Jan. 31, 2023).

Posted April 19, 2023

Trial Court Erred in Finding Multiple Types of Easements Over the Same Roads. The plaintiffs claimed they had easement rights to cross four roads the defendants owned. The jury determined that the plaintiffs had prescriptive easements over all four roads. A later bench trial resulted in a finding that the plaintiffs had limited use of Road 2 and in addition to prescriptive rights found by the jury, the plaintiffs had easements of estoppel over Roads 1 and 2, and easements by necessity over Road 3 and 4. The plaintiffs appealed their limited scope of use to Road 2 and the defendants appealed multiple findings about the easements. The plaintiffs’ sole argument on appeal was that the trial court erred by limiting the plaintiffs’ use of Road 2 to only moving cattle back and forth on it a few times a year. The plaintiffs argued the conclusion was not supported by substantial evidence and that the trial court ignored uncontradicted evidence. The facts show that the plaintiffs used Road 2 often with ATVs and small machinery that they would not have been able to use now, and they would be much more limited in how often they could use the road. The appellate court found that the record showed the plaintiffs had used Road 2 more broadly than the limit the trial court created and found the limit was not supported by substantial evidence. The appellate court remanded to the trial court for a determination of a more accurate scope based on the facts. The appellate court then moved to the defendants’ appeals. First, the defendants argued that Road 1 was not subject to a prescriptive easement. The defendants argued the plaintiffs use was permissive before the land moved into private hands, but the appellate court found there was no evidence that the use was permissive. The defendants also argued there was not substantial evidence to find a prescriptive easement, but the appellate court found that the trial court decisions were supported by the facts and testimony regarding the elements of a prescriptive easement. The fact that the plaintiffs openly used the land without asking anyone (even though the defendants were neighborly about the use) was substantial evidence that the use was without explicit permission and was adverse. The appellate court also found the record showed the use was open and notorious because the evidence showed that the plaintiffs used the roads regularly for over 60 years. The appellate court also affirmed the trial court’s inference that the defendants were aware of the use because it had continued for so long and so often. The defendants argued the trial court should have provided a jury instruction about the lack of testimony from a deceased property owner concerning permission to use the roads originally. The appellate court declined to decide on this matter because the record was not detailed enough for the appellate court to be able to review. The defendants argued the plaintiffs did not sufficiently prove a definite location for Road 1, but the appellate court found that the testimony and aerial footage about the road were sufficient to set boundaries for it. The defendants argued that the trial court erred in finding an easement by estoppel for Roads 1 and 2. The appellate court agreed because an element of an easement by estoppel is that there must be an injustice to avoid (like ensuring dominant estates still have an easement to access), but Roads 1 and 2 were already deemed prescriptive easements. There was no need to deem the roads easement by estoppel. The appellate court reversed the trial court’s holding on easement by estoppel. The appellate court agreed with the defendants that easements by prescription and easements by estoppel are mutually exclusive. The appellate court also agreed with the defendants that the trial court erred in finding an easement by necessity and easement by prescription for Roads 3 and 4. If an easement by necessity existed then an easement by prescription could not also exist, so the appellate court found that the easements were by necessity and the trial court erred in finding that they were by prescription. The appellate court reversed the trial court’s finding on the scope of Road 2 and remanded, reversed the trial court’s easement by estoppel Road 1 and 2, reversed the trial court’s finding of prescriptive easements for Roads 3 and 4, and affirmed all other rulings. Ulibarri v. Jesionowski, No. A-1-CA-38029, 2022 N.M. App. LEXIS 54 (N.M. Ct. App. Oct. 20, 2022).

Federal Production Tax Credits Not Subject to Property Tax. The plaintiff developed and built two commercial wind energy developments in Oklahoma that included over 100 aerogenerators, electrical equipment, a maintenance facility, substation and transmission lines. The defendant, county assessors, valued the projects at $458 million. The plaintiff asserted that the projects were worth only $169 million on the basis that value of the federal Production Tax Credits (PTCs) should be excluded. The assessors claimed that the PTCs were tangible personal property subject to tax because they “are of such an economic benefit to owning, operating, and determining the full fair cash value of the wind farm and its real property, they must be included to determine a fair and accurate taxable ad valorem valuation of the wind farm.” The plaintiff claimed that the PTCs were intangible personal property that were expressly precluded from property taxation by state law. The PTC is a federal tax credit that is based on the kilowatt hours of electricity produced by certain types of energy generation, such as that generated by the plaintiff’s developments. If a developer has insufficient tax liability to use the PTCs that it is entitled to, it may use the PTCs to finance the building and development of projects. Accordingly, a developer will structure a project such that a tax equity investor will contribute cash in exchange for receiving the PTCs. Thus, PTCs are a material economic component of a commercial wind development project and how their value is treated for property tax purposes significantly impacts a commercial wind energy development’s return on investment. Oklahoma taxes all real and personal property not expressly excluded, and intangible property is classified as personal property. Thus, the question was whether intangible property (such as PTCs) was expressly excluded. The trial court held that the PTCs were not subject to property tax under Oklahoma law. On further review, the state Supreme Court noted that it had previously deemed computer software, lease agreements, trademarks, databases, and customer lists to be subject to ad valorem taxation. After that decision, the Oklahoma legislation was signed into law stating that intangible property shall not be subject to ad valorem tax. The Supreme Court determined that PTCs, because they were not like actual real estate that is tangible, have limited intrinsic value, and can only be claimed or enforced by legal action. The court found that even if they had qualities of both tangible and intangible property, the Oklahoma legislature intended for those “in-between” items to be considered intangible and not subject to ad valorem taxation. Kingfisher Wind, LLC v. Wehmuller, No. 119837, 2022 Okla. LEXIS 84 (Okla. Sup. Ct. Oct. 18, 2022).

Property Owner Required to Take Down Gate Blocking Public Easement and Not Permitted to Move the Easement. The plaintiff sued the defendant after the defendant put a gate up across a public easement within a public park. The defendant offered the plaintiff a key to the gate, but the plaintiff refused and sought a judicial declaration for removal of the gate. The trial court heard extensive undisputed testimony that the road had been used by the public for at least 27 years. The trial court recognized a prescriptive easement on behalf of the plaintiff and the public, and then held that the defendant could move the road, if desired. The plaintiff took issue with this resolution because the defendant hadn’t requested this as a remedy. The plaintiff requested the court tell the defendant to move the gate and establish that the width of the road to be 25 feet. The court did not rule on the plaintiff’s motion about the width of the road. The plaintiff and defendant both appealed parts of the decision. The defendant argued the public had not established a “claim of right.” The appellate court found that the requirement of “under claim of right” was elusive and meant nothing more than a use as a right, without recognition of the right of the landowner. The plaintiff argued the court incorrectly allowed the defendant to move the road. The appellate court agreed that the defendant had no right to move the road because it was already established as a public easement. It would be error to allow the defendant to move the road and the defendant had no right to install a gate on a public easement. The appellate court ordered the defendant to take the gate down. The plaintiff further argued that the trial court should have determined the width of the road. The appellate court found nothing in the record showed the width of the road should have been deemed 25 feet, so the trial court correctly declined to establish a width. The appellate court remanded the issue to the trial court to determine the width of the road. Branscum v. Nelson, 2022 Ark. App. 354.

Oil and Gas Lease on Disputed Property Invalidates Adverse Possession. The plaintiff filed suit claiming she had successfully adversely possessed property owned by the defendant. The plaintiff argued she received title to the property in 1971 from her mother and had cared the land by mowing and maintaining it and used the land for recreational events for herself and family. The defendants won their motion for summary judgment because the trial court held the plaintiff did not establish exclusive possession over the land due to an existing oil and gas lease signed by the defendants. The plaintiff appealed and argued that the lease did not invalidate her exclusive use. To show exclusive use, the plaintiff did not have to be the only person who used the land but needed to be the only person who asserted their right to possession over the land. The appellate court found that the oil and gas that existed on the property began in 1958. For the entirety of the time that the plaintiff argued she had adversely possessed the property, the oil and gas company had the right of possession over the land in dispute. The lease gave the oil and gas company the right of possession over the land in agreement with the defendants and that right invalidated the plaintiff’s claim. Cottrill v. Quarry Enterprises, LLC, No. 2022 CA 00011, 2022 Ohio App. LEXIS 3191 (Ohio Ct. App. Sept. 27, 2022).

Use of Pore Space Without Permission Unconstitutional. North Dakota law provides that a landowner’s subsurface pore space can be used for oil and gas waste without requiring the landowner’s permission or any compensation. The plaintiffs challenged the law as an unconstitutional taking under the Fourth and Fifth Amendments. The trial court held that the law was unconstitutional on its face and awarded attorney’s fees to the plaintiff. On further review, the North Dakota Supreme Court determined that the plaintiffs had a property interest in subsurface pore space and that the section of the law specifying that the landowners did not have to provide consent to the trespassers to use the land unconstitutionally deprived them of their property rights as a per se taking. However, the Supreme Court determined that the section of the law allowing the oil and gas producers to inject carbon dioxide into subsurface pore space to be constitutional. The Supreme Court upheld the award of attorney fees. Northwest Landowners Association v. State, 2022 ND 150 (2022).

Theory of Adverse Possession Can be Used with an Unrecorded Deed. A farm tenant claimed he had adversely possessed a piece of property the defendant purchased at an auction. The trial court held that the tenant did not adversely possess the property, as the tenant was permitted to be there because he had a deed to the property that was never recorded. The tenant appealed. The appellate court held the tenant could use the theory of adverse possession to overcome the defendant’s interests in the property even with an unrecorded deed. Because the deed was unregistered, the tenant was seen as adversely possessing the property in the eyes of the court. Further, the court found the there was no proof the tenant did have permission to possess the land during the entirety of his use. The tenant used the property for twenty consecutive years without any proof of title or permission to use the property. While the property was obtained by another third party before the tenant’s twenty years (the statutory timeframe for adverse possession) were complete, the third party did nothing to evict the tenant. The appellate court reversed the trial court’s ruling and held that the tenant did successfully prove adverse possession. Mathes v. 99 Hermitage, LLC, No. M2021-00883-COA-R3-CV, 2022 Tenn. App. LEXIS 259 (Tenn. Ct. App. July 6, 2022).

Appellate Court Holds Gross Acres, not Tillable Acres, should be Used to Calculate Partition in Kind. The two parties were comprised of five siblings, who each had an undivided one-fifth interest in 179.61 acres of farmland. The plaintiffs, three of the siblings, filed for a partition in kind. The court appointed an appraiser to analyze and equally divide the farmland between the three parties. The appraiser determined that partitioning the land into five equal sections would be unworkable because the land’s topography varied greatly. The appraiser recommended the defendants should receive an approximate share of 40 percent comprised of 62 gross acres and all the future easement payments from the energy company that operated a windmill on the land. The appraiser allocated 117.61 gross acres to the plaintiffs. The defendants claimed that they were entitled to 68.64 tillable acres. The appraiser explained that while the acre division was not necessarily 40/60, the land awarded to the defendants was overall more desirable and expensive as it had a higher CSR2 rating. The trial court agreed with the appraiser and assessed fees and costs to the defendants. On appeal, the appellate court found the defendants’ calculations for a different split were inaccurate as the defendants used tillable acres when they should have used gross acres in the calculation. The defendants also failed to account for the difficulty of dividing the land caused by a non-uniform property line and the existence of terraces. The appellate court affirmed the trial court’s decision to adopt the appraiser’s division but reversed the trial court’s award of attorney’s fees and costs. Accordingly, the appellate court vacated the trial court’s assessment of costs and remanded the case with instructions that only costs arising from the contested matter be assessed to the defendants. The parties were to share all remaining costs proportionately. Mueggenberg v. Mueggenberg, No. 21-0887, 2022 Iowa App. LEXIS 510 (Iowa Ct. App. June 29, 2022).

State DNR’s Flooding of Farmland Was a Taking. The Houins operated a farm in the watershed of a lake. The State of Indiana constructed a dam in 1957 and the local county court issued a lake level order in 1986 requiring that the state keep the lake at a level that would allow farming activities of the Houins and others in the watershed. Until 2009, local residents manually controlled the dam’s operation, but the State Department of Natural Resources (DNR) started managing the lake level in 2009. In 2016, the Houins sued the DNR for failure to operate the dam in accordance with the 1986 court order. In 2017, the Houins amended their complaint to assert that the DNR’s management of the dam was negligent, constituted a nuisance and a trespass, and was a taking requiring “just compensation” under the Constitution. The DNR asserted that it was immune from suit under Indiana law for its operation of the dam, but the trial court disagreed and awarded the Houin’s $485,644. On appeal, the appellate court agreed with the DNR that it was immune from suit for operation of the dam, but that a taking (inverse condemnation) had occurred based on the DNR’s failure to operate the dam in accordance with the 1986 court order. Indiana Department of Natural Resources v. Houin, No. 21A-CC-1178, 2022 Ind. App. LEXIS 193 (Ind. Ct. App. Jun. 14, 2022).

Plaintiffs’ Arguments for a Tax Exemption for Well Service Rigs and Unfair Taxation Fail. The plaintiff challenged the defendant County’s property tax classification of its oil rigs, claiming that the rigs qualified for the commercial and industrial machinery equipment (CIME) exemption under Kan. Stat. Ann. §79-223. The plaintiff also claimed that the tax violated its right to equal protection. The trial court held that the County properly classified the oil rigs for property tax purposes. On appeal, the appellate court affirmed and concluded that the oil rigs did not qualify for the CIME exemption particularly because the plaintiff had tried to reclassify oil rigs by submitting a bill to the Legislature that would include oil rigs in the exemption. The bill did not pass. Under current law, oil and gas rigs are taxed as part of an oil and gas leasehold and not as CIME. The plaintiffs also claimed that their right to equal protection was violated as they weren’t treated the same way as other taxpayers. The appellate court stated, “a tax classification must only have a fair and substantial relation to the underlying purpose of the legislation.” The plaintiffs claimed wireline equipment was taxed differently than workover rigs, but that both items are non-mobile equipment. The appellate court disagreed, noting that wireline equipment is purely diagnostic, while workover rigs provide essential physical work to access the product (oil). The plaintiff also claimed it was taxed differently than others with the same equipment. The appellate court agreed, but noted this didn’t violate the plaintiff’s equal protection rights because the tax was calculated based on the actual value of oil and gas production on the property. So, while the tax amount might be different, the way the taxes were calculated was not unfair. Well Service v. Pratt County, 61 Kan. App. 2d 454, 505 P.3d 757 (2022).

Fracking Water Not Taxable. A Colorado company sold non-potable river water to oil and gas producers for use in hydraulic fracturing and sought guidance from the Colorado Department of Revenue (CDOR) as to its taxability. The company delivers water by withdrawing it from ditch and reservoir systems, securing rights-of-way, and laying temporary surface lines to the customers’ locations. The CDOR concluded that the company did not owe sales tax because water in conduits, pipes, ditches and reservoirs is not subject to sales tax. CDOR PLR 22-001 (Apr. 8, 2022).

Colorado Changes Oil and Gas Severance Tax Credit. Colorado H.B. 1391 was signed into law on June 7, 2022, and changes the calculation of the oil and gas severance tax credit. Beginning January 1, 2025, the credit will be calculated as 76.56 percent of the gross income attributable to the well in the current tax year, multiplied by the local mill rate of the prior year. Under prior law, the credit was 87.5 percent of the prior year’s local taxes, which are assessed at 87.5 percent of the gross income of the prior year and are subject to the prior year’s local mill levies. The change is intended to simplify the credit’s calculation and eliminate the one-year lag in its administration. Well operators, rather than royalty interest owners will be responsible for the tax. H.B. 1391, signed into law on June 7, 2022.

Low-Producing Oil and Gas Tax Exemption Tied to Actual Projection. The taxpayer sought a refund for property tax exemptions under State law (K.S.A. 79-201t) for tax year 2018 for several oil and gas leases on his property for low-producing oil and gas wells (less than five barrels per day. The Board of Tax Appeals (BOTA) denied the refund on the basis that it would be retrospective and concluded that the taxpayer should pay the amount of tax based on the predicted production for 2018 rather than actual production. At the trial court, BOTA argued the leases should not be exempt because the 2017 production that was used to find the fair market value for taxes for 2018 was not at the exempt level. BOTA claimed the first time the taxpayers would qualify for the exemption would be in 2019 as the 2018 oil production would be used at that time to predict the value that would meet the exemption level. The trial court held the taxpayers should be granted the exemption as the daily average in 2018 fell below the level required for the exemption. On appeal, the appellate court concluded that the statute was unclear on when the exemption could take effect and if a refund could be awarded. The appellate court looked at how BOTA honored tax refunds in the past for taxpayers who filed for an exemption retrospectively. Based on legislative intent, the appellate court held the intent was clearly to allow tax exemptions on the first day an oil well would qualify. The appellate court held that the taxpayer should be refunded property tax if the well actually produced at exempt levels instead of the projected production levels. Farmer v. Board of Ellis County Commissioners, Nos. 123,488 & 123,489, 2022 Kan. App. LEXIS 19 (Kan. Ct. App. May 6, 2022).

Date Website Launches is Date Business Activity Begins. The petitioner launched a retail website in 2002, which he operated until 2007. He then accepted a couple of jobs with internet research firms. While working full-time, the taxpayer began work on a website that collated demographic, social and economic data that would be useful to any number of companies. He hired remote engineers to develop the website and develop user interfaces using open code software. The website was functional by March 2015, the bugs were worked out, and the website launched in September 2015, but no revenue was generated until 2019. The petitioner claimed deductions for the amount paid to the software engineers, to marketing companies, and for home internet access and other miscellaneous expenses on his 2015 Schedule C as trade or business expenses. The IRS claimed that the expenses were start-up expenses under I.R.C. §195 to be amortized ratably over 180 months beginning in September 2015. The Tax Court recognized that the receipt of revenue is not a pre-requisite for a venture to establish that it is a trade or business. But, the Tax Court noted, a venture must at least try to sell goods or services. Here, the website did not even try to sell anything until after 2015. The petitioner claimed that he could not successfully sell access to his website until a significant number of users actively used the website. Thus, he didn’t charge a user fee and marketed the site to institutional users to build up an active user base. The Tax Court accepted the petitioner’s argument and held that the 2015 activity from and after September 30, 2015, when the website launched, would be treated as trade or business activity for federal income tax purposes. Accordingly, the Tax Court allowed the petitioner to deduct all engineering expenses paid after September 30, 2015, and treated all engineering expenses paid on or prior to September 30, 2015, as start-up expenses. On other issues, the Tax Court reduced the petitioner’s claimed business use of the internet by one-half due to lack of evidence and denied a deduction for research and development expenses because the petitioner was not developing a new product, but merely using existing software to display and analyze date. The Tax Court also held that the IRS had no statutory authority for its position taken in Rev. Proc. 2000-50, 2000-2 CB 601 that it would not challenge a taxpayer’s deduction for the costs of developing computer software even if the costs did not qualify as research and development expenses. Kellett v. Comr., T.C. Memo. 2022-62.

Landowner Establishes Adverse Possession Through Tacking. The parties owned adjacent tracts. A fence existed between the properties on the assumed boundary. The plaintiff had a survey completed which indicated that the fence was actually on the plaintiff’s land inside surveyed boundary. The appellant sued to have the surveyed line established as the boundary., and the defendant counterclaimed to establish the fence line as the boundary via adverse possession. The trial court held the appellee had established adverse possession over the property through “tacking.” While the defendant had only possessed the strip in controversy for eight years, the defendant claimed that the evidence showed that the prior owner of the defendant’s tract had owned it and used it up to the fence for at least 7 years, which meant that the 15-year requirement for adverse possession was satisfied under Kansas law. The trial court ruled that the defendant had satisfied the requirements for adverse possession via tacking because there was no interruption in possession and no abandonment for at least 15 years, and the defendant had a continual good-faith belief of ownership. On appeal, the appellate court affirmed, noting that the defendant provided credible testimony of his belief of ownership up to the fence. The appellate court noted that the fence was in place when the defendant bought his tract and was not repositioned when it was rebuilt. Shelton v. Chacko, 501 P.3d 909 (Kan. Ct. App. 2022).

Family Requests Partition in Kind of Land that Results in Each Party Receiving Preferred Ground. The plaintiffs filed for partition in kind of land shared with the defendants, their siblings. A court appointed commissioner was sent out to the 86.4-acre property and created a plan to divide the land in fourths in a manner preferred by the siblings. The commissioner decided that none of the structures on the property (besides the manure shed) provided any value and that all of them should be demolished. The commissioner agreed with the defendants that Lot 4 of the 4 should be given to the brother, Lewis, because that lot attached to property Lewis already owned. The plaintiffs objected to the commissioner’s findings that the land would be best used for residential property, that the improvements added no value and should be removed, and that Lot 4 was of equal value to the rest of the lots. Jay, one of the plaintiffs, testified that he wanted Lot 2 because of the farmhouse and buildings, and Rene, the other plaintiff, testified she preferred Lot 1. Lewis, one of the defendants stated Lot 4 was the most desirable and Lawrence, the other defendant, stated he wanted a lot next to Lewis. Lewis expressed interest in Lot 1, but then said he would take Lot 3 or 4, because it didn’t matter to him. The plaintiffs asked the court to accept the requests and they would drop their objections and asked that the court impose some conditions to ensure cooperation for use of roadways and removal of buildings from the property. The court decided to assign the lots in the way the plaintiffs and defendants described in their testimony because it would be fair and equitable to award the land in the way they expressly stated. Further, the court mandated the parties split the cost of demolishing the structures on the property that required removal and that the parties reasonably cooperate to ensure access to each lot from the roadway. Note: It appears the parties could have simplified the litigation or avoided litigation all together had they just had a conversation amongst themselves considering each party wanted a different lot. Green v. Green, No. 2019-0787-PWG, 2022 Del. Ch. LEXIS 337 (Del. Ch. Nov. 23, 2022).

Family Requests Partition in Kind of Land that Results in Each Party Receiving Preferred Ground. The plaintiffs filed for partition in kind of land shared with the defendants, their siblings. A court appointed commissioner was sent out to the 86.4-acre property and created a plan to divide the land in fourths in a manner preferred by the siblings. The commissioner decided that none of the structures on the property (besides the manure shed) provided any value and that all of them should be demolished. The commissioner agreed with the defendants that Lot 4 of the 4 should be given to the brother, Lewis, because that lot attached to property Lewis already owned. The plaintiffs objected to the commissioner’s findings that the land would be best used for residential property, that the improvements added no value and should be removed, and that Lot 4 was of equal value to the rest of the lots. Jay, one of the plaintiffs, testified that he wanted Lot 2 because of the farmhouse and buildings, and Rene, the other plaintiff, testified she preferred Lot 1. Lewis, one of the defendants stated Lot 4 was the most desirable and Lawrence, the other defendant, stated he wanted a lot next to Lewis. Lewis expressed interest in Lot 1, but then said he would take Lot 3 or 4, because it didn’t matter to him. The plaintiffs asked the court to accept the requests and they would drop their objections and asked that the court impose some conditions to ensure cooperation for use of roadways and removal of buildings from the property. The court decided to assign the lots in the way the plaintiffs and defendants described in their testimony because it would be fair and equitable to award the land in the way they expressly stated. Further, the court mandated the parties split the cost of demolishing the structures on the property that required removal and that the parties reasonably cooperate to ensure access to each lot from the roadway. Note: It appears the parties could have simplified the litigation or avoided litigation all together had they just had a conversation amongst themselves considering each party wanted a different lot. Green v. Green, No. 2019-0787-PWG, 2022 Del. Ch. LEXIS 337 (Del. Ch. Nov. 23, 2022).

Posted April 18, 2023

City’s Misconduct and Retaliation Backfires.An elderly property owner sued the plaintiff, a city, for nuisance relating to storm-water runoff on her property. She moved into her home in 1992. Before 2012, when the plaintiff installed a new flood pipe and headwall on her property, she never experienced any problems with flooding. But since the 2012 construction, storm-water runoff has caused damage to her property, and when the water is not running, the water remains stagnant creating an unpleasant order and attracting mosquitos. She contacted the plaintiff in 2017 about the issues and the plaintiff said their work did not cause the property damage but agreed that the headwall needed to be repaired. She then asked the plaintiff to conduct a hydrology test to analyze the flood pattern, but the plaintiff refused. The plaintiff sought an easement from her to repair the headwall, but she refused until a hydrology test was conducted. Instead of obtaining an easement from her, the plaintiff obtained an easement through eminent domain. However, the repair was done with concrete and not cobblestone and, as a result, did not match the 2012 construction in an apparent act of retaliation against her for not granting the easement. She claimed that the 2017 repairs caused additional damage and sued the plaintiff for $250,000 in repair costs, $250,000 in general damages to compensate her for her discomfort, and $93,000 in attorney fees. The jury awarded her $425,000 in damages. On appeal, the plaintiff tried to argue that her expert did not distinguish damage between the 2012 and 2017 project and the case only concerned the 2017 damage. However, the appellate court analyzed the record and found that the expert had only discussed the damage that resulted from the plaintiff’s work in 2017. The also claimed that the trial court should have directed a verdict on litigation expenses because there was a total absence of bad faith on the plaintiff’s behalf. But the appellate court recognized that the facts told a different story: the plaintiff refused to conduct a hydrology test, refused to consider anything she tried to explain, failed to include certain work in the 2017 project, because she had been difficult to work with, and did nothing to remediate any problems. The appellate court found the record showed adequate evidence of the plaintiff’s bad faith. The appellate court also recognized that the trial court properly instructed the jury to only use the bad faith evidence in determining whether the 2017 project had created a nuisance and not the 2012 project. There were steps taken to ensure that the jury was guided on what damages to award for the plaintiff’s conduct only in 2017 and not 2012. The appellate court affirmed the trial court’s findings. City of Lawrenceville v. Alford, 366 Ga. App. 226, 881 S.E.2d 474 (2022).

Dominant Estate’s Water Drainage Permissible.The plaintiffs sued their neighbor, the defendant, for nuisance. Rainwater from the defendant’s property would runoff onto the plaintiff’s property. In the 1950s and 1960s the city installed a few culverts to help with the water drainage. The water drained into an undeveloped ground area where the plaintiffs later built their home. The plaintiffs tried numerous ways to block the flow, ultimately causing drainage problems for the defendant who then tried to direct the excess water back onto the plaintiffs. The plaintiffs claimed that defendant’s activity caused even more damage to her property than had previously occurred, causing a neighbor to also complain. All of the parties ended up suing each other on various trespass and nuisance claims. The trial court dismissed all of the claims because the court believed that all of the parties’ actions caused the water drainage problems. The appellate court explained that the defendant, as the owner of the dominant estate, had a right to drain water from their land to the servient estate (the plaintiff’s property) and if damage resulted from the drainage, the servient estate is normally without remedy under Iowa Code § 657.2(4). The only time a servient estate could recover damages is if there is a substantial increase in the volume of the water draining or if the method of drainage is substantially changed and actual damage results. Under Iowa law, the owner of the servient estate may not interrupt or prevent the drainage of water to the detriment of the dominant owner. The plaintiffs argued that the defendant violated his obligation by installing a berm and barricade, and presented expert testimony showing that the water flow changed when the defendant added the features, but the defendant had his own expert who provided contrary testimony. The appellate court held that the defendant’s expert was more reliable because the defendant’s expert used more historical information and photographs to analyze how the water historically flowed rather than focusing on the current condition of the neighborhood as did the plaintiffs’ expert. When the plaintiff’s expert looked at these historical photographs, he even agreed with the defendant’s expert that the natural flow of water was through the culverts onto the plaintiff’s property. The appellate court affirmed the trial court’s finding that the plaintiff did not prove the defendant substantially changed the method or manner of the natural flow of water, because the water would have flowed the same way with or without the defendant’s berm and barricade. Thill v. Mangers, No. 22-0197, 2022 Iowa App. LEXIS 961 (Iowa Ct. App. Dec. 21, 2022).

Court Construes State Fence Law. The plaintiff leased property from a third party for growing sweet potatoes. Under the lease, the plaintiff was responsible for keeping cattle from damaging his crop. The plaintiff filed a complaint against a neighboring cattle owner claiming that the cattle damaged over 13 acres of the plaintiff’s sweet potato crop and the landowner’s fence in the amount of $190,000. The cattle owner claimed he was not liable because the fence between the properties was not a legal fence. The fence was less than 4 and ½ feet tall and was made from hog wire, which did not meet the state law requirements for a legal fence. The cattle owner further pointed to the plaintiff’s lease, which stated the plaintiff was responsible for keeping cattle off the leased property. The state Supreme Court determined that that it was inappropriate to interpret state fence law to hold cattle owners solely responsible for properly fenced or entirely unfenced property (including property enclosed with improper fencing) because that did not comport with the legislative intent of the fence laws. But, the Supreme Court also concluded that to hold the plaintiff liable for the damage due to a clause in his lease agreement would be against public policy because upholding the clause would be contrary to state fence law that holds livestock owners responsible for escaped livestock in certain situations. The state Supreme Court remanded the case to the circuit court for further proceedings consistent with its opinion. Yin v. Aguiar, 146 Haw. 254, 463 P.3d 911 (2020).

Removal of Vegetation Within Easement Proper. The plaintiff owned land subject to a railroad easement. The Central Kansas Conservancy (Conservancy) acquired the easement from a railroad under the National Trails System Act for the purpose of developing a recreational trail. The plaintiff sued, claiming that the Conservancy did not have a right to cut down vegetation located within the easement. The trial court disagreed and awarded the Conservancy legal fees. On appeal, the plaintiff claimed that the Conservancy had a duty to protect and preserve the trees in the easement area, only needed to use 10 to 14 feet of the 66-foot easement, did not control the entire width of the easement, and had actually abandoned the easement. The appellate court disagreed, finding that the Conservancy had a right to use the railroad corridor to develop and maintain the trail based either based on title ownership or via the easement. Thus, the Conservancy was entitled to remove the vegetation, but only to the extent necessary for developing and maintaining the trail. The appellate court also rejected the plaintiff’s trespass claim. The appellate court affirmed the trial court’s award of attorney's fees under K.S.A. §61-2709(a). Presnell v. Cullen, 2022 Kan. App. Unpub. LEXIS 250 (Kan. Ct. App. May 6, 2022).

Farmland Adversely Possessed, But No Prescriptive Easement. The parties disputed the location of the property line between their tracts. The plaintiff routinely planted crops up to what the plaintiff believed to be the property line, but that planting interfered with the crop farming plans of the defendant’s tenant. The plaintiff also regularly used a portion of the defendant’s field as a road to access the plaintiff’s crops. In 2015, the defendant offered to sell the disputed area to the plaintiff and told the plaintiff to stop accessing the plaintiff’s crops via the defendant’s field. Each party hired surveyors, but the surveyors reached different conclusions as to the property line. In March of 2016, the defendant built a fence based on the property line that the defendant’s surveyor found, which was 17 feet beyond what the plaintiff believed to be the property line. In March 2017, the plaintiff sued to quiet title to the field up to the crop line they farmed to by adverse possession and sought either a prescriptive easement or easement by necessity. The trial court held that the plaintiff had adversely possessed the land in dispute and had acquired a prescriptive easement across the defendant’s property. On appeal, the appellate court upheld the trial court’s determination that the plaintiff had acquired the strip in question by adverse possession. The plaintiff had used the property for the statutory timeframe in an open, exclusive and continuous manner upon belief of true ownership. Use by others for recreational purposes, the appellate court reasoned, did not negate the exclusivity requirement because the use was infrequent compared to the plaintiff’s farming activity on the disputed land. However, the appellate court reversed the trial court on the prescriptive easement issue because both the plaintiff and the defendant used the alleged area on which a prescriptive easement was being asserted. Thus, the plaintiff had not used the easement exclusively. The appellate court remanded to the trial court the issue of whether an easement by necessity had arisen because the trial court had not considered the issue. Pyle v. Gall, No. 123,823, 2022 Kan. App. Unpub. LEXIS 242 (Kan. Ct. App. Apr. 29, 2022).

Irrigation System Value Included in Land Valuation in Partition Action. Two brothers each inherited an undivided one-third interest in farmland, and the wife of a deceased brother owned the other one-third interest via a trust created for her benefit. The brothers obtained a water permit, installed and $83,000 ten-tower irrigation system to convert the dryland to irrigation crop farming, and spent over $10,000 on piping and a water meter. The irrigation system was one brother’s personal property. The sister in-law did not contribute to the cost of these improvements. She filed a partition action seeking to sever the co-ownership. The brothers counterclaimed, asserting they improved the value of the land and that her share should be offset to account for the improvements. Three commissioners were appointed to appraise the land and valued the dryland at $390,000 and the irrigated land at $2,065,000, not including the irrigation equipment. The sister-in-law chose to buy the smaller, non-irrigated tract. The commissioners determined that because her tract was less valuable, the brothers owed her $428,333 to account for her one-third interest, with $50,000 of that amount placed in escrow pending the outcome of the brothers’ counterclaim. The trial court determined that the definition of “improvements” should be limited to physical structures and equipment. The trial court ruled for the sister-in-law on the brothers’ counterclaim, find that the brothers had not shown that they receive a credit for the irrigation-driven value increase. According to the trial court, the irrigation equipment was personal property of one of the brothers and was not an “improvement.” Hence, the trial court awarded the $50,000 to the sister-in-law. On appeal, the appellate court held the trial court erred when it found the brothers did not improve the land. The appellate court determined that Kansas law requires a “broader inquiry” into possible improvements to the land other than just physical structures and equipment, and that the trial court erred when it found that the brothers did not improve the lnad when they installed the irrigation system. Changing the land’s status from dry to irrigated and obtaining a water right improved the value of the land. “Improvements,” the appellate court determined, are not simply limited to physical additions. The personal property (irrigation system) improved the property and should have been included in the land valuation. The water permit was not the sole source of the higher land value for the irrigated ground – the irrigation system was necessary to make the water permit “operative.” Accordingly, the appellate court held that the trial court erred in denying the brothers’ counterclaim and remanded the case to the trial court to determine whether to award credit for the value of the irrigation equipment based on an assessment of the evidence previously presented at trial. Claeys v. Claeys, No. 124,032, 2022 Kan. App. LEXIS 16 (Kan. Ct. App. May 6, 2022).

February 16, 2022

Challenge to Alleged Zoning Violation Not Time-Barred. The defendants (a married couple) owned a property that was zoned as “commercial.” They began raising hogs on the property in 2006 and the plaintiff (the local township) filed a claim against them in 2016 alleging various nuisance claims. The defendants moved for summary judgment claiming that the suit was time-barred by the six-year statute of limitations. The trial court denied the motion on the basis that the statue of limitations didn’t apply because the claim involved rights in the property. On appeal, the court of appeals reversed, finding the plaintiff’s claim to be barred by the statute of limitations. On further review the state Supreme Court reversed, vacated the appellate court’s decision and remanded the case to the trial court. The Supreme Court determined that, for statute of limitation purposes, the wrong is done when the plaintiff is harmed rather than when the defendant acted. Because this was a nuisance-abatement action and was styled as an action for injunctive relief of a nuisance per se, and the hogs were still present there in violation of the zoning law within the statute of limitations, the suit was not time barred. Township of Fraser v. Haney, No. 160991, 2022 Mich. LEXIS 349 (Mich. Sup. Ct. Feb. 8, 2022).

February 8, 2022

Low Soil Quality Doesn’t Reduce Assessment Value. The petitioner owned low soil quality farmland in western Nebraska and challenged the assessed value of the land of $312,376 for 2020 as determined by the county assessor. The value had been set at $289,186 for 2020. The petitioner sought a value of $269,595 for 2020 in accordance with the land’s lower 2019 classification. The County Board of Equalization (CBOE) determined the taxable value of the property was $289,186 for tax year 2020. The petitioner’s primary issue with the county’s valuation was that the county had upgraded the soil quality of the land from 2019 to 2020 to justify the higher valuation. The petitioner provided a Custom Soil Resource Report conducted by the Natural Resources Conservation Service (NRCS) showing that the soil had a farmland classification of “not prime farmland” and should be put back to its prior classification at the lower valuation. The CBOE determined that the value should be $289,186 for 2020. The petitioner appealed. On review, the Nebraska Tax Equalization and Review Commission (Commission) affirmed the CBOE’s valuation. The Commission noted that the CBOE’s valuation was based on state assessment standards that became law in 2019 as a result of LB 372 that amended Neb. Rev. Stat. §77-1363. Under the revised law, the Land Capability Group (LCG) classifications must be based on land-use specific productivity data from the NRCS. The Nebraska Dept. of Revenue Property Assessment Division used the NRCS data to develop a new LCG structure to comply with the statutory change. Each county received the updated LCG changes and applied them to the land inventory in the 2020 assessment year. The Commission noted that the petitioner’s NRCS report did not show the classification that each soil type should receive under the LCG system and, thus, did not rebut the reclassifications of the soil types for his farmland under an arbitrary or unreasonable standard. Reichert v. Scotts Buff County Board of Equalization, No. 20A 0061, (Neb. Tax Equal. And Rev. Com. Jan. 31, 2022).

December 22, 2021

Older Surveys Determined to be More Accurate. In a boundary dispute between a trust and its neighbors, the parties disputed where the line separating two towns was set. A road ran between the towns and in 1994, and again in 1998, a surveyor determined that the boundary line was 40 feet south of the road’s centerline. While the original survey was conducted in 1851, there were very few known details, and the road did not exist at this time. In 2015, the trust requisitioned its own survey, the results of which put the boundary at the road’s centerline. The trust then brought a quiet title action and sought an order establishing the boundary at the centerline. When a boundary cannot be determined from the deed, nor from original markers or monuments, a surveyor is to make a determination “upon the best evidence obtainable.” Wisconsin case law refers to a priority of calls, in which natural monuments take precedence over artificial monuments when it comes to ascertaining boundaries. In the absence of original monuments, property lines may be established by long continued occupation, which essentially refers to how local residents have treated the boundary line. Further, when there is no evidence of the boundary’s original corner, the surveyor is to use the “proportionate method,” which involves working backwards from known boundary lines to triangulate a corner. These considerations were factored into the surveys from the 90s. Additionally, the 90s surveyor demonstrated his knowledge, experience, lack of interest in the case, and was the only surveyor who actually walked the whole property. The 2015 surveyors skipped straight to evaluating common occupation, so the court determined that the surveys from the 90s were more accurate. Lisa A. Riegleman Revocable Trust v. Eder, No. 2020AP975, 2021 Wisc. App. LEXIS 1018 (Wisc. Ct. App. Nov. 11, 2021).

November 18, 2021

Adverse Possession Claim Fails. A husband and wife conveyed a 48.34-acre tract to their son. Subsequently, and without the benefit of a survey, the son conveyed the tract in two portions: the northern portion containing about 45 acres, and the southern portion containing about 3 acres. Several conveyances later, a couple interested in hunting purchased the 45-acre northern portion and had it surveyed. The survey revealed that the northern portion of the tract contained only 43.47 acres instead of 45 acres, and revealed that there was a 1.68-acre gap between the northern and southern portions. In 2013 the plaintiffs, the purchasers of the northern portion, sued to acquire access to their full 45 acres via easements across the southern portion, and adverse possession to acquire the 1.68-acre gap property, claiming that they had used it openly, obviously, adversely, and notoriously for long enough to constitute a prescriptive easement and adverse possession. The court determined that the plaintiffs had not proven ownership of the gap by adverse possession. After realizing that they lost the adverse possession claim to the gap property, the purchasers had their predecessor in title execute a quitclaim deed conveying the gap property to them. Later, in 2015, the purchasers filed a second suit to quiet title to the gap property. This second suit was barred by the claim-preclusion aspect of res judicata, which prohibits re-litigation of an issue when the issue had a full and fair opportunity to be litigated in the initial lawsuit. Sutherland v. Edge, No. CV-19-373, 2021 Ark. App. 428 (Ark. Ct. App. Nov. 3, 2021).

Partition of Farmland Based in Equity. Brothers jointly owned as tenants in common a fifty-acre tract they inherited from their father’s. The tract contained a junk pile in the southwest corner and a creek, which flooded often, making the land suitable only for pasture and recreational activities. After unsuccessful negotiations regarding how to partition the land, the brothers agreed to appoint a referee. A referee proposed a partition of the land that required both brothers to cross the creek in order to access their properties, and placed the junk pile in on only one brother’s portion. The referee estimated that the junk pile would cost about $15,000 to remove, and suggested that the brothers split that cost evenly because they both contributed items to the pile. Both brothers appealed the partition, but the court based its decision primarily on what would be most equitable and practical within the parameters of the brothers’ agreement and found the referee’s proposal to be appropriate. Tolle v. Tolle, No. 20-0715, 2021 Iowa App. LEXIS 862 (Iowa Ct. App. Oct. 6, 2021).

July 15, 2021

Solar Power Generation Taxed Assessed as “Farmland.” New Jersey law now provides that land on which a dual-use solar energy project is constructed and approved is eligible for farmland assessment, subject to certain conditions. To receive farmland assessment, a dual-use solar energy project must: (1) be located on unpreserved farmland that is in operation as a farm in the tax year for which farmland assessment is applied for; (2) in the tax year preceding the construction, installation, and operation of the project, the acreage used for the dual-use solar energy project must have been valued, assessed, and taxed as land in agricultural or horticultural use; (3) be located on land that continues to be actively devoted to agricultural and horticultural use, and meets the income requirements set forth in state law for farmland assessment; and (4) have been approved by the state Department of Agriculture. In addition, no generated energy from a dual-use solar energy project is considered an agricultural or horticultural product, and no income from any power sold from the dual-use solar energy project is considered income for the purposes of eligibility for farmland assessment. To be eligible, the owner of the unpreserved farmland must obtain the approval of the Department of Agriculture, in addition to any other approvals that may be required pursuant to federal, state or local law, rule, regulation, or ordinance, before the construction of the dual-use solar energy project. L. 2021, A5434, eff. Jul. 9, 2021.

Posted June 21, 2021

Clerical Error in Deed Reformed to Reflect Description in the Purchase Agreement. The defendants owned two tracts of land, consisting of a 202-acre farm and a 32-acre homestead. The defendants had previously leased the farmland for rental income before deciding to sell the farmland to a cattle-feeding business run by their son and three other partners. After negotiating a purchase price, the defendants retained a life estate so that they could live in their house on the property for the remainder of their lives. The cattle-feeding business obtained a loan from the plaintiff bank to pay off the defendants’ mortgage on the property. After the plaintiff approved the loan, it hired a title company to prepare a warranty deed. Due to an error caused by the title company, the warranty deed did not match the life estate description in the purchase agreement. Rather than granting the defendants a life estate in the house on the property, the deed granted the defendants a life estate in the entire 234 acres. When the cattle-feeding business defaulted on payments two years later, the title company blocked a proposed sale, noting the deed named the defendants as life estate holders of the entire property. The plaintiff petitioned for reformation and claimed that the deed did not reflect the true intent of the parties because of the clerical error. The defendants argued that the plaintiff lacked standing to seek reformation of the deed. At trial, the trial court reformed the deed to reflect that the defendants’ life estate was only in the house in which they currently resided. On appeal, the defendants maintained their argument that the bank lacked standing to seek reformation of the deed. The plaintiff argued that because it had a mortgage on the real estate, it had standing to bring the reformation action. The appellate court noted that the plaintiff would be required to allege some specific injury and injury in fact. The appellate court held that because the plaintiff paid off the existing mortgage and attached its security interest to the real estate, it had first priority upon default. Further, the appellate court held that the plaintiff’s security interest under the mortgage instrument was diminished, therefore injury in fact had been established. Next, the defendants argued that the plaintiff failed to prove that a clerical error created a mistake in the deed. The appellate court noted that reformation is an equitable remedy when it can be proven that the instrument does not reflect the parties’ true agreement. The appellate court determined that the bank offered clear and convincing proof that the deed contained an error through a disinterested witness, the clerk at the title company. Additionally, the appellate court noted that the defendants did not act as though they had a life estate in all 234 acres after the purchase agreement. The appellate court also held that the purchase agreement did not merge into the deed because the parties did not agree to modify the life estate from the house in which the defendants resided to the entire property. Therefore, the appellate court determined that the error in the deed could be reformed to reflect the life estate as described in the purchase agreement. Midstates Bank, N.A. v. LBR Enterprises, LLC, No. 20-0336, 2021 Iowa App. LEXIS 391 (Iowa Ct. App. May 12, 2021).

Posted June 20, 2021

Ag Property Valuation Procedure Upheld. The plaintiff owned farmland and claimed that the defendant’s valuation table that was used by county auditors in assessing land for determining whether the land qualified for current ag use valuation (CAUV) was invalid for being developed and implemented improperly. Specifically, the plaintiff claimed that the table, which lists soil types and the per-acre values for each soil type, did not differentiate three soil types that were present on his farm based on whether they were drained or not. This was despite the table listing separate values for other drained and undrained soils. The plaintiff claimed that a lower unit value should apply for these soil types and, as a result, his property tax liability should be reduced. He also claimed that the Ohio Tax Commissioner abused his discretion by not adopting separate per-acre values for the undrained versions of his soil types. The Board of Tax Appeals (BTA) rejected the plaintiff’s argument, and the state Supreme Court agreed. The state Supreme Court held that the differential treatment of soil types demonstrated the Commissioner’s exercise of judgment which the court presumed was rational. The state Supreme Court determined that it was not the Commissioner’s burden to show the reasonableness of the CAUV journal entry. Instead, it was the plaintiff’s burden to show that the Commissioner abused his discretion. The plaintiff failed to do so. Johnson v. McClain, No. 2020-0472, 2021 Ohio LEXIS 963 (OH Sup. Ct. May 18, 2021).

Posted April 26, 2021

South Dakota Redefines Ag Land For Tax Purposes. To be classified as land used for agricultural purposes, “principal use” means the primary and predominant use to which the land is devoted. The land must produce an annual gross income of at least $2,500 from ag for at least three of the prior five years; consist of at least 20 acres or be part of a management unit of not less than 80 acres; or a board of county commissioners may not increase the minimum acre requirements to an amount exceeding 160 acres. H1085, eff. Jul. 1, 2021.

Posted April 24, 2021

Raccoon Infestation Lowers Assessed Value. The petitioner’s residence suffered from a raccoon infestation. A contractor testified that the infestation would require the house to be stripped down to the studs. The state Board of Equalization determined that the value of the home should be reduced as a result by approximately $50,000. Home Advantage Properties LLC. v. Davidson County, No. 132706 (Tenn. Bd of Equal. Apr. 12, 2021).

Posted April 16, 2021

Current Use Pegs Valuation. The plaintiff, a big box store retailer, had its property appraised for property tax purposes. The appraisal determined the value of the property at its highest and best use, including the current use of the building as a retail store, rather than fair market value. The state assessment appeal board upheld the appraisal of $8.8 million as correct for determining the property’s highest and best use, rejecting the plaintiff’s argument that the building’s current use should not be a factor in the assessment. The appellate court upheld the assessment appeal board’s determination, and also rejected the plaintiff’s argument that the board’s ruling violated the plaintiff’s due process rights. Lowe’s Home Centers, LLC v. Iowa Property Assessment Appeal Board, et al., No. 20-0623, 2021 Iowa App. LEXIS 271 (Iowa Ct. App. Apr. 14, 2021).

Posted April 3, 2021

Court Orders Partition of Co-Owned Land In-Kind. The plaintiffs and defendants co-owned three noncontiguous parcels of land that totaled 4,972 acres. The defendants were the mother, father and one of their four children while the plaintiffs were the other three children. The family inherited the land from the mother’s family. The defendants ran a ranching and farming operation on the co-owned land which bordered separate parcels owned by the mother and father. The plaintiffs sought partition of the co-owned land and argued that the property could not be fairly divided, and should be sold with the proceeds being divided. The defendants conceded that partition of the co-owned land was necessary, but argued that partition by sale would be inappropriate. As a result, the trial court appointed a referee to recommend whether the property could be partitioned in-kind or whether the property should be sold and the proceeds divided. The referee inspected the property and determined that partition in-kind would cause prejudice to the landowners, thus a sale of the property would be appropriate. The defendants objected and argued that the sale of the property would create a serious hardship on their investment in the property. The defendants relied on the appraisal of an expert witness who determined the land could be fairly partitioned in-kind between the plaintiffs and defendants. According to the expert witness’ proposal for a partition in-kind, the plaintiffs would receive 41.17 percent of the total value of the land, which was more than their collective share of 40.5 percent. The trial court relied on the expert witness’ testimony and ordered that the property be partitioned in kind. The trial court noted that a forced sale of the land would not advance the interests of the defendants. On appeal, the plaintiffs argued that the trial court erred in partitioning the property in kind to the plaintiffs and defendants collectively, and that partition in-kind was not appropriate. The appellate court held that the trial court had the equitable power to partition in-kind the property between the two groups of owners, rather than dividing among all the owners individually. The appellate court noted that this remedy was equitable because the plaintiffs and defendants continued to act as separate units throughout the court proceedings. Next, the appellate court noted that not only are partitions in-kind generally favored, but a partition by sale would have created a significant hardship for the plaintiffs. Finally, the appellate court noted that by dividing the land in-kind between the two groups, the defendants would be able to keep their farming operation running and the plaintiffs would receive more than their fair share of the value of the land. As a result, the appellate court affirmed the trial court’s decision to partition the land in-kind. Smith v. Smith, 29 Neb. App. 607 (Neb. Ct. App. Mar. 16, 2021).

Posted March 27, 2021

Boundary by Acquiescence Established by Landowners’ Conduct. The defendants purchased land adjacent to the plaintiff’s property on which they built a house. The defendants had a survey completed which indicated that their house was twenty-seven feet from the property line. This initial survey treated the plaintiff’s wire fence as the boundary. The plaintiff commissioned a survey nine years later that revealed that the fence was not the true boundary, and the defendants’ house encroached thirty-three feet onto the plaintiff’s property. A subsequent survey by the defendants made the same finding. The plaintiff sued to eject the defendants from the disputed .828-acre tract. The defendants argued that the plaintiff’s fence constituted a boundary by acquiescence. The plaintiff argued that the fence was never intended to act as a boundary line, but rather as a means for keeping his horses on his property for a period of two to three years. The trial court determined that the defendants had proved title to the disputed .828-acre tract. On appeal, the plaintiff argued that a boundary by acquiescence had not been established. Specifically, the plaintiff argued that the parties had not mutually consented to the fence as the property line. The appellate court noted that an express agreement between the parties is not necessary, and silent acquiescence can be established when a boundary line can be inferred from the conduct of the parties over a period of time. The appellate court noted that the defendants had maintained the disputed property for eight years before the plaintiff objected. As a result, the appellate court held that the evidence supported the finding of a boundary by acquiescence. Waggoner v. Alford, No. CV-19-931, 2021 Ark. App. 120 (Ark. Ct. App. Mar. 10, 2021).

1914 Fence Agreement Fixes Boundary. The parties owned adjacent tracts of land north and south of each other separated by section lines. The defendant claimed that the section lines delineated the boundary and that a barbed wire fence constructed from a survey was constructed in its location due to practicalities. The plaintiff claimed that the fence, which existed 150 yards to the north of the section lines, was the boundary. The disputed acreage between the section lines and the fence was 90 acres. In 1914, prior owners of the tracts had executed a fence agreement that was filed in the county register of deeds office. In the agreement they fixed the boundary in accordance with a metes and bounds description that referred to natural landmarks. The plaintiff’s deed referred to the 1914 agreement. In 2013, the plaintiffs sought to place a water well close to the boundary and negotiations with the defendant revealed that the parties had different views of the actual boundary. The defendants sought a declaratory judgment seeking to enforce the 1914 agreement and the plaintiffs file an adverse possession claim. The trial court upheld the 1914 fence agreement and dismissed the plaintiff’s claims. On further review the appellate court affirmed. While the non-permanent markers referred to in the 1914 fence agreement could not be found, the appellate court determined that there was sufficient evidence to support the defendant’s claim of ownership of the disputed acres via the 1914 fence agreement. The appellate court also remanded the case on the issue of attorney fees. Eggemeyer v. Hughes, No. 08-19-0002-CV, 2021 Tex. App. LEXIS 691 (Tex. Ct. App. Jan. 28, 2021).

Posted March 9, 2021

Contract for Manure Delivery Is Not An Easement. The debtors purchased a 5,000-head capacity cattle feedlot from the sellers. The purchase agreement noted that the sellers would convey to the debtors several easements, including a manure stockpiling easement on the seller’s real property. The parties had signed a manure stockpiling agreement (MSA) which the sellers contended was an easement that must be included in the sale of the feedlot. The MSA stated that the debtors will “from time to time and at its expense, haul all manure generated by the livestock at the feedlot” to real estate designated by the sellers. The debtors sought a declaratory judgment on the effect of the MSA and argued that the MSA did not amount to an easement. The bankruptcy court determined that the MSA did not burden the debtors’ real estate in any way, unlike the other easements between the parties. The bankruptcy court also noted that nothing in the MSA could be construed as providing or reserving access to the debtors’ land by the sellers, and therefore could not be construed as an express easement. Alternatively, the sellers argued that the parties intended to create an easement. The bankruptcy court determined that an easement by implication was not demonstrated and that the sellers’ intent was to be in control of the disposition of manure for their own economic benefit. Ultimately, the bankruptcy court determined that the MSA was nothing more than a contract for the unspecified delivery of manure to places designated by the sellers. In re Keast Enterprises, Inc., et al., No. 18-00856-als11, 2020 Bankr. LEXIS 509 (Bankr. S.D. Iowa Feb. 24, 2020).

Posted February 27, 2021

Zoning Ordinance Allows for CAFO. The petitioners owned property located in an area that was zoned as “agricultural.” The petitioners sought and eventually obtained a permit from the county building commissioner to build several hog barns configured as a concentrated animal feeding operation (CAFO) on their property. Neighbors of the petitioners asked the zoning board to review the building commissioner’s decision to issue the permit. The zoning board voided the permit and determined that the farming zone did not recognize industrial agricultural uses, such as the petitioners’ proposed CAFO. The petitioners sought a review of the zoning board’s decision. The trial court noted that the zoning ordinance specifically permitted animal husbandry, as well as raising and selling hogs and the erection of barns and similar farming building. The trial court determined that the zoning ordinance clearly indicated that hog raising operations were a permitted use. The trial court noted that the county could have excluded CAFOs or put other restrictions in place to maintain more traditional farming operations. Additionally, the trial court noted that several CAFOs were located and permitted in other agricultural zones in the county. Thus, the trial court reversed the zoning board’s decision and reinstate the building commissioner’s decision to issue the permit to the petitioners. On appeal, the neighbors of the petitioners argued that the zoning ordinance was ambiguous because it did not mention CAFOs. The appellate court agreed with the trial court and noted that the zoning ordinance set no limit on the scale of permitted uses in the agricultural zone. The appellate court determined that the plain language of the zoning ordinance was not ambiguous, and the petitioners were permitted to raise any number of hogs, subject to state and federal limitations. Chambers v. Delaware-Muncie Metro. Bd. of Zoning Appeals, 150 N.E.3d 603 (Ind. Ct. App. 2020).

Weddings and Receptions on Agriculturally Zoned Land Deemed Not to be Agritourism. The plaintiffs owned 13.55 acres of farm property that was zoned as agricultural property. The only agricultural activity that the plaintiffs participated in was growing hay. The plaintiffs filed an application with the defendant to conduct agritourism activities on the property. The plaintiffs’ application sought to conduct hayrides, corn mazes, and celebratory events, such as agriculturally themed weddings and receptions. The zoning board granted the plaintiffs’ application, except for the proposed celebratory events. The zoning board determined that the plaintiffs’ proposed celebratory events did not meet the statutory definition of “agritourism.” As a result, the plaintiffs filed an administrative appeal at the trial court level. The trial court held that the zoning board’s decision was not arbitrary or capricious, and that the zoning board properly determined that the plaintiffs’ application for celebratory events did not bear a reasonable relationship to agriculture. At the appellate court, the plaintiffs argued that the trial court failed to construe the statutory definition of agritourism and failed to analyze whether their proposed celebratory events satisfied the definition. The appellate court noted that the trial court was merely required to determine whether the zoning board’s administrative order was arbitrary or capricious. The appellate court also noted that the statute at issue defined agritourism as “an agriculturally-related educational, entertainment, historical, cultural, or recreational activity” conducted on a farm. The appellate court determined that the zoning board had properly concluded that plaintiffs’ proposal was for an event venue with an incidental agricultural theme, rather than an agricultural activity. The appellate court held that just because an activity is done on agriculturally zoned property does not make the activity agritourism. The appellate court declined to categorically decide whether celebratory events constituted agritourism, and only affirmed the zoning board’s decision that the plaintiffs’ proposed celebratory events were not agritourism. Lusardi v. Caesarscreek Twp. Bd. of Zoning Appeals, 2020 Ohio App. LEXIS 3288 (Ohio Ct. App. Sept. 11, 2020).

Defendant’s Failure to Present New Evidence Results in Adverse Possession. The plaintiff owned land to the west which abutted an adjacent parcel owned by a trust to the east. The plaintiff alleged that she had farmed up to a boundary line between the two tracts of land for 37 years. The trust conducted a land survey which revealed the true boundary line between the two tracts was approximately 30 feet east from the boundary that had been used for the past 37 years. As a result, the plaintiff argued that she had acquired title to the disputed 30-foot tract of land she had farmed by adverse possession. Upon filing suit, the trust sold the eastern parcel to the defendant. The defendant installed a fence which blocked the plaintiff’s access to the disputed 30-foot tract of land. The trial court determined the plaintiff had acquired possession of the disputed tract of land and ordered the defendant to remove the fence. The defendant motioned for a new trial, substitution of judge, and change of venue. These motions were all denied, as well as the defendant’s notice of appeal for not being timely. Finally, the defendant filed a petition for relief from judgment and argued that the trial court’s judgment should be vacated due to the land survey misidentifying a crop line as the boundary line. The plaintiff sought to have the petition dismissed because the defendant failed to present a meritorious claim or defense. Additionally, the plaintiff sought sanctions for attorney fees. The trial court determined that the defendant’s petition should be dismissed and that the defendant should be sanctioned to discourage others from engaging in such conduct. On appeal, the defendant argued the trial court erred in dismissing his petition for relief from judgment and in ordering him to pay the plaintiff’s attorney fees. The defendant argued that he presented new evidence that the survey conducted by the trust misidentified a crop line as the boundary line. The appellate court noted that the defendant needed to show newly discovered facts that were not available at the time of trial in order to be entitled to relief. The appellate court determined that the defendant’s petition relied on facts that were either presented or could have been presented at trial. The appellate court also noted that the defendant had ample opportunity to challenge the accuracy of the survey at trial, as well as the issue of whether the boundary line was misidentified. Therefore, the appellate court held that the defendant’s failure to present a meritorious claim or defense properly resulted in a dismissal of his petition for relief. On the matter of sanctions, the appellate court remanded the issue because the trial court failed to set forth the reason or basis for granting the plaintiff’s petition for sanctions. Perry v. Boettcher, No. 4-19-0383, 2020 Ill. App. Unpub. LEXIS 838 (Ill. Ct. App. May 15, 2020).

Present Use of Property Sets Appraisal Valuation. The defendant valued the plaintiff’s property at $10,940,000 based on its present use rather than as vacant. On further review the court affirmed on the basis of state law requiring an appraiser to consider conditions existing at the time of the appraisal and the condition of the property in which the owner holds it. On appeal the appellate court affirmed, noting that neither Iowa Code §441.21 nor caselaw imposed a vacancy requirement in the fee simple valuation context. Lowe’s Home Center, LLC v. Iowa Property Assessment Appeal Board, No. 20-0764, 2021 Iowa App. LEXIS 161 (Iowa Ct. App. Feb. 17, 2021).

Posted February 21, 2021

Constitutional Challenge to Zoning Ordinance Fails. The defendants owned thirty-five acres of land that was zoned “agricultural.” The defendants kept semi-trailers, flatbed trailers, and debris on their property. The plaintiff sought a temporary restraining order (TRO) based on the defendants’ violations of the plaintiff’s zoning ordinance. The trial court granted the plaintiff’s request for the TRO, which directed the defendants to remove the items from their property that were not being used for agricultural purposes. The defendants made little progress in complying with the TRO over the next two years, leading to their neighbor intervening and seeking an injunction. The trial court determined that the defendants were operating a junkyard in violation of the plaintiff’s zoning ordinance and ordered the defendants to remove all items that violated the ordinance within thirty days. On appeal, the defendants argued that their property was protected by a prior nonconforming use and that the trial court’s order amounted to an unconstitutional taking. The appellate court determined that the defendants’ argument that their property was protected by a prior nonconforming use was meritless. The defendants argued that the enforcement of the zoning ordinance violated their constitutional rights to due process and equal protection of the law. Specifically, the defendants argued that they were being singled out for punishment while others in the county with properties in similar conditions were not being punished. The appellate court held that the defendants did not raise any constitutional arguments at trial, therefore their constitutional arguments were waived for appellate review. Morrison v. Putnam County Comm’rs., No. 19A-CP-1372, 2020 Ind. App. Unpub. LEXIS 609 (Ind. Ct. App. May 18, 2020).

Posted February 12, 2021

Comparable Sales Determine Value of Ag Land. A county assessed a tract of agricultural land based on comparable sales. The taxpayer objected and the state Board of Equalization (BOE) upheld the assessment as reasonable. The taxpayer’s proposed land valuation was not supported by any evidence, including that which the taxpayer submitted. Roane County v. Bailey, No. 131469, Tenn. Board of Equalization (Feb. 9, 2021).

Posted February 10, 2021

Rural Property Satisfied “Farming” Zoning Designation. The defendants purchased a parcel in 2004. At the time of purchase, the defendants believed that the property was zoned “agriculture” because its prior use had been as a dairy farm and slaughterhouse. The defendants. The defendants began using the property for hay and chicken production, as well as hosting third party events and overnight stays. The defendants later discovered that the property was zoned rural residential. In 2016, the county sent notice to defendants to stop using the property as an event venue, claiming that commercial events were prohibited by the rural residential zoning. The defendants did not comply and the county sued. The defendants claimed that their property satisfied the statutory definition of a “farming operation” that was protected by the state (TN) Right-To-Farm (RTF) law. The trial court agreed with the defendants that the tracts was being used as a farming operation and that the events were a secondary use. On appeal, the appellate court affirmed. The appellate court noted that the defendants had sold hay, cattle and poultry products from the property. Jefferson Cty. v. Wilmoth Family Properties, LLC, No. E201902283COAR3CV, 2021 Tenn. App. LEXIS 37 (Tenn. Ct. App. Feb. 1, 2021).

Posted February 2, 2021

California Property Tax Changes. The California State Board of Equalization, in a news release, has advised that, effective February 16, 2021, significant property tax law changes will occur for families transferring real property between parents and children or between grandparents and grandchildren if the parents are deceased. The changes are the result of the voter approval of Proposition 19 on November 3, 2020. Under Proposition 19, a parent's primary residence can be transferred without a property tax increase if the child keeps the home as their primary residence. In addition, Proposition 19 caps the transferable amount equal to the home's taxable value at the time of transfer plus $1 million. The $1 million allowance will be adjusted annually beginning in 2023. Family farms can also be eligible. California State Board of Equalization News Release No. NR 21-01 (Feb. 1, 2021).

Posted January 30, 2021

No Inverse Condemnation. The plaintiff owned property adjacent to a road that the county had planned to expand. The county sent the plaintiff a letter asking her to grant an easement for the construction permit. The county offered to replace 420 feet of fencing along the plaintiff’s property, to pave her two driveway approaches, and realign the approaches in relation to the new road. Additionally, the county told the plaintiff that it already had a right of way across the property, therefore it did not need permission or an easement to commence the road expansion. The plaintiff continued to deny access to the county for the project. After the county completed the road expansion project, the plaintiff alleged the road was moved onto her property approximately 33 feet, which resulted in an unconstitutional taking of her property. The plaintiff also alleged trespass, conversion, fraud, and harassment against the county for various damages and nuisances that had occurred during the road expansion project. The trial court dismissed all the plaintiff’s claims except for the taking claim. The trial court then determined that the plaintiff had not proved that a taking had occurred. On appeal, the appellate court noted that the trial court correctly decided that because there were no formal eminent domain proceedings, this was an inverse condemnation case. The appellate court also noted that the state’s inverse condemnation statute allowed for compensation when the government substantially diminishes the use or value of land due to its activities on adjoining land. However, the appellate court held that the plaintiff failed to prove that a taking had occurred. Although the plaintiff had asserted that the county did not have an easement for the road expansion project, the appellate court noted that the trial court had excluded all the plaintiff’s evidence pertaining to the property survey at trial. The appellate court also held that while some loss of use to the plaintiff’s property had occurred, there was not so much as to substantially diminish the value of her property. The appellate court noted that the value of the property needed to be established in order to determine whether the value had been substantially diminished. The plaintiff argued that the cost to restore her property to its previous state and for legal fees would be between $588,647 and $3.7 million. The appellate court noted that the plaintiff would only be allowed the difference in the fair market value before and after the taking. Therefore, the appellate court held that no jury would be able to determine damages because the plaintiff did not establish the value of the property before the alleged taking. Byrnes v. Johnson County Commissioners, 455 P.3d 693 (Wy. 2020).

Posted January 24, 2021

Easement Implied by Prior Use May Be Present. The plaintiff was deeded 160 acres of farmland from his parents who had owned a half-section of land with a gravel pit located in the middle of the property. The gravel pit was located in the 160 acres deeded to the plaintiff. An access road ran through the plaintiff’s parents’ property that allowed trucks to access the gravel pit. The deed did not contain any provision regarding use of the access road to the gravel pit. The plaintiff’s parents sought additional rent from the plaintiff for use of the access road. The plaintiff refused to pay the additional rent and noted that he was paying his parents a percentage of the mineral proceeds from the gravel pit. The plaintiff’s parents sold the remaining 160 acres to their other children, who were the defendants. After the plaintiff again refused to pay additional rent for use of the access road, the defendants blocked the plaintiff’s use of the access road. The plaintiff sought a preliminary injunction and claimed that he had an easement by prescription, necessity, and implied by prior use. The trial court held that the plaintiff’s parents had no intention to create any permanent easement rights. As a result, the trial court rejected all of the plaintiff’s easement claims. On appeal, the plaintiff argued that the trial court erred in ruling against his claim of an easement implied by prior use. For the plaintiff to establish an easement implied by prior use, the appellate court noted the plaintiff needed to prove that the relevant parcels of land had been in unitary ownership; the use giving rise to the easement was in existence at the time of the conveyance dividing ownership of the property; the use had been so long continued and so obvious as to show that it was meant to be permanent; and that at the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract. The appellate court held that the there was no dispute that the relevant parcels of land had been in unitary ownership and that the use giving rise to the easement was in existence at the time of the conveyance dividing ownership of the property. The appellate court noted that the trial court erred in its approach in considering whether the use had been so long continued and so obvious as to show that it was meant to be permanent. The trial court had held that the access road was not permanent based upon the need for future repairs. The appellate court disagreed and held that the inquiry ended at the point where the plaintiff’s parents’ unitary property interest was severed. The appellate court determined that the date of the warranty deed should be used as the date of severance. Therefore, the appellate court held that the use of the road for access to the gravel pit had continued for so long and was so obvious as to show that it was meant to be permanent. However, the appellate court noted that issues of material fact remained as to whether the easement was necessary for the proper and reasonable enjoyment of the dominant tract. As a result, the appellate court reversed and remanded for trial. Heumiller v. Hansen, 950 N.W.2d 426 (S.D. 2020).

Farm Value Regulation Upheld. The Utah State Tax Commission has amended an administrative regulation involving valuation guides for the valuation of land subject to the state’s Farmland Assessment Act (Utah Code Ann. §59-2-515). The amended regulation reflects updated agricultural production values applied to land qualifying for valuation and assessment under the Act. Utah Administrative Regulation, §R884-24P-53 (2021), effective Nov. 30, 2020.

Posted January 16, 2021

Defendant’s Failure to Attend Trial Lead to Default Judgment in Nuisance Case. The defendant owned two properties that the plaintiff city had zoned as residential property. The defendant stored junk vehicles on the property and advertised future auctions from his property. The city notified the defendant that he had violated city ordinances by accumulating junk vehicles, trash, and brush piles. After the defendant failed to resolve the issues, the city sent the defendant an order to abate all nuisance and zoning violations. The defendant did not attend the hearing set by the city and declined to cooperate in negotiations to resolve the violations. As a result, the city enforced the ordinances by writing citations for conducting commercial auto activities and blocked access to the defendant’s adjacent property. The city sought a temporary injunction after the defendant failed to comply with any of the city’s requests. The defendant then agreed to refrain from the prohibited activities in exchange for dismissal of some of the citations. A few months later, the defendant was in violation of several more city ordinances. The city transferred the citations to the trial court and a trial date was set. The defendant failed to show up for depositions and for the trial, which resulted in the trial court entering a default judgment against him. The defendant claimed that he could not attend the trial because he had recently undergone surgery. As a result, the trial court set aside the judgment and rescheduled the trial. The defendant failed to show up for another deposition, citing another recent surgery. Additionally, the defendant stated he would be unable to attend the trial. The trial court warned the defendant’s attorney that if the defendant failed to appear at trial, default judgment would be entered against him. The defendant failed to appear for trial, and the trial court imposed fines totaling $7,705. The trial court also issued injunctions against the defendant for the storage of junk vehicles, the holding of auctions, and interfering with the city’s access to abate the violations. The defendant argued that the trial court erred in refusing to continue the trial and in entering default judgment against him. The appellate court affirmed, noting that the defendant did not show that the trial court erred in denying his request for a continuance. The appellate court noted that the case had been pending for eighteen months and that the court was skeptical of the defendant’s excuses. The appellate court also noted that the defendant did not inform the trial court of his health condition until the day of the trial. Further, the appellate court held that the trial court properly entered default judgment against the defendant. City of Ottumwa v. Clabaugh, 949 N.W.2d 13 (Iowa Ct. App. 2020).

Posted January 15, 2021

Plaintiff Can’t Establish Fence as Boundary Line by Adverse Possession or Acquiescence. The plaintiff and his family had owned their property for 75 years. The property description in the original deed noted that plaintiff’s property included forty acres, containing five acres “more or less” bounded by the brink of a bluff. The “more or less” language was not included when the plaintiff’s family purchased the land. The defendant hired a surveyor to complete a survey when he purchased property next to the plaintiff’s property. The survey was recorded and included a five-acre square cut-out in the northeast corner of the plaintiff’s property. In a dispute over logging timber, the defendant prevailed in small claims court, where the small claims court found that the defendant owned the five-acres. The small claims court noted it had no jurisdiction to establish property lines. Six years later, the plaintiff sought to quiet title for approximately eight acres, including the five-acre square. The plaintiff argued that the true boundary line was the fence line. The plaintiff argued that he was the owner of the disputed property under theories of adverse possession and boundary by acquiescence. The trial court held that the plaintiff failed to establish either possession by adverse possession or boundary by acquiescence. On appeal, the plaintiff argued that the trial court erred in ruling that he did not establish possession under either claim. The appellate court held that the plaintiff did not prove adverse possession by establishing hostile, actual, open, exclusive and continuous possession, under a claim of right for at least ten years. The appellate court noted that both parties had used the land, therefore the plaintiff’s use was not exclusive. While the plaintiff maintained the fence, the appellate court noted that a claim of right must be established by substantial maintenance and improvement to establish adverse possession. Additionally, the appellate court noted that the plaintiff did not openly claim ownership until the logging dispute six years prior. The appellate court also held that there was no boundary by acquiescence because both parties did not acknowledge and treat the fence line as the boundary. The appellate court noted that the defendant was able to show that the fence was a courtesy fence constructed to keep livestock contained. Liddiard v. Mikesh, 947 N.W.2d 231 (Iowa Ct. App. 2020).

Posted January 10, 2021

Non-Indians Pay Double Property Tax For Structures On Indian Land. The plaintiffs leased land from the Bureau of Indian Affairs (BIA) which included land that the United States held in trust for the Sisseton-Wahpeton Oyate Tribe and its members. The plaintiffs owned a variety of structures on the land, including cabins and cottages. The Tribe collected ad valorem property taxes from the plaintiffs for their structures on the land. The defendant county also assessed taxes against the plaintiffs on the same structures. The plaintiffs argued that federal law preempted the county from assessing taxes against them on land held in trust for an Indian tribe. Specifically, the plaintiffs argued that federal law foreclosed the county from taxing improvements on trust land without regard to ownership. The defendant State argued that preemption did not apply because the Tribe did not own any of the cabins subject to the county’s tax. Additionally, the State argued that the plaintiffs did not have standing to sue. The trial court held that the plaintiffs had standing to sue and upheld the county’s authority to assess the taxes. On appeal, the plaintiffs argued that the trial court’s decision to uphold the county’s tax was erroneous and the defendant maintained its challenge that the plaintiffs did not have standing to bring their suit. The appellate court determined that the plaintiffs’ pursuit of relief from their tax liability was a redressable injury and that there was a causal connection between the plaintiffs’ injury and the county’s assessment of taxes. Therefore, the appellate court held that the plaintiffs did have standing to bring their suit. The appellate court further held that the plaintiffs’ preemption argument failed. On the issue of federal preemption, the appellate court noted that the statute used by the plaintiffs required land to be acquired pursuant to the Indian Reorganization Act (IRA). Because the plaintiffs could not prove that the land was acquired pursuant to the IRA, the appellate court held that the plaintiffs’ cabins were not exempt from the county’s tax assessment. The plaintiffs additionally argued that other federal regulations showed that the government intended to regulate the taxation of improvements owned by non-Indians on trust land. The appellate court found little evidence of congressional intent to supersede the State’s authority to tax. The appellate court further noted that Congress had not authorized the BIA to preempt the defendant’s authority to tax structures owned by non-Indians. Finally, the appellate court held that because the State’s taxation did not implicate Indians and federal law, the State’s assessment of property taxes against the structures owned by the plaintiffs was not preempted by federal law. Pickerel Lake Outlet Association v. Day County, 2020 SD 72 (S.D. Sup. Ct. Dec. 22, 2020).

Posted December 29, 2020

Ranch Road is a Public Road. The plaintiff is a high-end recreational ranching operation offering hunting, fishing, horseback riding and other activities. The plaintiff had maintained a locked gate across a road since 1996, citing concerns for potential trespassing and liability. In 2015, the defendant ordered the plaintiff to unlock the gate and the plaintiff filed suit challenging the defendant’s order. The ranch owned virtually all of the land situated on each side of the disputed parts of the road, but there exist approximately 50,000 to 90,000 acres of Bureau of Land Management (BLM) land beyond the privately-owned land. The BLM land can be reached by a four-wheeler or a 45 to 90-minute hike up a ridge, it is much easier accessed by the road. The court upheld the defendant’s order, noting that the road became a public right-of-way under an 1866 federal law. Even though that law was repealed in 1976, the court held that the rights-of-way that were established under the law were preserved. The court also determined that the road became a public road based on a state law through its public use for at least 20 consecutive years and the fact that the defendant never took any formal action to abandon the road. While noting the plaintiff’s (and predecessors’) control, improvement and maintenance of the road for decades, the court determined that was outweighed by the historic importance of public land and the right of citizens to travel freely and “enjoy the great landscapes of this state.” The court gave the plaintiff a reasonable period of time to comply with the court order. High Lonesome Ranch, LLC v. Garfield County Board of Commissioners, No. 17-cv-1260-RBG-GPG, 2020 U.S. Dist. LEXIS 240496 (D. Colo. Dec. 22, 2020).

Federal Government Must Pay Farmers Millions For Army Corps of Engineers' Mismanagement of Missouri River. In 2014, 400 farmers along the Missouri River from Kansas to North Dakota sued the federal government claiming that the actions of the U.S. Army Corps of Engineers (COE) led to and caused repeated flooding of their farmland along the Missouri River. The farmers alleged that flooding in 2007-2008, 2010-2011, and 2013-2014 constituted a taking requiring that compensation be paid to them under the Fifth Amendment. The litigation was divided into two phases – liability and just compensation. The liability phase was decided in early 2018 when the court determined that some of the 44 landowners selected as bellwether plaintiffs had established the COE’s liability. In that decision, the court held that the COE, in its attempt to balance flood control and its responsibilities under the Endangered Species Act, had released water from reservoirs “during periods of high river flows with the knowledge that flooding was taking place or likely to soon occur.” The court, in that case, noted that the COE had made other changes after 2004 to reengineer the Missouri River and reestablish more natural environments to facilitate species recovery that caused riverbank destabilization which led to flooding. Ultimately, the court, in the earlier litigation, determined that 28 of the 44 landowners had proven the elements of a takings claim – causation, foreseeability and severity. The claims of the other 16 landowners were dismissed for failure to prove causation. The court also determined that flooding in 2011 could not be tied to the COE’s actions and dismissed the claims for that year. The present case involved a determination of the plaintiffs’ losses and whether the federal government had a viable defense against the plaintiffs’ claims. The court found that the “increased frequency, severity, and duration of flooding post MRRP [Missouri River Recovery Program] changed the character of the representative tracts of land.” The court also stated that, “ [i]t cannot be the case that land that experiences a new and ongoing pattern of increased flooding does not undergo a change in character.” The court determined that three representative plaintiffs, farming operations in northwest Missouri, southwest Iowa and northeast Kansas, were collectively owed more than $7 million for the devaluation of their land due to the establishment of a “permanent flowage easement” that the COE created which constituted a compensable taking under the Fifth Amendment. The impact of the court’s ruling means that hundreds of landowners affected by flooding in six states are likely entitled to just compensation for the loss of property value due to the new flood patterns that the COE created as part of its MRRP. Ideker Farms, Inc. v. United States, No. 14-183L, 2020 U.S. Claims LEXIS 2548 (Fed. Cl. Dec. 14, 2020).

Posted December 28, 2020

All Co-Owners Must Execute Impact Easement. The plaintiffs were eight adult children whose parents owned a quarter section of land. After the father died intestate, the mother executed an impact easement where the defendant cattle operation applied to run a confined feeding operation with 6,000 cattle. The easement was subsequently approved by the defendant county. The plaintiffs’ mother then filed an application to be appointed as personal representative to her husband’s estate which consisted solely of the quarter section of land. The attorney for the estate sent a letter to one of the plaintiffs and the mother which provided that the quarter section would be distributed to the mother for life, with the remainder interest divided among the plaintiffs. Years later, the defendant county approved the defendant cattle operation’s application to increase the number of cattle first to 7,500 and then 20,000. The plaintiffs filed suit and the trial court reversed the defendant county’s grant of conditional use permit. On appeal, the defendants argued that the trial court erred in concluding the plaintiffs’ mother lacked authority to grant the easement and in determining that the plaintiffs did not receive the property subject to easements and restrictions of record. The defendants also argued that the plaintiffs should have been estopped from contending that the easement was invalid and, alternatively, that the plaintiffs ratified the easement. The appellate court noted that under the state intestate succession law, a surviving spouse is entitled to one-half of the remaining estate, and the children would divide the remainder. The appellate court held that because the plaintiffs’ mother was not the sole owner of the quarter section, she was unable to execute an easement without the children. The appellate court noted that a grantor cannot establish an easement in an estate that the grantor does not own, and cannot create an easement that binds other co-owners. Further, the appellate court held that the plaintiffs’ mother did not own an interest in the property sufficient to grant an easement that would bind the plaintiffs. The appellate court noted that title could not be created or acquired by estoppel. Next, the appellate court held that the plaintiffs were unaware that the easement had been signed, and therefore they could not have ratified the easement. Lastly, the appellate court held that any reliance by and deference to the county’s decision regarding the easement was negated by the fact that the plaintiffs’ mother had no authority to bind the plaintiffs to the easement. Harts v. County of Knox, No. S-20-014, 308 Neb. 1 (Neb. Sup. Ct. Dec. 18, 2020).

Posted December 20, 2020

Evidence Fails To Establish Boundary By Acquiescence, Practical Location or Adverse Possession. The plaintiff sought to quiet title related to a disputed area where her land adjoined the defendant’s property. The disputed property consisted of 6.44 acres between the boundary of record east to the fence that had been maintained by the parties’ predecessors. The boundary of record was a government survey line that ran through a drainage ditch that was densely wooded and vegetated. The parties’ predecessors had built a fence fifty years prior on the east side of the ditch to keep cattle from going into the ditch. The defendant built a new fence that ran partially along the government survey line, curved around the eastern embankment of the ditch, and ended on the south end of the survey line. Two acres of land fell between where the old fence allegedly ran and the defendant’s new fence. The other four and a half acres were between the new fence line and the government survey line in the ditch. The plaintiff claimed ownership of the land between the survey line and the old fence built by the parties’ predecessors. The plaintiff argued she had obtained title to the disputed land by boundary by acquiescence, practical location, and adverse possession. The trial court held that the plaintiff did not prove a boundary by acquiescence, practical location, or adverse possession. On appeal, the plaintiff argued the trial court erred in failing to quiet title in her favor. The appellate court held that the plaintiff failed to establish a boundary by acquiescence. The appellate court noted that neither the plaintiff and defendant, nor the parties’ predecessors had ever discussed that the old fence was the boundary line, and the predecessors considered the government survey line to be the boundary line. On the issue of boundary by practical location, the appellate court held that the plaintiff had failed to establish the boundary was disputed, indefinite, or uncertain. The appellate court noted that county plat maps and the legal descriptions of the land all indicated a straight-line border between the properties through the drainage ditch. On the issue of adverse possession, the appellate court held that the plaintiff failed to establish that she had exercised hostile, open, exclusive, and continuous possession of the disputed area for at least ten years. The appellate court noted that neither the plaintiff nor defendant often used the disputed area, and that the area was mainly used for hunting by both parties. Therefore, the appellate court affirmed the trial court’s rejection of the plaintiff’s boundary claims and confirmed ownership of the disputed area belonged to the defendant. Black v. Jorgensen, No. 19-1576, 2020 Iowa App. LEXIS 1161 (Iowa Ct. App. Dec. 16, 2020).

Posted December 19, 2020

Court Analyzes Various Easement Provisions. The plaintiffs purchased land, which gave them title to a lane 32-feet wide through the defendant’s neighboring property. The defendant had been granted a permanent easement to use the roadway, which was within the lane, from the plaintiffs’ predecessor in interest in order to access his land. The easement granted the defendant the right to use the roadway. The defendant was also required to maintain fences bordering the plaintiffs’ land, and had the right to use a shed located on the boundary line, so long as the shed was not destroyed. The easement also required the defendant to share repair expenses on the road. The plaintiffs became dissatisfied with the maintenance on the lane and hired their own excavator to blade the road. The plaintiffs also contacted fence viewers after the defendant’s horses wandered onto the plaintiffs’ property. The fence viewers determined an accurate property line needed to be established via survey and that a fence needed to be built to maintain the defendant’s livestock. The defendant refused to pay for half of the proposed fence, and instead erected an electric fence. The plaintiffs then sued the defendant for failing to maintain the lane; failing to maintain and construct fences bordering the plaintiffs’ property; and improperly rebuilding the shed after it had been destroyed. The plaintiffs also sought payment for needed repairs to the creek crossing on the plaintiffs’ land. The trial court ordered the defendant to pay 75 percent of the lane repair costs, and that the repairs to the creek crossing be shared equally by the parties. The trial court also denied the plaintiffs’ request that the defendant remove the shed and construct fencing bordering the plaintiffs’ property. On appeal, the appellate court noted that the easement provided that the defendant could not build a new shed on the boundary line if the shed were destroyed. The appellate court held that although the needed repairs to the shed were extensive and expensive, the shed was not destroyed, and therefore the defendant was allowed to repair the shed. As for the fence, the appellate court held that the easement provided that the defendant was required to maintain all fences bordering the plaintiffs’ property, and not required to construct a fence. For the costs apportioned to the lane repair, the appellate court noted that the easement stated that the plaintiffs would be liable for any damage to the lane caused by his tenant, and therefore the 75/25 split was fair. The appellate court noted that the plaintiffs’ tenant regularly drove heavy equipment over the lane, which made the plaintiffs responsible for repairing the damages arising from their tenants use of the road. Finally, on the creek crossing issue, the trial court had found that the defendant had no sound reason for placing planks in the culvert, but held that the planks should be replaced. On appeal, the plaintiff was able to point out this inconsistency and show the placement of planks in the culvert by the defendant resulted in backflow and flooding on the plaintiffs’ land. As a result, the appellate court held that half of the bridge planks should be removed, and the costs should be shared equally by the parties. Bunting v. Koehn, No. 20-0069, 2020 Iowa App. LEXIS 1143 (Iowa Ct. App. Dec. 16, 2020).

Posted November 25, 2020

Boundary by Acquiescence Does Not Establish Property Border. The plaintiffs sought to establish the eastern boundary of their property upon purchasing the land, which was adjacent to the defendants’ property. Based on a survey, the fence line was not the same as the legally described property line. 1.3 acres of land owned by the plaintiffs was on the defendants’ side of the existing fence. Additionally, the plaintiffs argued that an easement would allow them access across the defendants’ property. The defendants claimed that the fence line, and not the plat lines, established the boundary by acquiescence. The trial court held that the defendants failed to prove that the plaintiffs or their predecessors ever acquiesced in accepting the fence line as the actual boundary between the properties. The trial court also held that the easement was inapplicable to the plaintiffs. The appellate court held that the defendants had the burden of proving that the two adjoining landowners or their predecessors in title recognized and acquiesced in a boundary line for a period of ten years (the state law requirement). The appellate court held that the evidence showed that the plaintiffs and predecessor landowners did not acquiesce to the fence line as a boundary. Further, the appellate court noted that the defendants’ evidence of a letter between both parties’ predecessors in interest stated that the existing fence line was simply a barrier and not a boundary. The letter from the plaintiffs’ predecessors extended a license to the defendants’ predecessors which allowed them to continue to farm the 1.3 acres. As for the plaintiffs’ easement claim, the appellate court held that the easement description put the easement not by the border of the parties’ properties, but rather on the opposite end of the defendant’s property. Therefore, the appellate court held that the plaintiffs has no right to enjoy the benefit of the easement. Behnke v. Fitzpatrick, No. 19-1593, 2020 Iowa App. LEXIS 1056 (Iowa Ct. App. Nov. 4, 2020).

Posted November 14, 2020

Legal Status of Farmer at Issue. The issue of the legal status of a farmer was involved in a recent Arizona case. The plaintiff farmed for the defendant. The defendant leased farmland from a company and the plaintiff would farm the land with both parties splitting the crops produced. The state condemned the land and reached a settlement with the company, causing the defendant to be unable to furnish the land to the plaintiff. Neither the plaintiff nor defendant was a party to the condemnation action, and neither received any part of the settlement. The plaintiff sued, alleging breach of contract and breach of the implied covenant of good faith and fair dealing. At trial, the main point of contention was whether the sharecrop agreement was a lease giving the plaintiff a property interest or a cropper’s contract creating an employment-like relationship. The plaintiff argued the agreement was a lease entitling him to one-half of the amount allocated to crop loss in settling the condemnation matter – approximately $500,000. While the defendant admitted contractual liability, he argued the agreement was a cropper’s contract, therefore the plaintiff’s damages should be limited to its lost profits totaling $10,000. The trial court jury found the agreement was a cropper’s contract and awarded the plaintiff damages of $207,214.40, equivalent to one-fifth of the settlement allocation. On appeal, the defendant argued that the jury’s conclusion that the sharecropper agreement was a cropper’s contract necessarily limited the plaintiff’s recovery to $10,000. The appellate court held that as a matter of contract law, the plaintiff’s recovery was limited to the $10,000 in lost profits. The appellate court noted that the agreement provided that the parties would share all crops produced on the property and income received on account of growing and sale of crops from the property, and that while both parties were aware of the condemnation action, neither received any income from the settlement. The appellate court held that contract damages are intended to compensate for what the claimant lost because of the other party’s non-performance, and additional recovery is only available in exceptional circumstances, which were not present in this case. On remand, the trial court must determine the amount of damages on the plaintiff’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing. F.S.T. Farms Inc. v. Vanderwey, 2019 Ariz. App. Unpub. LEXIS 1430 (Ariz. Ct. App. 2019).

Posted November 1, 2020

Zoning Ordinance Bars Keeping of Farm Animals. The plaintiff owned a two-acre property in an area zoned residential. She kept approximately 50 animals on the property including goats, donkeys, and chickens. The city manager’s office had received numerous noise and odor complaints regarding the animals. The city sent the plaintiff a cease and desist letter giving the plaintiff 20 days to remove the animals. A city ordinance prohibited any person from keeping goats, donkeys, and other farm animals on residentially zoned property. The plaintiff appealed the cease and desist letter to the defendant city, the zoning hearing board. The plaintiff admitted that most of her property was located within a residentially zoned district, but argued that a small corner of the property was located in a conservation district allowing for agricultural uses. The zoning board denied the plaintiff’s argument and concluded that although part of the property was zoned for agricultural use, it was undisputed that the plaintiff’s animals were within 200 feet of a residential lot which violated a separate city ordinance. The trial court affirmed. On appeal, the plaintiff argued the trial court failed to consider evidence that she properly cared for her animals and that her property had not been surveyed. Specifically, the plaintiff argued a letter from the county humane society should have been considered to show she properly cared for her animals. The appellate court held that although the letter was not in the record, both the zoning board and trial court had expressly considered the letter in making their respective rulings. The appellate court noted that the care for the animals was not at issue, but rather whether zoning rules and ordinance permitted the plaintiff to keep farm animals on her property. The appellate court also determined that a zoning survey of the property had been done recently, which showed that most of the property was within a residential district and only a small portion was zoned as conservation. The plaintiff failed to present any evidence to rebut the survey before the hearing board or trial court, therefore the appellate court held that the plaintiff was in violation of the city ordinance. Finally, the plaintiff argued the zoning board was unevenly enforcing its zoning ordinances because a neighbor had testified before the hearing board that he kept chickens on his property and a city officer had told him that doing so did not violate any city ordinance. The appellate court held that this evidence alone was insufficient to establish uneven enforcement without any other evidence presented. Maffeo v. Winder Borough Zoning Hearing Board, 220 A.3d 1210 (Pa. Commw. Ct. 2019).

Purpose of Fence Key to Establishing Fence-Out Doctrine and Permissive Use. The parties both owned cattle ranches on neighboring land. Three non-contiguous parcels of land were deeded to the plaintiff but were located within the defendant’s land. The defendant’s perimeter was fenced, except where land characteristics made it impossible, but the three parcels were not separately fenced within the ranch. The plaintiff sought to quiet title to the parcels, while the defendant counterclaimed for adverse possession of the parcels. The defendant claimed that its grazing cattle on the plaintiff’s land was open, notorious, exclusive and continuous for the requisite 10-year statutory period. The trial court held that the plaintiff’s failure to fence the parcels within the defendant’s land equated to permission to allow the defendant’s cattle to wander on the unfenced land. Further, the trial court held that the plaintiff allowed the defendant to use the parcels as part of a neighborly accommodation, therefore the defendant could not establish adverse possession. The defendant appealed, arguing that genuine issues of material facts existed with regard to the adverse possession claim. The appellate court held that while a neighborly accommodation would generally defeat an adverse possession claim, the trial court incorrectly assumed that there was such an accommodation. The appellate court noted that there was insufficient evidence of communication or joint activity that demonstrated a ruling of neighborly accommodation as a matter of law. The trial record showed that the plaintiff and defendant had merely spoken on a few occasions, none of which involved any agreement for accommodation to use the parcels. Additionally, the appellate court held that the trial court erred in finding permissive use based on the state fence-out doctrine. Under Wyoming law, the onus is on a property owner to fence out livestock to prevent damage rather than on the livestock owner to fence in the livestock. The appellate court held that the trial record contained little evidence regarding who built the fences, when they were built, and for what reason. As a result, the appellate court held that competing inferences as to the purpose of the fencing prohibited application of the fence-out doctrine at the summary judgment stage. Finally, the appellate court held that on remand, the trial court must resolve whether the defendant’s adverse possession claim was exclusive and continuous for the 10-year statutory period under Wyoming law. Little Medicine Creek Ranch, Inc. v. D’Elia, 450 P.3d 222 (Wyo. Sup. Ct. 2019).

Posted October 11, 2020

Damages for Eminent Domain Action Equals Difference in Fair Market Value of Land. The plaintiffs were landowners whose property consisted of 164 acres, primarily cropland and pastureland. The plaintiff gave the defendant county permission to cut down trees on the plaintiffs’ property in order to improve visibility for drivers on an adjacent county road. However, the defendant’s employees proceeded to cut down trees from an area not authorized for removal. In total, the defendant cut down 67 trees, affecting 1.67 acres of the plaintiffs’ land. The plaintiffs filed an inverse condemnation action against the defendant, alleging an unlawful taking of their property for public use without just compensation. The plaintiffs claimed that the damages should be calculated by determining the replacement cost of the trees, which was approximately $100,000. The defendant argued that the damages should be calculated by determining the difference in fair market value of the plaintiffs’ property before and after the trees had been cut down, which was $200. The trial court agreed with the defendant and held that the appropriate measure of damages was the difference in the fair market value of the land. The trial court noted that the plaintiffs had argued their case under the state’s eminent domain statutes but were seeking damages based on a tort cause of action. On appeal, the plaintiffs’ argued the trial court applied the wrong measure of damages. The plaintiffs maintained their argument that the proper method for determining damages was to calculate the cost of restoring the property to its preexisting condition. The appellate court held that the correct measure for damages was in fact the difference in the fair market value of the land before and after the trees were cut down. The appellate court noted that Nebraska courts have consistently held that damages in eminent domain cases are measured based on market value of the property. Further, the appellate court pointed out that the state Supreme Court had previously held that vegetation is not valued separately and should only be considered in how its presence affects the fair market value of the land. Finally, the appellate court noted that the plaintiffs’ argument for calculating damages rested on cases that stemmed from tort actions. Because the plaintiffs had argued their case as one under the eminent domain statutes, they could not seek damages under an unlawful destruction of trees or negligence action. Russell v. Franklin County, 934 N.W.2d 517 (Neb. Ct. App. 2019).

Posted October 10, 2020

Computation of Natural Gas Royalties at Issue. The plaintiffs were a class of about 2,300 royalty owners seeking recovery of underpaid gas royalties from the defendant operator. The defendant sold raw natural gas at the wellhead to third parties, who would then make the gas fit to enter the interstate pipeline system. The defendant calculated the royalty payments on the amount it received for the gas at the wellhead, rather than the price of the gas as it entered the interstate market. Interstate market standards apply for the quality of natural gas require raw gas to be gathered, compressed, dehydrated, treated, and compressed once it has been extracted. These additional processing steps result in a higher price for the gas as it enters the interstate market than the price at the wellhead. The plaintiffs argued that they were entitled to the price differential and that the defendant breached its implied duty to market the gas. Specifically, the plaintiffs argued that by computing royalty payments on the wellhead price of gas instead of the price as it enters the interstate market, the defendant had shifted the costs of preparing the gas to the plaintiffs. The plaintiffs argued that this cost shifting breached the implied covenant to produce and market. The trial court agreed with the plaintiff and noted that Kansas court have held that the duty to market gas falls on the operators of oil and gas leases and not on the royalty owners. The appellate court reversed the trial court’s decision and held that the gas production was merchantable once the defendant put it into a condition acceptable to a purchaser in a good-faith transaction. Separately, the appellate court ruled that the plaintiffs were entitled to summary judgment for the defendant’s wrongful deduction of conservation fees from the royalties paid to the plaintiffs. On remand, the plaintiffs attempted to amend their complaint in order to allege that the defendant violated its duty of good faith and fair dealing by manufacturing a sale before the raw gas was in a condition acceptable for the commercial market in an attempt to shift expenses to the plaintiffs. Additionally, the defendant attempted to assert a statute of limitations defense on its illegal deduction of conservation fees. The trial court denied both parties motions on the grounds that they were foreclosed from reconsidering the issues by the appellate court’s decision and mandate. Both parties appealed, with the plaintiffs arguing that the appellate court left open the question of what it meant to be marketable, and the defendant arguing its statute of limitation defense to the conservation fees should not be barred by equitable estoppel. The appellate court held that the trial court correctly denied the plaintiffs motion to amend their complaint. The appellate court noted that the plaintiffs’ new argument had already been decided by the appellate court’s ruling in their first case. The appellate court had previously held that the gas was marketable once it was in a condition acceptable to a purchaser in a good-faith transaction, therefore foreclosing the plaintiffs’ new argument at the trial court level. The appellate court’s holding that the defendant satisfied its duty to market gas when it was sold at the wellhead to third parties meant that the appellate court had necessarily found the defendant conducted a good-faith sale. On the argument over prejudgment interest, the plaintiffs argued that a general prejudgment interest statute set the interest rate at 10 percent. The appellate court disagreed and held that a specific oil and gas statute controlled the interest computation, requiring specific information to calculate the monthly variable interest. Finally, the appellate court held that equitable estoppel prevented the defendant from asserting a statute of limitations defense against its wrongful deduction of conservation fees. The appellate court noted that the defendant deceptively misrepresented the conservation fee as a tax and the plaintiffs had relied on the misrepresentation to their detriment. Fawcett Trust v. Oil Producers, No. 120,611, 2020 Kan. App. LEXIS 70 (Kan Ct. App. Oct. 2, 2020).

Posted October 1, 2020

County Can Exercise Eminent Domain For Purpose of Upgrading Road. The defendant county served a notice of intent to condemn land the plaintiffs owned. The plaintiffs were informed that part of their land was needed for the construction of a new road for the future location of a new concrete batch plant. The plaintiffs argued the condemnation was in violation of Iowa law because it was solely for the purpose of facilitating the incidental private use of the concrete batch plant. The trial court disagreed and dismissed the plaintiff’s suit. On appeal, the plaintiffs again argued the defendant’s decision to widen and improve the road was solely for the purpose of facilitating the construction and use of the concrete batch plant. The plaintiff further argued Iowa law prohibits counties from condemning private land to facilitate private use and for economic development. The appellate court held that while the defendant could not rely on an economic development rationale to support its taking of the plaintiffs’ property, the defendant could maintain its eminent domain action if it were to show that improving the road served a public purpose. The appellate court held that the defendant was statutorily authorized to upgrade the road. Further, the appellate court stated that the county supervisor found the road would have been a hazard and could not have handled heavy truck traffic. Finally, the appellate court held that the defendant’s need to upgrade the road was a public purpose that supported its exercise of eminent domain over the plaintiffs’ land. Hickman v. Ringgold Cty. 941 N.W.2d 38 (Iowa Ct. App. 2019).

Posted September 25, 2020

Moving Cattle Establishes Boundary by Acquiescence. The plaintiffs were farmers whose family had owned their land for nearly 150 years. More than a century later, parcels of the property were sold to the defendants. The plaintiffs owned two parcels on the northern and southern ends of the land, and the defendants owned parcels in between the plaintiffs’ two parcels and directly adjacent to the west. A fenced corridor connected the plaintiffs’ north and south parcels so the plaintiffs could transport cattle from one property to the other. A boundary dispute arose when the defendants obtained a survey revealing the boundary between the farms was in between the fences. The plaintiffs sought to quiet title, alleging a boundary by acquiescence along the western fence line. The plaintiffs argued their family had been moving cattle between the two properties for more than a hundred years before the defendants bought their land. The trial court held that the plaintiffs were able to establish a boundary by acquiescence along the western fence line. On appeal, the defendants argued that the trial court permitted inadmissible hearsay, by allowing the plaintiff to testify about an oral land agreement his father made that established the western fence line as the new boundary. The appellate court held that although boundaries are usually proven by reference to deeds, statements made by those in the community can often be the only evidence available concerning land boundaries. Further, the appellate court noted that even if it were to disregard the evidence of the oral land agreement, there was sufficient evidence to find that the plaintiffs had established a boundary by acquiescence. The appellate court held that acquiescence exists when both parties acknowledge and treat the line as the boundary. If the acquiescence persists for ten years, the line becomes the true boundary even though a survey may show otherwise. The appellate court also noted that the evidence showed that the defendants had acquiesced in the plaintiffs’ use of the lane during the time the defendants owned the land. Brewer v. Plagman, 940 N.W.2d 792 (Iowa Ct. App. 2019).

Posted September 23, 2020

Road Not Formally Adopted by County Court Fails to Qualify as County Road. The plaintiffs own a farm that can only be accessed by a road that crosses defendants’ property. The plaintiffs allege the road was a county road that the defendants had improperly erected four gates across. The plaintiffs further asserted that when they had purchased their farm, there was only one gate on the road that remained open during the day and that the county would maintain the road. After the defendants bought the neighboring farm, they added three more gates along the roadway. As a result, the county no longer maintained the road, which led to its deterioration. The defendants claimed that the gates were necessary for the use and protection of their property. The trial court held that the road was not a county road and that one gate could be placed across the road but could only be locked at night. On appeal, the plaintiffs argued that there was significant evidence that the road at issue was a county road. As proof, the plaintiffs showed that the road was listed as a county road in the county’s own road index and the Department of Transportation had designated the road as a county road. Further, the plaintiff argued the county had maintained the road in the past until the defendants built three additional gates. The appellate court found that this evidence was inadequate under state law and held that Kentucky statutory law specified that county roads are only those which have been formally accepted by the fiscal court of the county as a part of the county road system. The appellate court noted the plaintiffs’ evidence failed to show that the road had been formally adopted by the county’s fiscal court as a county road. Reid v. Donithan, No. 2017-CA-001388-MR, 2019 Ky. App. Unpub. LEXIS 758 (Ky. Ct. App. Oct. 25, 2019).

Moving Cattle Establishes Boundary by Acquiescence. The plaintiffs were farmers whose family had owned their land for nearly 150 years. More than a century later, parcels of the property were sold to the defendants. The plaintiffs owned two parcels on the northern and southern ends of the land and the defendants owned parcels in between the plaintiffs’ two parcels and directly adjacent to the west. A fenced corridor connected the plaintiffs’ north and south parcels so the plaintiffs could transport cattle from one property to the other. A boundary dispute arose when the defendants’ obtained a survey revealing the boundary between the farms was in between the fences. The plaintiffs sought to quiet title, alleging a boundary by acquiescence along the western fence line. The plaintiffs argued their family had been moving cattle between the two properties for more than a hundred years before the defendant’s bought their land. The trial court held that the plaintiffs were able to establish a boundary by acquiescence along the western fence line. On appeal, the defendants argued that the trial court permitted inadmissible hearsay, by allowing the plaintiff to testify about an oral land agreement his father made that established the western fence line as the new boundary. The appellate court held that although boundaries are usually proven by reference to deeds, statements made by those in the community can often be the only evidence available concerning land boundaries. Further, the appellate court noted that even if it were to disregard the evidence of the oral land agreement, there was sufficient evidence to find that the plaintiffs had established a boundary by acquiescence. The appellate court held that acquiescence exists when both parties acknowledge and treat the line as the boundary. If the acquiescence persists for ten years, the line become the true boundary even though a survey may show otherwise. The appellate court also noted that the evidence showed that the defendant had acquiesced in the plaintiffs’ use of the lane during the time the defendant owned the land. Brewer v. Plagman, 940 N.W.2d 792 (Iowa Ct. App. 2019).

Posted September 22, 2020

Court Sorts Out Missouri River Mineral Ownership. In 2017, the state of North Dakota enacted legislation limiting the state’s mineral claims to minerals under Lake Sakakawea to a smaller area that the state had previously claimed. The fiscal note for the legislation indicated a cost to the state of approximately $187 million in oil royalties that the state had already collected. The plaintiff, a state representative, challenged the law as unconstitutional. The trial court determined that the bulk of the law was constitutional, but that it violated the “gifting” clause of the state Constitution barring the state from making gifts of money or loans to businesses or individuals. On review, the state Supreme Court disagreed that the law violated the gifting clause of the state Constitution because the state didn’t actually own the minerals at issue. Thus, the state was not giving away anything that it owned. At the core of the dispute was how the mineral rights were to be determined. The state Supreme Court also reversed the trial court’s attorney fee award of nearly $800,000 because there was no legal authority for the award. Sorum v. State, 947 N.W.2d 382 (2020).

Posted September 11, 2020

Conveyance by Deed Not Required to Transfer Ownership of Property. The plaintiff was a bank seeking to quiet title against the defendants after initiating foreclosure proceedings. The defendants, a ranching partnership, had previously assigned their right of redemption to another rancher during a previous foreclosure action. On the day the right of redemption was assigned, the rancher paid the amount owed on the property and filed a notice with the court stating that she now held legal title to the property. The rancher intervened in the suit by asserting an ownership interest in the property arising from her purchase and exercise of defendant’s right of redemption in the previous foreclosure action. The plaintiff argued that the assignment of the redemption rights did not transfer ownership of the property to the rancher because there was no deed of conveyance. The trial court agreed, holding that the assigned right of redemption of a previous foreclosure action was ineffective to pass title to the rancher absent a conveyance. The trial court held that the rancher’s exercise of the right of redemption merely restored title in the defendants and that the rancher had no interest in the property. On appeal, the rancher argued the trial court ignored the state statutory right of redemption, which states that an “assignee or transferee shall have the same right of redemption as the defendant owner.” K.S.A. 60-2414(h). The appellate court held that by exercising the right of redemption assigned by the defendants, the rancher became the undisputed owner of the property the same as if the defendants had redeemed the property. The appellate court noted that the rancher obtained all the property rights of the owner upon exercising the redemption right. The plaintiff again argued that there was no deed of conveyance explicitly stating that the defendants were transferring title to the rancher, so the exercise of the redemption right merely cancelled the previous foreclosure sale and restored ownership in the defendants. The appellate court disagreed, holding that there are several ways to transfer an interest in real property under Kansas law and that this was one of them. Thus, the absence of a conveyance by deed did not mean that the rancher had no interest in the property. The appellate court remanded the case for a determination of whether the rancher could establish that she had obtained title to the property based on the filing of the contract; assignment; and exercise of her redemption right; or via adverse possession. Bucklin National Bank v. Hayse Ranch, No. 121,690, 2020 Kan. App. LEXIS 63 (Kan. Ct. App. Sept. 11, 2020).

Real Estate Mortgage Creates Lien on Property; No Title Conveyed. The plaintiff owned commercial real estate, with ownership subject to debt evidenced by a promissory note secured by a mortgage on the real estate. The defendant acquired the mortgage, at which time the plaintiff was in default under the terms of the mortgage. The defendant then took possession of the property without any notice given to the plaintiff. The plaintiff objected and demanded the return of the property so it could continue to be rented to pay off the debt. The defendant refused and attempted to lease the property. The defendant filed a mortgage foreclosure action while in possession of the property, claiming that it had acquired ownership of the property. The plaintiff sued, claiming that the defendant improperly took possession of the property before the foreclosure action. The defendant argued it had the right to take possession because the remedies portion of the mortgage stated that the lender could enter the premises, without notice, upon default by the borrower. The trial court agreed with the defendant and held that the mortgage remedies provision, plaintiff’s default, and the fact that property was vacant entitled the defendant to take possession. The appellate court reversed the trial court, holding that the defendant’s reliance on the mortgage provisions were unsupported by state law and the plaintiff had neither expressly or impliedly consented to the defendant entering the property. The state Supreme Court affirmed, holding that the defendant first needed to file its action for foreclosure with the trial court, then seek its remedies for the default. The Supreme Court noted that state law provided that, “In absences of stipulations to the contrary, the mortgagor of real property may retain the possession thereof.” K.S.A. 58-2301. Thus, the mortgagor had the right to possession even in the event of default. The defendant argued that the mortgage provisions qualified as a stipulation contrary to the rule that mortgagors retain right of possession. However, the Supreme Court determined that prior caselaw had made clear that the mortgage instrument alone is unable to provide the express consent necessary for a lender to take possession of real estate prior to a valid court action. The Supreme Court also affirmed the long-standing precedent that a real estate mortgage does not convey title, but merely creates a lien upon the mortgaged property. Fairfax Portfolio LLC v. Carojoto LLC, No. 118,712, 2020 Kan. LEXIS 90 (Sup. Ct. Kan. Sept. 11, 2020).

Posted September 8, 2020

Court Rejects Tenant’s Claim of Pre-Payment Under Oral Farm Lease. The plaintiff, the daughter-in-law of the defendants, sought to continue to farm the land her husband was renting from the defendants at the time of his death. He had been farming the land without paying rent and the defendants had provided him farm equipment to farm with. Upon his death, the plaintiff offered to pay rent to continue to farm the land under an oral lease.  The defendants agreed to the oral lease, but refused to accept any rent payment for 2012 because of the plaintiff’s existing indebtedness. The plaintiff was out of debt in 2013, and the defendants agreed to let the plaintiff pay an amount of rent that would cover the property tax on the leased ground. The parties entered into a new lease agreement for 2014 which called for rent on a per acre basis, but the plaintiff paid the same amount as was paid in 2013 to cover the property tax, a substantially lower amount than the defendants expected. The defendant did not cash the check, and instead wrote the plaintiff to notify her that the amount of the check did not cover the yearly rent they had previously discussed. In 2015, the plaintiff paid the defendants the correct amount under their oral lease. However, the plaintiff claimed the payment was for 2015, and the defendants claimed it was for 2014. The next year, the same issue arose, where the plaintiff claimed the check was a pre-payment for 2016, while the defendants believed the payment was for 2015. After 2016, the plaintiff terminated the lease and made no other payments to the defendants. The defendants alleged the plaintiff breached the lease by failing to pay the full amount of rent due. The defendants also sought to recover farm equipment they claimed ownership of. The plaintiff claimed that her payments were an advance. The trial court found that the parties had renegotiated the terms of the lease for payment on a per acre basis after the plaintiff was not in debt. The trial court also rejected the plaintiff’s pre-payment claim as not credible, as they found farm leases are not customarily prepaid. Further, the trial court held that some of the farm equipment belonged to the plaintiff because it was listed in the inventory of the decedent’s estate, including a combine that the defendant had previously sold. The trial court credited the amount from the combine sale to the amount it ordered the plaintiff to pay for outstanding rent. On appeal, the plaintiff argued the trial court’s ruling on the breach of contract claim was in error, and the defendant appealed the ruling as to ownership of the farm equipment. The plaintiff argued that the oral agreement was reached in 2015 and could not retroactively apply to rent due in 2014 without consideration. However, the appellate court held that the evidence was clear and convincing that the parties had agreed to new lease terms before the 2014 crop year. The appellate court also stated the plaintiff’s argument was hard to believe, as the defendants would be unlikely to not demand payment after they voided the plaintiff’s first check. As for ownership of the farm equipment, the appellate court held the defendants were the owners of all the disputed equipment. Although the plaintiff introduced evidence of the inventory of her husband’s estate, the appellate court noted that inventory is not evidence of ownership. The appellate court also held that the amount credited to the plaintiff’s payment on account of the combine be eliminated because the defendants owned the combine. McBeth v. McBeth, No. 19-0600, 2020 Iowa App. LEXIS 844 (Iowa Ct. App. Sept. 2, 2020).

Posted September 6, 2020

Tract Properly Zoned as “Residential.” The plaintiff, a computer services consultant, bought a 10.2-acre tract in 2008. It consisted of approximately two acres of a home and improvements; five acres of a slough; and 3.6 acres of cropland. The cropland is in a 100-year floodplain. From 2009-2011 the plaintiff grew hay on the cropland, and in 2012 and 2013 he grew corn on it. No crops were grown in 2014 due to weather, and in 2015 he grew corn and pumpkins. He challenged his 2015 property tax assessment and the 2017 assessment as inequitable and on the basis that it misclassified the property as “residential” rather than “agricultural.” The county zoning board denied his petition and he appealed to the local trial court. At a trial court hearing the county’s assessor noted that the property had multiple uses, but that the plaintiff’s farming operation was “a secondary use.” The county did adjust the valuation downward by 16 percent and granted a “slough bill” exemption for the 2017 tax year. However, the trial court upheld the county’s designation of the property as “residential” on the basis that the plaintiff was a hobby farmer. As such, the trial court determined that the plaintiff’s property taxes should be based on a valuation amount $100,000 greater than the plaintiff desired. On appeal, the appellate court affirmed, noting that the burden was on the plaintiff to establish the predominant agricultural use of the property. The court agreed with the trial court’s findings that the ag use of the property had never been profitable, and that if it were sold it would be marketed as a residential property rather than a farm property. The plaintiff purchased the property as a residential property, and it is surrounded by residential housing. In addition, the largest valued asset on the property is the residence. The plaintiff also testified that he benefitted from tax savings as a result of the cropping activities on his tract. He also testified to spending $90,000 for ag equipment and $55,000 to construct a barn but had farm income never exceeding $1,200 annually. Miller v. Scott County Board of Review, No. 19-1038, 2020 Iowa App. LEXIS 436 (Iowa Ct. App. Apr. 29, 2020).

Posted August 30, 2020

Prescriptive Easement May Be Created Over a Ditch or Waterway. The parties owned adjoining tracts that they used for duck hunting. The plaintiff sought a declaratory judgment against the defendant, claiming that the plaintiff had the right to control the use of a ditch that the defendant had been using to gain access to the plaintiff’s land. The plaintiff had built a bridge to block the defendant’s path to their property, and in years past had obstructed the defendant’s path on separate occasions. The plaintiff claimed that the defendant merely had permissive use of the ditch, but the defendant sought a prescriptive easement over the ditch and a road that ran parallel to the ditch. The defendant would use the road to gain access to the land during dry periods and travel by boat in the ditch during times where the road was underwater. The trial court held that the defendant was able to establish an easement by prescription over the ditch by establishing that a preponderance of the evidence showed that the use of the ditch was adverse to the plaintiff and under a claim of right for the seven-year statutory period. On appeal, the appellate court noted that under Arkansas law, any vehicle needed for the operation of the easement could be driven across the servient estate. A boat could be used to access the easement therefore a prescriptive easement could be created over a ditch or waterway. The plaintiff also argued on appeal that the defendant failed to prove the necessary elements of a prescriptive easement. The plaintiff argued that the use of the ditch was not continuous or uninterrupted for the required statutory period because the ditch was not always flooded. The appellate court, however, held that mere temporary absences of a claimant do not interrupt the “continuous” requirement for a prescriptive easement. Also, the plaintiff’s attempts to obstruct the defendant’s use of the ditch occurred after the defendant had met the statutory requirement for establishing a prescriptive easement. Finally, the appellate court noted that the trial court’s decision to not limit the prescriptive easement for the ditch to a shorter route was not in error as it created no additional burden to the plaintiff landowner. Five Forks Hunting Club, LLC v. Nixon Family Partnership, No. CV-18-301, 2019 Ark. App. LEXIS 397 (Ark. Ct. App. Sept. 11, 2019).

Paying Principal Amount Within Redemption Period is Insufficient to Redeem Property. The plaintiff purchased one of two parcels of land at a foreclosure action and another business purchased the other parcel. Under state (Iowa) law, the buyers took the property subject to the prior owner’s one-year right of redemption from the date of the sale. The prior owner assigned its redemption rights to the defendant 364 days after the foreclosure sale. The next day (the final day of the redemption period) the defendant tendered a check to the county court clerk for the principal amount of the two foreclosure bids and received a receipt from the clerk showing a “balance due” of zero. Two days later, the plaintiff applied for a hearing on the redemption issue to refund the defendant’s check and sought a finding that no redemption had occurred because the amount tendered by the defendant did not include interest and fees. The defendant claimed that the court clerk would not tell him the exact amount that was necessary to redeem both properties upon his asking. The defendant further claimed that the clerk withheld the amount from him, and that he had acted in good faith in trying to redeem the properties by paying the full principal amount (well over $1 million). The trial court found that the defendant failed to inquire with either the bank or the bank’s attorney what the amount due for redemption would be. Additionally, the trial court held that the county clerk had no duty to the defendant to determine the redemption amount. On appeal, the defendant claimed that the trial court erred in not granting him equitable relief, and that he paid a sufficient amount to redeem at least one of the properties. The appellate court affirmed, holding that the mistake in calculating the payoff amount was the defendant’s sole fault. Further, the appellate court noted the defendant could have taken advantage of a safe harbor provision, as the redemption period was about to expire, but failed to do so. As for the defendant’s claim of partial redemption for having tendered an amount exceeding the redemption price of either property, the appellate court held that in order to redeem one tract required the defendant to specify which parcel was being redeemed. The appellate court held that an insufficient payment for redemption of two properties alone cannot result in an after-the-fact redemption of one of the properties. Sibley State Bank v. Zylstra, No. 19-0126, 2020 Iowa App. LEXIS 830 (Iowa Ct. App. Aug. 19, 2020).

Posted July 24, 2020

Adverse Possession Sufficient to Bring Quiet Title Action. The plaintiff sought to quiet title to a disputed tract of land by virtue of adverse possession. Although the plaintiff only owned his tract of land for a couple of years, he asserted that his predecessors in interest had obtained equitable title over the disputed land through adverse possession, by showing they possessed, controlled, maintained, and exercised dominion over the disputed property for more than 20 years. The defendants were record titleholders of the property in dispute. They claimed that the statute of limitations had run for the plaintiff’s adverse possession claim when his predecessors in interest were the landowners. The trial court dismissed the plaintiff’s quiet title action, and dismissed the claim for adverse possession as a matter of law. On appeal, the appellate court found that the trial court had misconstrued the plaintiff’s complaint and that it was sufficient in establishing that his predecessors in interest had met the requirements for adverse possession. Accordingly, the defendant bore the burden to show that adverse possession had not been established. The appellate court also pointed out that the statute of limitations for adverse possession claims only runs for those who have a right to claim possession. Because the plaintiff had only owned the land for a couple of years, he was not barred from claiming adverse possession of the disputed land as established by his predecessors in interest. As for the quiet title action claim, the appellate court said that title acquired by adverse possession may be used as a basis for a quiet title action. The appellate court reversed the trial court and remanded the case for a determination of whether a fact issue remained on the plaintiff’s adverse possession claim. If so, and if the defendant cannot then disprove the plaintiff’s adverse possession claim, the plaintiff’s quiet title action can move forward. Ruppert v. Welz, NO. 5-18-0404, 2019 Ill. App. Unpub. LEXIS 1682 (Il. Ct. App. Sep. 11, 2019).

Posted July 2, 2020

Dinosaur Fossils are Minerals. The plaintiffs (a married couple), leased farm and ranch land beginning in 1983. Over a period of years, the owner of the land transferred portions of his interest in the property to his two sons and sold the balance to the plaintiffs. From 1991 to 2005, the plaintiffs and the sons operated the property as a partnership. In 2005, the sons severed the surface estate from the mineral estate and sold their remaining interests in the surface estate to the plaintiffs. A mineral deed was to be executed at closing that apportioned one-third of the mineral rights to each son and one-third to the plaintiffs. After the transactions were completed, the plaintiffs owned all of the surface estate of the 27,000-acre property and one-third of the mineral (subsurface) estate. At the time, none of the parties suspected there were valuable dinosaur fossils on the property, and none of them gave any thought to whether dinosaur fossils were part of the mineral estate as defined in the mineral deed. Likewise, none of the parties expressed any intent about who might own dinosaur fossils that might be found on the property. Specifically, the mineral deed stated that the parties would own, as tenants in common, “all right, title and interest in and to all of the oil, gas, hydrocarbons, and minerals in, on and under, and that may be produced from the [Ranch].” The purchase agreement required the parties “to inform all of the other parties of any material event which may [affect] the mineral interests and [to] share all communications and contracts with all other Parties.” In 2006, the plaintiffs gave permission to a trio of fossil hunters to search (and later dig) for fossils on the property. The hunters ultimately uncovered dinosaur fossils of great value including a nearly intact Tyrannosaurus rex skeleton and two separate dinosaurs that died locked in battle. The fossils turned out to be extremely rare and quite valuable, with the “Dueling Dinosaurs” valued at between $7 million and $9 million. In 2014, the plaintiffs sold the Tyrannosaurus rex skeleton to a Dutch museum for several million dollars. A Triceratops foot was sold for $20,000 and a Triceratops skull was offered for sale for over $200,000. The proceeds of sale were placed in an escrow account pending the outcome of a lawsuit that the sons filed. The sons (the defendants in the present action) sued claiming that the fossils were “minerals” and that they were entitled to a portion of any sale proceeds. The plaintiffs brought a declaratory judgment action in state court claiming that the fossils were theirs as owners of the surface estate. The defendants removed the action to federal court and asserted a counterclaim on the basis that the fossils should be included in the mineral estate. The trial court granted summary judgment for the plaintiffs on the basis that, under Montana law, fossils are not included in the ordinary and natural meaning of “mineral” and are thus not part of the mineral estate. Murray v. Billings Garfield Land Co., 187 F. Supp. 3d 1203 (D. Mont. 2016). On appeal, the appellate court reversed. Murray v. BEJ Minerals, LLC, 908 F.3d 437 (9th Cir. 2018). The appellate court determined that the term “fossil” fit within the dictionary definition of “mineral.” Specifically, the appellate court noted that Black’s Law Dictionary defined “mineral” in terms of the “use” of a substance, but that defining “mineral” in that fashion did not exclude fossils. The appellate court also noted that an earlier version of Black’s Law Dictionary defined “mineral” as including “all fossil bodies or matters dug out of mines or quarries, whence anything may be dug, such as beds of stone which may be quarried.” Thus, the appellate court disagreed with the trial court that the deed did not encompass dinosaur fossils. Turning to state court interpretations of the term “mineral”, the appellate court noted that the Montana Supreme Court had held certain substances other than oil and gas can be minerals if they are rare and exceptional. Thus, the appellate court determined that to be a mineral under Montana law, the substance would have to meet the scientific definition of a “mineral” and be rare and exceptional. The appellate court held that those standards had been met. The plaintiffs sought a rehearing by the full Ninth Circuit and their request was granted. Murray v. BEJ Minerals, LLC, 920 F.3d 583 (9th Cir. 2019). The appellate court then determined that the issue was one of first impression under Montana law and certified the question of whether dinosaur fossils constitute “minerals” for the purpose of a mineral reservation under Montana law to the Montana Supreme Court. Murray v. BEJ Minerals, 924 F.3d 1070 (9th Cir. 2019). The Montana Supreme Court answered the certified question in the negative – dinosaur fossils are not “minerals” for the purpose of the mineral reservation at issue because they were not included in the expression, “oil, gas and hydrocarbons,” and could not be implied in the deed’s general grant of all other minerals. “Fossils” and “minerals” were mutually exclusive terms as the parties used those terms in the mineral deed. Murray v. BEJ Minerals, LLC, No. OP 19-0304, 2020 Mont. LEXIS 1472 (Mont. Sup. Ct. May 20, 2020). Based on the Montana Supreme Court’s answer to the certified question, the U.S. Court of Appeals for the Ninth Circuit affirmed the federal district court’s order granting summary judgment to the plaintiffs and declaring them the sole owners of the dinosaur fossils. Murray v. BEJ Minerals, LLC, No. 16-35506, 2020 U.S. App. LEXIS 19064 (9th Cir. Jun. 17, 2020).

Posted April 24, 2020

No Reversion Of Abandoned Rail Line to Adjacent Owners. The plaintiffs are a group of twenty-four landowners who own real property adjacent to a railroad line. The railroad line was acquired, almost in its entirety, in 1902 by Texas Central Railroad Company, predecessor to the current owner Union Pacific Railroad. Texas Central acquired its right-of-way through various methods, including a declaration of trust, court-ordered condemnation, and four deeds. In 2015, Union Pacific indicated its intention to abandon the 2.45-mile railroad line, salvage the limited amount of track material, and transfer the right-of-way to the City of Waco, Texas as a utility corridor and also for possible trail use. In 2017, the plaintiffs filed a complaint alleging a Fifth Amendment taking on the basis that the railroad only had an easement in the properties in question and that the abandonment of the railroad line unburdened their properties but-for the operation of federal law that allowed the usage of the abandoned line as a trail. The plaintiffs requested just compensation for their property in the form of fair market value of the taken property. The court declined to find that a compensable taking had occurred. The court noted that the plaintiffs had not established that Union Pacific held an easement rather than fee simple ownership of the corridor. Anderson, et al. v. United States, No. 17-668L, 2020 U.S. Claims LEXIS 526 (Fed. Cl. Apr. 10, 2020).

Posted April 21, 2020

Residence Built on Farm Was “Farm Residence” For Zoning Purposes. State law provides for the creation of an “ag intensive district.” In such designated areas, any “non-farm” residence cannot be constructed closer than one mile from a livestock facility. The plaintiff operated a 4,500-head livestock feedlot (livestock feeding operation or LFO) and an adjoining landowner operates a farm on their adjacent property. The adjoining landowner applied to the defendant for a zoning permit to construct a new house on their property that was slightly over one-half mile from the plaintiff’s LFO. The defendant approved the permit and the plaintiff challenged the issuance of the permit on the basis that the adjoining landowner was constructing a “non-farm” residence. The defendant affirmed the permit’s issuance on the basis that the residence was to be constructed on a farm. The plaintiff appealed and the trial court affirmed. On further review, the appellate court affirmed. On still further review by the state Supreme Court, the appellate court’s opinion was affirmed. The Supreme Court noted that the applicable regulations did not define the terms “non-farm residence” or “farm residence.” As such, the defendant had discretion to reasonably interpret the term “farm residence” as including a residence constructed on a farm. Hochstein v. Cedar County. Board. of Adjustment, 305 Neb. 321 (2020).

Posted March 24, 2020

Co-Owned Property Subject to Forced Sale. The IRS received a default judgment against the defendant for unpaid employment taxes. The defendant did not pay the judgment and the IRS recorded a lien for the unpaid tax. The IRS then sought to foreclose the lien and sell the property to which the lien attached. The defendant’s sister intervened in the case. She owned an undivided one-half interest in the property with the defendant as a tenant in common by virtue of their father’s intestate death. The court determined that the IRS lien attached only to the defendant’s undivided one-half interest. In determining whether the lien should be foreclosed and the property sold, the court determined that property should be sold because any attempt to sell only the defendant’s undivided one-half interest would result in a lower price and prejudice the ability of the IRS to collect the tax debt. In addition, the court determined that the sister did not have an expectation that the property wouldn’t be subject to a forced sale because either the defendant or her could force a sale of the property. The court also noted that the sister didn’t live on the property and wouldn’t be forcibly relocated by a sale. In addition, the court noted that the sister would be adequately compensated by receiving one-half of the proceeds of sale. The court based its analysis of the appropriateness of the sale on the factors set forth in United States v. Rodgers, 461 U.S. 677 (1983). United States v. Dase, No. 4:18-cv-00501-ACA, 2020 U.S. Dist. LEXIS 33534 (N.D. Ala. Feb. 27, 2020).

Posted March 12, 2020

Carefully Reading Deed Critical. In the 1990’s the defendants bought what they believed to be a 97-acre tract from the bank. Before the purchase, the plaintiff’s family had conveyed the 97 acres back and forth multiple times. However, 37 acres which contained a home and a barn was always omitted from the conveyances. The decedent’s son had pledged some of this land, conveyed to him by the decedent, as collateral. The bank later foreclosed on this land and the defendant purchased it. The decedent had lived on the 37 acres until her death in 2008. At this time the defendants attempted to assert ownership over the property. The decedent’s estate sued to quiet title. The defendants countered that they had purchased the disputed property or had obtained it via adverse possession. The trial court found for the plaintiff and the defendants appealed. The appellate court affirmed. The defendants raised two issues on appeal: (1) that the 1990 deed from the bank confirms their purchase of the 37 acres in question; and (2) that, regardless of the deed, the defendants acquired the disputed property via adverse possession. On the first issue, the court noted that neither the bank nor the defendants completed a survey of the property at the time of sale. Actual deed language should have alerted the defendants that the disputed tract was not included in the sale. The deeds stated things like, "Being a part of the same property conveyed by…” and that language should have alerted the defendants to further investigate the prior conveyances which would have shown the 37 acers being excluded. The deed was also measured by metes and bounds rather than acres, and the defendants should have noticed the deed was for only 61 acers and not 97 acers. The defendants may have been told it was included, however they should have perused this information further. Turning to the other issue, the court found that the defendants failed to prove any of the elements of adverse possession. The defendants use of the land was not hostile, there was no actual possession, their use was not exclusive, they had not been on the property for 15 years, nor was their possession open and notorious. Haycraft v. Decker, No. 2017-CA-000292-MR, 2019 Ky. App. Unpub. LEXIS 305 (Ky. Ct. App. May 3, 2019).

Farm Improperly Removed From Ag Use Valuation Program. The plaintiff bought a tract of land in 2015 that had been used to grow soybeans. The plaintiff owned a horse farm adjacent to the tract and converted the acquired tract to a horse farm and merged the two properties into a single unit. In 2017, the defendant removed the property from the state’s Current Agricultural Use Valuation (CAUV) program for the 2017 tax year on the basis that it was not used exclusively for agricultural purposes because the taxpayer used the property for temporary horse boarding instead of long-term boarding. The plaintiff challenged the removal and the state Board of Tax Appeals (BTA) reversed. The BTA noted that neither party disputed that the adjacent horse farm qualified for the CAUV and that horses boarded and cared for on the horse farm used the tract the taxpayer acquired in 2015. Accordingly, the BTA determined that the tract acquired in 2015 was a mere continuation of larger equine operation and that property should be returned to the CAUV program. Twin Farms, LLC v. Licking County Board of Revision, Ohio Board of Tax Appeals, No. 2018-1885 (Mar. 9, 2020).

Posted January 20, 2020

Court Had Jurisdiction To Hear Zoning Case. The plaintiffs are absentee landowners adjacent to a farm. The farm applied to the county for a conditional use permit to construct a 2,400-pig nursery facility. The plaintiffs did not appear at the hearing for the permit, the County granted the permit over no opposition. The plaintiffs later raised issues concerning the adequacy of the notice of the hearing, including inaccuracies in the legal description and the listed owners of the property. The County vacated the permit and held another hearing which the plaintiffs attended. The County granted the permit. The plaintiffs sued to challenge the permit, naming the County and each individual board member as defendants. The trial court allowed the farm to intervene via oral motion. The trial court dismissed the case for lack of subject matter jurisdiction because the plaintiff sought a writ of prohibition that did not afford a basis for judicial review of the permit approval. On further review, the state Supreme Court affirmed in part and reversed in part. The Supreme Court determined that the trial court did have subject matter jurisdiction even though the plaintiff’s petition was incorrectly labeled and identified. Even so, the Supreme Court held that it complied with the appropriate statute to provide the trial court with subject matter jurisdiction. The Supreme Court, however, did uphold the trial court’s allowance of the farm’s oral motion to intervene because the plaintiff was not surprised by the motion or unable to respond. Huber v. Hanson County Planning Commission, 2019 S.D. 64 (2019).

Posted January 19, 2020

Parcel Entitled to Access; Battle Over Route and Damages. The plaintiff owns a landlocked tract of land. The plaintiff sued to have the court designate a road. The plaintiff suggested that the court utilize the existing road that crossed the defendant’s property and adjacent state-owned property. The defendant suggested another existing route that did not cross either tracts. The trial court determined that state law required the plaintiff to have access and appointed three viewers to determine a route. The viewers concluded that the route should follow the plaintiff’s suggestion up to the property line of the state’s property with the defendant. From that point, the viewers suggest that the road follow the section line to the south, cross the third party’s property then turn west into the plaintiff’s property. Following the section line rather than continuing across the state own land was pursuant to state law. The trial court found that the viewers’ suggestion for the road was the "most reasonable and convenient." The trial court also declined to impose the “use for agricultural and residential purposes only” restriction on the road as the defendant requested. The trial court also adopted the viewers’ recommendation that the defendant’s damages be set at $25 per rod and $500 to the third-party landowners. The viewers determined these amounts from similar easement payments in the county. On appeal, the state Supreme Court affirmed in part and reversed in part. As for the road location, the Supreme Court found that the trial court did not err when it designated the viewer’s route as being reasonable. The trial court had properly weighed the viewer’s opinion that a use restriction on the road would unjustly diminish the plaintiff’s property value. In addition, the trial court had ample evidence from the viewers and witness testimony to make the decision that it did. On the damages issue, the Supreme Court reversed the award, finding that the damages had not been calculated in accordance with state law. Because the viewers had difficulty determining the before and after values, they relied on other sources. However, state law required the before and after values to be submitted to the trial court rather than simply using $25/rod as a baseline and determining randomly that third-party landowners were owed $500. The Supreme Court remanded the case on the issue of damages. Sharpe v. Timchula, 2019 WY 121 (2019).

Posted January 18, 2020

Hooch Operation on Farm May Not Be Agri-Tourism. The property at issue in this dispute was a 21-acre tract zoned exclusively for farm use. Hazelnuts were grown on 10 acres of the tract, and the property also contained a residence, guest house and barn in which a brewery and tasting room were contained. The brewery and tasting room operated under a conditional use permit to hold up to 18 72-hour commercial events annually. The statue governing the permit allows a county to authorize certain “agritourism or other commercial events or activities” if they are incidental and subordinate to existing commercial farm use of the tract and are necessary to support the commercial farm uses or the commercial agricultural enterprises in the area.” The plaintiff sought judicial review of the permit approval, on the basis that the “incidental and subordinate” requirement was misconstrued as requiring merely a comparison of the day of tasting events to the number of days of farm use without considering the relative economic impacts. The court agreed, concluding that the statute required counties to compare the nature, intensity and economic value of the proposed agritourism event with the existing commercial farm use. Thus, the court vacated the Land Use Board’s final order and remanded the case to the Board for reconsideration. Friends of Yamhill County v. Yamhill County, 301 Ore. App. 726 (2020).

Posted January 17, 2020

County Upkeep Makes Road A County Road. The parties are neighbors that disputed the status of a road. The defendants claimed that the road was not a county road, but instead was their personal lane. The plaintiffs sued for nuisance, conversion, trespass and intentional infliction of emotional distress, and claimed that the road was a county road. The trial court held that the road was either not a county road or had been closed via state statute. The trial court later amended its prior holding to clarify that the road was closed beyond the point where the road was no longer maintained and no longer existed beyond that point. The trial court also instructed the parties to not erect any type of barrier across any point of the road that had not been closed. On appeal, the appellate court agreed with the trial court’s finding that the road was only a county road to the extent the county maintained it. The balance of the road remained a county road and had not been closed via state law. Ives v. Fishburn, No. 2018-CA-000590-MR, 2019 Ky. App. Unpub. LEXIS 435 (Ky. Ct. App. Jun. 21, 2019).

Posted January 14, 2020

Nursing Home Entitled to Property Tax Exemption. A non-profit (I.R.C. §501(c)(3)) organization used a donation to buy and operate a nursing facility on a ten-acre parcel. The property was exempt from property tax at the time of purchase. The facility offers three levels of care to older persons, charges lower rates than similarly operated facilities, and generates only a slim (cumulative 1.22 percent since the acquisition in 2013) profit which is reinvested into the facility. The facility also accepts residents regardless of the ability to pay and works with residents that don’t have resources to obtain Medicaid and other public assistance benefits. Indeed, over one-half of the residents receive Medicaid or some other form of taxpayer assistance, which further diminishes the facility’s profits. The facility also donates equipment and funds to community organizations, provides meeting space to outside groups, loans medical equipment to needy persons and partners with the local school for nursing education. On May 23, 2017, the defendant changed the property’s classification to taxable multi-residential property thereby denying an exemption from property tax for the facility. The plaintiff challenged the classification, but the trial court agreed with the change in the property’s tax status. On appeal, the appellate court reversed, determining that the facility was operated solely for charitable purposes and without a profit intent. Thus, the facility’s entire property was entitled to a property tax exemption the same as religious, literary and charitable societies via Iowa Code §427.1(8). The appellate court held that it was immaterial to the facility’s non-profit status that the facility had a management agreement. Capstone Group LLC v. Guthrie County Board of Review, No. 18-2147, 2020 Iowa App. LEXIS 55 (Iowa Ct. App. Jan. 9, 2020).

Posted January 12, 2020

Ambiguous Deed Construed Based on Past Conduct. The parties are the descendants of two brothers that owned land together. In the late 1970’s the brothers divided up the land to build homes. The brothers executed a quitclaim deed in 1977 that conveyed the 40 acres north of the road to the defendant’s predecessor. 93 acres remained south of the road. The quitclaim deed described the tract of land south of the road but did not delineate where the southern boundary of the deeded land started or ended. Thus, the quitclaim deed was unclear concerning whether the brothers intended to convey all or part of the land south of the road. A utility company determined that the deed did not create a closed-in tract of land. The brothers had worked the land as if the defendant’s predecessor received the north 40 acres and the plaintiff’s predecessor received all 93 acres south of the road. In 2008, the defendant sought to quitclaim the 40 acres to other defendants in the case along with all other interests that the defendant’s predecessor may have owned. The plaintiff then brought an action to quiet title in himself to the entire 93-acres south of the road, claiming that the 1977 deed was ambiguous but that the brothers had acted as if the plaintiff’s predecessor owned the 93-acre parcel exclusively. The defendants agreed that the deed was ambiguous, but that the brothers knew that their predecessor only conveyed 33 acres to the plaintiff’s predecessor exclusively. The defendants then claimed that the property boundaries revealed by a title examination back to the 1850s removed the ambiguity. The trial court found for the plaintiff and the defendants appealed. The defendants claimed that the trial court erred when it found that the brothers intended to convey the entire 93-acre tract south of the road to the plaintiff’s predecessor. The defendants also asserted that the trial court ignored the intentions of the 1977 deed. Specifically, the defendants contend that the brothers intended to convey 33 acres south of the road to the plaintiff’s predecessor and continue to jointly own the other 60 acres south of the road. The defendant’s arguments were based solely on the documents. The plaintiff’s claim for ownership of the entire 93 acres, was based on the conduct of the brothers and knowledge of family and community. The appellate court agreed that the 1977 deed was ambiguous, and that parol evidence was sufficient to find that the plaintiff owned the entire tract south of the road. Harrell v. Cain, No. 18-0214, 2019 W. Va. LEXIS 269 (W. Va. Ct. App. Jun. 5, 2019).

Posted November 23, 2019

Tenant Under Farm Lease May Have Rights Under Pipeline Right-Of-Way Agreement. In 2014 the defendant landowner and the defendant oil and gas company entered into a right of way agreement for a natural gas pipeline. The landowner stated that there was no farming on the land at the time and that there would not be any farming on the land until after the pipeline was complete. The same day the agreement was signed the landowner signed a release of claims. The Release states:”[the company] its successors, assigns, affiliates, contractors, agents and employees, are released from any and all claims. . . whatsoever which [the defendant landowner] now has or may hereafter have against them, arising out of, or in any way associated with, the laying, construction, maintaining, repairing and operating of pipelines and related facilities constructed across [defendant’s property] . . . pursuant to [the ROWA], and specifically including, but not limited to, claims for damages necessarily resulting from the construction and operation of pipelines, which specifically include but are not limited to, (1) any and all liability for severance damages; (2) interference with the operations or use of the property by, [defendant landowner], his lessee(s), and permittee(s); and (3) damage or destruction of any and all vegetation, including trees and growing crops, located within the permanent and temporary servitudes granted under the [right of way agreement].” The plaintiff and the landowner had an oral farm lease for the property. The plaintiff claimed that the lease predated the agreement. In 2016, the oil and gas company learned about the rice farming on the property and met with the plaintiff about the impact of the project on the farming. Construction on the land lasted from December 2016 to May 5, 2018. The plaintiff sued for damages from construction of the pipeline on May 18, 2018, asserting claims under the right of way agreement and tort claims. All parties moved for summary judgment. The company claimed that the plaintiff was not a party to the right of way agreement, and if it were that the release would avoid the claim. The trial court determined that the release was only partly invalid, and that the plaintiff could proceed on the negligence claims. The trial court also determined that the plaintiff was not precluded from bringing contract claims against the company. On the crop damage issue, the court determined that the crops belonged to the landowner and not the plaintiff absent a provision in a written lease establishing otherwise. Ultimately, the trial court granted summary judgment for the company on the tort claims, but concluded that issues remained on whether the authority to enter into an oral farm lease and the validity of such lease allowed the plaintiff to benefit as a third party to the right-of-way agreement. Precht v. Columbia Gulf Transmission, LLC, No. 2:18-CV-0853, 2019 U.S. Dist. LEXIS 123930 (W.D. La. Jul. 24, 2019).

Temporary Land Conveyance Upheld. The plaintiff executed quitclaim deeds conveying his farmland and minerals to the defendant. He also sold his farm machinery and equipment to the defendant. The transactions were documented in written contracts and deeds. The plaintiff later testified the defendant never paid for the farmland and minerals and all payments that the defendant made to the plaintiff and the plaintiff’s creditors were for farm machinery and equipment. The plaintiff later admitted that the farmland transaction was intended to keep the land from his siblings. The defendant later sold the mineral rights to third parties for $600,000 and executed a mortgage with Farm Credit Services (FCS). The plaintiff sued all parties with an interest in the land for a monetary award and the rescission of contract; quiet title; undue influence; fraud; breach of fiduciary duty; malicious prosecution; constructive trust; breach of contract; and conversion or trespass to chattels. The trial court found that the mineral owners were good faith purchasers and that FCS was a bonified creditor. The jury found that the plaintiff and the defendant were in a confidential relationship and that the defendant had committed a breach of trust that caused the plaintiff damages. The jury awarded the plaintiff $200,000 for the loss of use of real property and $2.35 million for the value of the real property. The court found that the parties had agreed that the conveyance was temporary while a separate lawsuit against the plaintiff by his siblings was pending and first defendant would return the farmland and minerals on demand. The appellate court affirmed but remanded on the award issue for clarification of the standard utilized to determine the amount of the award. Twete v. Mullin, 931 N.W.2d 198 (N.D. 2019).

Posted November 21, 2019

Court Opinion Points out Distinction Between Joint Tenancy and Tenancy in Common. In this case, a married couple had seven children. The parents also owned a tract of land. Upon the last of the parents to die, each child held an undivided one-seventh interest as tenants in common in the tract. In 1989, the heirs sold the land and executed a deed with a royalty reservation that read as follows: “THERE IS HEREBY RESERVED AND EXCEPTED from this conveyance for Grantors and the survivor of Grantors, a reservation until the survivor's death, of an undivided one-half (1/2) of the royalty interest in all the oil, gas and other minerals that are in and under the property and that may be produced from it. Grantors and Grantors' successors will not participate in the making of any oil, gas and mineral lease covering the property, but will be entitled to one-half (1/2) of any bonus paid for any such lease and one-half (1/2) of any royalty, rental or shut-in gas well royalty paid under any such lease. The reservation contained in this paragraph will continue until the death of the last survivor of the seven (7) individuals referred to as Grantors in this deed.” An oil and gas company drilled a producing well in 2010 and began paying royalties to the heirs. As each heir died, the credited their royalty interest to the deceased heir’s surviving heirs, thus increasing their respective royalty payments. There were no problems until 2015. In 2015, a child of a deceased heir sued claiming that the deed crediting the royalty reservation to “Grantors and Grantors’ successors” created a “tenancy in common” and not a “joint tenancy”. If the deed created a tenancy in common, the children of the deceased heirs, rather than the surviving heirs, would inherit their parents’ royalty interests. The trial court disagreed, noting that while the deed used “successor” once, it unambiguously reserved the royalty interest to the heirs and the “survivor[s]” of the heirs, rather than their “successors”, “heirs” or “beneficiaries.” As such, the deed unambiguously created a joint tenancy with right of survivorship, rather than an inheritable tenancy in common. Thus, as each heir died, their interest in the tract passed to the surviving siblings, not their children. On appeal, the appellate court affirmed. Wagenschein v. Ehlinger, 581 S.W.3d 851 (Tex. Ct. App. 2019).

Posted November 19, 2019

Improvements Related to CRP Contract Did Not Constitute a “Taking.” The plaintiff is a landowner downstream from an upstream landowner that is enrolled in CRP. The upstream landowner is required to maintain a filter strip along the river. The upstream landowner built a ditch and levee system on their property which complied with the CRP contract. In 2014 the plaintiff sued the upstream landowner claiming the ditch in the levee system resulted in drainage of the excess water onto the plaintiff’s property. The plaintiff also alleged that the levee caused unnatural flooding which caused other portions of their property to be "unfit for cultivation." The trial court dismissed the case and the appellate court affirmed. The courts reasoned that the upstream landowner was making reasonable, proper and legal use of the land and that the statute of limitation on this issue has expired. The plaintiff then sued the USDA for an unconstitutional “taking” of the plaintiff’s property by "requiring and/or approving the construction and maintenance" of the levee which resulted in excess water flowage onto the plaintiff’s property that rendered it valueless for agricultural purposes. The federal court dismissed the suit for failure to state a claim upon which relief could be granted. The federal court determined that the plaintiff did not plead that the USDA’s actions, rather than the actions of the defendant, caused the harm to the plaintiff’s property. The plaintiff appealed and the appellate court affirmed. The federal courts determined that the CRP contract did not create an agency relationship and did not explicitly state that the levee had to be maintained or taken out. Instead, the defendant had acted on his own with respect to the levee and the financial incentives in the CRP contract were insufficient to show that the upstream landowner was forced to construct or maintain a levee. Welty v. United States, 926 F.3d 1319 (Fed. Cir. 2019).

Pro-Se Plaintiff Has Many Meritless Claims. The plaintiff loaned the defendant $225,000 with five tracts of land securing the loan. The USDA, a law firm, state Department of Revenue, a bank, and credit company also held security interests in the tracts and are the other defendant in the case. The plaintiffs brought a foreclosure action in state court and the USDA later removed the case to federal court. The defendant cross claimed against the defendant USDA for a stay of the foreclosure proceedings, review of the USDA’s denial of a hearing based on his racial discrimination complaints, and remand to the USDA’s administrative law judge. The defendant sought a moratorium on foreclosure because he "was a Track A claimant in the Pigford class action," and he "has been harassed by the USDA and its employees for more than 40 years and the Agency is still continuing to discriminate against him by failing to give him a formal hearing on the merits[.]" The plaintiff opposed the defendant’s request for relief arguing that the defendant debtor’s arguments do not apply to private foreclosure. The debtor defendant countered that he "could possibly pay [the plaintiff] the money [it] is owed and also move the Secretary to take action to satisfy the alleged debts [under] 42 U.S. Code § 3535(i)." The debtor also attempted to enjoin the defendant law firm from selling the secured farm equipment. The cross claim was dismissed because it was not asserted as part of a pleading and the other motion was denied as meritless. The debtor filed more motions and an answer, for the same relief, with the same legal theories as before, all of which were already dismissed. The Plaintiff moved for partial summary judgment, requesting priority determination on the five tracts of land. The USDA moved for dismissal or summary judgment as well. The USDA characterized the debtor’s reasserted motions as "un-intelligible, and . . . in most respects copied verbatim from [the debtors] previous crossclaim and motions in this case." The district court denied the debtor’s reasserted motions on August 8, 2018. The debtor then filed “Permission to File Interlocutory Appeal" three days later. This file contained three issues for appeal "whether [the debtor] is entitled to [the] moratorium provisions provided in the Pigford Settlement Agreement"; whether 7 U.S.C. § 1981a, 7 C.F.R. § 766.358, and 42 U.S.C. § 3535(i) require the Secretary of Agriculture "to enforce the Act of Congress designed to protect Black farmers . . . who ha[ve] not been given a hearing for administrative offsets an[d] continued discrimination by [t]he USDA"; and "Did the District Court abuse its discretion by denying a preliminary injunction against foreclosure by a third party." The district court did not certify this document for interlocutory appeal but did file it as notice of interlocutory appeal. The district court also entered an order granting the plaintiff’s motion for summary judgment and the USDA’s motion to dismiss the cross claims on August 16, 2018. A Journal entry of priority of creditors and sale of the land was filed in September. The debtor did not appeal after this order. The federal court of appeals dismissed the interlocutory appeal as moot. The court first tried to determine if there was anything to appeal. The only thing that sort of resembled a notice of appeal was the defendant debtor’s "Permission to File Interlocutory Appeal." The only issue in that document was whether the district court abused its discretion in denying injunctive relief. The defendant debtor waived that issue as he did not raise the issue in his brief. All the other issues were not certified for review. Thus, the court does not have any issues to hear per the notice of appeal. The court next turned to the foreclosure and mootness. The defendant debtor did file his brief within 3 days of the district court judgment, and it met the standards of federal rules of civil procedure for information of appeal. So, the brief is a proper notice of appeal. However, the defendant debtor, like in the district court, argues "[t]he property subject to this suit falls under two separate and distinct forms of moratorium relief." This argument failed because the foreclosure of the plaintiff’s loan voided the argument as moot and the defendant did not challenge the foreclosure itself on appeal. The district court ordered the foreclosure in September of 2018, thus a moratorium on foreclosure would have no application here. Since the issue is moot, the defendant debtor’s claims against the defendant USDA is moot as well. J & L Brown Family, LLC v. Bradshaw, 772 F. App'x 757, 2019 U.S. App. Lexis 20569 (10th Cir. 2019).

Posted November 2, 2019

No Lateral and Subjacent Support Requirement on Own Land. The parties are neighbors that have a retaining wall between their properties. The retaining wall was built by a developer before either party owned bought their respective tracts. The plaintiffs sued for damages from the retaining wall that was falling onto their property. They claimed that the wall was falling because the defendants allowed water to collect behind the retaining wall. Both parties motioned for summary judgment. The trial court granted the defendants’ motion solely because the defendants proved that they owed no duty to maintain the retaining wall. However, the trial court determined that there was a question concerning the controlling law on the issue. The appellate court determined that tort law did not impose an absolute duty to repair the retaining wall. While there is a duty to avoid using one’s property in a manner that would cause injury to another's property, which can be done though building a retaining wall, there is no absolute duty to maintain the wall. Maintaining the wall is a possible remedy for a breach of a duty. Thus, tort law was not controlling. The appellate court also determined that the doctrine of lateral support did not impose an absolute duty to repair the retaining wall. This doctrine only applies to the damages caused from removal of their property, and liability only attaches to the actor who caused the damages. Thus, future landowners are not liable. The appellate court also determined that the doctrine of lateral support only applies to soil in its natural state. Improvements to land, like a retaining wall, have no protection under this doctrine and there is no entitlement to support if the need only exists from an improvement. The appellate court noted that state courts are split on the result of whether improvements on eliminate rights of lateral support. However, the appellate court determined that neither party was liable for the original movement of the natural support under the doctrine of lateral support. Neither party had an absolute duty to maintain the artificial support because the right to lateral support did not require the defendants to support their own land. Accordingly, the trial court did not err in its grant of summary judgment to the defendants. Scott v. West, No. 02-18-00211-CV, 2019 Tex. App. LEXIS 5614 (Tex. App. July 3, 2019).

Statutory Elements for Prescriptive Easement Present. The plaintiffs purchased their property in 1992 and began making improvements upon it. At the time of purchase, ingress and egress to the property was by use of a roadway from the highway ending near or at the plaintiffs’ property line. The plaintiffs used this road to make improvements on their land. They also made a gravel driveway from the county road. The plaintiffs used the original road for hauling cattle to and from market and for deliveries of feed, fertilizer, and lime even after the new driveway was completed. In 1993, the defendants bought the land next to the plaintiffs. The defendants suspected that the survey of their land was incorrect and hired a surveyor. The survey concluded that the road from the highway that the plaintiffs were using was on the defendants’ land. The defendants constructed a home and used the road from the highway as well. In 2016 the defendants erected a gate on the road from the highway and told the plaintiffs they could not use the road. The plaintiffs sued seeking a temporary injunction to allow them to use the road. The injunction was denied. The trial court dismissed the action, finding that the plaintiffs did not have an easement by estoppel or prescription. The appellate court affirmed on the estoppel issue because the defendants had ot made any improvements, but reversed on the easement by prescription issue. The appellate court determined that the plaintiffs had a limited easement by prescription based on the use of the road “for bringing in feed and taking cattle to and from market and for other farm related matters [,]” since 1992 without objection from the defendants. The appellate court determined that the plaintiffs’ use of the roadway was unobstructed, open, peaceable, continuous, and as of right for the prescribed statutory period. The appellate court noted that the defendants’ use of the road was limited to the use of the road for farm work. Fee v. Cheatham, No. 2018-CA-000796-MR, 2019 Ky. App. Unpub. LEXIS 461 (Ky. Ct. App. Jun. 28, 2019).

Posted November 1, 2019

Permit Approval Proper For Drilling Operations. An oil and gas company sought regulatory approval for an oil and gas drilling site that was 1,360 feet from a middle school. The defendant approved the permit application after a public hearing process. Various activist groups then sued, claiming that the defendant acted arbitrarily and capriciously in granting the permits, and that the proposed site violated applicable setback requirements. The defendant claimed that the plaintiffs lacked standing on the basis that a permit approval was not a final order subject to judicial review under either the Colorado Administrative Procedure Act (CAPA) or the Colorado Oil and Gas Conservation Act (Act), and that judicial review was available only to the permit applicant, owners of surface rights and local governments. The trial court determined that the plaintiffs had standing, concluding that a permit approval is a final decision subject to judicial review and that the plaintiffs had established injuries-in-fact to legally protected aesthetic, environmental, recreational, and health interests under the APA and the Act. However, the trial court determined that the defendant had not acted arbitrarily and capriciously, had appropriately considered and documented public comments, established permit conditions with respect to possible adverse impacts on public health and safety, and had complied with its own setback rules. The trial court also determined that applicable setback limits were not violated. On appeal, the appellate court affirmed. Weld Air & Water, et al. v. Colorado Oil & Gas Conservation Commission, No. 18CA1147, 2019 Colo. App. LEXIS 852 (Colo. Ct. App. Jun. 6, 2019).

Posted October 9, 2019

Predecessors’ Actions Clarified Deed Language. The parties are descendants of two brothers that owned land together. In the late 1970’s the predecessors divided up land to build homes. This was done via a 1977 quitclaim deed drafted by the defendant’s predecessors. This deed conveyed the 40 acres north of the road to the defendant’s predecessor. The deed described the tract south of the road but did not delineate where the southern boundary began or ended. Consequently, the parties could not determine if the defendant’s predecessor intended to convey all or part of the south tract. A utility company found that the description in the deed did not create a closed-in tract of land. The predecessors had farmed the land with the defendant predecessor farming the north 40 acres and the plaintiff predecessor farming all 93 acres south of the road. In 2008 the defendant’s attempted to quitclaim the 40 acres and all other interests that the defendant predecessor owned as tenants in common with the plaintiff predecessor to the other defendants. The plaintiff sued for a declaratory judgment to quiet title asking the court to quiet title to the entire 93-acre tract south of the road to them alone and to settle other partial ownership issues. The partial ownership issues were not raised on appeal. The parties later filed motions for summary judgement. The plaintiff claimed that the 1977 deed was ambiguous. The defendants claimed that the deed appeared ambiguous, but that the predecessors had constructive knowledge that the defendant predecessor only conveyed 33 acres to the plaintiff predecessor. The defendant claimed that the property boundaries revealed by a title examination back to the 1850s removed the ambiguity. The trial court found for the plaintiff and the defendant appealed claiming that the trial court erred when it found that the predecessors intended to convey the entire 93-acre tract south of the road to the plaintiff’s predecessor. The defendant claimed that the trial court ignored the intentions of the 1977 deed. Specifically, the defendant claimed that the predecessors intended to convey 33 acres to the plaintiff’s predecessor and continue to jointly own the other 60 acres. Where the deed stated, "North 68° -54' -11" West" was the division line between the 33 acres and 60 acres per the defendants. Further the defendant’s arguments were based on the documents alone which deemed that the predecessors had constructive knowledge of the title of the land. The plaintiffs claimed that their predecessor was to take the entire 93 acres south of the road in the 1977 deed. This is consistent with the conduct of the predecessors and knowledge of family and community. The agreed that the 1977 deed was ambiguous. Since the deed was ambiguous, the court looked at evidence outside the deed. The court agreed that the outside evidence was enough to find that the plaintiffs owned the entire tract south of the road. Harrell v. Cain, No. 18-0214, 2019 W. Va. LEXIS 269 (W. Va. Ct. App. Jun. 5, 2019).

Posted September 29, 2019

Property Battle Involves Easement and Boundary Issues. The defendant’s predecessors in-interest and the plaintiff’s predecessor’s in interest entered into a transaction in 1962 whereby the plaintiff’s predecessors granted the defendant’s predecessors a "perpetual easement" to overflow water onto their land. The 1962 easement granted “a perpetual easement for the right to occasion overflow by water from the land of the [defendant’s predecessors] to and on and over the lands of [plaintiff’s predecessors] such as would be occasioned by the construction of a dam not to exceed forty (40) feet in height in a ditch located on the land of the [defendant’s predecessors] which ditch traverses the property of [plaintiff’s predecessors], and [the defendant’s predecessors] are hereby granted the perpetual right to erect and maintain such dam and thereby occasion an overflow of water onto and over such portion of [plaintiff’s predecessors] land as may be occasioned by the construction of said dam . . . .” In 2013, the plaintiffs sued claiming that the defendants did not allow them to use any part of the lake covering the defendant’s land. After the first trial the court found that both parties may use the entire lake for fishing or any other lawful purpose, and that the boundary line was the fence on the north side of the lake. Both parties appealed. The appellate court affirmed and remanded for additional findings on the dock and shoreline. On remand, the trial court found that the defendant held the prescriptive easement. Both parties appeal, again. The defendant argued that it should have been granted the land in fee simple and the plaintiff sought to confine the dimensions of the disputed area. The appellate court affirmed and ordered that the boundaries of the easement be reformed to the plaintiff’s requested specifications. The defendant claimed that the trial court should have granted them fee simple ownership in the dock and shoreline area in accordance with the 2017 order. The plaintiff claimed that the trial court findings complied with the 2017 appellate court opinion because the opinion did not specify the property designation. The appellate court agreed. On the adverse possession and boundary by acquiescence claims, the appellate court agreed with the trial court’s determination of the evidence and finding of a prescriptive easement. Franklin v. Johnston, 928 N.W.2d 881 (Iowa Ct. App. 2019).

Posted September 22, 2019

Rule of Capture Inapplicable to Identifiable Migrated Gas. The plaintiff operates an underground gas storage facility, which was certified by the proper state and federal commissions. The defendants are producers with wells that are two to six miles from the edge of the plaintiff’s certified storage area. Stored gas migrated to the defendants’ wells and the defendants captured and sold the gas as their own. The plaintiff sued for lost gas sales and the defendants moved for summary judgment on the grounds that the Kansas common law rule of capture allowed the gas extraction. The trial court granted the defendants’ motion. Two years later, the plaintiff received certification to expand the storage area into the areas with the defendants’ wells. Another dispute arose as to whether the defendants could capture the gas after the plaintiff’s storage area was expanded. The trial court held that the defendants could under the common law rule of capture. On review, the Kansas Supreme Court reversed and remanded on the basis that the rule of capture did not apply. That rule, the Court noted, allows a someone that is acting within their legal rights to capture oil and gas that has migrated from the owner’s property to use the migrated oil and gas for their own purposes. The rule reflects the application of new technology such as injection wells and applies to non-native gas injected into common pools for storage. However, the Court reasoned, the rule does not apply when a party (such as the plaintiff) is authorized to store gas and the storage is identifiable. The Court determined that state statutory law did not override this recognized exception to the application of the rule of capture. The Court remanded the case for a computation of damages for the lost gas. Northern Natural Gas Co. v. ONEOK Field Servs. Co., LLC, No. 118,239, 2019 Kan. LEXIS 324 (Kan. Sup. Ct. Sept. 6, 2019).

Posted August 25, 2019

Rule Against Perpetuities Does Not Apply To Defeasible Term Mineral Interest. In 1967, the decedent conveyed two tracts of land to the defendant’s predecessors. Both tracts were subject to a reservation of minerals that stated, "EXCEPT AND SUBJECT TO: Grantor saves and excepts all oil, gas and other minerals in and under or that may be produced from said land for a period of 20 years or as long thereafter as oil and/or gas and/or other minerals may be produced therefrom and thereunder." In 1973, a probate court order awarded the decedent’s reserved mineral interest to his heirs. The twenty-year term on the mineral reservation expired in 1987. Between 1987 and 2017 there was no oil and gas production on either tract. In 2016 the plaintiff, an oil and gas company, sued to quiet title to both tracts, claiming to hold valid and subsisting oil and gas leases. The descendants of the 1967 conveyances petitioned the court claiming ownership of the mineral estate. The decedent’s heirs claimed an interest in the mineral estate based on the 1973 probate court order. The decedent’s heirs claimed that after the 1967 conveyances were executed, the decedent’s mineral interest was a vested fee simple determinable and the recipients of the conveyances held springing executory interests in the minerals which were subject to and invalidated by the rule against perpetuities (RAP). The descendants of the 1967 conveyances claimed that if the court found the future interest in the minerals conveyed by the decedent violated the RAP, the interest in the minerals should be reformed. The descendants of the 1967 conveyances and the plaintiffs moved for summary judgment together, arguing that the reservation did not violate the RAP and that the court should reform the interest to reflect that they own the minerals. The decedent’s heirs also moved for summary judgment arguing the reservation created a springing executory interest that was void under the RAP and that they owned the mineral estate as a result of the probate court’s ruling. In 2017, the trial court granted the motions for summary judgment of the plaintiff and descendants of conveyances and denied the summary judgment motion of the heirs of the decedent. The trial court found that: "[the decedent] granted less than the entire interest in the subject real estate and created a defeasible estate by reservation. The defeasible term mineral interest in each deed is a future estate reserved to the grantor and a reversion. A reversion remaining in the grantor is not subject to the [Rule]." The trial court granted quiet title in the mineral estate to the descendants of the conveyances. The heirs of the decedent appealed and the Kansas Supreme Court affirmed. The Supreme Court agreed with the trial court that the decedent reserved a defeasible term interest. However, the Supreme Court opined that the trial court “…veered off course” by finding (1) the future estate kept by the decedent in the mineral estate was a reversion and (2) the reservation of the defeasible mineral interest was a reversion and not subject to the rule against perpetuities. However, the Supreme Court declined to apply the RAP concluding that the application of the RAP would be counterproductive to the purpose behind the RAP and create “chaos.” The Supreme Court held that when a grantor (the decedent in this case) creates a defeasible term (plus production) mineral interest by exception that leaves a future interest in an ascertainable person, the future interest in the minerals is not subject to the RAP. In sum, the Supreme Court held that the RAP did not apply because the interest vested during a lifetime, however it reverted back to the surface estate because of the lack of production. Jason Oil Company v. Littler, 2019 Kan. LEXIS 204 (Aug. 16, 2019).

Posted August 18, 2019

Pipeline Easement Covers Transport of Crude and Refined Products. The plaintiffs are landowners with a pipeline easement across their properties. The defendant, an oil company, held the easement pursuant to a 1919 “right-of-way” deed to lay, maintain, operate, and remove a pipeline for the "transportation of oil or gas." The easement did not define oil or gas. The defendant has been transporting gasoline and diesel through the pipeline since at least 1995. The plaintiff sued claiming that the defendant was exceeding the scope of the easement. The plaintiff sought an injunction, damages for trespass, breach of contract, and declaratory relief. Both parties moved for summary judgment. The plaintiff claimed that the easement only permitted the transporting of crude. The defendant argued that the terms oil and gas, as used in pipeline easement agreements from the early 20th century, included refined products like gasoline and diesel. The trial court granted the defendant’s motion for summary judgment and signed a take nothing judgment in the defendant’s favor. On appeal, the appellate court affirmed. The appellate court examined the meaning of “oil and gas” at the time the right-of-way deed was entered into in 1919, and determined that the words “oil” and “gas” included refined and raw products. Other contracts from the same time period specified “crude” or “raw” if the contract were to only be to transport such products. Consequently, the appellate court determined that the defendant did not exceed its rights under the easement by transporting refined products in the pipeline. Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Co., No. 14-18-00038-CV, 2019 Tex. App. LEXIS 3989 (Tex. Ct. App. May 16, 2019).

Posted July 13, 2019

Adverse Possession Requirements Satisfied. The plaintiff bought property adjoining the defendant’s property in 2013. The fencAe dividing the properties at the time of sale had been in place since 2000. In 2016 the defendant destroyed this fence without warning and painted a new boundary line east of the prior fence line over onto the plaintiff and added approximately three acres to the defendant’s property. The plaintiff asserted that ownership over approximately1.7 acres of the disputed area via a recorded warranty deed. The plaintiff claimed ownership over the remaining 1.3 acres via adverse possession. The trial court granted the plaintiff’s motion for summary judgment for the 1.7 acres and trial was held concerning ownership of the remaining 1.3 acres in dispute. The plaintiffs’ predecessor in ownership testified that he acquired the property at auction in 1994. At that time the predecessor discovered a yellow-painted boundary line. The predecessor painted the line red, fenced in the area with barbed wire, and ran cattle on the land. That was the status of the property at the time the land was sold to the plaintiff. The plaintiff testified that use was continued during the plaintiff’s ownership. The trial court found that the plaintiffs and predecessors had adversely possessed the disputed 1.3 acres since 1994. On appeal, the appellate court affirmed. The appellate court held that the plaintiff could tack the prior owner’s usage onto the plaintiff’s own usage for purpose of satisfying the 20-year statutory requirement of adverse, continuous, open, notorious possession of the disputed area. Southerland v. Howell, No. M2018-01427-COA-R3-CV, 2019 Tenn. App. LEXIS 204 (Tenn. Ct. App. Apr. 30, 2019).

Posted June 4, 2019

Application For Permit to Expand Landfill Must Consider Impacts on Local Farms. The defendant sought to expand its landfill. The land around the defendant was zoned for agriculture use. Local officials determined that the defendant application for a permit to expand the landfill satisfied the “farm impact test” that local law required. Thus, the defendant’s proposed expansion would not force a significant change in farming practices on the adjacent farms pending conditions on any permit issued. The plaintiff claimed that the defendant’s application failed the farm impact test. The court determined that the defendant had to prove that that the proposed nonfarm use would not force a significant change in the accepted farm practice and would not significantly increase the cost of that practice. The court determined that “significant” change or increase in cost as an important influence or effect on a farm. The plaintiff claimed that the cumulative impact of the defendant’s proposed expansion had to be evaluated, and the court determined that the trial court should look at "at all impacts together where multiple impacts exist." As for conditions imposed on the permit approval, the court upheld the trial court’s determination that the defendant was responsible, as a condition of permit approval, for “litter patrol.” Stop the Dump Coalition. v. Yamhill County., 364 Or. 432, 435 P.3d 698 (2019).

Posted May 25, 2019

Rockweed In Intertidal Zones Is Private Property Owned by Adjacent Owners. The defendants harvest rockweed with skiffs in the intertidal zones of Maine. Rockweed is a perennial plant that attaches to the rocks in the intertidal zones. Rockweed regulates the temperature of the area where it is located and is home to many organisms. Commercially, rockweed is used for fertilizer and feed. To harvest Rockweed, the defendant uses skiffs, rakes, and watercraft without physically stepping foot on the intertidal zone. The defendant annually harvests the statutory maximum 17 percent of eligible harvestable rockweed biomass in Cobscook Bay. The plaintiff, an intertidal landowner, sued seeking (1) a declaratory judgment that the plaintiff is the exclusive owner of the rockweed growing on and affixed to his intertidal property; and (2) injunctive relief that would prohibit the defendant from harvesting rockweed from the plaintiff’s intertidal land without his permission. The defendant sought a judgment declaring that harvesting rockweed from the intertidal water is a public right as a form of "fishing" and "navigation" within the meaning of the Colonial Ordinance. The trial court granted summary judgment for the plaintiff on the declaratory judgment claim, and on the defendants’ counterclaim. The trial court denied the defendant’s counterclaim. On appeal, the state Supreme Court affirmed, holding that rockweed that is attached to and growing on rocks in the intertidal zone is private property owned by the adjacent landowner. Harvest of the rockweed is not within the collection of rights held by the State for use by its citizens. Thus, members of the public are not entitled to engage in rockweed harvest as a matter of right. Ross v. Acadian Seaplants, Ltd., 2019 ME 45 (2019).

Posted May 19, 2019

Abandoned Rail Line Leads To Numerous Issues. The Union Pacific Railroad acquired a right-of-way over a railroad corridor that it abandoned in the mid-1990s. At issue in the case was a 12.6-mile length of the abandoned line between McPherson and Lindsborg, Kansas. A Notice of Interim Trail Use (NITU) was issued in the fall of 1995. The corridor was converted into a trail use easement under the National Trails System Act. In 1997, Union Pacific gave the plaintiff a "Donative Quitclaim Deed" to the railroad’s easement rights over the corridor, with one-quarter mile of it running through the defendant’s property at a width of 66 feet. Pursuant to a separate agreement, the plaintiff agreed to quit claim deed its rights back to the railroad if the railroad needed to operate the line in the future. By virtue of the easement, the plaintiff intended to develop the corridor into a public trail. In 2013, the plaintiff contacted the defendant about developing the trail through the defendant’s land. The defendant had placed machinery and equipment and fencing in and across the corridor which they refused to remove. In 2015, the plaintiff sued to quiet title to the .75-mile corridor strip and sought an injunction concerning the trail use easement over the defendant’s property. The defendant admitted to blocking the railway with fencing and equipment, but claimed the right to do so via adverse possession or by means of a prescriptive easement. The defendant had farmed, grazed cattle on, and hunted the corridor at issue since the mid-1990s. The defendant also claimed that the plaintiff had lost its rights to the trail because it had failed to complete development of the trail within two years as the Kansas Recreational Trail Act (KRTA) required. In late 2016, the trial court determined that the two-year development provision was inapplicable because the Interstate Commerce Commission had approved NITU negotiations before the KRTA became effective in 1996. The trial court also rejected the defendant’s adverse possession/prescriptive easement arguments because trail use easements are easements for public use against which adverse possession or easement by prescription does not apply. During the summer of 2017 the plaintiff attempted work on the trail. When volunteers arrived, the defendant had placed equipment and a mobile home on the corridor preventing any work. The plaintiff sought a "permanent prohibitory injunction and permanent mandatory injunction." The defendant argued that he had not violated the prior court order because "[a]ll the Court ha[d] done [was] issue non-final rulings on partial motions for summary judgments, which [were], by their nature, subject to revision until they [were] made final decisions." Ultimately, the trial court granted the plaintiff’s request for an injunction, determined that the defendant had violated the prior summary judgment order, but also held that the plaintiff had not built or maintained fencing in accordance with state law. On appeal, the appellate court partially affirmed, partially reversed, and remanded the case. The appellate court determined that the defendant did not obtain rights over the abandoned line via adverse possession or prescriptive easement because such claims cannot be made against land that is held for public use such as a recreational trail created in accordance with the federal rails-to-trails legislation. The appellate court also determined that the plaintiff didn’t lose rights to develop the trail for failing to comply with the two-year timeframe for development under the KRTA. The appellate court held that the KRTA two-year provision was inapplicable because a NITU was issued before the effective date of the KRTA. However, the appellate court determined that the plaintiff did not follow state law concerning its duty to maintain fences. The appellate court held that Kan. Stat. Ann. §58-3212(a) requires the plaintiff to maintain any existing fencing along the corridor and maintain any fence later installed on the corridor. In addition, any fence that is installed on the corridor must match the fencing maintained on the sides of adjacent property. If there is no fencing on adjacent sides of a landowner’s tract that abuts the corridor, the plaintiff and landowner will split the cost of the corridor fence equally. The appellate court remanded the case for a determination of the type and extent of fencing on the defendant’s property, and that the plaintiff has the right to enter the defendant’s property to build a fence along the corridor. Any fence along the corridor is to be located where an existing fence is located. If no existing fence exists along the corridor, the corridor fence is to be located where the plaintiff’s trail easement is separated from the defendant’s property. The appellate court remanded to the trial court for a reconsideration of its ruling on fence issues. Central Kansas Conservancy, Inc., v. Sides, No.119,605, 2019 Kan. App. LEXIS 29 (Kan. Ct. App. May 17, 2019).

Posted April 6, 2019

State Law Claims Cannot Be Heard In Federal Court Without Materially Impacting Bankruptcy Proceeding. The parties co-owned real estate. The defendant leased its portion of this ground to the counter defendants. This lease was for an undivided one-half tenancy in common interest in two farms for a term of 25 years, with the term expiring November 20, 2037, subject to an Option to Renew for an additional 5 years through November 20, 2042. In November of 2013 the defendant filed for Chapter 11 bankruptcy. During this proceeding the defendant intended to assume the lease with the counter defendant. An agreement was reached, the defendant assumed part of the lease and the counter-defendant kept the other half of the lease. On April 25, 2016, the parties signed a Partition Agreement with Amended and Restated Farm Lease. The counter defendants claimed that the defendants failed to keep the leased ground in proper repair. This prompted Notices of Default and ultimately the underlying lawsuit in state court for breach of contract, declaratory judgment, quiet title, and ejectment. The defendant asserted that the counter defendants were simply trying to get out of the lease to find a new tenant that will pay more. In July of 2018 the defendant filed to remove this action to federal court based on the defendant’s bankruptcy case and the plan entered in to with the counter defendant in the bankruptcy case. The Defendant also moved for dismissal on the basis that the bankruptcy filing barred the litigation. The counter defendant filed to remand to state court and filed a motion to dismiss for the defendant’s contempt of court. The counter defendant’s motion to remand to state court was granted. The defendant’s motion to dismiss and the counter defendant’s motion to dismiss claim for contempt were dismissed as moot. The court determined that the defendant’s cross claim, by itself, did not create jurisdiction. In addition, the court did not have jurisdiction of the cross claim, or the underlying claims, and would not weigh-in on the contempt arguments. The court held that this counterclaim was based in contract law and did not have a close nexus with the bankruptcy case. For the court to have jurisdiction, the counterclaim must directly impact the bankruptcy claim. Due to lack of jurisdiction, the court could not make a ruling on the other motions. Stanger v. Walker Land & Cattle, Ltd. Liab. Co., No. 4:18-cv-00307-DCN, 2019 U.S. Dist. LEXIS 36889 (D. Idaho Mar. 4, 2019).

Adverse Possession Established. The predecessor sold 82 acers to the defendants in 2015. This land had been in the same family for generations, however the seller had only been on the property “maybe twice” since 1989. The plaintiffs received title to their property from their parents, who had been there since 1964. There were three fences between the party’s properties. The defendant relied on a 1964 survey when making his purchase, thinking the property line was the middle fence, and left a fence on either side of this middle fence on their respective properties. No survey was completed then. In 2000 the mapping office notified the parties of a “conflict.” Then the office determined the actual boundary to be closer to the fence on the defendant’s property, not the middle fence. However, this determination was for tax purposes and was not a substitute for a survey. The plaintiffs also treated the third fence line, like the map office, as the boundary line. The plaintiffs grazed cattle up to the furthest fence and maintained all the ground between the fences as their own. The plaintiff also testified as to working on the furthest fence as a child in the 1960’s. The plaintiffs also showed that they held annual gatherings and the kids would play in the creek on the disputed ground. There was also evidence that the plaintiffs leased the disputed ground to others. The plaintiffs did not present all the witnesses as to the family’s use of the property up to the furthest fence. Nor was the employee of the map office testimony heard in court. The trial court determined that the property line was to be the closer center fence, not the third fence as the plaintiffs claimed. The court ordered an official survey to their findings and entered that survey as the final order. The plaintiffs appealed. The appellate court reversed and remanded. The plaintiffs’ challenged the trial court’s denial of their adverse possession claim and determination of the location of the boundary line. The court looked at all the evidence on record from trial, when analyzing the plaintiff’s adverse possession claim. The appellate court held that the record showed that the plaintiffs had been in actual, hostile, open, notorious, exclusive, and continuous possession of the disputed property for more than ten years (the statutory timeframe). The plaintiffs had presented evidence to support every one of those elements and the defendants have not rebutted any element. The only evidence the defendant presented to rebut the plaintiffs’ evidence was a “belief” that he owned up to the second fence. Since the lower court was erroneous in determining the adverse possession claim, the appellate court did not need to analyze the boundary line determination. The court remanded to create a new boundary line that included the property that the plaintiffs had adversely possessed. Littleton v. Wells, No. 2170948, 2019 Ala. Civ. App. LEXIS 20 (Civ. App. Feb. 22, 2019).

No Easement Found To Apply. The Plaintiff in this case claimed that he had an easement in the form of a two-track road, crossing multiple parcels of property. All of the properties which the alleged easement crossed were at one time owned by the plaintiff’s father’s company, JO-EL-K, LLC. At one time, JO-EL-K, LLC owned approximately 530 acres in golf courses and farmland. Over time, all 8 of the father’s children became members in the LLC, but until 2004 the father made all business decisions. Beginning in 2004, all the children/members of the LLC, including the plaintiff, were allowed to use any of the properties owned by the LLC for any purpose. The plaintiff became the member-manager of the LLC in 2008, and the father died in 2009. In 2010, the LLC’s property was divided into four parcels via quitclaim deeds that distributed the property between the members and their new organizations. All four deeds included handwritten language, added by the plaintiff, providing that the owners of the four parcels “shall provide one to another all needed utility easements, said easement locations to be determined upon owner’s discretion.” By 2015, the plaintiff didn’t own any of the four parcels, but he did own two smaller parcels that abutted the former JO-EL-K, LLC land. However, due to the handwritten language in the four deeds, the plaintiff asserted that he had an easement across the former JO-El-K parcels, and continued to drive across them, even though the parcels he owned had highway access on the other side. After multiple incidents involving the alleged easement, in 2015 the plaintiff filed suit against the current owners of the JO-El-K parcels, the defendants, seeking declaratory judgment for “an easement in the form of a graded road” over their properties “for the purpose of hauling equipment, trailers and implements to and from other locations available to Plaintiff” for use on his properties. The plaintiff moved for summary judgment seeking either an express easement, an implied easement, a prescriptive easement or an easement in gross. The trial court denied the easement on all theories, and the plaintiff appealed. On appeal, the appellate court found that there was no express easement since “an easement is an interest in land that is subject to the statute of frauds….and in order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude.” In any event, the court noted that the handwritten note in the deed only reserved a utility easement, not an easement for ingress and egress in the form of a graded road. The appellate court stated that what the plaintiff believed he was creating was irrelevant…only the language actually included in the deed was relevant to whether the deed created an express easement and that language did not grant him an express easement for anything other than a utility easement. On the prescriptive easement claim, the appellate court held that to meet the elements necessary for a prescriptive easement the elements similar to that of adverse possession had to be satisfied. Thus, the easement use must be open, notorious, adverse, and (in Michigan) for a period of 15 years. To meet the 15-year requirement, the plaintiff would have had to show that his open, notorious and adverse usage had been occurring since the year 2000. The appellate court found that this element had not been met, because in 2004 the plaintiff’s father had made it known that any member of the LLC could use the property for any reason, and thus the plaintiffs use could not have been adverse since he had permission to use the property. Even if the use had been adverse after 2004, only 11 years had passed when the suit had been filed, falling short of the 15-year requirement. On the implied easement and the easement in gross claims, the appellate court dismissed these claims because the plaintiff’s entire argument consisted of a conclusory three-line, single sentence statement with one citation that included no discussion of the two types of implied easements, the elements necessary to prove the existence of either type of implied easement, or facts applicable to any elements. Additionally, since both of the plaintiffs’ parcels had other access points, and since the remaining easement arguments were simply bare assertions, the easement claims were dismissed. Accordingly, no easement was granted to the plaintiff and the trial court was upheld on all counts. Karam v. Altermatt Farms, LLC, 2019 Mich. App. LEXIS 331 (Mich. Ct. App. Feb. 21, 2019).

Posted March 23, 2019

Determination of Market Value Includes Farmland. The plaintiff owned approximately 50 acres of riverfront property which included an18,000 square-foot home, and guest house. The plaintiff challenged the assessed tax value of the property, but the Oregon Department of Revenue (ODOR) denied the challenge because the plaintiff failed to use examples of comparable properties to meet his burden of proof. Rather, the plaintiff used the sales approach to argue for a reduced assessed value of his property. However, the court noted that the property actually contained over 400 acres of income-producing farmland on the assessment dates and the plaintiff only presented evidence of value for the residence and the surrounding acreage. Anderson v. Yamhill County Assessor, No. TC-MD 180263R, 2019 Ore. Tax LEXIS 31 (Ore. Tax Court Mar. 19, 2019).

Deed Language Must Clearly Specify an Express Easement. In 1933, a mother conveyed the northwest quarter of a section to her daughter, the plaintiff in this case, via two separate deeds. Also in 1933, the mother conveyed the northeast quarter to the defendants (her son and daughter in law) via a deed that was also recorded at the same time. The mother retained ownership in the southern half of the section. The section was accessible by a road that ran on the east side of the section. Thus, after the conveyances, the plaintiff did not have access from the road to her tract. In one of the deeds between the mother and the plaintiff it stated “subject . . . to a 33-foot wide easement for ingress and egress across the existing roadway running generally east and west across the middle of Section 12 from the East line of Section 12.” There was a similar provision in the defendant’s deed: “Also reserved for Grantor, her heirs and assigns, is a 33-foot wide easement for ingress and egress across the existing roadway running generally east and west across the middle of Section 12 from the east line of Section 12.” A few months later the defendants deeded the property back to the mother, subject to "all hereditaments and appurtenances belonging thereto." The defendants stated that they had "no interest in accepting the property and the attendant liabilities under the terms with which it was deeded." The five years later, the mother again deeded the northeast quarter and the southern half of the section to the defendants in five separate deeds. The mother retained a life estate in the tracts with a remainder to the defendants. These deeds were made "together" with "all hereditaments and appurtenances belonging thereto." In 2017, the plaintiff brought this action claiming an expressed easement as well as an implied easement and sought damages for breach of quiet enjoyment and nuisance, alleging that the defendants had obstructed access to her parcel. In support of her claims the plaintiff contends that she has used the road to her cabin on her property since 1992. The defendants claimed that the road had not been usable for over 50 years. There was also evidence of a 2016 letter from the defendant allowing the plaintiff to use the road but that she was not being given a permanent easement. The trial court granted summary judgment for the plaintiff, finding that the plaintiff had an express easement and that the defendants had created a nuisance. The defendants were enjoined from inhibiting the plaintiff from crossing the property. On appeal, the appellate court reversed and remanded. On appeal, the defendants claimed that the mother’s deed was ambiguous as to the plaintiff’s easement and the appellate court agreed. The appellate court concluded that the deed created an easement for the mother’s benefit only. The language of the deeds, the appellate court concluded, were clear that the easements did not burden the land but were between the parties. Thus, the lower court erred in granting the plaintiff’s motion for summary judgment on the express easement claim which also meant that the injunction was improper. The appellate court remanded the implied easement issue for further fact finding and noted that the plaintiff’s nuisance claim may come back to life if it is determined that the plaintiff has an implied easement. The defendants’ counterclaim of adverse possession was also to be determined on remand. Kalahar-Grissom v. Stroschein, No. A18-1135, 2019 Minn. App. Unpub. LEXIS 117 (Minn. Ct. App. Feb. 11, 2019).

Posted February 17, 2019

City Zoning Violations Subject to Statute of Limitations. The city claimed that the defendant violated the city’s zoning ordinance by creating a nuisance via excessive hog waste. The defendant had about twenty domestic hogs and domestic deer or elk at the time. At the time of trial, the deer and elk were no longer on the property. The city sought an injunction against the defendants from continuing to have the hogs on their property. The defendants later filed a motion for summary judgment arguing that the city’s claim was time-bared by statute. The trial court denied the motion. The appellate court reversed and remanded the case to allow the defendants to amend their answer to add the statute of limitations defense as an affirmative defense. The city claimed that the defendants could not assert a statute of limitation defense because it was not raised in the initial answer. However, while the appellate court pointed out that the statute of limitations defense usually has to be asserted early in a case, it is valid if asserted later in good faith. On that point, the appellate court held that there was no indication that the defendant’s late assertion of the statute of limitations was in bad faith and could be allowed. As for the applicable limitations period, the appellate court rejected the city’s claim that a new violation occurred each day pigs remained on the property. The appellate court also determined that the city’s action was against the defendant personally rather than against the defendant’s property. As such, the city’s action was subject to the six-year statute of limitations. Township of Fraser v. Haney, No. 337842, 2019 Mich. App. LEXIS 102 (Mich. Ct. App. Dec. 20, 2018).

Posted February 9, 2019

Township’s Public Zoning/Nuisance Claim Time-Barred. The plaintiff, a township claimed that the defendants violated zoning laws since by raising approximately 20 hogs on their property which was zoned commercial rather than agricultural. The plaintiff also claimed that the pigs were creating a public nuisance due to the stench and flies drawn by the hog waste. The plaintiff filed suit in 2016 seeking an injunction to abate the public nuisance created by the piggery and to bar the defendant from continuing to raise hogs on the property. The defendant admitted that he began raising hogs on the property in 2006, but the plaintiff offered no evidence that the defendant brought new hogs onto the property or continued raising hogs on the property after 2006. The defendant motioned for summary judgment, arguing that the claim was time-barred by the general six-year statute of limitations. The trial court denied the motion, reasoning that the statute of limitations did not apply against the plaintiff because the case constituted an action in rem (i.e., directed against the thing or property itself). The defendant appealed, and the appellate court reversed the trial court’s decision on the statute of limitations issue, holding that under state (MI) law an abatement of public nuisance claim filed by a governmental entity seeking injunctive relief was subject to the general six-year period of limitations. The appellate court determined that the zoning violation first occurred in 2006 at the time the defendant brought pigs to the property, and that the statute of limitation had run six years later. The “continuing wrong” doctrine was inapplicable because there was no evidence that the defendant had added new pigs to the property. The plaintiff’ claimed that the action was in rem and, as such, was not subject to the six-year statute of limitation. However, the appellate court held that the case did not involve an action against the subject property, but against a specific person seeking injunctive relief to force compliance with local zoning laws. As such the case was an action in personam, subject to the same six-year limitation. Thus, the case was time barred because it was filed more than six years after the defendant first brought hogs to the property. Township of Fraser v. Haney, No. 337842, 2018 Mich. App. LEXIS 3754 (Mich. Ct. App. Dec. 20, 2018); Reported at Township of Fraser v. Haney, 2019 Mich. App. LEXIS 102 (Mich. Ct. App., Jan. 17, 2019).

Land Conveyance Invalid For Failure to Satisfy Condition. The decedent and the plaintiff were neighbors and good friends. The decedent deeded his land to the plaintiff in 1972. The conveyance was conditional, requiring the plaintiff to build a home on the property within ten years of the date of the deed. If that did not occur, the property was to transfer to other heirs of the decedent. The deed was not filed until after the decedent had died the following year. In 2016, the plaintiff attempted to sell the property but the sale fell through when the 1972 deed was discovered and the plaintiff had not built a home on the property within the 10-year timeframe. The plaintiff brought a quite title action against the decedent’s heirs. The trial court found for the heirs, and the appellate court affirmed. The appellate court noted that the deed’s main condition, that the plaintiff was to “...erect some building on said land and live there either part time or year round” had not been satisfied. While the deed language allowed the plaintiff to build off of the property, the main condition required the plaintiff to build within 10 years. The appellate court also determined that the plaintiff had a valid interest in the property. White v. Auger, No. 2018-0006, 2019 N.H. LEXIS 4 (N.H. Sup. Ct. Jan. 11, 2019).

Hostility Requirement of Adverse Possession Statute Not Satisfied. The parties, various branches of the same family, have held title to the disputed property for decades. In the 1980’s the plaintiff deeded the property to the defendants, out of concern for the plaintiff’s marriage. The plaintiff continued to farm and took sole responsibility for the farm. The defendant did not have any involvement in the property other than visiting once a year or so. In 2013, when trying to make a payment on a loan, the plaintiff’s other family members discovered the property had been transferred. They claimed that they still had title to the property via adverse possession and by virtue of the deed having been executed under undue influence. The trial court jury found for the plaintiffs on the adverse possession claim and the defendants moved for a judgment notwithstanding the verdict. The trial court granted the defendants motion, vacating the jury verdict. On appeal, the plaintiffs claimed that the trial court erred by not finding their proof for the hostility requirement as an element of the adverse possession claim sufficient. The plaintiffs presented a time line of forty years of presence on the disputed property, none of which the court found to be hostile. In 2007, a loan application likewise did not establish hostility. The Plaintiffs did not list the disputed land as an asset and the defendant submitted her own loan application claiming ownership of the disputed land. Again, this acknowledgment by the plaintiffs that they did not own the disputed property was counter to their hostility argument. In 2009, the claim that the other defendant’s cattle were trespassing the plaintiffs acknowledged that the defendant owned the property. This acknowledgement illustrated that the plaintiffs were not in hostile possession of the property. In sum, the appellate court concluded that the continual understanding that the plaintiffs did not own title to the property illustrated that they did not satisfy the hostility element of the adverse possession statute. Scott v. Hicks, Nos. SD35181, SD35184, 2019 Mo. App. LEXIS 24 (Mo. Ct. App. Jan. 8, 2019).

Posted February 9, 2019

Pipeline Company Denied Exercise of Eminent Domain. The plaintiff, a natural gas pipeline company, sought to use eminent domain, to acquire a perpetual servitude across land that the defendants owned. The plaintiff already had a servitude for the pipeline, but sought the second servitude for access and maintenance purposes. The defendants refused to grant the second servitude. Consequently, for nine years the plaintiff accessed the pipeline using an existing route established by an unwritten “gentlemen’s agreement” with the defendants. During that time, the defendants had only denied the plaintiff access on one occasion, in 2015, due to an unresolved timber damage claim dating from the construction of the pipeline. Under state (LA) law, private entities can exercise eminent domain if the purpose is “public and necessary.” The plaintiff claimed the right to exercise eminent domain because the pipeline was created for the purpose of supplying natural gas to the public. At trial, the only issue was whether the plaintiff, “in selecting the location and extent of the property to be expropriated,” acted in bad faith or in a capriciously or arbitrary manner. After extensive testimony, the facts established that there were at least two routes, and possibly three, by which the plaintiff could access the pipeline located on the defendants’ property. The trial court stated that while the availability of other feasible locations for the servitude is not, in and of itself, an indication that the party seeking to exercise eminent domain has acted arbitrarily, capriciously, or in bad faith in making its selection, that discretion can be abused all relevant factors aren’t considered and weighed. In determining that the proposed route was the best route for the plaintiff to take, the majority of the plaintiff’s testimony centered on the cost involved in utilizing the routes under consideration. The other routes considered would require multiple water crossings, extensive permitting, and ultimately be more expensive. The trial court found that although cost was a factor, the plaintiff failed to consider other relevant factors such as a separate existing route, environmental impact, safety issues, and long-range-area planning. Ultimately, the trial court found that much of the testimony presented by the plaintiff “was self-serving in that their exploration of alternative routes was just a farce when they simply want to take the easiest and least expensive route for the company,” and that the decision to seek a permanent servitude was “prompted by the timber damage dispute and not the actual need for a permanent route.” Based on these findings, the trial court concluded, that the plaintiff acted arbitrarily, capriciously, and in bad faith in seeking the servitude over the proposed route. The trial court denied the expropriation request. On appeal, the appellate determined that the trial court’s findings were reasonable, and not manifestly erroneous or clearly wrong and affirmed. Acadian Gas Pipeline System v.. McMickens, No. 18-337, 2018 La. App. LEXIS 2667 (La. Ct. App. Dec. 28, 2018).

Posted February 4, 2019

No Nuisance, Negligence or Implied Easement in Water Drainage Battle. The parties are neighbors. A ditch drains the plaintiff’s property, runs under the county road, and across a defendant’s property. This ditch then crosses onto another defendant’s property where it goes through a culvert under their driveway. Once the ditch crosses this property it flows in to another larger ditch. The plaintiff’s property was too wet to hay and one of the defendants suggested that the culvert under the county road was to blame for the lack of drainage. The county worked on the culvert in 2011 and 2012, but their efforts did not change the drainage issue. In 2012, the plaintiffs found that one of the defendants had a structure in the ditch hear the driveway culvert to prevent beavers from building dams. This structure was built in 2004-2006. That defendant removed the structure and the plaintiff was able to plant crops that year. In 2014 the parties negotiated again about the “retaining wall” on the other side of the drive way culvert. This structure was removed, and the ditch was dredged on the defendant’s property. However, this did not reduce the water issue on the plaintiff’s property. Ultimately, the plaintiff sued seeking damages for negligence and nuisance, and injunctive relief under various implied-easement theories. The other defendant was also named as a party. Both defendants moved to dismiss, and the trial court granted the motions. The appellate court affirmed, concluding that the trial court properly rejected the plaintiff’s easement by implication, easement by prescription, and easement by estoppel claims. While the plaintiff claimed that the drainage ditch was a natural watercourse that their predecessors created, the appellate court upheld the trial court’s determination that the plaintiff had not proven any easement theories. The appellate court also held that the applicable statute of limitations was a two-year statute and that the plaintiff’s claims were time-barred. The plaintiff’s assertions that the defendants built obstructions in the ditch occurred in 2013, more than two years before the plaintiff filed suit. Aeshliman v. Smisek, No. A18-0752, 2018 Minn. App. Unpub. LEXIS 1085 (Minn. Ct. App. Dec. 24, 2018).

Posted February 3, 2019

Landowner Fails to Establish Proximate Causation of Water Drainage Damage. The plaintiff’s four-foot wide drainage ditch ran from her driveway to the property line and onto the defendant’s property. The ditch dimensions remained fairly constant from 1973 t0 2000, when the defendant “changed the driveway” on his property by filling in a portion of the ditch and building a driveway on top of it. Over the years, the plaintiff and defendant had multiple conversations about the new driveway, with the plaintiff complaining that the culvert underneath the defendant’s new driveway was too small and was causing water to back-up onto the plaintiff. In 2016, the plaintiff filed a nuisance claim against the defendant, claiming that the culvert obstructed a natural waterway, creating a wetland area on her property and resulting in devaluation of her property. At trial, experts on both sides gave conflicting opinions as to the reason of the excess water on the plaintiff’s property. The plaintiff’s expert testified that the placement of the culvert under the defendant’s driveway and the level of the defendant’s connected retention pond, caused a backflow of water onto the plaintiff’s property. He also testified that when the defendant moved the driveway, he also moved the culvert further north, which prevented the sediment from properly flowing from the plaintiff’s ditch. The defendant’s expert testified that the area at issue had been a wetland since the 1930’s. He also testified that the wetland was caused as the direct result of an adjacent groundwater spring-fed stream, and was exacerbated by the fact that the plaintiffs had removed “several large trees” which significantly reduced the groundwater uptake, which led to more groundwater seepage onto the surface. Lastly, the defendant’s expert testified that the plaintiff had never engaged in measures to maintain the integrity of the ditch on her property, such as cleaning it out, removing vegetation or installing a tile. The trial court found in favor of the defendant concluding that the plaintiff had failed to meet her burden of proof. On appeal, the appellate court agreed that the plaintiff had failed to meet that burden of proof, and that the plaintiff’s evidence presented simply failed to show that either the culvert or the retention pond on the defendant’s property was the proximate cause of the wetland conditions on the plaintiffs property. The appellate court found the defendant’s expert’s opinion to be more credible than the plaintiff’s expert’s opinion, in light of all the evidence presented. Based on that evidence, the court found it more likely than not that the wetland conditions resulted from the historical existence of a natural spring, topographical makeup of the plaintiff’s property, removal of several trees, and lack of maintenance or improvements as to the drainage ditch. Therefore, the appellate court upheld the trial court’s finding that the plaintiff had failed to meet her burden of proof, and affirmed the trial courts judgment. Brockman v. Ruby, No. 18-0170, 2018 Iowa App. LEXIS 1095 (Iowa Ct. App. Dec. 5, 2018).

Posted February 2, 2019

State Law Bars IRS from Foreclosing on Real Estate. In 1988, a father executed a deed conveying a tract of real estate to a trust for the benefit of his son. But, the deed was witnesses by only one person rather than two required by state (FL) law. The father died in 2005, and the IRS asserted that the estate owed $1.4 million in delinquent federal estate tax. In 2015, the IRS filed a tax lien against the property on the basis that it was property that was included in the decedent’s taxable estate. The son sued claiming that the lien was inapplicable because the property was not included in the father’s estate because it had been transferred to the trust before the father’s death. The IRS asserted that the properly had not been conveyed to the trust because the deed had not been properly witnessed. The IRS motioned for summary judgment and the trial court granted the motion. On appeal, the appellate court reversed noting that FL law (Fla. Stat.§95.231) specifies that an improperly executed deed is considered valid five years after recordation. While the IRS claimed that the “curative” statute required “some form of formal adjudication” before it cured a deed and that, even if it did apply automatically, it would be a statute of limitations that does not bind the United States in accordance with United States v. Summerlin, 310 U.S. 414 (1940). The appellate court disagreed. The appellate court noted that while the Florida Supreme Court had not squarely addressed this particular issue, the clear weight of Florida authority favored applying the curative statute automatically five years after a deed is recorded and does not require any adjudication. The appellate court also held that the Summerlin did not apply because the deed had been cured before the father died and, at the time of curing, was deemed to be effectively conveyed to the trust. As a result, there was no statute of limitations issue because the IRS claimed failed to accrue. Thus, there was no statute of limitations issue because the United States’ claim against the estate never accrued. Upon death, the father no longer owned the real estate. Saccullo v. United States, No. 17-14546, 2019 U.S. App. LEXIS 1056 (11th Cir. Jan. 11, 2019).

Posted January 27, 2019

Farming To Cultivation Line Constituted Adverse Possession. The parties in this dispute gained each title to their respective properties from the same predecessor. In 1972, the plaintiff purchased his tract and believed that he purchased up to the fence where his predecessor had farmed. However, the deed did not include a strip of land up to the fence. Since the 1980’s, the plaintiff farmed up to where the fence was in 1972 believing that to be the property line. Sometime during the 1980’s the defendant received title to the other portion of the predecessor’s original property. The plaintiff sued claiming adverse possession of the strip of land not in the 1972 deed. The trial court agreed. On appeal, the appellate court affirmed. The appellate court held that the plaintiff’s farming of the disputed strip for several decades was sufficient to establish an intent to hold against the true owner’s rights. The appellate court also determined that the plaintiff’s possession was also hostile because it was greater than the deed anticipated and was without permission of the true owner. While the strip had never been enclosed by a fence or other enclosure, the property line was the cultivation line which had been clearly identified for decades via the plaintiff’s conduct. Collier v. Gilmore, 2018 Ark. App. 549 (Ark. Ct. App. 2018).

Posted January 6, 2019

Vertical Drilling On Farmland May Constitute A Trespass. The plaintiffs, a married couple, operate a farm in Weld, County, CO. In 1907, the Union Pacific Railroad acquired large swaths of land and sold off surface rights to others, ultimately selling subsurface rights to mineral deposits to the defendant, an oil and gas company. The 1907 deed reserved the following: “First. All coal and other minerals within or underlying said lands. Second. The exclusive right to prospect in and upon said land for coal and other minerals therein, or which may be supposed to be therein, and to mine for and remove, from said land, all coal and other minerals which may be found thereon by anyone. Third. The right of ingress, egress and regress upon said land to prospect for, mine and remove any and all such coal or other minerals; and the right to use so much of said land as may be convenient or necessary for the right-of-way to and from such prospect places or mines, and for the convenient and proper operation of such prospect places, mines, and for roads and approaches thereto or for removal therefrom of coal, mineral, machinery or other material” [emphasis added]. The plaintiffs’ farm lies above a large oil and gas deposit. Before 2000, the railroad entered into agreements with surface owners before drilling for oil or gas. Those agreements often included payments to surface owners and provided that the railroad would pay for surface property damages, including crop damages. In 2000, the defendant bought the railroad’s mineral rights in the oil and gas deposit underlying the plaintiffs’ property. In 2004, the defendant leased the mineral rights under the plaintiffs’ farms to an exploration company which drilled three vertical wells on a part of the plaintiffs’ farm. An energy company bought the exploration company in 2006 and drilled four more vertical wells on another part of the plaintiffs’ farm between 2007 and 2011. In an attempt to have fewer wells drilled on their farm and minimize the impact to their farmland, the plaintiffs asked the energy company to drill directionally. The energy company requested $100,000 per directional well. The plaintiffs refused, and the energy company continued to drill vertically. The plaintiffs sued, claiming that the energy company’s surface use constituted a trespass because directional drilling would have resulted in two wells on their property rather than seven. The trial court granted a judgment as a matter of law to the defendant on the basis that the defendant had presented sufficient evidence that vertical drilling was the only commercially reasonable practice; that this practice was afforded in the additional rights granted in the original deed; and that the plaintiffs could not establish trespass. On appeal, the appellate court reversed. The appellate court noted that state law held that deeds containing language identical to the “convenient and necessary” language of the deed at issue does not grant mineral owners more rights than what state common law provides. The appellate court also expressed doubt as to whether a mineral reservation in a deed can expand surface or mineral ownership rights unless those rights are clearly defined in accordance with Gerrity Oil and Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997). The appellate court concluded that the deed at issue in the case was insufficient to expand mineral or surface rights beyond those recognized in state common law. The appellate court also held that the trial court erred by requiring the plaintiffs to show that vertical drilling wasn’t commercially reasonable. Under Gerrity, the appellate court noted, a surface owner can introduce evidence that "reasonable alternatives were available." Once that evidence is introduced, the appellate court determined that it is then up to a judge or jury to "balance the competing interests of the operator and surface owner and objectively determine whether ... the operator's surface use was both reasonable and necessary." Bay v. Anadarko E&P Onshore LLC, No. 17-1374, 2018 U.S. App. LEXIS 36454 (10th Cir. Dec. 26, 2018).

Posted January 3, 2019

Watershed Easement Did Not Create Implied Duty of Maintenance. After floods in 1958 the NRCS entered into an operation and maintenance agreement with the local Soil Conservation District (SCD) and the Board of Supervisors (Board), the defendants in this case. This agreement "establish[ed] responsibilities for operation and maintenance" to works of improvement "to be installed in the David's Creek Watershed." The SCD agreed to "take necessary steps to insure that structures will function as intended" and "[t]ake all other necessary steps to insure that the works of improvement are permitted to function in the manner for which they were designed, and are operated in accordance with any applicable State law." The Board agreed it was "responsible for the operation and maintenance of the works of improvement," including "tak[ing] necessary steps to insure that structures will function as intended." Additionally, the Board specifically agreed to: “Perform, in accordance with any applicable State laws, all maintenance needs indicated by inspections and report thereof within the time limits specified, if any, in such manner as not to damage the works of improvement in any way. Maintenance may include, but not be limited to, the following: a. Remove and dispose of debris. b. Topdress vegetated embankments, spillways, borrow areas, structural waterways and diversions with needed applications of plant food. c. Refill, smooth and vegetate rills on embankments, spillways, borrow areas, structural waterways, and diversions. d. Repair damaged tile lines and tile outlets. e. Remove obstructions in channels downstream of structures and clean out drainage ditches. f. Repair damaged work such as concrete structures or rusted out CMP spillways. g. Other maintenance works as indicated in inspection reports.” One such project under this agreement is structure 28-3, an earthen dam, on the plaintiff’s property. In December of 1971 the parties entered in to an easement for the plaintiff’s 57 acres of farm ground. By September 1975 structure 28-3 was completed. The defendants constructed an earthen dam; installed a brush rack, draw-down tube, and riser drainers; and did grade work. The structure was expected to store 73.7 acre-feet of sediment below the crest and 13.2 acre- feet of sediment above it, for a total of 86.9 acre-feet of sediment held behind the dam. The dam worked as expected, creating a 6.6-acre pond. The plaintiffs stocked the pond with fish and were able to farm up to the ditch that was natural and served as drainage to the pond. By 1999 the pond silted in and the fish died. When this suit was filed in 2013 the pond had become a silted-in bog. The area up to the drainage was no longer farmable because of the bog had backed up into the channel. The plaintiffs sued alleging breach of a duty to maintain the pond, for failure to prevent the silting. The plaintiffs sought $225,000 in damages to recreate the pond. The trial court dismissed the plaintiff’s suit due to a lack of evidence that the sediment had to be periodically removed from the structure. On appeal, the plaintiffs claimed that the trial court erred in not finding a breach of a duty to prevent the silting. The plaintiffs claimed that the defendants had a statutory duty under Iowa Code Chapter 161A ad 161E. However, the appellate court disagreed finding that the Code provisions did not provide for a private cause of action. As for a common law repair duty, the appellate court determined that the parties’ contract usurped any common law duties that might have applied. As for a contract responsibility of maintenance, the appellate court held that the agreement specified that the repair duty was owed to the NRCS rather than the plaintiffs. The court also determined that even if the defendants had a duty of maintenance to maintain in accordance with the easement, the court would not read “maintain” as to mean the prevention or removal of silt accumulation. The dam was designed to hold silt and it was still serving that purpose.  The appellate court rejected all of the theories that the plaintiffs presented on appeal and dismissed the case.  Sunberg v. Audubon County., No. 17-1192, 2018 Iowa App. LEXIS 1042 (Iowa Ct. App. Nov. 21, 2018).

Posted December 23, 2018

Ag Non-Homestead Classification Proper. In Minnesota, agricultural property can be classified for property tax purposes as either “agricultural homestead” or “non-homestead property.” Likewise, certain agricultural property may receive class 2a agricultural homestead status, as an extension of another agricultural homestead, upon satisfying Minn. Stat. §273.124 (14). The special agricultural homestead designation contained in Minn. Stat. §273.124 (14) extends the class 2(a) ag homestead classification to ag property that is not contiguous to the owner’s homestead or where the owner lives if five conditions are met: 1) the property must be 40 acres; (2) the owner (or the owner's relative) must actively farm the property; (3) the owner and the person actively farming the property must be Minnesota residents; (4) the owner (or owner's spouse) cannot claim another agricultural homestead; and (5) the owner and the person actively farming the property must live within four cities or townships of the property. At issue were seven tracts, and none were found to satisfy the statutory requirements for the tax years at issue. While the court rejected the county’s claim that the parcels didn’t satisfy the requirements because the taxpayer had already claimed another ag homestead, finding Minn. Stat. §273.124(g) inapplicable, the court determined that the taxpayer didn’t live within four township or cities of the tracts. Luthens v. County of McLeod, Nos. 43-CV-15-641, 43-CV-16-638, 43-CV-17-646, 2018 Minn. Tax LEXIS 69 (Minn. Tax Ct. Dec. 10, 2018).

Posted December 8, 2018

Land Used for Cattle Grazing Not Entitled to Ag Land Classification. The plaintiffs own four parcels, each consisting of approximately 160 acres that the plaintiffs leased for cattle grazing under passive lease arrangements. The County assessed the parcels as either residential or vacant residential for tax purposes. The plaintiffs claimed that the parcels should be classified as agricultural lands. The County Board of Equalization agreed with the plaintiffs and reversed the County Assessor’s decision. On further review, the Wyoming State Board of Equalization reversed, and the trial court affirmed the State Board’s decision. On further review, the state Supreme Court affirmed the State Board’s decision to lower court’s decision to uphold the County Assessor’s decision. The issue on review was whether the plaintiffs could satisfy the elements of Wyo. Stat. Ann. §39-13-103(b)(x)(B) to be taxed as agricultural land. The Supreme Court determined that the parcels, based on their size, location and capability to produce, were not being used to their full capacity as required by Wyo. Stat. Ann. §39-13-103(b)(x)(B)(IV). Under Wyoming law, a parcel can be classified for tax purposes as agricultural land if it is used for an agricultural purpose, is not part of a platted subdivision, generates at least $1,000 gross revenue annually when leased, and is used to full capacity consistent with the parcel’s size and capability of the land. The Supreme Court determined that the first three elements had been satisfied, but not the fourth because the actual lease income fell far short of the expected lease income in accordance with the state’s ag value study. Helmut J. Mueller L.P. v. Treanor, No. S-18-0009, 2018 Wyo. LEXIS 135 (Wyo. Sup. Ct. Nov. 29, 2018).

Motorist Fails to Establish Cow Owner Negligent For Escaped Cow. The defendants own and graze cattle on a tract that is partially fenced by both the Colorado Department of Transportation (CDOT) and the defendants. However, there are unfenced areas where cows may exit the property and wander on to other property, including the highway. This unfenced area is located near natural barriers such as steep hill grades. The plaintiff was a passenger in a vehicle traveling southbound on the adjacent highway when the vehicle struck the defendant’s cow. The cow had also recently been hit in a separate, unrelated automobile collision. The plaintiff was severely injured in the accident and sued the defendant for negligence in allowing the cow to escape its enclosure. The trial court jury rendered a verdict for the defendant and the plaintiff motioned for a new trial claiming that no reasonable jury could conclude that the defendant was not negligent. The plaintiff relied on expert testimony of a livestock handling specialist that the containment of the animals was not proper. In addition, the plaintiff relied on lay testimony of other ranchers to bolster the claim that “general ranching industry standards” require complete fencing around cattle pastures, particularly near highways. The defendant countered that he offered more than sufficient, competent evidence from which the jury could have reached its verdict. The defendant also focused on the absence of evidence, pointing out that there was no direct evidence offered establishing where the cow at issue came from or its path to the highway. The defendant pointed out that the jury heard evidence that the plaintiff could not establish how the cow escaped its enclosure, and that the defendant had periodically checked the area to ensure that no cows were escaping, and routinely maintained existing barriers to the extent necessary if they proved insufficient to retain the livestock. The trial court judge agreed with the defendant, noting that there was more than sufficient evidence that a jury could have relied on to determine that the defendant was not negligent. The trial court did concede that the plaintiff correctly pointed out that there was countervailing evidence of negligence and insufficient fencing, but the court pointed out that it may not reweigh the evidence, consider the credibility of the witnesses, or substitute its judgment for the jury's. Regardless of where the cow escaped, the court determined that there was sufficient evidence that the defendant’s actions, even if ultimately unsuccessful in containing the cow, were reasonable. Thus, the plaintiff’s motion for a new trial was denied. Bryant v. Reams, No. 16-cv-01638-NYW 2018 U.S. Dist. LEXIS 192192 (D. Colo. Nov. 9, 2018).

Trial Court’s Easement Order Based On Settlement Agreement Cannot Be Appealed Absent Fraud or Misrepresentation. The plaintiffs claimed that the defendant had trespassed on their property, allowed his dogs to run free and chase their livestock, blocked access to their property to prevent them from cutting and bailing their hay, and threatened to kill them. According to the plaintiffs, they lacked an adequate remedy at law, and they would suffer immediate and irreparable injury, loss, or damage unless the defendant was enjoined from interfering with their use of their property. The plaintiffs sought a temporary restraining order and temporary injunction against the defendant. At the hearing, counsel for the plaintiffs stated, "I believe we've been talking for the last couple of hours and I believe that we have an understanding from the ruling of the Court that [the easement is] not exclusive and that these folks have a right to go across it as well, and they're going to install their gates and furnish him with a lock and a key." When the trial judge stated that it "[s]ounds like we've got an understanding[,]" the defendant’s counsel responded, "Yes, Your Honor." Plaintiffs stated on the record that (1) they purchased the property subject to a twenty-foot non-exclusive ingress/egress easement to the defendant’s two-acre tract; (2) they agreed that they would install gates, furnish the defendant with a key to the lock on the gate, and will not lock the gate going into the defendant’s property; (3) they agreed to ask the trial court to require the defendant to open and close the gates and not to destroy the gates; (4) they agreed to ask the trial court to enjoin the defendant from blocking their access to the easement. The defendant stated on the record that he agreed that the ingress/egress easement is non-exclusive, and that he understood that the plaintiffs have a right to use the road. The trial court signed a final judgment, in which it found that the plaintiffs were "entitled to a permanent injunction for a non-exclusive easement . . .[,]," found that the twenty-foot easement was non-exclusive, and enjoined the defendant from impeding access to the easement or blocking the use of the easement "to anyone else." The defendant moved for new trial, which was overruled by operation of law. The defendant appealed. On appeal, the defendant challenged the legal and factual sufficiency of the evidence supporting the trial court's judgment granting permanent injunctive relief and challenged the legal and factual sufficiency of the evidence supporting the trial court's judgment granting declaratory relief. However, the appellate court pointed out that when the parties have reached a settlement agreement, the trial court may render a judgment based on the agreement if no party has withdrawn consent. In addition, a party cannot appeal from a judgment to which it has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. Thus, the court concluded that the record indicated that the parties came to an agreement, which the trial court memorialized in its judgment, and nothing in the record demonstrated that the defendant withdrew his consent before the trial court signed the judgment. Therefore, the defendant waived the arguments he sought to raise on appeal and the trial court’s decision was affirmed. Burkett v. Favors, No. 09-18-00046-CV 2018, Tex. App. LEXIS 9332 (Tex. Ct. App. Nov. 15, 2018).

Posted November 25, 2018

Insufficient Evidence To Establish Waste of Leased Farmland. The plaintiff entered in to a 25-year farm lease with his parents. The plaintiff’s brother, the defendant in this case, subsequently exercised an option to purchase the land from his parents and sent notice to the plaintiff of his intention to terminate the farm lease. The plaintiff then filed a petition for declaratory judgment that the 25-year farm lease was valid. At trial, the defendant raised a counter claim against the plaintiff for waste. He testified that the plaintiff damaged the land by removing terracing, that he had not cleared downed trees and removed a building without permission. The plaintiff denied most of the defendant’s claims but claimed that the removal of terracing was done at the father’s direction for the purpose of improving the land’s productivity. The trial court granted the defendant’s request for permanent injunctive relief. On appeal, the appellate court determined that the defendant failed to prove that he would suffer substantial injury or damages in the absence of permanent injunctive relief and reversed the trial court. The appellate court held that the defendant’s claims of waste were not credible. The appellate court noted that the plaintiff farmed full time, was an experienced farmer with a history of good husbandry practices and operated on the farm at issue under a long-term lease which an economic incentive to utilize good husbandry practices. Conversely, the appellate court noted, the defendant did not farm and was unaware that his father had approved much of what the plaintiff had done to the farm. Thus, the appellate court held that there was no credible evidence that the plaintiff committed waste, the defendant suffered injury, or that the defendant would suffer injury in the future. In addition, the appellate court held that the defendant also failed to establish that he lacked an adequate legal remedy to redress his claimed injury. According to the appellate court, he could seek monetary relief for any violation of the lease agreement, which included a good husbandry provision. In addition, Iowa Code Chapter 658 provides a cause of action for waste, including the availability of treble damages resulting from such waste. Thus, the appellate court held that the trial court erred in granting the defendant’s cross-petition for permanent injunctive relief and the judgment of the trial court was reversed. Gent v. Gent, No. 17-1677, 2018 Iowa App. LEXIS 905 (Iowa Ct. App. Oct. 10, 2018).

Posted November 17, 2018

Fossils are “Minerals” That Belong to the Mineral Estate Owner. In 2005, the defendants (a married couple) (and previous owners) sold the surface estate and one-third of the mineral estate of associated with a Montana ranch to the plaintiffs (a married couple). The defendants expressly reserved the remaining two-thirds of the mineral estate, which gave them ownership, as tenants in common, with the plaintiffs of all right, title and interest in any “minerals” found in, on and under the conveyed land. Specifically, the deed stated that the parties would own, as tenants in common, “all right, title and interest in and to all of the oil, gas, hydrocarbons, and minerals in, on and under, and that may be produced from the [Ranch].” The purchase agreement required the parties “to inform all of the other parties of any material event which may [affect] the mineral interests and [to] share all communications and contracts with all other Parties.” Beginning in 2006, a paleontologist uncovered dinosaur fossils on property of great value including a nearly intact Tyrannosaurus rex skeleton and two separate dinosaurs that died locked in battle. The fossils are extremely rare and quite valuable, with the “dueling dinosaurs” valued at between $7 million and $9 million. In 2014, the plaintiffs sold the Tyrannosaurus rex skeleton to a Dutch museum for several million dollars. The proceeds of sale were placed in an escrow account pending the outcome of the present litigation. The plaintiffs brought a declaratory judgment action in state court claiming that the fossils were theirs as owners of the surface estate. The defendants removed the action to federal court and asserted a counterclaim on the basis that the fossils should be included in the mineral estate. The trial court granted summary judgment for the plaintiffs on the basis that, under Montana law, fossils are not included in the ordinary and natural meaning of “mineral” and are thus not part of the mineral estate. On appeal, the appellate court reversed. The appellate court determined that the term “fossil” fit within the dictionary definition of “mineral.” Specifically, the appellate court noted that Black’s Law Dictionary defined “mineral” in terms of the “use” of a substance, but that defining “mineral” in that fashion did not exclude fossils. The appellate court also noted that an earlier version of Black’s Law Dictionary defined “mineral” as including “all fossil bodies or matters dug out of mines or quarries, whence anything may be dug, such as beds of stone which may be quarried.” Thus, the appellate court disagreed with the trial court that the deed did not encompass dinosaur fossils. Turning to state court interpretations of the term “mineral”, the appellate court noted that the Montana Supreme Court had held certain substances other than oil and gas can be minerals if they are rare and exceptional. Thus, the appellate court determined that to be a mineral under Montana law, the substance would have to meet the scientific definition of a “mineral” and be rare and exceptional. See, e.g., Farley v. Booth Brothers Land & Livestock Co., 270 Mont. 1, 890 P.2d 377 (Mont. 1995), relying on Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (Tex. 1949). The appellate court held that those standards had been met. Murray v. BEJ Minerals, LLC, No. 16-35506, 2018 U.S. App. LEXIS 31362 (9th Cir. Nov. 6, 2018).

Posted November 3, 2018

Divorce Lead to Adverse Possession Claim and Formation of Trust. A couple divorced in 1984, and the husband was awarded possession of the home. This property, along with other property, was to be put into a trust for the couple’s minor child. In 1986, the defendant attempted to create the trust, but a local bank declined to hold it. The trust was never subsequently created. In 2012, the minor child died. His estate made claims for this property that should have been placed in trust. These claims were later dismissed. In 2015 the father died. His estate claimed title to the home via adverse possession. The defendant countered with claims for quiet title, constructive trust, promissory estoppel, and declaratory judgment. These counter claims all sought enforcement of the 1984 divorce decree and to quiet title to the home in the heirs of the deceased son. The trial court found in favor of the son’s heirs, determining that the father had not adversely possessed the property; both parties owned the property as tenants in common: and that the 1984 divorce decree should be enforced. The father’s estate appealed. The appellate court affirmed, finding that the father’s estate had not adversely possessed the property and that the parties had owned the property as tenants in common. The appellate court ordered that the property be placed into a trust for the benefit of the heirs of the deceased son. Estate of Weeks v. Weeks-Rohner, 427 P.3d 729 (Wyo. 2018).

Posted October 14, 2018

Immunity of Equine Activity Act Applied. This case involves two separate incidents, where the plaintiffs assert that their claims are viable under an exception to the general immunity of the state (WI) equine activity statute. One plaintiff sued the defendant, a horse stable, for an accident that occurred on one of the defendant’s trails. On the day of the ride, the stable owner asked the plaintiff if she had ever ridden before. The plaintiff, in her mid-sixties said that she did not remember ever riding. As a result, the defendant gave her a horse usually ridden by children with no experience. The plaintiff was not given a helmet or any additional instructions. During the ride the plaintiff told the defendant that she could not reach the reins and the defendant stated that it was ok, the horse knew his way. Later a horse kicked at the plaintiff’s horse and the plaintiff fell off the horse, sustaining head, back, and rib injuries. The other plaintiff was riding her own horse at a lesson in the defendant’s arena. Another rider came in and was instructed to jump one of the fences in the arena. The other horse instead took off and collided with the plaintiff and her horse. The plaintiff sustained several leg injuries. Both plaintiffs claimed that their accidents fall within the statutory exception in the WI equine activity statue. The statue generally provides immunity for a horse owner, but does not apply when the horse owner “[p]rovides an equine to a person and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided based on the person's representations of his or her ability.” The first plaintiff also claimed that her accident was within an exception to the statute where the defendant “[a]cts in a willful or wanton disregard for the safety of the person.” Each plaintiff lost at the trial court, and both appealed. On appeal, the appellate court affirmed the award of summary judgment in one case, and dismissed the other case. With respect to the plaintiff that rented a horse, the appellate court held that the equine activity statute applied to provide immunity to the defendant. The defendant was not required to test the plaintiff’s riding ability, and did not otherwise act in willful or wanton disregard to the plaintiff’s safety. As for the other plaintiff, no exception to the immunity of the equine activity statute applied because the plaintiff supplied her own horse. Dilley v. Holiday Acres Props., Nos. 17-2485, 17-2970, 17-3289 (7th Cir. Sept. 25, 2018).

Damages Apply For Rejection of Active Lease.  The defendant had worked the prior owner of the farm at issue and had continuing business arrangements with him. One of the arrangements was a twenty-acre lease to grow a special variety of peaches on part of the farm, for the economic life of the orchard. This lease initially was oral, but then was memorialized for the purposes of crop insurance. In October of 2015 the plaintiff bought the farm, and the previous owner signed an affidavit swearing that the property was “subject to no leases, tenancies, adverse possession, occupancy rights, licenses, or similar claims by third parties.” The previous owner did feel that it was necessary to mention the lease since the defendant’s orchard had been there for a decade. The defendant did not know of the sale, and several months later started harvest. In between a few loads, the previous owner locked the gate with a new pad lock. The defendant texted him to unlock the gate and was told to talk to the plaintiff. The previous owner called the plaintiff but never mentioned that the defendant was trying to harvest, the plaintiff never spoke to the defendant either. The sheriff later came out and cut the lock and the previous owner put a new lock up. The defendant filed a restraining order against the previous owner to allow the defendant to finish harvest and he forwarded it on to the plaintiff. A few days later the plaintiff executed an application for criminal arrest warrant seeking to keep the defendant off the property. Three days later a judge awarded the defendant’s restraining order and the previous owner unlocked the gates, but by that time the peach crop was overripe and destroyed. The plaintiffs sued for trespass and the defendants countered with unjust enrichment. The jury found for the defendant, awarding $400,000 in attorney fees and $150,000 in actual damages. The award for attorney fees was reduced to $272,000 by the court. Both parties appealed different issues. The appellate court affirmed the finding for the defendant and the attorney fees, but reversed on not allowing the jury to decide punitive damages. As for the first issue, the plaintiff claimed that the court erred in not granting the motions for directed verdict and judgment notwithstanding the verdict for trespass. The plaintiff’s argument rested on the lack of evidence at trial that they ratified the previous owners wrong. This was supported by the claim that the plaintiffs never received a benefit from the unauthorized act. However, the appellate court disagreed, finding that there was ample evidence that the plaintiffs had ratified the actions by knowing of the defendant’s operation, by knowing that the previous owner had locked the gate and did not tell him to unlock it, and by knowing that delay would destroy the crop. The plaintiff also claimed that there was no evidence to uphold the award of attorney fees and that they attorney fees award itself was unreasonable. The appellate court also rejected that claim based on the evidence. As for the second issue, the defendant claimed that the lower court erred by withdrawing the punitive damages issue from the jury and not instructing the jury about punitive damages. The appellate court agreed based on statutory and caselaw. Whitaker Farms v. Fitzgerald Fruit Farms, Nos. A18A1420, A18A1421, 2018 Ga. App. LEXIS 527 (Ga. Ct. App. Sep. 26, 2018).

Farmland With “Junk” Violates County Zoning. The plaintiffs farm contained a significant amount of junk and debris, and the county determined that the plaintiffs were in violation of a zoning ordinance prohibiting agricultural property from being used as a junkyard. The trial court granted an injunction and ordered the plaintiffs to come into compliance with the county ordinance. The plaintiffs appealed. On appeal, the plaintiffs claimed that there was insufficient evidence supporting the trial court’s conclusion that they were impermissibly operating a junkyard. The appellate court noted that the plaintiffs’ land was zoned as A1-Agriculture Protection District and that the A1 zone has certain permitted uses, permitted accessory uses and structures, and development standards. A “junkyard” is a non-permitted use of land zoned as A1. The relevant ordinance defines “junkyard” as follows: “A place, usually outdoors, where waste or discarded used property other than organic matter, including, but not limited to, automobiles, farm implements and trucks, is accumulated and is or may be salvaged for reuse or resale; this shall not include any industrial scrap metal yard or normal farming activities”. There was testimony at the evidentiary hearing that described in great detail, the items covering the plaintiffs’ property. Among other things the land holds: many unused an inoperable semi-trailers and truck beds, some of which were off their wheels; metal debris; multiple inoperable vehicles without license plates; many piles of metal; propane tanks; tires; vehicle axles; a trailer entirely full of trash; box trailers; a backhoe, bulldozer, and Bobcat; and a significant amount of debris and junk. In addition, the plaintiffs admit that they did not remove the semi-trailers and flatbeds that the trial court ordered to be removed and that they have since brought additional tractors and motor vehicles onto the property. While the appellate court determined that there was no evidence in the record that they salvaged the junk for reuse or resale, the appellate court determined that zoning definition did not require that; it merely required that the items “may be salvaged for reuse or resale. The plaintiffs also claimed that there was undisputed evidence in the record that their property was a farm, arguing that the same plot of land could not simultaneously be used as a farm and a junkyard. However, the appellate court determined that one plot of land may have multiple uses and that the same plot of land could be used as both a junkyard and a farm, especially where it covers 35 acres. The plaintiffs also claimed that their property should have been protected via an established prior nonconforming use. However, the appellate court determined that the plaintiffs waived this argument by not raising it at the trial court. In addition, waiver notwithstanding, the court determined that the plaintiffs had no evidence that the items on their property predated the relevant ordinances, which went into effect in 1992. Lastly, the plaintiffs argued that the trial court’s order amounted to an unconstitutional taking by inverse condemnation. Once again, however, the plaintiffs did not raise this argument at the trial court and, thus, waived it. However, waiver notwithstanding, the court determined that a taking occurs when all reasonable use of the property is prevented by the land use regulation. Thus, a zoning regulation becomes confiscatory only when it denies the property owner all economically beneficial or productive use of the land. Here, the court pointed out, the plaintiffs did not argue that the ordinance itself is confiscatory nor did they claim that the ordinance denied them all economically beneficial or productive use of the land. The appellate court affirmed. Morris v. Putnam County Commissioners, No. 18A-PL-462 2018 Ind. App. Unpub. LEXIS 1096 (Ind. Ct. App. Sept. 21, 2018).

Posted September 30, 2018

Plaintiffs On Notice Of Railroad’s Right-of-Way Before Property Purchase. The plaintiffs purchased a home from the defendants in 2013. At the time of the purchase, the plaintiffs were aware of a railway, which was located at the back of the property and was mostly blocked from sight by trees and shrubs. As a part of the purchase contract, the defendants executed a Tennessee Residential Property Condition Disclosure form. Among other things, the defendants represented in the disclosure that there were “no encroachments, easements, or similar items that may affect their ownership in the property.” However, the railroad company possessed a right-of-way related to the railroad at the back of the property. This right-of-way extended 130feet on both sides of the existing railroad track. The existence of the right-of-way as well as the size of the right-of-way was included in the deed to the tracts on both sides of the railroad line. Within the next year, the plaintiffs noticed stakes placed across their backyard by railroad employees. The stakes marked the boundary of the right-of-way and crossed over the edge of the plaintiffs’ pool deck. The stakes were being placed in preparation for the addition of a second line of railroad tracks that were to be added to the existing track. The defendants had become aware of the possible expansion prior to listing the property for sale. The defendants had been informed by their neighbor, a now-retired employee of the railroad company, that the railroad planned to add a second line of tracks behind both of their houses. The neighbor learned this information from a blueprint he was shown by a supervisor of the railroad detailing the planned expansion. He testified that, while he did not know when the expansion would occur, it was virtually certain to occur. The defendants never mentioned the expansion to the plaintiffs. The plaintiffs sued the defendants for intentional misrepresentation, a violation or the Tennessee Residential Property Disclosure Act (TRPDA), and fraudulent concealment. The trial court entered an order in favor of the plaintiffs regarding the fraudulent concealment of the railroad expansion, but dismissed the claims concerning representations under the TRPDA and statements in relation to the right-of-way. The trial court also awarded the plaintiffs $15,000 in damages for the defendants’ fraudulent concealment of the railroad expansion plans. The plaintiffs appealed, claiming that the defendants fraudulently concealed the "encroachment" of the defendants "boundary line" onto the railroad right-of-way. The plaintiffs also claimed that the nondisclosure of the right-of-way on the disclosure form violated the TRPDA. However, the appellate court determined that while the right-of-way did constitute a material fact, the defendants had no duty to disclose it because it was apparent through common observation, and its extent was discoverable through the exercise of ordinary diligence. The plaintiffs testified that they were aware of the railroad adjacent to the back of the property prior to closing, but they made no efforts to discover the boundaries of the right-of-way by looking at prior deeds, conducting a survey, or obtaining a title opinion. Both deeds expressly delineated the size of the easement as 130feet on both sides of the railway, thereby providing notice and imputing the plaintiffs with knowledge of the extent of the easement. Additionally, the appellate court noted that the plaintiffs made the decision to not obtain a survey of the property despite language in the contract advising the buyer to hire a surveyor. Consequently, the plaintiffs were not justified in relying on the disclosure form, as obtaining a survey would have revealed the property boundaries in relation to the right-of-way. Because the plaintiffs could have easily discovered the extent of the right-of-way by either reading the deeds or obtaining a survey, they did not reasonably rely on the disclosure form, as the extent of the easement was discoverable through the exercise of ordinary diligence. In addition, the appellate court affirmed the decision of the trial court that the defendants did fraudulently conceal the railroad’s expansion plans. However, the appellate court also determined that the plaintiffs did not meet their burden of proving damages because they provided no proof of the actual value of the house at the time of the transaction. Thus, the appellate court reversed the $15,000 award on this issue. Dixon v. Chrisco, No. M2018-00132-COA-R3-CV 2018 Tenn. App. LEXIS 527 (Tenn. Ct. App. Sept. 7, 2018).

Posted September 29, 2018

Potential For Unconstitutional Taking On Railroad Abandonment. A railroad formally abandoned its line and a notice of interim trail use was issued pursuant to the rails-to-trails Act in May of 2011. The plaintiffs are all property owners with land adjacent to the abandoned line. Most of the plaintiffs’ claims were resolved before this hearing except for the plaintiffs’ claims of an unconstitutional taking. The deeds for the tracts at issue dated to 1882 when the railroad was first constructed. Based on the deeds, the court found that all the of the deeds except one merely granted the railroad an easement rather than a fee interest because they referred to a “right-of-way.” Thus, the tracts over which the railroad merely held an easement presented a potential takings issue. Butler v. United States, No. 17-667L, 2018 U.S. Claims LEXIS 1163 (Fed. Cl. Sep. 18, 2018).

Posted September 23, 2018

Adverse Possession Requires Much More Than Simply Fencing The Property. The defendant is recorded on the title to property in sections 26 and 27. One plaintiff owns section 29 and the other owns section 30. The issue in the case concerns rough terrain described as a bulge that has breaks that are approximately 10-feet deep. The county road follows the terrain, both of which have been surveyed as located on section 26 and 27. There is a fence on the western edge of the bulge, it has been in place for forty years and it is unknown who built it. The eastern edge of the bulge does not have a fence, so there is no indication where sections 26 and 27 end, or where sections 29 and 30 start. The plaintiff who owns section 30, has owned it since 1971. The plaintiff that owns section 29 was deeded the property in 2010. The owners of sections 29 and 30 sued for title under adverse possession, splitting the 17 acers in bulge on section 26 and 27. The trial court found that there was sufficient evidence and granted the plaintiffs title. The appellate court, however, reversed and denied the plaintiffs title to the property under an adverse possession theory. The appellate court remanded the case to sort out the attorney fees. Texas law requires six elements to prove adverse possession: 1) visible appropriation and possession of the disputed property; 2) open and notorious, 3) peaceable possession; 4) claim made under a claim of right; 5) claim that is adverse and hostile to the claim of the owner; and 6) claim that is consistent and continuous for the duration of the statutory period. The appellate court analyzed each of the actions by the plaintiffs and their predecessors. One of the plaintiffs hung most of his argument on the fence that divided the property. However, the courts require more than fencing to establish adverse possession. The plaintiff never paid taxes; never used the property as collateral; did not exclude others; and did not include the property in the homestead/non-homestead designations. Simply turning cattle out to graze, fixing the fence, and utilizing it for recreation was not enough evidence to support the elements. The appellate court also rejected the other plaintiffs’ claim to adverse possession via tacking on to the deed. State law has long held that the descriptions of the deed are complete and that adverse possession cannot be conveyed to another via deed. The plaintiff’s adverse possession also did not meet the statutory length of time. Thus, appellate court reversed the trial court’s finding for the plaintiffs, leaving title to the property in the defendant. Riddle v. Smith, No. 07-18-00016-CV, 2018 Tex. App. LEXIS 7448, (Tex. Ct. App. Sep. 6, 2018).

Use Need Not Be Intentionally Adverse To Establish Prescriptive Easement. The plaintiffs sued the defendants seeking a declaration "that an express and/or prescriptive easement has been created for the perpetual existence and maintenance of a culvert pipe on the defendants' property"; compensatory and punitive damages for the destruction of the culvert pipe; and "a mandatory injunction ordering the defendants to re-install the culvert pipe and to take all other action necessary to alleviate and eliminate the surface water flooding problem on the plaintiffs' property. The defendants brought a counterclaim seeking compensatory, punitive and statutory damages for crop damage caused by the plaintiffs discharging water onto their property. The matter was tried before a magistrate who held that the existence of a prescriptive easement had been established and that the defendant had interfered with the plaintiffs' use and enjoyment of the prescriptive easement when he intentionally crushed the pipe, interrupting the flow of water through it. The defendants were ordered to immediately repair the pipe and restore the flow of water across the property to Mosquito Creek Reservoir and "be forever enjoined from interfering with Plaintiffs' use and enjoyment of this prescriptive easement. The magistrate also found that the defendants were entitled to compensatory damages in the amount of $5,246.00 for "crop losses" and for "time and equipment to restore their property and remove and replace saturated soil" in addition to statutory damages pursuant to state statutory law. On further review, the trial court reduced the amount of damages due to the defendant to $1,406.00, but otherwise affirmed the magistrate’s decision. The defendants appealed. On appeal the defendants argued that the plaintiffs failed to establish, by clear and convincing evidence, all the elements of an easement by prescription. Specifically, they claimed that the plaintiffs did not establish that their use was under a “claim of right.” The defendants maintained that by first seeking the permission of someone who they incorrectly presumed was the owner of the defendants’ property, the plaintiffs had not installed the pipe under a claim of right. However, the appellate court determined that with respect to the requirement that the use be adverse (or hostile), "it is not necessary to show that there was a heated controversy, or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate. The court noted that the facts which prove hostility might greatly differ in different cases, and that many cases have held that it is sufficient if the use is inconsistent with the rights of the title owner and not subordinate or subservient to them. In this case, it was undisputed that the actual owner of the servient estate never gave permission for the plaintiffs to construct a pipe across their lands. The appellate court also pointed out that with respect to the plaintiffs' mistaken belief that they had been granted permission, the defendants had cited no law for the proposition that the use of the property be intentionally adverse. On the contrary, there is case law to support the magistrate's conclusion on this issue. As such, the decision of the trial court was affirmed. Dahmen v. Black, No. 2018-T-0021 2018 Ohio App. LEXIS 3830 (Ohio Ct. App. Sept. 4, 2018).

Posted September 1, 2018

Fact Questions Remain In Adverse Possession Case. The defendant’s predecessor in interest bought 422.17 acres of land in Wise County, Texas, known as the Ratliff Tract,” in 1962. The Ratliff tract was located on the east side of a county road. At that time the plaintiff’s predecessor in interest owned the “Couch tract” to the west of the country road. She also had record title to an approximately 6.54 acre strip of land running from north to south along the eastern edge of the county road that abutted the Ratliff tract, the disputed property in this case. When the plaintiff’s predecessor in interest died in 1988 each of the plaintiffs became owner of an undivided ½ interest in the Couch tract and, if not already adversely possessed by the defendant at that time, the disputed property. The plaintiffs leased all of their 312 acres of surface estate to various third parties for hunting and grazing. Their unrecorded leases defined the leased premises as the 312 acres of land described in the deed from their predecessor. Around 2008, FPL Energy Producers decided to build a pipeline in the area and sought permission for an easement to locate parts of the pipeline on the Couch tract, Ratliff tract and disputed property. The defendant’s predecessor in interest granted FPL and easement on the disputed property and signed an affidavit of adverse possession claiming ownership of the disputed property, which FPL publicly filed. In 2012, the defendant’s predecessor in interest conveyed the Ratliff tract to the defendant. In 2015, the plaintiffs obtained a survey of the Couch tract and the disputed property and, as a result, asserted ownership over the disputed property based on their record title. The defendant and the defendant’s predecessor in interest filed a joint motion for summary judgment. The trial court granted the motion and the plaintiff appealed. The appellate court determined that the defendant did no more than show that a fact issue existed on all the elements of adverse possession. The appellate court determined that the fact that a gate in the fence on the disputed property was the only entrance to the Ratliff tract from 1962 to 1982 was some evidence of an intent to enclose by a prior owner, and implied that the fence was part of a larger enclosure. However, that evidence was not conclusive proof of a designed enclosure if the predecessors in interest shared the use of the disputed property. In addition, although the defendant’s predecessor in interest claimed that he co-operated the pond on the disputed property, he did not say with whom; he did not build the pond; and he did not state for whom the pond was built. Finally, the appellate court determined that there was no evidence about the frequency of the grazing on the disputed property during the required ten-year and twenty-five-year periods. The appellate court also held that the plaintiffs at least raised a fact issue about the ownership of the disputed property. Additionally, they showed that at some point a fence had separated the disputed property from the Ratliff tract, and that cattle should share the stock pond which straddled the disputed property and the Ratliff tract. Finally, the appellate court determined that the plaintiffs raised a fact issue as to which family, or its tenants, maintained the fence along the eastern edge of the county road, or whether they both did. For these reasons, the appellate court held that the trial court erred by granting summary judgment on the defendant’s claims against the plaintiff because a material issue of fact existed. The appellate court remanded the case. Roberts v. Ratliff, No. 02-18-00125-CV 2018 Tex. App. LEXIS 6296 (Tex. Ct. App. Aug. 9, 2018).

Mineral Owner Need Not Buy Surface Owner's Water Under Accommodation Doctrine. This case involves a water-use dispute between an oil and gas lessee and the surface owner. The plaintiff owns the surface of a 320-acre tract. The surface estate has been severed from the mineral estate, with the minerals being owned by the State of Texas. In October 2009, the plaintiff executed an oil and gas lease on behalf of the State with Eagle Oil & Gas Co. Eagle began its drilling operations, but before completing its first well assigned the lease to Comstock Oil & Gas, L.P., subject to an agreement to indemnify Eagle against claims arising from its operations to that point. Within a few months, the plaintiff and several other plaintiffs sued Eagle for negligently destroying the plaintiff’s irrigation ditch as well as damage resulting from road construction, among other claims. Comstock defended Eagle in the lawsuit and settled a few months later. According to the settlement agreement, Comstock would make repairs to a water well on the plaintiff’s land and purchase 120,000 barrels of water from the plaintiff at a rate of fifty cents per barrel. A plastic-lined “frac pit” was also built on the property to store water produced from the well, although the pit was not a requirement of the settlement agreement. Comstock complied with the agreement and purchased the required amounts of water from the plaintiff at the agreed price. Comstock completed two oil wells on the property that year and began constructing a third well the following year. Before completing the third well, however, Comstock assigned the least to Rosetta Resources Operating, LP, the defendant in this case, who continued construction of the third well and began construction of several more. Unlike Comstock, the defendant did not purchase its water from the plaintiff, choosing instead to pump in water from an adjacent property, a neighbor of the plaintiff. After learning that the defendant was importing his neighbor’s water, the plaintiff filed suit in his individual capacity and as trustee against the defendant for breach of contract, claiming an employee of the defendant had orally agreed to continue the same arrangement the plaintiff had enjoyed with Comstock. He also sought to permanently enjoin the defendant from using his neighbor’s water and sought cancellation of the State’s oil and gas lease. The defendant filed three motions for summary judgment that collectively challenged all of the plaintiff’s claims. In response, the plaintiff filed an amended petition asserting that the defendant had violated the “accommodation doctrine” by not purchasing his water, thus rendering his well and frac pit useless and unnecessarily causing damage to his property. The trial court granted the defendant’s motions for summary judgment in their entirety. The plaintiff appealed. The appellate court determined that the plaintiff’s accommodation doctrine arguments appeared to rest on his proposition that because a frac pit was built on his land for use by the former lessee, it unified the use of the land with the oil and gas operations, and when the defendant chose not buy his water it substantially interfered with his existing use of the land as a source of water for drilling operations. Thus, the substantial interference complained of is that the frac pit is no longer profitable because the defendant is not using it to supply water for its operations. The appellate court held that categorizing a refusal to buy goods produced from the land as interference with the land for purposes of the accommodation doctrine would stretch the doctrine beyond recognition. Therefore, because the defendant’s use does not impair the plaintiff’s existing surface use in any way, except in the sense that not buying the water has precluded the plaintiff from realizing potential revenue from selling its water to the defendant, the inconvenience to the surface estate was not evidence that the owner had no reasonable alternative to maintain the existing use. Lastly, the court determined that if it were to hold for the plaintiff on these facts they would, in effect, be holding that all mineral lessees must use and purchase water from the surface owner under the accommodation doctrine if the water is available for use. Accordingly, the appellate court affirmed. Harrison v. Rosetta Res. Operating, LP, No. 08-15-00318-CV 2018 Tex. App. LEXIS 6208 (Tex Ct. App. Aug. 8, 2018).

Posted August 29, 2018

Grazing Of Cattle Insufficient To Establish Adverse Possession. The defendant owns a 17-acre tract that abutted the east side of a county road. The tract consisted of rough terrain with breaks ranging from 10 to 12 feet deep. On a map, the tract appeared as a “bulge” that followed the contour of the road as it curved around the breaks. A prior survey placed the tract into section 26 & 27. Separating the road from the western edge of the tract is a multi-stranded barbed-wire fence containing two gates. No one testified as to the exact date on which the fence was built or who built it. However, evidence indicated that it had been in existence for over 40 years. The same fence also separated the disputed parcel from those portions of sections 26 and 27 found west of the road fence. One of the plaintiffs, owner of section 30, acquired the section from a relative in 1971. The owner of section 29, also a plaintiff bought section 29 in 2010. Before that acquisition Sections 29 and 30 had no fence or like structure depicting the northern and southern borders of Sections 29 and 30. A fence, though, was built demarcating the boundary soon after the plaintiff bought the property, and the builder connected the western end of the dividing fence to the road fence. Thus, connecting the dividing and road fences effectively dissected the disputed parcel between a portion north of the dividing fence and a portion south of the dividing fence. Yet, there remained no fence that divided the eastern edge of the disputed parcels from Sections 29 and 30. In addition to the dividing fence, the owner of Section 29 also built or installed structures onto the disputed property, or at least upon the part south of the dividing fence. Those structures were cattle pens and a milk truck or like vehicle capable of being used for storage. Both structures were visible from CR 103, and both were used for the purpose of maintaining a cattle operation upon both section 29 and the disputed land. The owner of Section 29 grazed cattle on Section 29 and the portion of the bulge abutting it. When it came time to sell the livestock, they were moved onto the bulge and into the pens. The cattle would then be moved from the pens through a gate maintained within the southern portion of the road fence and onto a trailer. When not in use, the gate would be locked, thereby preventing others from entering the land without the permission of the owner of Section 29. Unlike the owner of Section 29, the owner of Section 30 did not place structures on the northern part of the disputed land abutting Section 30. He did utilize the parcel, however, by allowing cattle to graze on it on a seasonal basis. He and other family members also rode horses and/or motorcycles upon both tracts, hunted on them, and used them as a means of accessing Section 30 in general via a second gate built into the road fence north of the dividing fence. Both plaintiffs also repaired the road fence when needed. Controversy over the ownership of the disputed property arose when the defendant bought the land and drove heavy equipment through the road fence. The plaintiffs sued to establish title to the property via adverse possession. The trial court ruled in favor of the plaintiffs and the defendant appealed. The appellate court held that while the owner of Section 30 had longstanding ties to the land, he did not erect the fence separating the disputed parcel from the county road. Rather, it was there when he acquired Section 30. The appellate court also pointed out that the owner of Section 30 payed no property taxes on the property at issue. He did not include it within the scope of land tendered as collateral for loans, and did not include it in either his homestead or non-homestead designation. He simply allowed cattle to graze upon it occasionally, and sometimes used it for recreational purposes. He also occasionally mended the surrounding fence. Consequently, the appellate court determined that these activities did not rise to the level that could amount to adverse possession. In addition, the appellate court determined that the owner of Section 29 assumed ownership via a deed describing the land by metes and bounds that omitted the disputed land. Thus, the land he owned and lawfully possessed was confined to the metes and bounds description that demarcated property only within Section 29. Moreover, the owner’s own use of the disputed land was not for a time-period long enough to satisfy the 10-year limitations statute, as acknowledged at trial. As such, the appellate court reversed the trial court and denied the plaintiffs’ recovery against the defendant and an ownership interest in the disputed parcel. Riddle, et al. v. Smith, No. 07-18-00016-CV 2018 Tex. App. LEXIS 6052 (Tex. Ct. App. Aug. 2, 208).

Posted August 26, 2018

Right of First Refusal Did Not Violate Rule Against Perpetuities. The plaintiff bought some real estate from a married couple in 1986. The purchase contract contained a right of refusal stating that if the defendants offered to sell the land adjoining the land the plaintiffs purchased, the plaintiff would be offered a right to buy the land at a price and on terms that the parties mutually agreed upon. The adjoining land contained the couple’s home. The right of refusal was to lapse if the parties could not agree on purchase terms. The purchase contract was also “binding upon the heirs, legal representatives, and assigns of the parties hereto.” The husband-seller died in 2013 and his surviving wife sought to sell the adjoining tract later that same year. As a result, her lawyer sent a letter to the plaintiff offering to sell it to him for $289,000. The plaintiff did not respond to the offer, and the surviving wife listed the tract with a real estate company for $295,000. The plaintiff did not make an offer on the property. The tract did not sell and was taken off of the market. The surviving wife then sold 64 of the 73 acres of the adjoining tract (not including the house) to her daughter and a third party for $91,125. Upon learning of the sale, the plaintiff sued to enforce the right of refusal and to have the property transferred to himself. The surviving wife, her daughter and the third party motioned for summary judgment. The trial court determined that the right of refusal violated the rule against perpetuities, but did not violated the Statute of Frauds because the adjoining tract could be identified. On appeal, the court reversed on the perpetuities issue, finding that the right of refusal was personal right to the plaintiff that expired on his death. In addition, the court determined that the contract language making the contract binding on the “heirs, legal representatives and assigns” made the contract binding on the seller’s heirs, legal representatives and assigns as long as the plaintiff was living. In addition, the right of refusal was not voided by the plaintiff’s failure to act on the surviving wife’s first offer of the property to the plaintiff. There had not yet been an offer from anyone else for the property at the time it was offered to the plaintiff. Thus, the right of refusal had not been triggered. However, the appellate court upheld the trial court’s determination that the contract satisfied the Statute of Frauds. The contract was in writing, the material terms were stated with reasonable certainty and the adjoining tract could be identified. The court denied the summary judgement motion. On further review, the Kansas Supreme Court affirmed, but held that the appellate court was correct for the wrong reason. The Supreme Court noted that the right of first refusal was fulfilled after the plaintiff failed to respond to the offer to sell him the full tract subject to the contract. As a result, the Supreme Court, while affirming the appellate court, remanded the case to the trial court for a determination of whether the parties discharged their implied duty of good faith and fair dealing at the time the offer was presented. The answer to that question, the Supreme Court noted, will answer the question of whether the right of first refusal lapsed upon the plaintiff’s failure to respond. Trear v. Chamberlain, et al., 53, Kan. App.2d 385, 388 P.3d 607 (2017), aff’d., No. 115,819 (Kan. Sup. Ct. Aug. 24, 2018).

Posted August 5, 2018

Farm Foreclosure Allowed. The defendants took out six loans from the plaintiff from 2004 to 2014. One loan was in the name of the defendants’ farm corporation, two loans were in the name of the farm president and treasurer/secretary, and their son who was actively farming had the other three notes. By July 15th, 2016 all the notes were in default, with the outstanding balance exceeding $1.5 million. The plaintiffs sent notice to cure, but no payments were made. The parties then participated in mandatory mediation. The plaintiff then sent a demand letter seeking payment of the accelerated balances on the notes. Later, the plaintiff moved for replevin and the trial court granted the motion, with the replevin bond exceeding $2.5 million. The plaintiff then sought foreclosure, the plaintiff sought to be appointed receiver and the court agreed. The court also granted the plaintiff’s summary judgment motion on foreclosure. On appeal, the appellate court affirmed. The appellate court determined that the plaintiff’s appointment as receiver would benefit both parties by increasing the value of the land and productivity to help the defendants repay the loans. Continuance was not appropriate because there weren’t any weather-related issues that would support continuance. The appellate court also agreed with the trial court that a right to cure cannot simply turn on a promise of future repayment, but must involve conduct that actually involves repayment. Sibley State Bank v. Braaksma, No. 17-1021, 2018 Iowa App. LEXIS 661 (Iowa Ct. App. July 18, 2018).

Right-of-Way Deed Limits Scope of Easement To Usage. Three landowners all owned land that was burdened by a utility easement right-of-way, dating back to 1949. These deeds stated: ”[A]n easement or right-of-way [is granted to Southwestern Gas & Electric Company] for an electric transmission and distributing line, consisting of variable numbers of wires, and all necessary or desirable appurtenances (including towers or poles made of wood, metal or other materials, telephone and telegraph wires, props and guys), at or near the location and along the general course now located and staked out by the said Company over, across and upon the following described lands . . . .Together with the right of ingress and egress over my (our) adjacent lands to or from said right-of-way for the purpose of constructing, reconstructing, inspecting, patrolling, hanging new wires on, maintaining and removing said line and appurtenances . . .”. There was no legal description in the conveyancing documents and none specified a width. Since, 1949 the utility company used the easement continually to construct, service and maintain electric transmission lines along the general path on which the lines were originally constructed in 1949. In 2014, the electric company sent letters to the landowners offering to pay each of the landowners $1,000 to adjust the easements to an established 100 feet - 50 feet on each side of the existing power lines so that they could install new power poles and lines. The landowners rejected the proposal, but the company entered the properties and installed new lines based on their claim that they could do so pursuant to the 1949 deeds. In doing so, the company stayed within the 30 feet that the company’s line had always used. The landowners sued seeking a declaratory judgment that the company’s easement was limited to a 30-foot width based on the company’s historic usage and was not a blanket easement that allowed the company unfettered access to their properties. The company claimed that the 1949 deeds granted a general easement unlimited in width. The trial court ruled for the landowners and limited the easement to 30-feet, consistent with prior usage. On further review, the appellate court affirmed. The appellate court agreed that a justiciable controversy existed because the company was asserting a blanket easement which could lead to the company filing a trespass claim against any of the landowners at any time, and that, as a result, the 1949 deeds effectively denied them the full use of their property. As to the scope of the easement, the appellate court noted that the 1949 deeds created a general easement that entitled the company to use as much of the landowners’ respective tracts as reasonably necessary “while being as little of a burden as possible.” Based on the evidence, the appellate court agreed with the trial court that the scope of the easement was 30-feet. Thus, the appellate court determined that under a general easement, once the location of the easement is “selected by the grantee,” the grantee’s rights then become fixed and certain. Southwest Electric Power Co. v. Lynch, No. 06-17-00067-CV, 2018 Tex. App. LEXIS 4198 (Tex. Ct. App. June 12, 2018).

Posted July 28, 2018

Sale of Property Extinguishes Former Landowner’s Rights Under Oil/Gas Agreement. The plaintiff executed an agreement with a third party for a pipeline across a tract to oil wells on the property. Eighty days later the plaintiff sold the surface rights to the third party. The defendant is a gas processing company and was retained by the third party. About a year after the sale of the property, the plaintiff contacted the defendant claiming breach of a clause in the agreement addendum. The defendant released the easement back to the third party, the grantor. The plaintiff sued to enforce the "charges to the flow of gas" clause in the addendum to the right of way agreement. The defendant raised the affirmative defense that the plaintiff lacked standing, as they were no longer owners. Furthermore, the answer also pointed out that the defendant was not responsible for the reduction in royalties as they were merely a contractor of the third party who actually paid the royalties. The defendant also claimed that the plaintiff misinterpreted the clause, and the agreement had been released. The trial court granted summary judgment to the defendant, and the plaintiff appealed. On appeal, the appellate court affirmed. The plaintiff claimed two errors, stating that the trial court did not interpret the effect of the sale and the effect of release correctly. The appellate court found that the sale of the property to the third party extinguished any rights as a landowner and, thus, made moot the second claim of error. Hills & Hollers, LLC v. Ohio Gathering Co., LLC, No BE 0040, 2018 Ohio App. LEXIS 3048 (Ohio Ct. App. Jul. 2, 2018).

Bank Properly Appointed Receiver in Foreclosure Action. The plaintiff loaned the defendants money from 2004 to 2014 via six promissory notes. The notes and obligations were secured by real estate mortgages encumbering more than half of the defendants’ total acreage. In early 2016, the defendants missed payments on their notes and by the end of 2016 all of the notes were in default. The plaintiff proceeded with a foreclosure action and asked to be appointed as the receiver under the terms of the defendants’ mortgages. The trial court did appoint the plaintiff as receiver. The plaintiff then filed a motion for summary judgment in the foreclosure action. The defendants filed a resistance to the motion, as well as a motion to continue under Iowa Code Section 654.15. The trial court denied the defendants’ motion to continue and granted the plaintiff’s motion for summary judgment. On appeal, the defendants claimed that the trial court should not have appointed the plaintiff as receiver because the mortgage did not contractually require the appointment of a receiver. The appellate court agreed with the defendants that the use of the term “may” in the mortgage signaled that the defendants did not consent to the appointment of a receiver. However, the appellate court also pointed out that Iowa Code section 680.1 authorized a district court to appoint a receiver where “the party show that it has a probable right or interest, in any such property…and that such property, or its rents or profits, are in danger of being lost or materially injured or impaired…”. The plaintiff pointed out that the previous fall it was forced to hire a custom cutter to harvest the defendants’ corn even though the family possessed machinery and could have timely harvested the crop. The plaintiff claimed that the defendants’ refusal to harvest the 2016 corn crop was sufficient evidence to support a finding of probable injury or impairment to the rents and profits of the land under section 680.1. The appellate court agreed and held that the trial court properly appointed the plaintiff as receiver so it could oversee the harvest and protect its profits in foreclosure to reduce the outstanding obligations of the defendants. The defendants also claimed that the trial court abused its discretion in denying their motion to continue under Iowa Code section 654.15 which provides: “the owner may apply for a continuance of the foreclosure action if the default is mainly due or brought about by reason of drought, flood, heat, hail, storm, or other climatic conditions”. The defendants asserted that a “very wet, nasty spring” of 2016 prevented timely planting, and was the root of their financial turmoil. However, the court pointed out that they owed several large amounts before the wet spring occurred that would have had an impact on their ability to satisfy the obligations. Thus, default did not result from adverse weather conditions. The defendants also claimed that the trial court erred in granting the plaintiff’s motion for summary judgment because under Iowa Code section 654.2A(1) and (4) the borrower “may cure the default… by tendering any performance necessary to cure a default other than nonpayment of amounts due…”. The defendants argued that by informing the bank of a future payment at a future date they satisfied the performance requirement of section 654.2A(4)(b). However, the court agreed with the plaintiff that it would be unreasonable to interpret the right-to-cure statute as allowing a debtor to cure a default by the promise of a future payment. Consequently, the appellate court affirmed the trial court. Sibley State Bank v. Braaksma, No. 17-1021 2018, Iowa App. LEXIS 661 (Iowa Ct. App. Jul. 18, 2018).

Posted July 7, 2018

USFS Obtains Easement For Trail. In 2011 the U.S. Forest Service (USFS) filed a statement of interest for an trail easement. The plaintiffs claimed exclusive control, and the USFS then filed a counterclaim for a public prescriptive easement. The trial court found in favor of the USFs and granted the easement. The plaintiffs appealed. The appellate court affirmed. On appeal, the plaintiffs claimed that the USFS’ use was not open and notorious. However, there was evidence of the use of the trail back to the 1950’s in the plaintiff ranch records and the marking of it on the USFS maps. The plaintiffs also claimed that a prescriptive easement did not exist because the use by the USFS was permissive. However, the appellate court noted that “neighborly permission” was less than permissive use, and the USFS usage of the trail had exceeded the mere “neighborly permission” for a long period of time. The plaintiffs also claimed that even if there is a perspective easement, the USFS attempt to purchase the easement extinguished the claim. However, the USFS policy to “get it in writing,” even for existing easements, was enough for the court to disregard this argument. Finally, the plaintiffs claimed that the Federal Land Policy and Management Act (FLPMA) barred the defendants from gaining easements. However, the easement in question predated the FLPMA. Wonder Ranch, LLC v. United States, No. 16-36071, 2018 U.S. App. LEXIS 17794 (9th Cir. Jun. 28, 2018).

Posted June 24, 2018

Portions of Conservation District Land Taxable. The plaintiff, a conservation district, bought irrigation crop land and converted it back in to native pasture land in an attempt to conserve soil. After the conversion, the property was leased for grazing with the plaintiff remaining liable for any taxes. However, the plaintiff claimed that the property was exempt from tax because the plaintiff was a public entity. The county assessed property tax and the plaintiff challenged the assessment with the defendant Board of Equalization (BOE). The defendant found that the land was not exempt from taxation, and the plaintiff appealed to the Tax Equalization and Review Commission (TERC). The TERC vacated the BOE’s decision at the initial hearing and held a subsequent hearing which included the lessee. The TERC divided the land in to three areas, the improved ground, the unimproved ground, and the “Wilder parcels.” The TERC determined that the rent for the property was set at fair market values for public ground. The TERC then decided that the “Wilder parcel” and the unimproved ground were exempt for their public use, but that the improved property was not exempt. While the tax had been assessed to the plaintiff, state (NE) law barred the plaintiff from assuming a private party’s tax liability via the rent payment. Thus, the TERC determined that the tax liability on the non-exempt property should be assed to the lessee rather than the plaintiff. On further review, the plaintiff claimed that none of the property had an exempt public use and that the leases were fair market value. Both the plaintiff and the defendant (BOE) claimed that the TERC could not assess the taxes to the lessees. The state Supreme Court affirmed the TERC’s finding that portions of the property were for public use and were exempt from tax. The Court vacated parts of the TERC’s decision about the public use. Thus, the Court reversed and remanded with direction to assess taxes for the non-exempt property to the plaintiff, not to the lessees. The Court looked to the predominate purpose of the property. Though the plaintiff was leasing the land to a private user, the purpose of the plaintiff is conservation. The leases are a tool to carry out such objectives. The Court did agree that not all the property met this standard of conservation. The portions of the property that were being used for profit generation rather than conservation should not be exempt. As for the assignment of the tax liability, the Court found that the TERC did not have the authority to assign the taxes like they did. The Court affirmed that portions were exempt, but remanded with instructions the assignment of the taxes. Upper Republican Nat. Res. Dist. v. Dundy Cnty. Bd. of Equalization, 300 Neb. 256 (2018).

Posted June 21, 2018

Restrictive Covenant Involves Horse Activity on Premises. The defendants bought a tract of land at auction. The property contained a restrictive covenant stating that the property must have a dwelling. The covenant also provided that stock barns were permitted if they were at the back of the property. The covenants also permit only horses to be on the property. The defendants built a “run in shed,” a 36x50 building for shelter and storing feed and equipment. The plaintiffs then moved to enjoin the defendants from building and operating a commercial horse operation on the property. The court advised the defendants not to build any more but there was no injunction ordered. The defendants then asked for permission to add on to the run-in shed since a barn on another property was destroyed in a fire. The trial court denied the request. The plaintiffs amended their petition and the defendants answered. A hearing was held, and it was decided that the defendants could add a 10x10 feed room to the existing structure. The order also required the defendants to file current and future uses of the property. Following this order, the plaintiffs moved to have the court visit the property, which was granted. The trial court heard arguments on two issues. One issue concerned permissible activities on the property, and the other issue involved what constituted the “front” of the property. The trial court concluded that the covenants did not allow for commercial horse activities. Also, that the front of property faced north towards the easement. Thus, the defendants were enjoined from a commercial horse operation, and from building any other barns without building a residence first. The defendants appealed. Before the appeal hearing, the plaintiffs moved to resolve if the run-in shed should be moved. The court issued an order that the shed did not need to be moved, but when a residence was built, the covenants are to be followed. The appellate court reversed the commercial horse operation injunction but, affirmed the on the other issue. The appellate court determined that there was no explicit restriction on horse operations, like there was for other commercial animal operations. However, the requirement that a residential dwelling be constructed before other buildings was affirmed. As for the “front” of the property, the court of appeals, determined that the covenants did not contain any direction to what constituted the front of the property. The appellate court concluded that the only logical front of the property was that facing the easement. Consequently, the appellate court reversed the injunction on operating a commercial horse operation, but affirmed the orders that a dwelling must be built before any more barns could be constructed and that the dwelling must be close to the road easement. Homeowners of Ash Grove Estates v. Hurley, No. M2016-02008-COA-R3-CV (Tenn. Ct. App. Jun. 6, 2018).

Posted June 9, 2018

Conservation Easement Restriction On Subdivision Upheld. The parties are tenant-in-common owners of certain land in Ohio. The 76-acre tract was encumbered by a conservation easement. The plaintiff sought an appraisal and partition of the property. The plaintiff alleged that a partition was necessary because the conservation easement barred the property from being subdivided. The defendant moved for summary judgment arguing that the conservation easement’s restriction on subdivision was an invalid and unreasonable restraint on alienation under Ohio law because it did not contain a reasonable temporal limitation. The trial court, relying on Raisch v. Schuster, 47 Ohio.App.2d 98 (Ohio Ct. App. 1975), granted partial summary judgment after concluding that “perpetual restrictions on partition are unenforceable.” Therefore, the court reasoned that the subdivision restriction was invalid. The plaintiff appealed. However, the appellate court in this case determined that Raisch had limited applicability to the present case because it was decided before the adoption of Ohio’s conservation easement statutes. The court noted that the conservation easement was expressly granted and conveyed “pursuant to the laws of Ohio and, in particular, Section 5301.07 through 5301.70 of the Ohio Revised Code.” In addition, the appellate court determined that the Legislature enacted those provisions for the public purpose of “retaining land, water, or wetland areas predominantly in their natural, scenic, open, or wooded condition.” Thus, the appellate court held that the agreement restricting subdividing the property would not be contrary to public policy or inconsistent with the public policy expressed in the legislation. Moreover, the appellate court noted that the subdivision restriction did not amount to an undue restraint on alienability because the subdivision restriction merely prohibited the owner from dividing the parcel into two or more parcels. As a result, the court held that the trial court erred by relying on Raisch and finding that the subdivision restriction of the conservation easement was invalid. Accordingly, the trial court’s decision was reversed and the case remanded. Taylor v. Taylor, No. CA2017-05-061, CA2017-05-1709, 2018 Ohio App. LEXIS 1705 (Ohio Ct. App. Apr. 23, 2018).

Posted April 17, 2018

Change Of Property Use Did Not Cause Easement Abandonment. The defendant owned property immediately south of the Iron Bridge Road in Clark County, Illinois. The plaintiff’s property was located directly south of the defendant’s property. The plaintiff’s owners and employees accessed the property via a grassy lane running down the east side of the defendant’s property linking their property with Iron Bridge Road. The plaintiff’s predecessor in title owned the property for decades. The family’s grandson frequently visited the property, which he accessed by a Jeep or other vehicle via the grassy land on the defendant’s property. However, the grassy lane was primarily utilized by farmers to regularly access the properties for farming and for transporting heavy farm machinery. The plaintiff’s family also occasionally engaged in clay shooting on the property. In 1988 the family’s grandfather passed away but the grandson continued to visit the property two or three times per year, accessing the property by motorcycle, Jeep, or all-terrain vehicle via the grassy lane on the defendant’s property. There was no recorded easement with respect to the grassy lane. In May 2011, the plaintiff’s predecessors conveyed a warranty easement deed in perpetuity to the United States of America to place the property in the Wetlands Reserve Program, at which time all farming operations on the property ceased. The family’s grandson continued to visit the property two or three times per year via the grassy lane with his last visit occurring just before finalizing the sale of the property to the plaintiff. The plaintiff purchased the property in 2012 for the purpose of creating a private hunting area. Plaintiff’s employees accessed the property weekly via the grassy land until October 2012, when plaintiff’s manager attempted to enter the grassy lane on the defendant’s property, only to find the entrance blocked by a locked gate. The defendants asserted that the plaintiff had no right to use the grassy land and should find an alternative access road. In June 2013, the plaintiff filed a complaint for declaratory judgment seeking a prescriptive easement over the grassy lane. The trial court granted the prescriptive easement. The defendant appealed. On appeal, the defendant asserted that because the property could no longer be used for farming due to its placement in the Wetlands Reserve Program, plaintiff’s attempt to use the easement to access the land for hunting purposes changed the original use of the easement. The defendant cited multiple cases allegedly supporting its position. However, the appellate court determined that in all of the cited cases, the plaintiff’s sought changes or increases to the easement which was not at issue in the present case. In fact, the court pointed out that the hunting equipment consisted of Jeeps, all-terrain vehicles, and the like, all of which are far less substantial and burdensome to the defendant’s property than farm machinery. The defendant also argued that the plaintiff’s predecessor in title abandoned the easement in May 2011 by conveying an easement deed to the United States for the cultivation of a wetland reserve that prohibited future farming on the property. However, the court determined that although the predecessor’s deeded the use of the property to the United States for purposes of creating a wetland reserve, the record was devoid of evidence of a formal attempt to abandon the easement. In addition, the predecessor continued to use the easement the same way he had before granting the easement to the United States which further bolstered the point that the easement had not been abandoned. Consequently, the appellate court affirmed the trial court’s decision granting the prescriptive easement. H & R Prop. Serv., L.L.C. v. Conine, No. 4-17-0602, 2018 IL App. Unpub. LEXIS 410 (Ill. Ct. App. Mar. 14, 2018).

Posted April 6, 2018

Owned or Leased Ag Equipment Exempt From Property Tax. The Louisiana Attorney General has determined that a business that leases agricultural equipment may claim a property tax exemption on that equipment, if the statutory requirements of the exemption are satisfied. The statute, La. Rev. Stat. Ann. §47:1707 does not require that the equipment be owned or leased, only that it be agricultural machinery or equipment that is used exclusively for agricultural purposes. If those requirements are satisfied, the machinery or equipment are exempt from property tax in accordance with the state constitution, Art. VII, Sec. 21C(11). La. A.G. Op. No. 18-0001 (Mar. 28, 2018).

Posted April 2, 2018

Tract Satisfied Agricultural Use Classification Requirements. The plaintiffs bought a tract of land in 2003 that was classified as residential for property tax purposes. The property maintained that classification until 2012, when the county assessor changed the classification to agricultural and agricultural forest based upon pine trees, apple trees, and hay that the plaintiffs had planted on the property. In 2016, however, the assessor reclassified the property as residential after concluding that it failed to qualify for the agricultural and agricultural forest classifications. If the property had remained classified as agricultural and agricultural forest, it would have been valued at $17,100, whereas it was valued at $886,000 when reclassified as residential. This reclassification resulted in a significant difference in the property tax owed. The plaintiffs objected to the 2016 property tax assessment, challenging the reclassification of the property to residential. The Board of Review held an evidentiary hearing where it heard testimony and received exhibits. Two members of the Board voted to sustain the reclassification and related tax assessment and two members voted not to sustain. Because the vote was tied, the assessor’s reclassification of the property and the assessment were sustained. The plaintiffs sought certiorari review and the trial court upheld the Board’s decision. The plaintiffs appealed. The appellate court determined that Wisconsin law specified that land devoted primarily to agricultural use is to be classified as agricultural land. In addition, the appellate court determined that “agricultural use” is defined by the Wisconsin Department of Revenue and includes growing of short rotation woody crops, including poplars and willows, using agronomic practices. Thus, the appellate court determined that the plain language of state law refers to growing the relevant crop in this case—apples, hay and Christmas trees. The appellate court reviewed the assessor’s testimony and determined that it was clear that the assessor equated agricultural use with growing crops for a business purpose. However, the appellate court held that according to state law, land be classified as “agricultural” if the land is devoted primarily to growing qualifying crops whether or not those crops are grown for a business purpose. Thus, the court determined that the assessor’s reclassification of the land from “agricultural” to “residential” was based upon an erroneous understanding of the law, specifically an erroneous belief that the plaintiff’s land could not be classified as agricultural unless the crops were being grown for a business purpose. In addition, the court reviewed the transcript of the Board deliberations. From this review, the court determined that the Board erred in sustaining the change based upon a misunderstanding of the law similar to the assessor’s. Consequently, the court remanded the case to the Board to assess the property anew in light of this decision. State ex. rel. Peter Ogden Family Trust. v. Board. of Review, No. 2017AP516, 2018 Wisc. App. LEXIS 288 (Wisc. Ct. App. Mar. 7, 2018).

Posted March 26, 2018

Affidavit Preserving Minerals Sufficient Notice Under Dormant Minerals Act. This case involves oil and gas rights underlying two parcels of land in Harrison County, Ohio. The first parcel is part of section 16 and is comprised of 111.397 acres. The second parcel is part of section 22 and is comprised of 5.61 acres. Before 1960, the Pittsburg Consolidation Coal Company owned the surface of section 16 and the surface plus a 1/3 interest in the oil and gas under section 22. The remaining oil and gas was subject to three different deeds. The first deed (Porter Deed) conveyed a 1/3 interest in section 16 and section 22 property reserving all oil and gas under the conveyed property. The second deed (Croskey Deed) also conveyed a 1/3 interest in section 16 and section 22 property reserving all oil and gas under the conveyed property. The third deed (Corbley Deed) conveyed a 1/3 interest in the section 16 property reserving all oil and gas under the conveyed property. In 1962, Pittsburg’s successor-in-interest, Consolidation Coal Company, sold the surface of section 16 and section 22 to Edward Seleski reserving all the oil and gas rights it had, which was 1/3 interest in the oil and gas under section 22. In 2001, after Seleski’s death, Consolidation conveyed its 1/3 interest in the oil and gas under section 22 to the Seleski Estate. Seleski subsequently conveyed the section 16 and section 22 property to Wilt (Wilt Deed). In December 2001, Seleski conveyed its 1/3 interest in the oil and gas under section 22 to Lower Valley Farm, LLC, the plaintiff in this case. In 2010 Croskey, the defendant in this case filed an “Affidavit Preserving Minerals” to preserve the oil and gas rights underlying section 16 property and section 22 property on his behalf as well as on behalf of the other Croskey defendants. Subsequently, in 2014, the plaintiff filed a complaint against the defendant and 41 other defendants seeking declaratory judgment and to quiet title to certain oil and gas rights underlying property in Harrison County in its name by virtue of the 1989 Ohio Dormant Minerals Act (ODMA). The defendants filed a counterclaim claiming title to the severed mineral interest as successors to the original mineral interest holders. The parties filed competing motions for summary judgment. The trial court granted the plaintiff’s summary judgment motion in part and denied the defendants’ summary judgment motion. The trial court also found that the 1989 ODMA applied to this case. The defendants appealed. The defendants asserted that the trial court's judgment that Seleski owned all of the oil and gas rights at the time of his death must be reversed in light of the Ohio Supreme Court's holding in Corban v. Chesapeake Expl., L.L.C., 149 Ohio St.3d 512, 76 N.E.3d 1089 (Ohio Sup Ct. 2016). They claimed that under Corban, all of the oil and gas underlying the Section 16 Real Estate and 2/3 of the oil and gas underlying the Section 22 Real Estate was owned by them. In Corban, the Ohio Supreme Court held that the 1989 ODMA was not self-executing and did not automatically transfer a mineral rights interest from the mineral rights holder to the surface owner by operation of law. Instead, a surface owner seeking to merge those rights with the surface estate under the 1989 ODMA was required to commence a quiet title action seeking a decree that the dormant mineral interest was deemed abandoned. However, the 2006 ODMA provides that as of June 30, 2006, any surface holder seeking to claim dormant mineral rights and merge them with the surface estate is required to follow the statutory notice and recording procedures enacted in 2006. The Ohio Supreme Court held that the case must be reversed because the 2006 ODMA applied. In addition, the court held that a remand was not necessary because the defendant’s 2010 affidavit preserved their interests pursuant to the 2006 ODMA. Consequently, the court affirmed the trial court's judgment only insofar as it held that the plaintiff owned only a 1/3 interest in the oil and gas underlying the Section 22 Property. The remainder of the trial court's judgment was reversed and summary judgment was entered in favor of the defendants. Lower Valley Farm, LLC. v. Croskey, No. 16 HA 0010, 2018 Ohio App. LEXIS 851 (Ohio Ct. App. Mar. 6, 2018).

Posted March 19, 2018

Drainage Across Downhill Property Into River Forms Prescriptive Easement. In 2011, the plaintiff county sought declaratory relief to prevent flooding on the Lemhi County Backroad. The Backroad runs generally north-to-south, dividing two ranches - the Skinner Ranch (uphill property) and the Hartvigson Ranch (downhill property). The downhill property spans approximately 200 acres and is situated on the Lemhi Valley floor near the Lemhi River. Most of the downhill property is on the west side of the Backroad, but a small portion extends into a steep draw on the east side (the "Hartvigson Draw"). The water flowing through the draw runs under the Lemhi County Backroad through one of two culverts, across the downhill property, and into a draw that feeds into the Lemhi River. The uphill property is on higher ground on the east side of the Backroad. The uphill property has three drainages, one of which feeds into the Hartvigson draw. In its declaratory judgment action, the plaintiff claimed that in November 2010, the downhill property obstructed the flow of water from the Hartvigson Draw through the culverts, which caused flooding along that area of the Backroad. The plaintiff noted in its complaint that the failure to allow the water to pass unobstructed was based at least in part on the allegation that the uphill property sent too much water down the draw, which caused damage to the downhill property. The trial court entered a judgment that the downhill property allow drainage of natural surface water in the amount of 3.25 cubic feet per second (CFS) through the culverts and across its lands. However, that judgment left unresolved how much water, if any, the uphill property could legally send down the Hartvigson Draw. After a three-day bench trial, the court found that the channel through the basin, down the Hartvigson Draw, across the downhill property, and eventually into the Lemhi River was a natural waterway. Additionally, the trial court found that this water flow met the requirements for the uphill property to establish a prescriptive easement. The court entered a judgment permitting the uphill property to send water in the amount of 3.25 CFS down the basin drainage that flowed through the Hartvigson Draw under both an easement and natural servitude theory. The downhill property owners (appellants) timely appealed. They claimed that the court erred in its prescriptive easement determination on two fronts: (1) the uphill property's water use was not adverse to them; and (2) the plaintiff failed to prove the scope of the easement. They claimed that the use was not adverse because they had a wastewater right for water out of the Hartvigson draw. However, the state Supreme Court determined that the trial court’s factual findings established that the uphill landowners had been sending water down the draw for decades, before and after the established wastewater right. Thus, the Court held that the practice of the uphill landowners of sending water down the draw was under a claim of right and adverse to the downhill property owners. In addition, downhill owners claimed that no witness at trial could testify as to the exact amount of water that had regularly been sent down the Hartvigson Draw, and absent that testimony the trial court lacked clear and convincing evidence to support an easement for 3.25 CFS. However, the Court pointed to testimony by the owner of uphill property that the approximate quantity sent down the draw was between 3 and 3.5 CFS. Thus, the Court held that the trial court did not err in limiting the easement to 3.24 CFS. Finally, the Court held that the trial court’s judgment was not sufficiently clear with respect to the location of the drainage. Therefore, court remanded the case to the district court in order to clear up the judgment with regards to the location of the drainage. Lemhi County v. Moulton, No. 24 2018 Ida. LEXIS 60 (Idaho Sup Ct. Mar. 13, 2018).

Posted March 6, 2018

Public Trust Doctrine Allows Lake Access But Not Pier Installation. The Sailor Creek Flowage is a 201-acre man-made lake located near the town of Fifield in Price County, Wisconsin. The defendants own a portion of the waterbed of the flowage that is subject to the Hussman flowage easement. This portion of the waterbed owned by the defendants is where the plaintiffs’ property meets the water. The trial court determined that the plaintiffs have a right to install a pier and to access the Sailor Creek Flowage directly from their shoreline. The defendants appealed. The appellate court affirmed the trial court’s decision and the defendants again appealed. The Wisconsin Supreme Court determined however, that the original conveyance given by Margaret Hussman did not convey an ownership interest in the land. Rather it conveyed a type of easement to permit water to flow on the land. Thus, when the plaintiffs took title to their land, the legal description on their deed made no reference to riparian rights. As such the Court concluded that the plaintiffs failed to establish that they were entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water where the lakebed is held in trust by the state or that the public trust doctrine creates an exception to the defendant’s property rights in the waterbed that is sufficient for the placement of a pier on their property. Therefore, the Court held that the defendants may prevent the plaintiffs from installing a pier onto or over their property without permission. In addition, the Court concluded that the public trust doctrine conveys no property rights, regardless of the presence of navigable water. Thus, while the public trust doctrine provides the plaintiffs a right to use the flowage waters for recreational purposes, that right is held in trust equally and for all. The plaintiffs claimed that the public trust doctrine combined with the shoreline location of their property allowed them to access and exit the flowage waters directly from their abutting property. The court concluded that as long as long as the plaintiffs are using the flowage waters for purposes consistent with the public trust doctrine, their own property rights are sufficient to access and exit the flowage directly from their shoreline property. Movrich v. Lobermeier, 905 N.W.2d 807 (Wisc. Sup. Ct. 2018).

Posted March 2, 2018

Quitclaim Deed And Foreclosure Did Not Bar Adverse Possession. This case focuses on real property in Sherburne County, Minnesota which is divided into four parcels: A, B, C and D. Parcels A and B are each square-shaped and approximately 5 acres, with Parcel A immediately north of Parcel B. Parcel C is approximately 12 acres and is immediately east of Parcels A and B, with the same northern boundary as Parcel A and the same southern boundary as Parcel B. Parcel D is an approximately 3-acre L-shaped parcel running along the western boundary of Parcels A and B and along the southern boundary of Parcels B and C. Parcels A and B are separate tax parcels, but Parcels C and D together form one tax parcel. In 1992, the predecessor-in-interest to both parties entered into a contract for purchase of all four parcels from Berlin Associates. Five years later, in 1997, the plaintiffs entered into a purchase agreement to buy parcels A and B from the predecessors. This purchase included an easement for ingress and egress over parcel D. Subsequently in 1997, the plaintiffs leased parcels A, B and D for farming purposes and have farmed all three parcels since this time. In 2000, the predecessors fully paid their contract deed for parcels C and D and received title to those properties through warranty deed from Berlin Associates. Eight years later in 2008 the predecessors granted a mortgage on the property encumbering both parcels C and D. On March 5, 2012, the plaintiffs granted the predecessors an easement over parcels B and D titled “Road Agreement and Easement.” This agreement was signed by both the predecessors and the plaintiffs and recognized the plaintiffs as owners of parcel D and predecessors as owners of parcel C only. A few days later, on March 14, 2012, the predecessors conveyed parcel D to the plaintiffs by quitclaim deed. The deed stated that it was “given to correct an error in the legal description set forth in the August 16, 2000 warranty deed. Later in 2012, the predecessor’s 2008 mortgage was foreclosed and parcels C and D were sold at sheriff’s sale to the defendants (a married couple). The plaintiffs sued in 2016 alleging adverse possession of parcel D. In their answer the defendants filed a quiet title counterclaim. The trial court granted summary judgement to the defendants on their quiet title claim. The plaintiffs appealed. The plaintiffs claimed that the trial court erred in granting summary judgment to the defendants because their possession by farming parcel D was hostile for the required 15-year period. However, the defendants claimed that the plaintiffs’ acceptance of the March 2012 quitclaim deed from the predecessors is an acknowledgement by the plaintiffs that the predecessors had the superior title which interrupts the hostility period and the continuation of their adverse possession. However, the appellate court held that the plaintiffs did not purchase parcel D from the predecessors. Rather the deed specified the conveyance was a correction to the ownership of the parcel. The defendant’s however, argued that because the plaintiff paid the predecessors $754 upon receiving the quitclaim deed the conveyance constitutes a purchase of the parcel. However, the court determined that the payment of $754 upon receipt of the quitclaim deed was to reimburse the predecessor for property taxes which the predecessor had paid on parcel D. The appellate court determined that was recognition that the plaintiff had superior title and should have been paying those taxes all along. In addition, the appellate court held that based on the original purchase price of the property at $5,500 an acre the defendant’s assertion that the predecessors sold 3-acres for $754 is insufficient to create a fact issue. In addition, the court held that the plaintiffs’ continuous hostile possession of parcel D was not interrupted by the grant of the mortgage in 2008 as the defendants suggest. Because the plaintiffs were in possession of parcel D by farming it they were required to be served with actual notice of the foreclosure proceedings. The fact that the plaintiffs were not served with actual notice precludes the foreclosure sale from interrupting the plaintiffs’ continuous hostile possession of the property. Finally, the court held that because the attempted acquisition of parcel D was only 20 percent of the total tax parcel which includes parcel C and D the plaintiffs were not required to pay real estate taxes on the parcel in order to adversely possess it. As such, the court determined that the trial court erred in granting summary judgment to the defendant and reversed the trial court’s decision remanding the case for correction in a lower court. Compart v. Wolfstellar, No. A17-0705, 2018 Minn. App. LEXIS 67 (Minn. Ct. App. Jan. 16, 2018).

Posted February 21, 2018

Land Contract Does Not Bar Attachment of Judgment Lien Against Buyer. The plaintiff was previously convicted of third-degree sexual abuse. The victim, the defendant in this case, brought a civil action against the plaintiff, seeking damages on the grounds of sexual battery and sexual abuse. After a bench trial, the defendant was awarded $153,750 in compensatory damages and $10,000 in punitive damages for a total of $163,750. At the time of the civil judgment the plaintiff owned approximately 282 acres of farmland which included 222 acres he was purchasing on contract. The land was subject to encumbrances of $637,958. The plaintiff signed an “Assignment of Contract for Collateral Purposes Only,” to Community Savings Bank (CSB), which was to remain in effect until all of his debts and obligations to CSB were satisfied. The defendant obtained a writ of general execution, and a levy on the farmland was sent to the plaintiff. Eventually, the land was sold at a sheriff’s sale. The property was purchased for $151,000, subject to encumbrances. The plaintiff then filed a petition to set aside the sheriff’s sale, naming the Sheriff and the defendant as defendants. The defendant died on June 17, 2015, and her estate was substituted as a defendant. On May 14, 2016, the plaintiff filed a motion seeking to extend the one-year redemption period, noting the redemption period would soon expire. The estate resisted the motion to extend the redemption period. While the motion was pending, the one-year period expired. On September 15, 2016, the district court found the issue concerning redemption should be determined upon the presentation of evidence. All the parties filed motions for summary judgment. The district court granted the defendant’s motion for summary judgment and the plaintiff appealed. On appeal, the plaintiff claimed he had legal title to only 60 acres. He stated seller held title to the 222 acres he was purchasing via contract. The plaintiff claimed he had a personal property interest in the 222 acres, but that he did not own the 222 acres because he had assigned his interest to CSB. The appellate court held that after a real estate contract is made, the purchaser becomes the equitable owner of the land. The vendor retains legal title to the land as security for payment of the purchase price. In addition, the appellate court held that a judgment is a lien upon the equitable interest of a debtor in real estate and the lien of a judgment under such provisions attached to any equitable interest of the judgment debtor and may be subject to the satisfaction of the judgment by proper proceedings. Thus, the appellate court determined that even if the plaintiff only had an equitable interest in the 222 acres, the property would still be subject to the defendant’s judgment lien. Additionally, the court found that the “Assignment of Contract for Collateral Purposes Only” did not change the plaintiff’s equitable ownership of the property. The court pointed out that as the title suggests, the assignment was only for the purpose of providing collateral. In addition, the court held that the district court was correct when it concluded that the plaintiff’s claims were moot because even if the court set aside the sheriff’s sale, the plaintiff could not redeem the property because the statutory redemption period had passed. Therefore, the decision of the district court granting summary judgment to the defendant was affirmed. Mummau v. Kraus, No. 17-0100, 2018 Iowa App. LEXIS 150 (Iowa Ct. App. Feb. 7, 2018).

Posted February 15, 2018

Requirements For Adverse Possession Not Satisfied. The plaintiff filed a quiet title action against his predecessors in interest and against the defendant, alleging fee title ownership of certain land along the railroad right-of-way passing through his property as a result of adverse possession. The defendant claimed ownership of 100 feet on either side of the center of rail line running through the plaintiff’s property. The district court granted the plaintiff’s motion for entry of default as to his predecessor -in-interest, but denied both the plaintiff and the defendant’s claims of title under adverse possession. The plaintiff appealed and the defendant cross-appealed. The Nebraska Supreme Court determined that the defendant did not own the fee title to the right-of-way, owning instead only an easement. Therefore, quieting title to the plaintiff would not affect the defendant’s interest. In addition, the Supreme Court held that the district court’s grant of default judgment against the plaintiff’s predecessors-in-interest was insufficient to quiet title in the plaintiff or the defendant, because it did not settle the dispute between those parties. Rather, all the entry of default judgment did was extinguish the rights of the prior landowners. Thus, by extinguishing the rights of the prior landowners, and then finding that neither the plaintiff nor the defendant had established the elements of adverse possession, the 200 feet of right-of-way was effectively owned by no one. The Supreme Court held that this was an illogical result that should be avoided, and vacated the decision of the district court granting default judgment. The court also held that the defendant’s actions were not sufficient to establish adverse possession. Under Nebraska law, the defendant’s use of the line for railroad purposes was not hostile and therefore could not ripen into adverse possession. The character of defendant’s use did change when the transmission line was constructed in 2007. However, because the defendant filed its counter claim alleging that it was adversely possessing the land in 2015 the ten-year time requirement for a claim of adverse possession had not been met. Thus, the district court did not fail when it denied the defendant’s adverse possession claims. Finally, the Supreme Court did concede that there was some evidence in the record supporting the plaintiff’s claim of adverse possession. However, because the plaintiff acknowledged that he had not continuously lived on the property and participated in the farming activities and because there was no evidence that the adverse activities were done for a continuous period of time, the court held that the evidence was not sufficient to establish a claim of adverse possession. Consequently, the district court’s decisions denying adverse possession to both the plaintiff and the defendant were affirmed and the district court’s decision granting default judgment and extinguishing the property rights of the predecessor’s in interest was overturned. Royal v. McKee, 298 Neb. 560 (2017).

Posted February 12, 2018

Request For Variances In Building Of Wind Turbines Improperly Analyzed. The plaintiff sought to construct 17 wind turbines and an electrical substation on leased property on Dan’s Mountain in Allegany County, Maryland. The Allegany County Code permits wind turbines as a special exception in the zoning district in which the project is proposed. The county has a minimum separation distance of 2,000 feet from any residential structure and a setback requirement of no less than three times the height of the turbine. Because the proposed sites of some of the turbines were within either the setback or separation distance restriction, or both, the plaintiff sought variances. The Allegany County Board of Zoning Appeals found that the plaintiff had failed to meet its burden of proof for obtaining the variances and denied the variance requests. The plaintiff consolidated its appeals of the board’s decisions into a single petition for judicial review. The circuit court affirmed the board’s decisions and the plaintiff appealed the circuit court’s decision. The Court of Special Appeals held that because the county had not prescribed standards for variances, Maryland’s common law regarding variances controlled. The Court of Special Appeals noted that the Maryland courts have recognized a two-part test to determine whether a variance should be granted in a particular case. The first requirement, uniqueness, looks at whether the property is, in and of itself, unique and unusual in a manner different from the nature of the surrounding properties such that the uniqueness and peculiarity of the subject property causes the zoning provision to impact disproportionately upon that property. The board found that the plaintiff had not satisfied its burden to demonstrate uniqueness. The court held that the board’s uniqueness analysis erred in three ways. First the board focused on comparing the co-applicant properties to each either other without looking at other surrounding properties. Second, the board failed to appreciate the nexus component of the uniqueness analysis. The court held that because the aspects of the zoning law from which a variance is sought are the separation and setback requirements, the question must be whether there are features on the requesting property that cause the separation and setback requirement to affect an applicant’s individual property differently from the way it affects other surrounding properties. Finally, the court held that it was insufficient to determine, as the board did, that every property was in some way affected by prior surface mining, animal and plant habitats, and communication towers. The court determined that on remand, the board must conduct the appropriate analysis on each property, applying each factor, and each application. The second requirement of the test to determine if a variance should be granted—practical difficulty or unnecessary hardship—examines whether practical difficulty and/or unnecessary hardship, resulting from the disproportionate impact of the ordinance caused by the property’s uniqueness, exists. The court determined that the variances requested by the plaintiff were area variances rather than use variances because they concern the property line setback and separation distance requirements. Thus, the board improperly reviewed the request under the more stringent “unnecessary hardship” standard, when it should have applied the more lenient “practical difficulty” standard. Consequently, because the board erred in its ruling on uniqueness, and because the board also erred when it applied the unnecessary hardship test, the court remanded the case to the circuit court for it to enter an order vacating the decision of the board. Dan’s Mt. Wind Force, L.L.C. v. Allegany Cty. Bd. of Zoning Appeals, No. 804, 2018 Md. App. LEXIS 96 (Md.Ct. Spec. App. Feb. 5, 2018).

Lack Of Proof That Defendant Acquiesced To The Boundary Prevents Quiet Title Action. The parties owned adjoining properties. The defendant’s property was located to the immediate west of the plaintiff’s property. Between the two parcels was an area of tree-covered land 50-70 feet wide that the parties refer to as "the fencerow." The remains of an old fence ran north-south somewhere in the middle of the fencerow. The parties disputed where the precise property line was and so defendants had a survey performed. The survey concluded that the boundary between the parties' properties was approximately 8-feet to the east of the fence at the southern end of the properties and approximately 14-feet to the east of the fence at the north end of the properties. The plaintiff, however, claimed that he owned all of the land east of the fence, which the survey concluded belonged to the defendant. The plaintiff did not dispute the results of the survey, but claimed that he and his predecessors-in-interest obtained the strip of land on the east side of the abandoned fence by reason of acquiescence. Therefore, the plaintiff sued seeking to quiet title to the land and to enjoin defendants from any further interference with the property. The defendants filed a counter-complaint for trespass and nuisance, and also sought to quiet title to the disputed area. The plaintiff also sought an injunction permanently enjoining the defendant from claiming any adverse claim against the property. The trial court concluded that the plaintiff failed to prove that the defendant had treated the fence as the boundary line between the properties for the 15-year statutory period, and as such the plaintiff did not have any right to the property by acquiescence. On appeal, the plaintiff argued that the trial court improperly admitted and relied on hearsay testimony from the defendant’s father when he testified about a conversation between his father and the previous owner of the property. The appellate court held that sufficient facts existed to support the defendant’s father’s understanding of the ownership of the fencerow. The plaintiff also claimed that the trial court misapplied the relevant law and ruled contrary to the great weight of the evidence by concluding that the plaintiff failed to establish that he acquired title to the disputed strip of land by acquiescence. The appellate court determined that there was a lack of evidence that both parties ever agreed that the fence was the boundary line between the properties or treated it as such. In addition, the plaintiff failed to establish that the defendant treated the fence as the boundary. Rather, the evidence presented demonstrated that the defendant believed that the fencerow and the disputed strip of land belonged to them, did not treat the fence as the property line, and took steps to protect their property interest in the fencerow. In addition, the fence as it exists today is in disrepair, in pieces, and lying on the ground. The defendant and witnesses testified that the defendant ignored the fence and that it did not affect their activities in the fencerow. Thus, the plaintiff failed to establish that defendant or his predecessors had acquiesced to the boundary claimed by plaintiff. Consequently, the decision of the trial court was affirmed. Bahmer v. Obrinske, No. 336664, 2018 Mich. App. LEXIS 186 (Mich. Ct. App. Jan. 25, 2018).

Posted February 8, 2018

When Assessing Ag Land in Nebraska, Assessors Must Use Multiple Factors. The plaintiff owned over 1,000 acres of ag land in central Nebraska that he used exclusively for cattle production and grazing. Approximately three-fourths of the land was irrigated grass that the plaintiff grazed cattle on. In 2006, the plaintiff improved the irrigated portion of the land with center pivot irrigation systems to enhance the livestock grazing. In 2012, the county assessor increased the assessed value of the plaintiff’s tract by 250 percent by virtue of changing the classification of irrigated grassland for valuation purposes. Specifically, the assessor reclassified irrigated grassland by classifying all irrigated land as irrigated cropland irrespective of whether the land was used for “cultivated row crops, small grains, seeded hay, forage crops, or grasses.” The plaintiff challenged the change in the assessment, but the Tax Equalization and Review Commission (TERC) affirmed the assessor’s decision. The plaintiff appealed. The state Supreme Court reversed and remanded on procedural grounds. On remand, the TERC largely upheld its prior decision. The plaintiff again appealed. The state Supreme Court reversed. The Court determined that TERC erred by not considering the plaintiff’s testimony along with the testimony of a rea estate appraiser, which overcame the presumption that the county assessor’s valuation determination was valid. The Court noted that under state law, assessor’s must use a range of factors in making their determinations and not simply rely on a single method as was done in this case. Cain, Jr. v. Custer County, 298 Neb. 834 (2018).

Wisconsin Guidance on What Is an Ag Use For Property Tax Purposes. The Wisconsin Department of Revenue (WDOR) has provided guidance as to what programs and easements qualify as “agricultural use” under Wis. Admin. Code Tax § 18.05(1)(d). WDOR noted that land enrolled in a program that is not a qualifying agricultural use must be devoted primarily to an agricultural use under paragraphs (a), (b), or (c) of Wis. Admin. Code Tax § 18.05(1)(d) to receive a use-value assessment. The WDOR also provided a definition of agricultural use, and guidance concerning how landowners and assessors can share information for proper classification of land that is enrolled in federal programs through the Natural Resources Conservation Service (NRCS) and Farm Service Agency (FSA). That information is confidential and is neither publicly available nor available to assessors. WDOR also discussed the establishment of various practices on the land under various programs and the rollover of program lands from an eligible program to another eligible program. WDOR also listed various federal and state programs, and whether the programs were eligible for ag classification. WDOR, Conservation Programs (Jan. 1, 2018).

Posted January 25, 2018

County Zoning Inapplicable To Ag Land With Non-Ag Building. The Kansas Attorney General (A.G.) was asked to issue an opinion on the question of whether Kan. Stat. Ann. §19-2921 allowed a county to zone land that is used for agricultural purposes but where a non-agricultural building is located on the property. Kan. Stat. Ann. §19-2921 states in pertinent part that “Except for flood plain regulations in areas designated as a flood plain, regulations adopted pursuant to this act shall not apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings erected thereon are used for agricultural purposes and not otherwise.” The A.G. determined that the statute had two separate and distinct exemptions – one that required the land at issue to be used for ag purposes; and a second exemption that applied only when the land and buildings are used exclusively for agricultural purposes. The question posed to the A.G. involved a tract of land of less than 10 acres, and the A.G. noted that the size of the tract is a factor to be considered because whether either exemption applies is determined based on all of the facts of a particular situation. There is no objective test, such as a minimum acreage size. The A.G. noted that the determination of whether land use constitutes an agricultural purpose is a question of law for the courts. However, once land is determined to be used for agricultural purposes, a county cannot zone it. Accordingly, the status of a building only affects the county’s ability to zone uses of the building. The status of the building does not transform the use of the land from an agricultural purpose to a non-agricultural purpose. But, the converse is also true. If a building used for agricultural purposes is located on land that is no longer used for agricultural purposes, the building would then become subject to county zoning. Thus, based on the facts presented, the A.G. opined that a county cannot impose zoning regulations on land used for ag purposes even if there is a building on the land that is not used for ag purposes. Kan. Att’y. Gen. Op. No. 2017-4 (Jan. 19, 2018).

Farm Lease Exceeding Statutory Limit Not Void Where Lessor Held Life Estate. The defendant in this case moved back to North Dakota from Minnesota in 2001 to help care for his ailing father, and after his father’s death in March 2005, became primarily responsible for the care of his mother. At his father’s death, the farmland passed to the defendant’s mother, for her life. In July of 2008, the defendant and his mother entered into a handwritten agreement for the defendant to rent his mother’s farmland from her for $20,016 per year “continuing for the term of 15 years until Oct 15, 2024.” On December 16, 2009, the defendant entered into a written agreement with a third party to cash-rent the farmland for a total annual rent of $31,022.50. On March 13, 2012, the defendant’s mother was admitted to a nursing home as a result of her declining medical condition. Some family members later discovered that she had sold some of her dividend-producing stocks on March 14, 2012, as the result of a phone call the defendant made to her broker. It was also discovered that the mother had executed a quit-claim deed conveying her home to the defendant on March 15, 2012. In April 2012, the State charged the defendant with exploitation of an elderly adult under N.D.C.C. § 12.1-31-07.1. As a condition of bond, the trial court ordered the defendant to execute a quit-claim deed reconveying the home to his mother, which he did on May 25, 2012. On July 5, 2012, the defendant’s mother executed a quit-claim deed, again conveying her home to the defendant. On July 12, 2012, the trial court found that the defendant’s mother was an incapacitated person and appointed the defendant’s brother has her permanent guardian and conservator. The mother died in November of 2013 and the deed executed July 5, 2012 was recorded on February 13, 2014. The estate of the defendant’s mother sued, alleging the July 5, 2012, quit-claim deed was void because the defendant’s mother was incompetent to execute the instrument. The estate also sought an order requiring the defendant to reconvey the home to the estate. The estate also alleged that the defendant’s subleases of the farmland to the third party constituted conversion of rent and grain proceeds that should have been paid to his mother. The trial court dismissed the estate’s action, ruling that the mother’s clear intent was to convey the home to the defendant. The estate appealed. The Supreme Court of North Dakota acknowledged that there were temporary and permanent guardianship and conservatorship proceedings involving the defendant’s mother and criminal proceedings were brought against the defendant for his conduct with his mother around the time frame of the July 5, 2012 quit-claim deed. However, the court rejected the estate’s claim that those circumstances compel a finding that the defendant’s mother lacked capacity to execute the quit-claim deed. The fact that the deed was executed after a licensed social worked interviewed the defendant’s mother and observed that she was oriented and passed all the competency tests along with a video recorded about nine months after she executed the quit-claim deed indicated that she was legally competent at the time the deed was executed. Therefore, the court concluded that there was evidence in the record supporting the trial court’s finding that she was competent to execute the deed. In addition, the estate’s complaint alleged that the defendant’s sublease of his mother’s farmland and his retention of the additional rent constituted conversion. On appeal, the estate’s conversion argument was premised on its assertion that the defendant’s lease with his mother was void under N.D.C.C. § 47-16-02 which states that “no lease or grant of agricultural land… for longer than a period of ten years shall be valid.” The court concluded that the defendant’s lease with his mother was valid and enforceable because it was by operation of law limited to the mother’s life estate interest and therefore was not necessarily for a term in excess of ten years. The court pointed out that the trial court’s determination that there were “no legal grounds” to question the lease between the defendant and his mother was without analysis of N.D.C.C. § 47-16-02. However, the court determined that even applying the analysis of N.D.C.C. § 47-16-02, would produce the same result. Vig v. Swenson No. 20170032, 2017 N.D. LEXIS 296 (N.D. Sup. Ct. Dec. 7, 2017).

Posted January 20, 2018

Purported Conservation Easement Invalid For Not Preserving The Property In Its Natural Condition. This case concerns two parcels of land owned by the defendant. The parcels consisted of approximately 237 acres above part of a large aquifer. The aquifer provides water for the a nearby town, the plaintiff in this case. Approximately a decade ago, the plaintiff entered into negotiations with the defendant to purchase the property, but negotiations faltered when the parties could not agree on a purchase price. Subsequent negotiations led to the execution of a purported conservation easement recorded on February 19, 2013 and an amendment recorded May 23, 2014. On October 28, 2015, the plaintiff commenced an action captioned as “Petition For Appropriation Of Real Property” against the defendant asking the court to order conveyance of fee simple title of the property to the plaintiff once the Property’s value could be determined. Following the defendant’s answer, the plaintiff filed a motion for summary judgment, arguing that there are no material facts in dispute with respect to the invalidity of the conservation easement and because the purpose and plain language of the conservation easement are contrary to public policy and Ohio law. The trial court concluded that the conservation easement was void as a matter of public policy. The trial court filed its judgment entry granting summary judgment in favor of the plaintiff. The defendant appealed. On appeal the defendant claimed that the trial court erred in granting summary judgment in favor of the plaintiff because the interest conveyed did not create a public trust, only the type of interest proscribed under the Ohio Constitution. The defendant also claimed that the trial court erred in granting summary judgment in the plaintiff’s favor because Ohio public policy favors conservation easements over the use of eminent domain. The appellate court concluded that the instrument at issue in this case was not a conservation easement. According to the court, the terms of the easement made clear that it is not intended to preserve the property predominately in its natural condition. Rather, the easement contemplates two separate mining processes on the property, each of which requires altering the land substantially by the removal of timber, topsoil, and subsoil. The easement further contemplates the use of heavy excavation equipment to remove sand and gravel deposits and the use of dredging equipment mounted on barges. The court held that such processes do not preserve the property as a whole predominantly in its natural condition. Consequently, the court determined that there were no genuine issues of material fact as to whether the easement permits the activities described above and reasonable minds could only reach one conclusion as to the validity of the easement—that it is invalid. Therefore, the plaintiff was entitled to judgment as a matter of the law and the decision of the trial court was affirmed. City of Sidney v. Spring Creek Corp., No. 17-17-07, 2017 Ohip App. LEXIS 5224 (Ohio Ct. App. Dec. 4, 2017).

Grant Of Easement Along Existing Roadway Upheld. The plaintiff held title to an approximately 300-acre ranch along a river. Four siblings, Louis Moosios, Sr., Alice Voth, Frank Moosios and David Moosios, owned the plaintiff. In March 2004, the plaintiff entered into a contract to sell approximately 36 acres of the ranch to the defendant. The defendant is a partnership owned by Louis, Sr.’s two children. The contract conditioned the sale on a lot line adjustment including any easements required for ingress and egress. However, when the parties completed the lot line adjustment, the deed they recorded made no mention of an easement across the defendant’s property. In 2014, the plaintiff filed the underlying complaint seeking to declare and quiet title to an easement across an existing roadway on the defendant’s property. The plaintiff further sought to declare invalid a lease granting the plaintiff a leasehold interest in the entire ranch that Louis, Sr. allegedly signed on behalf of the plaintiff shortly before his death. The trial court entered judgment in the plaintiff’s favor granting an easement across the defendant’s parcel along the existing roadway and declaring the lease invalid. The defendant appealed alleging that the trial court erred in construing the easement as an implied easement instead of an express easement by necessity. In addition, the defendant argued that the trial court erred in declaring the lease invalid. The appellate court determined that the record supported the trial court’s conclusion that the elements of an implied easement were present. The plaintiff conveyed a portion of its property to the defendant. In addition, the parties knew about the road that crossed the defendant’s property, referred to it as the “main road”, and had been using it all their lives. Thus, the road was permanent and obvious. The court held that this constituted substantial evidence to support the trial court’s finding that an easement along the road was created by implied grant. The court also determined that the parties’ use of the word “required” in the contract of sale did not demonstrate an intent that the particular easement be strictly necessary. Rather, the circumstances demonstrated that at the time of conveyance, the parties intended an easement along the historically used road. In addition, the court held that the bylaws and shareholder agreements of the plaintiff prohibited Louis, Sr. from executing the lease without authorization from a majority of the board of directors. The defendant argued that the trial court erred in admitting these documents to evidence because they were unsigned. However, the court determined that testimony from the plaintiff’s remaining living owners as well as a copy of the minutes adopting the bylaws constituted substantial evidence to support the trial court’s finding that the bylaws and shareholder agreement were sufficiently authenticated. In addition, the court held that the record supported a finding that Louis, Sr. knew he did not have the authority to sign the lease. The fact that the previous two leases had signature lines for other members of the plaintiff who refused to sign the lease indicated that Louis, Sr. knew he needed the signatures of the other members for the lease to be valid. Consequently, the judgment of the trial court was affirmed. Moosios Farms v. Moosios River Ranch, No. F074773, 2017 Cal. App. Unpub. LEXIS 8286 (Cal. Ct. App. Dec. 5, 2017).

Posted January 13, 2018

In-Kind Partition Not Established To Be Equitable and Practicable. Three siblings inherited approximately 300 acres of farmland as tenants in common when their father died. The land was divided into several parcels and two of the siblings brought partition actions seeking to have the properties sold and the proceeds divided. The other sibling (the defendant) wanted an in-kind division with respect to her share of about 79 acres and the homestead. The trial court ordered the entire property sold with the proceeds divided equally. The defendant appealed. An appraiser had testified at trial that if the property were sold at auction he would recommend selling it in separate parcels to bring a higher total selling price. The appraiser also testified that the tract that the defendant sought would be worth approximately one-third of the total value of the 300-acre tract. He also testified that an in-kind division would be fair and equitable. Another appraiser testified that it would be better to sell the entire tract together, but still another appraiser testified that more money could be realized on sale if separate tracts were sold. The appellate court noted that the trial court had concluded that the defendant had failed to prove that the division of the properties in kind was equitable and practicable based on the testimony of two of the appraisers. But, the appellate court disagreed, noting that an appraisal is much more certain than speculation and that, in this case, the appraiser’s opinion was well supported. Accordingly, the court held that the defendant had proved that the division of the property was equitable and practicable. The court remanded the case for an in-kind partition of the property that the defendant requested, and for partition by sale of the balance with the proceeds split by the other siblings. On further review, the Iowa Supreme Court vacated the court of appeals’ opinion on the basis that the defendant failed to meet her burden to prove that the partition in-kind was equitable and practicable. The Supreme Court gave no analysis for its opinion other than noting a 1968 Iowa Supreme Court opinion that stated the rule pertaining to partition of real estate “is unequivocal in favoring partition by sale and in placing upon the objecting party the burden to show why this should not be done in the particular case.” The Supreme Court followed that view in Newhall v. Roll, 888 N.W.2d 636 (Iowa 2016). Apparently, the conflicting testimony of the appraisers was insufficient to allow the defendant to prove that the division of the properties in-kind would be equitable and practicable. Wihlm v. Campbell, No. 15-0011 (Iowa Sup. Ct. Jan. 12, 2018), vac’g., 886 N.W.2d 617 (Iowa Ct. App. 2016).

Ouster Necessary To Prove Adverse Possession Against Co-Tenant. In the late 1800s, the Eckford’s owned, among other property, a 147.5-acre tract in Karnes County, Texas as community property. Mrs. Eckford was appointed as guardian of the community estate in 1893. Mr. Eckford died intestate on November 10, 1896. Under the laws of intestacy, one-half of the real property, which was community property, passed to Mrs. Eckford, and the other half of the real property passed to the couple’s nine surviving children. Mrs. Eckford conveyed portions of the property throughout her life, including a conveyance to the defendant’s predecessor in interest. When Mrs. Eckford died in 1928, her court appointed administrator advised the trial court that “all of the real estate” belonging to the estate should be sold to pay claims and expenses. Ultimately, in 1939, the administrator purported to sell all of the property once owed by the Eckfords as community property, including the 147.5 acres to the defendant’s predecessors. The defendant’s parents entered into a mineral lease with Texas Oil & Gas Corp. in 1978 leasing the mineral rights in the entire 147.5 acres. At some point before 2012, Burlington Resources Oil & Gas Company and East 17th Resources, LLC (BRO&G) discovered information that led them to believe that the heirs of the Eckford’s owned an unleased one-half interest in the 147.5-acre tract that the defendant possessed. BRO&G believed that the defendant and the Eckford’s heirs were cotenants with regard to the 147.5 acres. As a result, BRO&G sought out and entered into mineral leases with numerous Eckford heirs. In 2012, because some of the numerous Eckford heirs could not be located, BRO&G instigated a receivership proceeding. The defendant intervened in the receivership action alleging sole ownership of the entire 147.5-acre tract. Ultimately, the defendant filed a motion for partial summary judgment in which he alleged full ownership of the property as a matter of law. The trial court granted summary judgment in the defendant’s favor with regard to ownership of the property based only on constructive ouster and subsequent adverse possession. The Eckford heirs appealed. The appellate court held that a party claiming adverse possession as to a cotenant must not only prove his possession was adverse, but must also prove some sort of ouster. In addition, Texas law requires a summary judgment movant to do more than assert and prove “long-continued” possession under a claim of ownership and nonassertion of a claim by the titleholder to prove constructive ousters as a matter of law. The appellate court determined that the only ground for summary judgment as to constructive ouster set forth in the defendant’s motion is long-continued possession coupled with absence of a claim by the Eckford heirs. The court determined that this neither asserted or established that they took “unequivocal, unmistakable, and hostile acts.” Therefore, the defendant failed to prove constructive ouster as a matter of law on the sole ground asserted in their motion. Accordingly, the appellate court reversed the trial court’s grant of summary judgment and remanded the matter to the trial court. Hardaway v. Lou Eda Korth Stubbs Nixon, No. 04-16-00252-CV, 2017 Tex. App. LEXIS 10957 (Tex. Ct. App. Nov. 22, 2017).

Saltwater Disposal Well Mediation Agreement Upheld. In 1984, the defendant leased a saltwater disposal well located in Barber County, KS. In 2015, the landowners where the well was located filed a lawsuit against the defendant alleging that the defendant was a holdover tenant because he continued operating the well after the lease expired. The landowners claimed that the defendant failed to pay for the use of the well from 2009 through 2014 and sought $62,986.50. The defendant admitted owing the landowners some compensation for using the well but contested the amount due. During pretrial proceedings, the defendant and the landowners agreed to mediate the dispute. The parties signed a mediation agreement that required the landowners to convey to the defendant an easement and assign any interest they had in an abandoned pipeline. In exchange, the defendant agreed to pay the landowners $42,500 and to remove equipment associated with the well. After mediation, the defendant and the landowners disagreed on the scope of the pipeline easement. The landowners filed a motion to enforce the mediation agreement with the district court. The district court held that the written mediation agreement was sufficiently specific, that the agreement was enforceable and was supported by consideration. However, the district court determined that the defendant could use the abandoned pipeline only to transport gas produced from the field and that the defendant could not build additional pipelines. The defendant appealed asserting that the district court erred by enforcing and too narrowly construing the mediation agreement. The defendant argued that the mediation agreement was rendered unenforceable by lack of consideration, and that the defendant received no benefit from the mediation agreement because the defendant already had the right to transport natural gas from the field. On appeal, the court of appeals held that the fact that the defendant had the right to transport gas across the landowners’ property was not determinative. The court determined that termination of the lawsuit itself conferred a benefit to the defendant because it would not have to incur the cost of further litigation or the risk of being ordered to pay damages. The defendant also argued that the mediation agreement was expressly conditioned on the landowners’ assignment of rights to the pipeline and that no assignment of rights occurred. The defendant therefore argued that the mediation agreement was unenforceable because its condition precedent did not occur. However, the appellate court held that because the defendant did not raise this argument in the district court it couldn’t be raised on appeal. The defendant also argued that the mediation agreement was too vague and indefinite to be enforceable because material terms of the agreement were left undecided. Specifically, the defendant claimed that the mediation agreement was indefinite because the agreement did not adequately define the scope of the easement or its rights in the pipeline. However, the court of appeals held that the intent of the parties at the time they executed the mediation agreement was to settle the well dispute. The appellate court, affirming the district court, held that the mediation agreement contained the material terms required to accomplish that purpose because it disposed of the well dispute and set forth what each party would receive. James Colborn Revocable Trust v. Hummon Corporation, No. 117,584, 2017 Kan. App. LEXIS 86 (Kan. Ct. App. Dec. 8, 2017).

Posted December 1, 2017

Mooring Of Boats In Front Of Lakefront Property Is Trespass. The plaintiffs in this case own neighboring lakefront properties separated by a 9-foot strip of land located on the western nine feet of one of the tracts which the plaintiffs use to access the lake. The defendants are backlot owners, and they constructed a split rail fence along two sides of the nine-foot strip of land. The defendants also erected a dock where they moored their boats at the end of the nine-foot strip of land. According to the plaintiffs, the placement of the dock caused the defendants’ boats to extend beyond the nine-foot strip onto water above the bottomlands in front of plaintiffs’ respective properties. The plaintiffs maintained that the defendants left their boats in front of the plaintiffs’ homes for long periods of time, and overnight each and every night during the summer. The plaintiffs filed suit alleging trespass and seeking a permanent injunction requiring the defendants to remove the dock, take down the fence, stop docking boats in front of plaintiffs’ property, and to refrain from future trespasses. In their complaint, the plaintiffs claimed that their trust owned the nine-foot strip of land in question. The defendants filed a motion for summary disposition arguing that plaintiffs’ claims for trespass and a permanent injunction must fail because the plaintiffs did not own the nine-foot strip of land in question and, thus, the plaintiffs could not assert a claim of trespass relating to the strip nor could they seek to enjoin defendant’s use of the strip. The trial court granted the defendant’s motion for summary judgment on the ground that plaintiffs did not have any ownership interest in the nine-foot strip and, therefore, lacked standing to bring the suit. The plaintiffs appealed. The appellate court examined determined that the evidence did not support the contention that the trust held title to the nine-foot strip of land on which the fence is located. From the deeds, the court determined that the nine-foot strip is owned by whoever in the trust’s chain of title first conveyed the lots except for the nine-foot access. Thus, none of the plaintiffs showed an ownership interest in the strip and could not show a trespass resulting from the fence on the nine-foot strip. However, the court held that the plaintiffs were undoubtedly riparian owners of the bank adjacent to their properties of the lake because they owned the property neighboring the disputed dock. Thus, they had the absolute right to control their bottomlands, and a right of access to the water from anywhere their property touched the lake waters. The court held that by indefinitely keeping boats in front of plaintiffs’ homes, the defendants had trespassed on the plaintiffs’ riparian rights to make use of their bottomlands and to access the lake from portions of their lakefront properties. Moreover, as riparian owners, plaintiffs had the right to make reasonable use of the entire surface and sub-surface of the lake. The court held that the placement of the dock interfered with this right and constituted a potential nuisance. As a result, the court reversed the decision of the trial court grating summary judgment to the defendants on the basis of trespass and nuisance and remanded for further proceedings. Gunther v. Apap, No. 333169, 2017 Mich. App. LEXIS 1641 (Mich. Ct. App. Oct. 17, 2017).

Posted October 27, 2017

Railroad Right Of Way Reverted to Adjacent Owners Upon Abandonment.  In 1886, five individuals executed a single deed “granting, bargaining, selling and conveying real estate. . . to the Chicago, Kansas and Nebraska Railway Company.” Thereafter a railway was operated on the property. At some point the railway was abandoned and in 1985 the Chicago, Kansas and Nebraska Railway Company’s successor-in-interest quitclaimed its interest in the property to Dirt & Gravel, Inc. The plaintiff acquired her interest through a 1994 quitclaim deed from Dirt & Gravel. The legal description of the property as stated in her 1994 deed was “all that portion of the abandoned Chicago, Rock Island and Pacific Railroad right of way” in the lots located in Holton, Kansas. In 2012, the plaintiff sued to quiet adverse claims against her title, seeking a determination that she was legally vested with fee simple ownership. She advanced two legal theories: 1) the quitclaim deed conveyed fee title to her; or 2) she acquired title through adverse possession. The four different landowners whose properties abut the abandoned right of way answered her petition claiming ownership. The defendants moved for summary judgment on the plaintiff’s quiet title claim. They argued that the 1886 deed conveyed only a right of way that would have reverted to the abutting landowners when it was abandoned. The trial court entered summary judgment against the plaintiff and divided the property among the defendants and declared the plaintiff the owner of the remainder interest. In addition, the trial court ruled that the plaintiff’s adverse possession claims were moot. The plaintiff appealed and the appellate court affirmed. The plaintiff again appealed. The Supreme Court determined that when a railroad company acquires a strip of land for a right of way it generally takes only an easement. The court determined that this is the rule whether the strip is acquired by condemnation or deed. When the railroad abandons that right of way, the estate reverts to the adjacent landowners. The Supreme Court pointed out that prior caselaw consistently held that when the source of the railroad company’s interest is a deed, the railroad acquires only an easement if the deed expressly or impliedly conveyed the property for use as a right of way. Even covenants of warranty in the railroad company’s deed and language designating the right acquired as a fee are not necessarily controlling. In addition, the court determined that the original 1886 deed described the property in a way that could be construed as a right of way. For these reasons the Supreme Court held that the trial court and the appellate court correctly concluded that the original 1886 deed conveyed only an easement because the deed reflects the property conveyed as the right of way for the grantee’s planned railroad. Jenkins v. Chicago Pac. Corp., No. 113,104, 2017 Kan. LEXIS 725 (Kan. Sup. Ct. Oct. 27, 2017).

Posted October 20, 2017

Comparable Sales Apply to Determine Property Tax Assessment on Hunting Club Parcels. The plaintiff owned several tracts of land that constituted a hunting club. The plaintiff challenged the property tax assessment on the parcels primarily on the basis that the club was the true owner of the land. The court determined that the applicable statutory and case law required an examination of the substantive rights of the parties even though the plaintiff held legal title. Based on a review of the facts, the court noted that the plaintiff did not enjoy unrestricted use of the properties. In fact, the plaintiff’s ownership interest gave the plaintiff a membership in the hunting club and equal access to all of the club land, but the plaintiff was restricted from building a residence on the land, subdividing it or conducting mining or drilling operations. Instead, the club maintained the exclusive right to maintain roads, lakes, ditches and fences across all of the parcels, exclusive hunting and fishing rights and several other rights. In addition, the plaintiff’s access to the land was contingent on being in good standing with the club. Because the club maintained control over the land and because the petitioner was subject to the club’s control when using the property, the court deemed the club to be the true owner of the land. Accordingly, the plaintiff’s “ownership” was more akin to a license. As a result, the proper valuation of the property should have been based on comparable sales rather than on the sale of licenses to members. HDH Partnership et al. v. Hinsdale County Bd. of Equalization, No. 16CA1723, 2017 Colo. App. LEXIS 1339 (Colo Ct. App. Oct. 19, 2017).

Posted October 18, 2017

Existence of Prescriptive Easement Altered Water Drainage Rules. The plaintiff purchased a tract in 2005. The defendant purchased an adjacent tract of land in 1990, and has been farming the land since 1966. A berm sits on the defendant’s land which lies to the west of the plaintiff’s property. Both the plaintiff and the defendant are included in the same watershed that drains from southeast to northwest (from the plaintiff’s property to the defendant’s property). The plaintiff’s land and the adjoining land to the east drains into what was referred to during trial as the “lateral” ditch across the plaintiff’s property. That water continues to drain west into a north-south ditch that runs between the parties’ land, then the water continues north to the east-west “road ditch”, which borders both properties to the north. Eventually the water drains west into the Nishnabotna River. A fence, a ditch, and the disputed berm divide the parties land. In the late 1940’s, the previous landowners agreed to dig the ditch to solve drainage issues between the two properties. In the 1970’s, the defendant began to farm the property. Over time the combination of the farming of the berm and floods reduced the height of the berm. In 2013, the defendant raised the berm a couple of feet. In 2014, he obtained a permit from the Iowa Department of Natural Resources to further increase the height of the berm. The plaintiff sued, alleging that in constructing the berm the defendant raised the elevation of his land causing excess water to flow onto or remain on the plaintiff’s parcel for a longer period of time. The plaintiff asked the court to enjoin the defendant from current and future conduct elevating the height of the berm. The district court concluded that the defendant did not create a nuisance or trespass on the plaintiff’s property. In addition, the district court determined that the defendant did not breach common law or statutory duties because of a long existing easement for the berm. For these reasons, the injunction was denied. The plaintiff appealed. The appellate court determined that the parties’ predecessors had created a prescriptive easement when they created the berm and that the plaintiff acknowledged that he knew of the berm’s existence prior to his acquisition of the adjacent property, and that the plaintiff failed to prove that the defendant had abandoned the prescriptive easement. Accordingly, natural drainage of the two properties had been waived by the prescriptive easement established decades ago. Thus, the plaintiff failed to prove that the defendant violated any common law or statutory duties. In addition, the court pointed out that both parties’ experts agreed that during a flood the plaintiff’s property would flood to the level of the river. The appellate agreed with the district court that the berm will keep the defendant’s land try but will not increase the area of the plaintiff’s land affected by floodwater. As a result, the berm itself did not present a nuisance to the property or cause a trespass by backing rainwater onto the plaintiff’s land. The court determined that because there was no apparent invasion or threatened invasion of a right, the trial court properly denied the injunction. C&D Mount Farms Corp., v. R &S Farms, Inc., No. 16-1586, 2017 Iowa App. LEXIS 1085 (Iowa Ct. App. Oct. 11, 2017).

Posted October 7, 2017

Temporary Easement Method For Calculating Trespass Damages For Gas Wells Invalid. The plaintiff owns the surface estate in two parcels of land that is used primarily for agricultural purposes. The plaintiff also has a residence on the property. The defendant holds the subsurface mineral estate underlying the property. Between 2006 and 2011 the defendant drilled a total of seven vertical gas wells on the plaintiff’s property and installed roads, flow lines and other appurtenances of those wells. The plaintiff acknowledged that the defendant’s possession of the mineral estate gave it some right to occupy the surface estate with the wells and associated structures and conceded that the defendant was within its right to drill two wells. However, the plaintiff claimed that by choosing to drill seven vertical wells instead of two multi-directional horizontal wells, the defendant exceeded the scope of its rights to reasonably occupy the surface estate. Consequently, the plaintiff argued that five of the defendant’s wells trespass on the property under state (CO) law. As the case proceeded to trial, both parties raised objections to certain anticipated expert testimony by means of a joint motion. In that motion, the defendant challenged the adequacy of the calculation of damages proffered by the plaintiff’s expert witness. The expert used three methods to calculate the plaintiff’s trespass damages. First, he attempted to determine what the compensation would be for a temporary easement over the property. His methodology entailed determining the fair market value of the plaintiff’s entire property and using those to determine what a fair market sale of the plaintiff’s property would generate. He then multiplied that per-acre cost by the number of acres he believed comprised the area trespassed on by the defendant. The court found that this temporary easement model was conceptually inconsistent with the measure of trespass damages under the facts. The court pointed out that this opinion assumed that each property had a similar value, that the wells and operations affected every nook and cranny of both parcels, that every part of the property was similarly affected, that all wells were drilled at the same time, and that all adverse effects were caused by the five trespassing wells as compared to the two permitted wells. As a result, the court found the expert’s opinion to be so overbroad as to make it irrelevant. The second method the expert used was based on the practice of oil and gas developers to offer to compensate the landowner with a one-time payment in exchange for all of the property damage and inconvenience resulting from the creation and maintenance of the well over its lifetime. The expert testified that the rate of compensation offered landowners was currently about $25,000 per well, with anywhere from six to 10 wells being drilled per pad. The expert then calculated the per-acre value of such a payment and multiplied that by the number of acres he believed were affected by the trespass. The court determined that this evidence could potentially be relevant. The expert’s third method compared the defendant’s use of the property to a pipeline easement that the plaintiffs granted to an entity called Saddlehorn Pipeline Company in 2016. The easement granted Saddlehorn the right to run a pipeline across a portion of the South Farm, in exchange for a one-time payment of roughly $202,000. The expert divided the easement price by the number of acres affected by the Saddlehorn easement to determine a per-acre cost for the easement. He then multiplied that per-acre cost by the number of acres he believed comprised the area trespassed on by the defendant. The Court found that this model had the potential to be relevant, but that relevance is conditioned upon testimony that demonstrates that the Saddlehorn lands and the trespassed lands are sufficiently similar as to warrant equivalent valuations. As a result, the court found that the expert’s first method of calculating damages to be invalid and stipulated that the other two methods could be relevant if more information is supplied. A-W Land Co. L.L.C., v. Anadarko E&P Co. L.P., No. 09-cv-022293-MSK-MJW, 2017 U.S. Dist. LEXIS 152980 (D. Colo. Sept. 20, 2017).

Posted September 8, 2017

‘Timber’ Is Not Considered ‘Crops’ Under Deed Of Trust Act. The plaintiff operated a logging and scrap metal operation on his property. The defendant loaned the plaintiff money in June 2007 and secured the loan by a deed of trust on the parcel he purchased from his parents. A deed of trust is a deed where legal title is transferred to a trustee which holds it as security for a loan between the borrower and lender, with equitable title remaining in the borrower. The plaintiff defaulted on the loan and then tried to contest the deed of trust on the basis that the parcel was agricultural land and, as a result, state law barred a nonjudicial foreclosure. Subsequently, a new deed of trust was issued in 2009 and a new loan was renegotiated to cure the default. In this new document, the parties stipulated that the land was not used for agriculture. The plaintiff again defaulted and the matter was set for nonjudicial foreclosure. The plaintiff again claimed that nonjudicial foreclosure was not an option. The trial court dismissed the action finding that the plaintiff could not contest the nature of the property given the stipulation in the 2009 deed of trust. The Washington Supreme Court reversed, finding that the requirements of the deed of trust act (Act) could not be waived by the parties. The case was remanded with the requirement that the trial court hold a hearing to determine whether the property was primarily agricultural at relevant times. The trial court distinguished between crop and timber and ruled that the land was primarily used for non-agricultural timber operations. The plaintiff appealed that ruling. The appellate court pointed out that the Uniform Commercial Code (UCC) definition of “crop” does not include timber. In addition, the appellate court found that an executive summary prepared by the working group that drafted the 1998 Amendments to the Act provide evidence that the legislature expected that the UCC would apply to the Act. Consequently, the appellate court determined that the trial court did not err in considering the current UCC definition of crops when construing the meaning of that term in the Act. As a result, the judgment of the trial court was affirmed. Schroeder v. Haberthur, No. 33336-1-III, 2017 Wash. App. LEXIS 1942 (Wash. Ct. App. Aug. 15, 2017).

Posted September 4, 2017

Grain Bin Lease Provisions Clear. A father was the general partner of a family limited partnership (FLP) and in 2006 leased a grain bin site that the FLP owned to his four sons for $400 annually. The lease also contained provisions regarding property use, repairs and default. The term of the lease was the life of all of the tenants. The FLP later conveyed the bin site to one of the sons who became the landlord under the lease. In 2014, the landlord son demanded additional rent of $400 from each of the tenant brothers. He also demanded that repairs be made to the bin site, including the removal of small trees and the repairing of electrical panels and boxes. The landlord also claimed that the lease became voidable on its 10-year anniversary in 2016 under N.D.C.C. §47-16-02 which provides for a 10-year limit on leases of ag land. The landlord brother moved to evict his tenant brothers. Two of the tenant brothers moved for partial judgment on the pleadings. They claimed that the lease required a total rent of $400 annually from all tenants combined, and that the lease was not an ag lease subject to the 10-year limit because the area subject to the lease was not used for crop or livestock production. They also claimed that the lease repair provisions were limited in meaning to cover repairs necessary to keep the bins in working order. The trial court determined that the lease was not an ag lease that was subject to the 10-year limit because no crop or livestock production was involved and the lease was clear that the leased property was not suitable for farming. The trial court also dismissed the plaintiff’s eviction action, was clear that the total rent was $400 annually and that the tenants made appropriate repairs based on testimony that repairs were to be made to keep the bins functioning. Cosmetic repairs were not covered by the lease. The trial court awarded partial attorney fees to the tenants. On appeal, the appellate court affirmed on all points except as to attorney fees. The appellate court only awarded the tenants fees for defending the landlord’s frivolous eviction counterclaim. The court remanded the matter for further proceedings and instructed the trial court that it could receive additional evidence related to attorney’s fees for the tenants on their motion for judgment on the pleadings. Zundel v. Zundel, No. 20170003, 2017 N.D. LEXIS 221 (N.D. Sup. Ct. Sept. 1, 2017).

Posted September 3, 2017

State Considered Party To Quiet Title Action. The defendant owned and and operated a cattle ranching business in western Nebraska, and the plaintiffs owned adjacent property. For many years, approximately 80 acres of the defendant’s land had been fenced-in with the plaintiff’s. In 2014, the defendant and the Nebraska Game and Parks Commission (State) entered into a purported purchase agreement for the sale of a parcel of the defendant’s land which included the part fenced-in with the plaintiff’s. Before the closing of the purchase agreement between the defendant and the state, the plaintiff filed a quiet title action against the defendant alleging ownership by adverse possession of the 80 acres. The plaintiff subsequently filed a formal notice with the State of the pending legal action against the defendant. The State then moved for leave to intervene in the quiet title action. The district court allowed the State to intervene over the plaintiff’s objection. The court acknowledged that the State had an interest in the outcome of the quiet title action sufficient to support intervention, but agreed with the plaintiff that the State’s interest was statutorily limited to that of a subsequent purchaser. As a result, the trial court did not dismiss the State from the action, but its role was limited to that of a subsequent purchaser. That meant that the State was not allowed to present evidence or question witnesses at trial related to the claim of adverse possession. The trial court quieted title to the defendant, and the State appealed. The Supreme Court determined that the purpose of the lis pendens statute (the notice provision) is to hold disputed property within the court’s jurisdiction until the parties’ rights are finally determined. In addition, the appellate court found that the plain language of Neb. Rev. Stat. § 25-328 provides that one who intervenes becomes a party to the action. As a party to the litigation, it is generally recognized that intervenors can engage in discovery, file motions, introduce evidence and examine witnesses. As a result, when a subsequent purchaser under the lis pendens statue becomes a party in an action involving the disputed property, the subsequent purchaser can question the plaintiff’s right to recover in the same manner as the original defendant. Consequently, when the State intervened in this quiet title action, it became a party. For these reasons, the appellate court reversed and remanded the matter for a new trial. Brown v. Jacobsen Land & Cattle Co., No. S-16-604, 2017 Neb. LEXIS 149 (Neb. Sup. Ct. Aug. 18, 2017).

Posted August 25, 2017

Planting Trees Does Not Violate Conservation Easement. The defendants own property that is divided into two lots that are subject to a conservation easement. The easement limits disturbance, clearing, construction and other activities to protect environmentally sensitive areas. In April 2007, the defendants hired a landscaper to plant 10-12 Leyland Cypress trees in the easement for the purpose of creating privacy and to control erosion. In 2013, the defendants put their house on the market. The defendants’ neighbors, the plaintiffs in this case, asked the defendants to include in any contract of sale a provision that they buyers agreed to trim the trees on a periodic basis. The defendants refused because at that time they were already under a contract to sell their home. The plaintiffs subsequently filed a complaint alleging that the defendants violated the terms of the conservation easement by planting the trees. They demanded that the trees be removed and the area in the easement restored to its natural condition. The trial court found that the planting of the trees violated the conservation easement because the easement’s purpose was to protect steep slopes from erosion and the evidence showed that Leyland Cypress trees do not prevent erosion. As a result, the court ordered the trees removed and efforts be undertaken to restore the area to its natural state. The defendants appealed. The appellate court determined that the trial court’s finding that the Leyland Cypress trees do not prevent erosion was not supported by the evidence. The expert witnesses testified that Leyland Cypress is not commonly used to prevent soil erosion, but did not state that Leyland Cypress cannot prevent soil erosion. In addition, the trial court did not provide a reason why the trees should be removed when there was no evidence that the integrity of the slope was being compromised. As a result, the appellate court reversed the lower court’s decision that the trees should be removed. Matthies v. Dietrich, No. A-0765-15T3, 2017 N.J. Super. Unpub. LEXIS 1968 (N.J. Super. Ct. Aug. 3, 2017).

Posted August 24, 2017

Court Says Requirements For Adverse Possession Satisfied, Even Though Case Technically Involved Boundary by Acquiescence. The defendants purchased a home in 1977. The tract on which the home was located bordered the plaintiff’s property. The parties accessed their properties via a common driveway on the north side of their tracts which was slightly south and parallel with a public road. The defendants paved the driveway and the plaintiff’s predecessor-in-interest built a fence along the driveway’s south side in 1979. The defendant participated with the construction of the fence and also maintained it. The defendants claimed ownership of the sliver of property between the fence and a public road, and had erected structures on the sliver in 2002 and 2006, and used it in other ways that illustrated they believed they owned the sliver. In 2015, the plaintiff had his tract surveyed and the survey revealed that the driveway and structures were on the plaintiff’s property. The plaintiff sued to quiet title to the disputed sliver and associated structures. The trial court ruled for the defendants. On appeal, the appellate court affirmed on the basis that the defendants had established all of the elements under Iowa law for adverse possession for the statutory time period of 10 years. The defendants had asserted titled to the disputed strip in a manner that was contrary to the actual title holder, in a manner that was exclusive in a clear and convincing manner and under a claim of right which the plaintiff did not rebut. While the court classified the case as an adverse possession case, the fact that the defendants had no knowledge of the adjacent owners’ ownership rights until the survey would mean that the case was actually a boundary by acquiescence case. The result would have been the same, however. Summit Veterinary Services v. Tindle, No. 16-2077, 2017 Iowa App. LEXIS 855 (Iowa Ct. App. Aug. 16, 2017).

Posted August 18, 2017

State Reserves Fifty Percent Of Minerals On Land Transfers. In 1957, the Board of University and School Lands of the state of North Dakota and the defendants entered into an installment sale contract for the purchase of land in North Dakota. The contract for sale provided that the defendants would pay a down payment and then pay a specific amount per year until fulfilling the contract price. Upon paying the full contract price, a patent for the premises the state would issue a patent. The contract also provided that the patent reserved to the state all the coal, oil, natural gas, uranium, gravel, clay and other minerals. In 1967, before the patent was issued the defendants conveyed the same property to Hans Hanson, which included a provision that reserved all the oil and gas to the defendants. In October 1971, Hans Hanson conveyed the land to the plaintiffs. Later in 1971, the state of North Dakota issued a patent for the same parcel of land to Hans Hanson which conveyed the surface and indicated that the state had reserved 50% of all the oil and natural gas. The defendants entered into oil and gas leases on July 9, 2013 with Continental Resources. The plaintiffs contended they had title to an undivided 50% mineral interest under the property and brought a quiet title action. The trial court entered an order granting the defendants’ motion for summary judgment and the plaintiffs appealed. The text of the 1957 contract for sale provided that the state would transfer ownership of the surface land while reserving all of the minerals. However, N.D.C.C. § 38-09-01 provides that “in every transfer of land by the State of North Dakota fifty percent of all oil, natural gas, or minerals is reserved to the state and any deed, contract, lease or other transfer of any such land which does not contain such reservation must be construed as if such reservation were contained therein.” On further review, the appellate court affirmed, determining that despite the fact that the 1957 contract provided that the state reserved all minerals it must be read to reserve 50% of all minerals to the State. The appellate court also determined that an installment sales contract for patent is no different than a contract for deed with regard to the vendee’s ability to convey and reserve an equitable interest obtained under the contract. As a result, a vendee may transfer equitable interest in real property and reserve a severable portion upon transfer. The appellate court concluded that when the defendants conveyed the surface and reserve the minerals they reserved equitable title to 50% of the minerals. Hokanson v. Zeigler, No. 20160359, 2017 N.D. LEXIS 189 (N.D. Jul. 31, 2017).

Lack Of Parties’ Intent For Easement Prevents Building Of Dock. In 1977, Camp-O-Dalhi, Inc. (C-O-D) purchased land adjacent to Lake Delhi in Delaware County, Iowa. In 1984, the land was platted as the C-O-D subdivision. The subdivision consists of some 92 lots, lake frontage area and also road area. In 1984, C-O-D also recorded restrictive covenants for the subdivision. In 1985 Delhi Lakeview Estates Landowners Association, Inc., the defendant in this case, was formed and became successor to C-O-D. The defendant purchased from C-O-D the lake frontage area which is a strip of land between the shoreline and the lakefront lots (basically the beach area) called the Waterfront Access Area. The defendant also purchased C-O-D’s docks. In 2005, the defendants recorded restrictive covenants for the subdivision. The covenants provide that lake frontage will be owned and maintained by the lot owners’ association and cannot be sold; docks will be owned by the owners’ association and may be rented by the year; and all roads and easements within the C-O-D will be owned and maintained by the lot owners’ association. The plaintiff purchased on contract a portion of lot 89 in 2006. The lake side of the lot the plaintiff purchased abuts the Waterfront Access Area of Lake Delhi. At the time of purchase, the plaintiff obtained the property’s abstract containing its chain of title. The deed noted it was subject to all restrictive covenants of record. In June 2010, the plaintiff filed suit against DLE seeking the district court to declare that he had a right of easement across shoreline property and Waterfront Access Area to build a dock, and for other relief under theories of easement by prescription and easement by implication. The trial court denied the plaintiff’s claim for easement by prescription and/or by implication. The court found that the plaintiff, having paid the defendant’s dock rental fees and yearly assessments from 2006-2009 did not take any affirmative action to demonstrate open and hostile use of the docks which would have been necessary to establish a prescriptive easement. In addition, the court found no easement by implication. On appeal, the appellate court determined that the issue was whether the circumstances of the transaction evidenced an intent by the parties to grant or reserve an easement in the land. The court determined that the covenants predated the sale and evidenced the parties’ intent. As a result, the court determined that at the time of severance of the unity of title, the parties did not intend to grant or reserve an easement of access to the lake, at least by dock to the owner of lot 89. Consequently, the court found that the plaintiff’s quest for an easement by implication was merely a thinly veiled attempt to circumvent the covenants to which he was bound. Because an easement by implication was not intended to be reserved or granted at the time of the separation of title, the plaintiff was not entitled to one. As a result, the appellate court affirmed the trial court. Holocomb v. Helhi Lakeview Estates, Inc., No. 16-2137, 2017 Iowa App. LEXIS 804 (Iowa Ct. App. Aug. 2, 2017).

Posted August 14, 2017

Disputed Boundary Adversely Possessed. In 1987, the defendant acquired title to two twenty-acre adjacent parcels. The plaintiffs subsequently acquired property adjacent to the southern boundary of the defendant’s parcels. A 2014 survey disclosed that a fence located south of the southern boundary of the defendant’s parcels encroached upon the plaintiffs’ tracts. On September 11, 2014, the plaintiffs sued for a declaration of interest claiming title ownership of the disputed property. The trial court determined that the plaintiffs had been put on notice of potential evidence of the fencing before 1987. In addition, the court concluded that the evidence established that the defendant would be able to show use or cultivation of the disputed property by his predecessors in interest before 1987. The trial court jury found that the defendant and his predecessors in title adversely possessed the disputed property for more than twenty years (the statutory requirement). The plaintiffs appealed, but the appellate court affirmed. Busch v. Schuebel, No: 2016AP674, 2017 Wisc. App. LEXIS 571 (Wisc. Ct. App. Aug. 1, 2017).

Posted August 12, 2017

Perpetual Easement Survives Fifty Years After Creation. The parties are adjoining property owners in rural area. The predecessors in title to their properties entered into an easement and agreement allowing for the construction of a dam on the defendant’s property that resulted in the creation of a 14-acre lake, which spilled onto and covered a portion of both properties. The easement is a perpetual easement that giving the plaintiffs the perpetual right to erect and maintain the dam and the right to fish on the waters and use the area for their own proper lawful and individual purposes. In addition, the plaintiffs did not have the right to commercialize the area nor permit the use of the water by parties other than them or their successors in ownership of the land. Finally, the agreement provided that if the plaintiffs sold their premises, the owner of the defendants’ property will have the first right and option to purchase the area on which the lake sets along with a strip of land surrounding it no to exceed 20 feet from the shoreline. After more than 50 years, the parties disputed the extent of each other’s rights to access and use the lake as well as the boundary line between the properties. The court concluded that the use restriction in the easement and agreement had expired and was no longer enforceable under Iowa Code §614.24 because more than 21 years has passed since the parties entered into the agreement. The court also determined that the right of first refusal violated the rule against restraints on the alienation of land was unenforceable. However, the court determined that the plaintiffs had established the existence of a prescriptive easement to use the entire lake, and rejected the defendants’ claim of a boundary by acquiescence through and on the south side of the lake due to the lack of clear evidence to support the claim. Finally, the court determined that there was no requirement for the defendants to maintain the dam in perpetuity. Franklin v. Johnston, No. 15-2047, 2017 Iowa App. LEXIS 278 (Mar. 22, 2017).

Posted August 3, 2017

Nebraska Court Can’t Affect Title To Kansas Farmland. Kirk Hahn and Cheri Ward, a married couple, were lived in Nebraska. Hahn owned a one-half undivided interest in real property located in Osborne County, Kansas, the title to which was in his name alone. Hahn’s parents, Clifford and Iris Hahn, owned the other one-half undivided interest in that property. When Ward filed for divorce in Nebraska, the Nebraska court divided Hahn and Ward’s property. The Nebraska court directly awarded the Kansas property to Ward stating: “The above described real estate is now the property of [Ward], and its order “shall be recorded in the real estate records of Osborne County, Kansas to effectuate the transfer”. Ward subsequently petitioned the Kansas district court to enforce the Nebraska court’s order and to partition the land between her and Hahn’s parents. The district court found that the Nebraska order assigning the Kansas real estate had no effect on the legal title to the Kansas real estate and was not entitled to enforcement. However, it nonetheless enforced the Nebraska order under the principle of comity, which permits a court to enforce a foreign judgment even though the court is not required to do so. Clifford and Iris Hahn appealed. The appellate court determined that the courts of one state generally cannot directly affect the legal title to land situated in another state. The appellate court pointed out that a sister state may indirectly affect title to land located in another state by ordering a litigant over whom it exercises personal jurisdiction to transfer title to another. If that party does not comply, the court may enforce the order by holding the disobedient party in contempt. However, the appellate court also determined that nothing in the record suggested the Nebraska court ordered Hahn to transfer the property to Ward. In addition, given the Nebraska court’s purported direct transfer of title, ordering Hahn to sign the deed would have been superfluous. The court also pointed out that where public policy is not violated it is generally recognized that a court should exercise comity over a foreign judgment in order to avoid expense, harassment and inconvenience to the litigants. However, because the Nebraska court directly affected the legal title to land in Kansas, it squarely conflicts with Kansas law which prohibits sister states from directly affecting title to Kansas land. As a result, the Nebraska court order violated Kansas public policy. For these reasons, the appellate reversed the district court’s order. Ward v. Hahn, No. 116,654, 2017 Kan. App. LEXIS 56 (Kan. Ct. App. Jul. 28, 2017).

Posted July 26, 2017

Development Rights Are Real Property Under State Law.  The plaintiff held a qualified life estate in a farm that had been in his family for more than 240 years. The life estate was contingent on the son farming the land. If he ceased farming before his death, the life estate ceased and he would own the remainder equally with his three sisters. The plaintiff and two of his sisters sought authorization pursuant to NY CS RPAPL §1602 to sell the development rights to the property in order preserve its future as a farm, however the third sister opposed selling her share of the development rights. Under §1602 the owner of a possessory interest in real property may apply to the court for an order directing that the "real property, or a part thereof, be mortgages, leased or sold". The court determined that development rights constituted an interest within the metaphorical "bundle of rights" that comprises a fee interest in real property. In addition, in drafting §1602, the court determined that the NY legislature gave the court the authority to compel the mortgage, lease or sale of "real property, or a part thereof", without placing any limitation on which "parts" of the bundle of rights are subject to the statute. Accordingly, the court determined that development rights constitute real property for purposes of §1602. However, because the plaintiffs did not present any evidence of a proposed buyer for the development rights or a value of the underlying property with and without the development rights the court also determined that the plaintiffs' failed to establish that stripping the development rights from the underlying land would be expedient. As a result, even while the plaintiffs' application to the court for an order directing that the development rights be sold is valid, the court denied the application for a lack of expediency and dismissed the action. Hahn v. Hagar, No. 2015-06560 2017 N.Y. App. Div. LEXIS 5643 (N.Y. Ct. App. Jul. 19, 2017).

Posted July 22,2017

Longstanding Fence Established Boundary Between Tracts. In January 1991, the plaintiff and his wife acquired tracts of land in Louisiana. The defendant owned land immediately south of the plaintiff’s property. When the plaintiff acquired the land, there was an existing fence which had been in place for more than 30 years, which ran from East to West between the parties’ tracts. In 2014, the defendant commissioned a survey of its tract which showed that, under the deeds, the property line was the section line which was north of the existing fence. The defendant removed the original fence and bulldozed the section line in preparation for building a new fence. The plaintiffs filed a petition for possession, temporary restraining order, permanent injunction and damages against the defendant. The trial court found that the fence line between the parties' tracts of land had remained in the same location in excess of 50 years at the time of defendant’s removal in 2014 and that there was insufficient evidence to support defendant’s contention that a wagon road which ran along the section line created a boundary. The trial court’s judgment recognized the plaintiffs’ possession of the property and established the original fence line as the boundary between the two tracts. The appellate court reviewed the testimony from multiple sources discussing the history of the fence line and the old wagon road. It noted that even the witnesses who remembered a road gave conflicting testimony regarding whether that roadway was actually fenced on either side. In addition, the testimony suggested that if there was a road it had fallen into disuse for a period exceeding 40 years, whereas the old fence remained in the same location during that time period and was the visible boundary between the two tracts. In addition, the testimony established that the plaintiffs’ used the property up the fence in ways consistent with a wooded, wetland area, including hunting and walking along the fence line to maintain the fence. The court noted that the plaintiffs’ maintenance of the fence also served as an action of possession by keeping defendant’s cattle off their land. As a result, the appellate court affirmed the trial court’s judgment. Madden v. L.L. Golson, Inc., No. 51,366-CA 2017 La. App. LEXIS 1203 (La. Ct. App. Jul. 5, 2017).

Posted July 18, 2017

Trial Court Decision Ordering Partition and Sale of Property Upheld. The defendant owed a one-eighth fee simple interest in a parcel of real property in Wichita County, Texas. The plaintiff owned the remaining seven-eighths fee simple interest. The property contained several buildings and once served as the location for Carter Wind Systems (CWS) a wind turbine company whose shares were owned by the defendant and several other individuals. CWS dissolved in 1994 and since then the property was used but not owned by Carter Wind Energy (CWE) a company formed by the defendant and his son. CWE placed a turbine on the property which provided electricity for the buildings. The defendant's son owned the turbine. In October 2014, the plaintiff sued for a partition of the real property. He claimed that the property was not susceptible to a partition in-kind because it contained substantial improvements and valuable industrial fixtures. The defendant raised a claim for equitable adjustment, arguing that the improvements on the property and buildings had been constructed by CWS and that he owned a 27 percent interest in CWS upon dissolution and could assert an equitable adjustment claim. The plaintiff filed a motion for partial summary judgment with regards to the equitable adjustment claim and the trial court agreed. Following a bench trial, the trial court also concluded that the property was not subject to a partition in-kind because it would significantly impair the value of the land. As a result, the trial court ordered the property to be sold and the net proceeds divided between the defendant and plaintiff in accordance with their respective interests. The defendant appealed, claiming that the trial court erred by granting summary judgment against his equitable adjustment claim. The court of appeals held that upon the expiration of the three-year period for winding up the prosecution of CWS's legal rights, the defendant lost the ability to pursue the claim for equitable adjustment. As a result, the defendant was barred from bringing an equitable adjustment claim. The defendant also claimed that the trial court erred by ordering a sale of the property rather than partitioning the property in-kind. He claimed that the evidence at trial showed that a partition in-kind was possible. The court of appeals determined that although the evidence showed that an in-kind partition was theoretically possible, it could not conclude that he trial court erred by implicitly deciding that such a partition was not feasible, fair, practical or equitable. The court held that the evidence was legally and factually sufficient to support the trial court's judgment ordering a sale of the property. Carter v. Harvey, No. 02-16-00153-CV, 2017 Tex. App. LEXIS 5977 (Tex. Ct. App. Jun. 29, 2017).

Posted June 17, 2017

Neither Boundary by Acquiescence Nor Adverse Possession Established. The defendant appeals from a district court order resolving a boundary dispute with his neighbors after he built a farm lane and a deer fence without first obtaining a survey. The defendant contended that the western boundary of his property was determined through either adverse possession or boundary by acquiescence. The court rejected this argument because the western boundary of his property was routinely and historically determined by a tree line before the defendant built his fence. Therefore, there was no clear or positive evidence that he adversely possessed the area before he built the fence. There was also no clear evidence that the plaintiffs gave their permission before the defendant built the fence. Therefore, the defendant’s boundary-by-acquiescence claim was rejected. There was also insufficient evidence to prove that the owners of the property to the north of the defendant’s agreed to the placement of the boundary line. Consequently, the defendant’s argument of estoppel also failed. The court ordered the defendant to remove the deer fence and alter the farm lane so that it does not encroach on his neighbors, all at his own expense. Mixdorf v. Mixdorf, No. 16-0596, 2017 Iowa App. LEXIS 558 (Iowa Ct. App. Jun. 7, 2017).

Publication In Newspaper Insufficient To Obtain Treasurer’s Tax Deed. The plaintiff is a 99-year-old woman represented by her son, who is her power of attorney. The plaintiff moves to set aside a treasurer’s tax deed for her family farm for failure to provide proper notice. The defendant sent notice to the plaintiff by certified mail to an incorrect address which was returned as ‘unclaimed’. The defendant then published notice of its intent to apply for a treasurer’s tax deed in the newspaper. However, pursuant to Neb. Rev. Stat. § 77-1834, the defendant did not meet the requirements for notice by publication, because the plaintiff’s address and where she could be found was available to the defendant (both the county assessor and the court treasurer’s records included the correct address for the plaintiff). Consequently, the defendant never completed service of a notice and the plaintiff was entitled to recover the real property because the defendant failed to comply with the notice requirements relating to the treasurer’s tax deeds. Wisner v. Vandelay Investments, L.L.C., No. A-16-451, 2017 Neb. App. LEXIS 112 (Neb. Ct. App. May 30, 2017).

Mineral Owner’s Permission Not Required For Horizontal Drilling Of Minerals on Adjacent Tract. The plaintiff owns mineral rights associated with a tract on which the defendant wants to drill an oil well to reach the minerals under an adjacent tract of land. The plaintiff owns only the mineral rights and the owner of the surface rights agreed to allow the defendant to drill on the property. The plaintiff claimed that the defendant also needs the plaintiff’s permission before drilling could begin because the wellbore will pass through portions of its mineral estate before kicking-off horizontally. The court held that the surface overlying a leased mineral estate is the surface owner’s property, and those ownership rights include the geological structures beneath the surface. While the court acknowledged that there would be a small loss in minerals that the plaintiff could have produced during drilling, the loss not sufficient of an injury to support a claim for trespass. Therefore, the only permission necessary for an oil and gas operator to drill through a mineral estate it does not own to reach minerals under an adjacent tract of land is the owner of the surface rights. Lightning Oil Co. v. Andarko E&P Onshore, LLC, No. 15-0910, 2017 Tex. LEXIS 463 (Tex. Sup. Ct. May 19, 2017).

Posted June 10, 2017

Landlord’s Duty To Mitigate Damages Doesn’t Apply When Tenant Still In Possession. The plaintiff orally leased 35 acres of pasture from the defendant and used it to grow and harvest brome grass and graze cattle. The lease annually renewed under the same terms and conditions. The plaintiff failed to pay the rent amount for the 2015-2016 lease term, and later claimed that the due date of the rent amount was unclear. Because of the failure to pay rent and in an attempt to mitigate damages, the defendant allowed a neighbor’s four horses to graze the pasture in the late summer of both 2014 and 2015, and denied the plaintiff access to the pasture for three months from late 2015 to early 2016. In early 2016, the plaintiff sued alleging that the defendant breached the plaintiff’s exclusive right of possession and sought damages for half of the cost of fertilizing the pasture in 2014 and 2015, half the rent for those years, the cost of feeding the cattle instead of grazing them on the pasture, and an amount for lack of access. The small-claims court denied the plaintiff’s claims and granted the defendant’s claim for the unpaid rent of $1,000. On appeal, the trial court affirmed without making any factual findings. On further review, the appellate court reversed. The appellate court noted that the duty under state (KS) law to mitigate damages only applied when the tenant had surrendered possession of the property. In that instance, the landlord has a duty to find a new tenant. But, when the issue is the non-payment of rent and the tenant hasn’t surrendered possession, there is no duty to mitigate and the landlord cannot interfere with the tenant’s exclusive right of possession (implied covenant of quiet enjoyment). Instead, the landlord can give the tenant notice of lease termination if the rent isn’t paid within 10 days (K.S.A. §58-2507), or can place a lien on crops growing on the leased premises for the unpaid rent. Miller v. Burnett, No. 116,373, 2017 Kan. App. LEXIS 43 (Kan. Ct. App. Jun. 9, 2017).

Posted June 9, 2017

Tenant Cannot Adversely Possess Leased Tract. The plaintiff claimed title ownership to a tract of land on the basis that he had been in open, continuous and uninterrupted possession of the subject tract for more than the 30-year statutory requirement for adverse possession. The plaintiff claimed that he began possessing the property as an owner when he began using it to graze his cows in 1955. However, the representatives of the trust that owned the land claimed that the plaintiff signed a lease for the property in 1955, thereby acknowledging that his possession of the property was as a lessee and could not be adverse to the trust. The trial court agreed with the trust because there were questions as to whether the plaintiff’s testimony was accurate. The plaintiff claimed that he didn’t think anyone owned the land, yet when he first entered the property there was barbed wire all around it. On appeal, the appellate court affirmed, finding that the trial court’s factual determination that the plaintiff did not possess the property as an owner for 30-years was entitled to great deference. The appellate could not say that the trial court committed a manifest error or was clearly wrong in its determination. King v. Dola ease Pierce Jenkins Trust, 2017 La. App. Unpub. LEXIS 193 (La. Ct. App. Jun. 2, 2016).

Posted May 29, 2017

Farmland Cannot Be Equitably Partitioned. The decedent died leaving a will in which he left, in pertinent part, his real estate to his wife for life for as long as she remained unmarried. Upon the wife’s death, or upon her subsequent remarriage, her interest in the real estate would passed to his four children for their lives. The children came into ownership of the farm as co-equal owners and the two daughters claimed that their two brothers were misusing the property and also using it to their advantage at the daughters’ expense. The daughters sought an equitable partition of the five parcels. The court appointed a commissioner to determine whether the property could be partitioned. The commissioner viewed the properties and issued a report that did not set forth a plan for equitably dividing the farm or a finding that it cannot be divided “without manifest injury to its value” as required by state (OH) law. The trial court upheld the commission’s finding, and the appellate court affirmed. The appellate court noted that the parcels were not contiguous and were two to four miles apart. The court noted that each parcel had different production potential and one parcel had road frontage. The court also concluded that partitioning the tracts among the four siblings would decrease the value of the entire farm because it would result in fields too small for modern farming practices. In addition, the commission was determined to have provided a “sufficient factual analysis” to permit the trial court to independently determine the possibility of an equitable partition. Simon v. Underwood, No. 2016-CA-18, 2017 Ohio App. LEXIS 1939 (Ohio Ct. App. May 19, 2017).

Posted May 27, 2017

Fact That Zoning Records Are Public Does Not Bar Fraud Claim. The defendants, a married couple, bought a 34-acre tract in 1998 that was zoned for agricultural use. The defendants used the tract to store equipment and inventory from the husband’s telecommunications and classic car sales business. They later wanted to sell a portion of the tract and hired a real estate agent to that effect. The agent provided the defendants with a form stating that the property was zoned as industrial. The zoning error was spotted by the wife and the husband told her that that he had asked the agent to make the correction. However, the tract was later advertised online as being zoned as industrial. The plaintiff responded to the ad and met with the defendants and the real estate agent. The plaintiff signed a purchase agreement to buy 10 acres. But, after the plaintiff discovered that an adjacent airport was going to place a runway protection zone on the tract, the plaintiff exercised its option to terminate the purchase agreement. Later, the plaintiff signed a new purchase agreement for 16 acres, and put up $150,000 in earnest money. The contract contained a liquidated damages provision that provided for $150,000 if either party breached the contract. After the contract was executed, the defendants and the real estate agent noted that the zoning error in the ad had not been corrected. The plaintiff was not informed of the error for another two months and, when discovering the error, advised the plaintiffs that the purchase was off unless the property was rezoned and the price lowered. After affirming the denial of summary judgment to northern Indiana landowners who misrepresented a property zoning to a potential buyer, the Indiana Court of Appeals also reversed the denial of attorney fees and prejudgment and post-judgment interest to the buyer. The defendants refused to correct the error and reduce the price and the plaintiff terminated the purchase contract within a 180-day due diligence period. The plaintiff sought the return of his earnest money, but the defendants refused. The plaintiff sued for actual and constructive fraud, breach of contract and rescission. The defendants counterclaimed. On cross motions for summary judgment, and the trial court denied both parties’ motions. The jury then returned a verdict for the plaintiff of $150,000. The defendants moved to correct errors and the plaintiff sought to recover attorney fees and pre and post-judgment interest and post-trial attorney fees. The trial court denied all motions. On appeal, the appellate court noted that the plaintiffs had not preserved the argument that the second contract did not allow termination for improper zoning. The appellate court also upheld the denial of the defendant’s summary judgment motion on the actual fraud claim, finding that the plaintiffs could rely on the defendants’ representation of the zoning status of the property. The court also upheld the trial court’s denial of summary judgment on the plaintiff’s constructive fraud charges. The court noted that simply because zoning status of a property is public record does not preclude a constructive fraud claim. The appellate court also upheld the trial court’s denial of the defendants’ summary judgement motion on the breach of contract issue. The court remanded on the issue of whether the plaintiff was entitled to attorney fees. The appellate court also determined that prejudgment interest might be allowed, and remanded on that issue. Song v. Iatarola, No. 64A03-1609-PL-2094, 2017 Ind. App. LEXIS 197 (Ind. Ct. App. May 10, 2017).

Posted April 5, 2017

Honey Bees Are “Livestock.” Legislation in Montana specifies that honey bees are included in the definition of “livestock” for purposes of the per capita fee on livestock. The fee also applies to poultry and swine three months of age or older, and all other livestock nine months of age or older in each county. H345, effective Oct. 1, 2017.

Posted March 31, 2017

Coal Mining Permit Approval Upheld. The plaintiff ranches on several thousand acres and entered into a surface and coal lease agreement covering 3,509 acres that granted the right to mine the land in return for compensation. The lessee sought state approval for a surface coal mining permit for a new mine about 10 miles covering over 8,000 acres of land in the same county as the plaintiff’s ranch. The permit application was conditionally approved subject to the right of interested persons to request a formal hearing. The conditional approval was based on a finding that the proposed mining operations would not interrupt, discontinue or preclude farming on alluvial valley floors that are irrigated or naturally sub-irrigated or materially damage the quantity or quality of water in surface or underground water systems that supply the alluvial valley floors. The plaintiff requested an administrative hearing as an owner of much of the land in the eastern half of the permit area, raising concerns about the size of the permit area, the reclamation practices to be used on the mined land, and his loss of agricultural production due to mining activities. Public hearings were held and the approval was upheld, but the plaintiff was granted some relief regarding reclamation issues. The plaintiff challenged the approval citing violations of state law in concluding that the mining would not harm alluvial valley floors, and appealed to the trial court. The trial court upheld the defendant’s decision to approve the permit, and the plaintiff appealed. The appellate court affirmed on the basis that ample evidence supported the finding that the defendant’s order complied with applicable state law and sufficiently addressed the plaintiff’s evidence. The court also rejected the plaintiff’s request for attorney fees. Voigt v. North Dakota Public Service Commission, No. 20160046, 2017 N.D. LEXIS 61 (N.D. Sup. Ct. Mar. 30, 2017).

Posted March 29, 2017

Pipeline Ordered Removed From Tribal Land. The defendant owned and operated a network of natural gas transmission pipelines across Oklahoma. On pipeline crossed a 137-acre tract which had originally been an Indian allotment held in trust by the Bureau of Indian Affairs (BIA). 38 Indians and the Kiowa Tribe own undivided interests in the tract in varying percentages. In late 1980, the BIA approved the grant of a .73-acre easement across a part of the tract for a 20-year term in exchange for $1,925 for the construction and operation of the pipeline. In 2002, the defendant’s predecessor-in-interest submitted a right-of-way offer to the BIA and made an offer to the plaintiffs for a new 20-year easement. A majority of the landowners rejected the offer after the defendant had obtained the written consent of five tenant-in-common landowners (who collectively owned about 10 percent of the tract) which was submitted to the BIA with the offer. The BIA approved the offer to renew the right-of-way easement for another 20 years. The plaintiffs appealed and the BIA vacated its decision on the basis that it did not have the authority to approve the right-of-way without the consent of the majority of the interest holders in the tract, and remanded the case for further negotiation and instructed that if approval a right-of-way was not timely secured that the pipeline should be removed. The pipeline was not removed and the defendant continued to operate it. The plaintiffs sued for continuing trespass and injunctive relief. On the trespass issue, the defendant claimed that the written consents constituted a complete defense under OK law. However, the court determined that federal law (25 U.S.C. §323) controlled which required owners of a majority of the interests in the tract to consent, and that the consent of the proper tribal officials also be obtained under 25 U.S.C. §324. On the injunction issue, the court entered a permanent injunction. The defendant’s continuing trespass was not unintentional. The court ordered the defendant to move the pipeline within six months. Davilla v. Enable Midstream, No. CIV-15-1262-M, 2017 U.S. Dist. LEXIS 45010 (W.D. Okla. Mar. 28, 2017).

Posted March 25, 2017

Per-Acre Diminution Applied in “Taking” Case Involving Abandoned Railway. The plaintiffs were 16 landowners that had their farms bisected by a railroad line that was abandoned and converted to a recreational trail under 16 U.S.C. §1247(d). The defendant, admitted liability for the taking of private property upon the issuance of a “Notice of Interim Trail Use” (NITU) and that the plaintiffs were owners of the fee interest underlying the right-of-way at the time the NITU was issued (the time of the taking). Thus, the sole issue before the court was the determination of the “just compensation” due the plaintiffs for the taking under the Fifth Amendment. The court noted that just compensation was to be measured by the market value of the property at the time of the taking based on the highest and most profitable use of the land at issue. Thus, the court had to calculate the difference between what the plaintiffs had before the issuance of the NITU and what they retained afterward. The court also noted that the plaintiffs bore the burden of proof to establish both the before and after values. The issues involved were the value of the land under the corridor, the cost to reclaim the corridor (i.e., make it usable for farming) among other things. The court determined that the plaintiffs did not sustain damages with respect to “access to and over the right-of-way, landlocking or crossing maintenance.” However, the court applied a per-acre drop in value approach with respect to the acreage of an affected parcel after the taking in determining the just compensation due. Sears, et al. v. United States, No. 12-889L, 2017 U.S. Claims LEXIS 167 (Fed. Cl. Mar. 8, 2017).

Posted March 21, 2017

Faulty Mineral Tax Assessment Made Resulting Deed Voidable, But not Void. In this title dispute case the land in question was among lands that the U.S. granted by patent deed to the Union Pacific Railroad in 1901. In 1911, the county made a tax assessment against the railroad’s non-producing mineral interests. The railroad did not pay the assessment, and the following year the county put the minerals up for bid at a tax sale. The railroad did not exercise its right to redeem the minerals or seek to recover the property after the 1912 sale. In 1919, the minerals were sold to a buyer, but the tax deed for the minerals was not issued until 1949. The railroad still considered itself to own the minerals and, in 1914, conveyed the surface estate in the subject tract to the buyer, reserving the minerals. After the 1912 tax sale, two chains of title emerged – one tied to the railroad’s claim of ownership of the minerals and one tied to the county’s tax sale of the minerals and issuance of a tax deed. The plaintiff claimed title to the minerals via a conveyance from the railroad. In 1971, the railroad quitclaimed its interest in the minerals to it’s own land resources entity, the plaintiff’s predecessor in interest. Thus, the plaintiff’s claim to ownership of the minerals originated with the 1901 patent deed and the 1914 reservation of the mineral interest. The defendant entered into an oil and gas lease on the property in 2010 and claimed titled via the 1919 sale of the minerals to a buyer all the way through to a 2014 mineral grant deed where the defendant was the grantee to one-half of the minerals. At trial, the plaintiff claimed that the county’s 1911 tax assessment against the railroad’s minerals was unconstitutional and invalid resulting in the resulting tax deed to be void. The defendant claimed that the tax assessment was valid and that the plaintiff could not challenge the assessment and resulting deed because of the six-year statute of limitations. The trial court ruled for the defendant and unified the surface and mineral estates under the “after-acquired” doctrine. The plaintiff appealed, and the appellate court affirmed. The appellate court determined that the plaintiff’s argument that the Wyoming Constitution prohibited the taxation of minerals in place and that the county’s 1911 tax assessment violated that Constitutional prohibition resulting in a void tax deed was too broad. The court determined that the error was only one of the manner in which the tax was imposed rather than a jurisdictional error. The result, the appellate court determined, was that the tax deed was voidable rather than void. Thus, the plaintiff’s challenge to the tax deed was barred by the six-year statute of limitations and the tax deed remained fully operative. Anadarko Land Corp. v. Family Tree Corp., No. S-16-0131, 2017 WY 24 (Wyo. Sup. Ct. Mar. 3, 2017).

Posted March 13, 2017

Reversed and Vacated - Feeding One Horse Does Not Make the Owner a Farm Tenant Entitled to Statutory Notice of Termination Applicable to Farm Leases. The plaintiffs owned a small acreage with a residence that they leased to the defendants. They leased other portions of the acreage to other parties. The defendants lived in the residence and did not conduct farming activities on the portion of the acreage that they leased along with the house. The defendants had lived in the residence located on the tract for over two decades. The defendants had tried to purchase the property, but the deal went south and in a different lawsuit the court determined that no enforceable contract for sale of the acreage existed. After that litigation ended, the plaintiffs gave the defendants a 30-day notice of termination in accordance with the termination rules for residential tenancies, and then a 3-day notice to quit after the 30-day period expired. That was then followed- up with a forcible entry and detainer action. The defendants filed an answer claiming that they were “farm tenants” entitled to the six-month notice of termination under Iowa Code §562.5 because they grazed a 38-year old horse (which could never be used for agricultural purposes) on the premises. The trial court determined that the grazing of a horse did not constitute a “farm tenancy” and that the plaintiffs had appropriately terminated a tenancy at will. On appeal, in an opinion written by Anuradha Vaitheswaran, the Iowa Court of Appeals reversed. The court noted that the applicable statute (Iowa Code §562.1A(2)) defined “farm tenancy” as “a leasehold interest in land held by a person who produces crops or provides for the care and feeding of livestock on the land, including by grazing or supplying feed to the livestock.” The court also noted that Iowa Code §717.1(4) defined “livestock” as “an animal belonging to the . . . equine . . . species.” The court also claimed that the 2013 change in the farm lease termination statute to make it also applicable to pasture leases along with crop leases supported the defendants’ contention that they were “farmers” because there was no longer an exclusive requirement that the tenant, to be a tenant in a “farm tenancy,” cultivate the leased land. Another statute providing that a tenant leasing less than 40 acres can be terminated on 30-days’ notice was held to not apply because the leased property did not also involve an “animal facility” as that statutory provision required (Iowa Code §562.6), but merely involved a residential tenancy. The court, reversing the trial court’s decision and remanding the case for dismissal of the forcible entry and detainer action, blamed the absurd outcome of the case, where a non-farmer could be deemed to be a farm tenant entitled to the statutory six-months notice of termination, on the “clear legislative language” of the statutory provisions at issue. Unfortunately, the appellate court never bothered to analyze the reason the statutory timeframe for terminating a farm lease differs from that required to terminate a residential lease – to provide sufficient time for a farmer to secure a different tract to rent for crops or livestock. The tenant in the present case had no such concern if the lease were to be terminated. The Iowa legislature clearly never intended the farm lease termination statute to apply to residential parcels where the tenant has a garden and therefore is engaged in “crop production,” or where the tenant keeps a pet that happens to meet the definition of “livestock,” or where the tenant would never be able to file a Schedule F as a farmer, utilize farm income averaging, qualify as a beginning farmer under Iowa law or meet the USDA definition of a “farmer” for USDA purposes. The court never bothered to reason its way through any of these points. Ironically (or maybe not ironically), Judge Vaitheswaran was appointed to the Iowa Court of Appeals by current USDA Secretary Tom Vilsack. Porter v. Harden, 884 N.W.2d 225 (Iowa Ct. App. 2016).

On further review, the Iowa Supreme Court reversed and vacated the opinion of the Court of Appeals. The Court held that the Court of Appeals overemphasized “an animal” without properly looking at the entire context of the statutory language surrounding the phrase. The Supreme Court also noted that the farm tenancy statute (IA Code §562.1(2)) requires that the land under lease must be used for producing crops or the care and feeding of livestock. As such, the Court reasoned that the statute requires that the land be “mostly or primarily devoted to crops or livestock.” The Court also presumed that the legislature intended a “reasonable result,” and that the Court should “hesitate from veering too far” from the common understanding of the statute. Accordingly, the mere keeping of a single horse at a residence did not establish a farm tenancy that triggered the termination statute for a farm tenancy. However, the Court did note that the presence of a single animal could constitute a farm tenancy if that animal was the primary purpose for the tenancy – such as for a “champion stallion.” A dissenting judge (Wiggins) believed that the statute was clear and that “[b]y rewriting the plain language of the statute, the majority is imposing its policy on the people of this state.” The dissent believed that the Court made the farm tenancy notice of termination statute unclear in its application of the “primary purpose” test to hobby farmers. Porter v. Harden, No. 15-0683, 2017 Iowa Sup. LEXIS 27 (Iowa Sup. Ct. Mar. 10, 2017).

Posted March 7, 2017

Breach of Easement Terms At Issue. The plaintiff’s predecessor in title conveyed a conservation easement to the defendant that covered a 60-acre tract. The terms of the easement designated a 100-foot-wide strip along the edge of the Little River. The strip was designated as a “riparian buffer.” When the plaintiff acquired the tract, it removed trees and did grading work within the buffer strip as part of its commercial forest operations. The defendant, a land trust, sought an injunction that would require the plaintiff to return the buffer strip to the condition that it was in before the tree removal and grading work on the basis that the plaintiff had breached the terms of the easement. The easement terms allowed for “No more than one new opening or clearing, and no new opening or clearings greater than 1,000 square feet, in the forest are permitted for noncommercial purposes, unless approved in advance by writing…”. The plaintiff claimed that merely disturbing more than 1,000 square feet of earth does not constitute the creation of “new opening or clearing” in the context of forest management under the terms of the easement. The trial court granted partial summary judgment to the plaintiff on the liability issue. On further review, the state (VA) Supreme Court reversed. The Supreme Court determined that material fact issues remained that precluded summary judgment on whether the plaintiff had breached the terms of the easement. Mount Aldie, LLC v. Land Trust of Virginia, Inc., No. 160305, 2017 Va. LEXIS 20 (Va. Sup. Ct. Mar. 2, 2017).

Posted February 8, 2017

County Can’t Enjoin Skydiving Business on Farm. The plaintiffs, a married couple, and started operating a skydiving business on their 290-acre farm in 2008. On two occasions, they had sought permission from the county to operate the business, but were denied and told it violated county zoning. A court cited the plaintiffs for continuing their business and, in 2015, the county initiated an enforcement action before the county enforcement board. After a hearing, the board rejected the county’s position and concluded that the plaintiffs’ business did not violate county zoning rules. The county did not appeal. However, before the board rendered its decision, the plaintiffs sought a judicial declaration that they could run the skydiving business under the state agritourism statute which they claimed would exempt the skydiving business from local land use regulations. The court did not issue the declaration, and the county filed a cross-claim in that action to stop the skydiving business. But, after the board ruled for the plaintiffs, the court granted the injunction for the county and the plaintiffs appealed. On appeal, the appellate court reversed. The appellate court noted that the board had ruled in favor of the plaintiffs and the trial court ignored the board’s determination. In addition, the appellate court determined that the county zoning rules were ambiguous and didn’t clearly establish the county’s position for an injunction. The zoning code allowed “outdoor recreational activities such as hunting or fishing camps…”. Skydiving was neither specifically included or excluded from the list of permissible land uses. Nipper v. Walton County, No. 1D16-512, 2017 Fla. App. LEXIS 361 (Jan. 17, 2017).

Posted February 7, 2017

Land Used for Arboretum Is Not “Agriculture” in Iowa; Long-Term Lease Valid. The plaintiff owns a 40-acre tract of land in Iowa and the defendant owns an adjacent 300-acre tract also in Iowa. The 300-acre tract was zoned “agricultural” and was rented out by the plaintiff for use as an arboretum. The parties entered into a written lease for the tract in 1969. In 1980, the parties entered into a cash-rent lease as a supplement to an existing memorandum of understanding that was for a term of 99 years. The 300-acre tract contained 250 acres of timber which the plaintiff leased for $1.00/year, and the remaining 50 acres was tillable which the plaintiff could lease any portion of. In 1990, the plaintiff notified the defendant of its intent to lease a portion of the tillable ground to restore it to native grass. In 1992, the lease was again approved. In 2013, the defendant notified the plaintiff that it was terminating the lease and the plaintiff responded that the lease was invalid on the basis that it violated the state constitutional provision barring an ag lease exceeding 20 years. On cross motions for summary judgment, the trial court granted the plaintiff declaratory relief finding that the land was not “agricultural” and that the lease was valid. The court ordered the defendant to comply with the lease terms. On appeal, the court affirmed. Iowa Arboretum v. Iowa 4-H Foundation, 886 N.W.2d 695 (Iowa Ct. App. 2016).

Posted January 27, 2017

Aviculture is Agriculture for Property Tax Purposes. The defendant, county property appraiser, denied the plaintiff’s request for an ag tax classification on all of the plaintiff’s property. The plaintiff owns a five-acre tract and uses the land to raise wild birds for sale as pets – aviculture. The plaintiff spent about $50,000 to buy cages, sheds, fences, feeders and structures for storage. From 2006-2012, the defendant classified the property as agriculture because of its dual use for aviculture and cattle. In 2012, the defendant denied an ag tax classification for the requested 4.5 acres, instead issuing it for 2.25 acres. The plaintiff appealed to the Value Adjustment Board (VAB) which held that the entire 4.5 acres should have ag classification. In 2013, the defendant denied ag classification to the portion of the property used for aviculture, which decision was reversed by the VAB. The defendant appealed the VAB’s decision and also denied ag classification for tax year 2014. Both parties motioned for summary judgment. The trial court ruled for the defendant on the basis that only poultry qualified as ag under the applicable statute and entered summary judgment for the defendant. On further review, the appellate court reversed. The appellate court held that if, on remand, the plaintiff could establish that aviculture is useful to humans, then agricultural classification should apply. The court reached that conclusion because the applicable statute defined “farm product” as “any…animal…useful to humans.” McLendon v. Nikolits, No. 4D15-4003, 2017 Fla. App. LEXIS 765 (Fla. Ct. App. Jan. 25, 2017).

Posted January 25, 2017

Tract Properly Classified as Residential. The plaintiff bought land that the planned to develop into a residential subdivision. The land had been zoned “agricultural” at the time of the purchase, but was rezoned as “residential” three years after the purchase. About that same time, the plaintiff agreed to various restrictive covenants on the property, one of which barred its development from being used solely for agricultural purposes. When the plaintiff was not able to sell the tract in lots for development, he began using it for agricultural purposes, and the defendant (local town) sued to enforce the restrictive covenant. The tract was still assessed as “agricultural” for tax purposes until 2013 even though it was zoned “residential.” The tax classification was changed for 2014 as the result of a court order which resulted in a higher assessed value of the tract for property tax purposes. The plaintiff challenged the change in the assessment, but the Board of Review upheld it and the trial court upheld the Board’s decision. On further appeal, the appellate court affirmed. The appellate court noted that the plaintiff did not farm the land in 2014 and said he was only maintaining ground cover. There was no assertion made that “maintaining ground cover amounted to an “agricultural use” under the applicable statute, guidelines and rules. Thoma, et al. v. Village of Slinger, No. 2015AP1970, 2017 Wisc. App. LEXIS 24 (Jan. 18, 2017).

Posted January 14, 2017

Company Has Right of Eminent Domain to Build Pipeline. The plaintiff, an independent oil and natural gas company, sought to build a carbon dioxide pipeline from Louisiana to southeast Texas and declared itself a “common carrier” via a Railroad Commission form. A “common carrier” has the power of eminent domain. Under the state (TX) law, a common carrier is on that “owns, operates, or manages, wholly or partially, pipelines for the transportation of carbon dioxide…to or for the public for hire…”. The trial court ruled for the plaintiff on the basis of testimony that the pipeline would be available for public use once operational. On appeal, the appellate court affirmed. On further review, the Texas Supreme Court reversed on the basis that the Constitutional protection against having private property taken for public use couldn’t be so easily eliminated by checking a box on a form. Instead, the Court determined that there had to be a “reasonable probability” that the pipeline will at some point serve the public by transporting gas for customers who will either retain ownership of their gas or sell it to parties other than the carrier.” The Court determined that the plaintiff had not met that standard and remanded the case to the trial court to decide the case based on the standard the Court established. On the remand, the plaintiff showed that it was the only CO2 pipeline in the area and that the pipeline was near numerous refineries and that it was already carrying product for affiliated and non-affiliated companies. The trial court held that the plaintiff was a common carrier and the appellate court reversed. The appellate court determined that when the plaintiff intended to build the pipeline there was not a clear reasonable probability that the plaintiff intended to have the pipeline be available for public use and, therefore, serve the public. The plaintiff appealed, and the Texas Supreme Court reversed the appellate court. The Court determined that the plaintiff established by a “reasonable probability” that there was a “reasonable probability” that the pipeline will serve the public. The Court based its opinion on evidence showing the plaintiff’s pre-construction intent and post-construction contracts and the lack of other existing pipelines in the area. Thus, the plaintiff had the power of eminent domain under TX law. Danbury Green Pipeline, LLC v. Texas Rice Land Partners, Ltd., No. 15-0225, 2017 Tex. LEXIS 1 (Tex. Sup. Ct. Jan. 6, 2017).

Posted January 14, 2017

Right of First Refusal Did Not Violate Rule Against Perpetuities. The plaintiff bought some real estate from a married couple in 1986. The purchase contract contained a right of refusal stating that if the defendants offered to sell the land adjoining the land the plaintiffs purchased, the plaintiff would be offered a right to buy the land at a price and on terms that the parties mutually agreed upon. The adjoining land contained the couple’s home. The right of refusal was to lapse if the parties could not agree on purchase terms. The purchase contract was also “binding upon the heirs, legal representatives, and assigns of the parties hereto.” The husband-seller died in 2013 and his surviving wife sought to sell the adjoining tract later that same year. As a result, her lawyer sent a letter to the plaintiff offering to sell it to him for $289,000. The plaintiff did not respond to the offer, and the surviving wife listed the tract with a real estate company for $295,000. The plaintiff did not make an offer on the property. The tract did not sell and was taken off of the market. The surviving wife then sold 64 of the 73 acres of the adjoining tract (not including the house) to her daughter and a third party for $91,125. Upon learning of the sale, the plaintiff sued to enforce the right of refusal and to have the property transferred to himself. The surviving wife, her daughter and the third party motioned for summary judgment. The trial court determined that the right of refusal violated the rule against perpetuities, but did not violated the Statute of Frauds because the adjoining tract could be identified. On appeal, the court reversed on the perpetuities issue, finding that the right of refusal was personal right to the plaintiff that expired on his death. In addition, the court determined that the contract language making the contract binding on the “heirs, legal representatives and assigns” made the contract binding on the seller’s heirs, legal representatives and assigns as long as the plaintiff was living. In addition, the right of refusal was not voided by the plaintiff’s failure to act on the surviving wife’s first offer of the property to the plaintiff. There had not yet been an offer from anyone else for the property at the time it was offered to the plaintiff. Thus, the right of refusal had not been triggered. However, the appellate court upheld the trial court’s determination that the contract satisfied the Statute of Frauds. The contract was in writing, the material terms were stated with reasonable certainty and the adjoining tract could be identified. The court denied the summary judgement motion. Trear v. Chamberlain, et al., No. 115,819, 2017 Kan. App. LEXIS 56 (Kan. Ct. App. Jan. 13, 2017).

Posted January 4, 2017

No Partition In-Kind For Farmland. The parties, brother and sister, owned two parcels of farmland with each of them owning an undivided one-half interest in each tract. They received complete ownership in the tracts upon the last of their parents to die. Tract A contained 315 acres with 157 of those acres tillable, and had been the parents homestead. The brother had farmed Tract A for over 40 years and a portion of it continued to be leased to the brother. Tract A contained 5 grain bins, three of which the brother put up. The bins were valued at $59,000 and one expert appraiser valued Tract A at $929,000 and the other expert appraiser valued Tract A at $778,000. Tract B contained 163 acres, 110 of which were tillable and had some developmental potential. The expert appraisers valued the tracts at $1,200,000 and $620,000 respectively. The brother sought a partition and sale of the tracts and the sister sought a partition in-kind, seeking to retain ownership of Tract A and having her brother own Tract B with an equalization payment. The trial court determined that the sister had not established that a partition in-kind would be equitable and practical and that such a partition would involve "too much guesswork" and dismissed the sister's proposal that she retain Tract A coupled with an equalization payment to her brother of $75,000. The trial court held that the Tracts should be partitioned by sale via public auction unless the parties agreed otherwise. The sister appealed, and the appellate court reversed. The court noted that any sale of Tract A would trigger approximately $150,000 of capital gain tax if it were to be sold, but Tract B would not trigger capital gain tax due to its high basis. The court determined that it would not be equitable to divide Tract A due to the need to construct fencing and because livestock would not have a water source. Thus, the court held that the sister had met her burden to establish that an in-kind partition would be equitable if she retained Tract A, her brother retained Tract B and she paid him a $75,000 "equalization payment believing that this resulted in each party retaining one-half of the farmland value. A dissenting judge pointed out that the two properties, according to the expert appraisers, had a difference in value of $580,000 and that a $75,000 equalization payment was nowhere close to evening out value. Accordingly, the dissent would have affirmed the trial court that a sale and split of the proceeds was the only equitable result for the parties. On further review the Iowa Supreme Court reversed. The Court noted that Iowa law favored partition by sale (which actually is an incorrect way to state the concept– the land is sold in its entirety and then the proceeds are split between the parties at issue. There is no such thing as “partition” by sale. Thus, Iowa law, in partition actions, favors sale of the land and a splitting of the proceeds of sale rather than an in-kind partition of the land. Any party objecting to a sale of the land in a partition action bears the burden to establish why a sale should not occur by showing that it would be equitable and practicable to partition the property in-kind. The Court noted that a partition in kind is not allowed when the partition would cause a drop in the aggregate value of the properties or a partition could not take place without a loss in value and wouldn’t be in the best interest of all of the parties involved. The Court determined that the sister’s proposal was impractical and inequitable. The brother had claimed that separating the tracts would cause a drop in the value of the pasture ground and the sister had failed to overcome that claim. The Court also rejected the cash equalization payment as inequitable. Newhall v. Roll, No. 14-1622, 2016 Iowa Sup. LEXIS 113 (Iowa Sup. Ct. Dec. 23, 2016), vacating, 872 N.W.2d 199 (Iowa Ct. App. 2015).

Posted December 6, 2016

Separate Property Tax Assessment for Saltwater Disposal Wells. At issue in this case was whether a saltwater disposal well can be assessed and taxed separately from and in addition to the land on which the well is located. At trial, the court held that they could not because doing so would amount to double taxation that violated the Texas Constitution. Accordingly, the trial court granted summary judgment to the landowner. On further review, the appellate court reversed, reasoning that the bar on double taxation applies to some taxpayers rather than having application to taxing the same property twice. The appellate court also noted that existing Texas caselaw and statutes allow separate assessment of saltwater wells from the land on which they are drilled on the basis that such assessments do not violate the equal and uniform provision of the Texas Constitution. Parker County Appraisal District v. Bosque Disposal Systems, LLC et al., No. 02-15-00343-CV, 2016 Tex. App. LEXIS 12780 (Tex. Ct. App. Dec.1, 2016).

Posted November 26, 2016

Special Real Property Ag Valuation Inapplicable. The county assessed real estate tax on two properties that the plaintiff owned. The tracts total approximately 40 acres with eight of the acres leased to a tenant for hay production and two of the acres leased for the raising of apples. The plaintiff also owned other properties adjacent to the two tracts at issue. The tracts are owned by the plaintiff’s single-member LLC. The LLC submitted an application for the two tracts to be classified under the state (MN) Green Acres statute (Minn. Stat. §273.111) which would tax the properties at a lower rate applicable to agricultural properties that are owned by individuals. The county denied the application and the state tax court affirmed on the basis that the tracts were not owned individually, but by a single-member LLC. The plaintiff appealed and the MN Supreme Court affirmed. The court noted that the statute applies to parcels owned by individuals except for a family farm entity or authorized farm entity or an entity where a majority of the ownership interests are held by related persons (or at least one of the owners resides on the tract or actively operates the land. The statute also can potentially apply to corporations that derive 80 percent or more of their gross receipts from the wholesale or retail sale of horticultural or nursery stock. The court held that the phrase “owned by individuals” did not encompass tracts owned by a single-member LLC, but was limited to tracts owned by a “natural person” or the entities specifically listed in the statute. Further, the court reasoned, because MN law only allows a disregarded entity status only with respect to specific sections of the MN Code which do not include the Green Acres statute. Because the plaintiff did not live on the subject tracts, the Green Acres statutory valuation did not apply. Strib IV, LLC v. Hennepin County, No. A16-0423, 2016 Minn. LEXIS 714 (Minn. Sup. Ct. Nov. 9, 2016).

Posted November 12, 2016

No Agricultural Use Classification for Tract. The taxpayer owned a tract of land in Colorado that had been previously farmed and classified as “agricultural use” for tax purposes. But, for the tax year at issue, 2014, the tract was denied “agricultural use” classification. The tract had not been cropped for a number of prior years before 2014. Under CO law, a tract must be used for the prior two years preceding the valuation year for an agricultural purpose or be in the process of being restored through conservation practices. However, the taxpayer did not provide any evidence that satisfied either of those requirements. The taxpayer testified that for the three years preceding 2014 the tract was left fallow to allow the tract to qualify for organic certification. However, the testimony of the tract’s supervisor showed that the land need not remain fallow to be certified for the raising of organic crops, and that most tracts that are certified as organic do raise some crops. The Board of Assessment Appeals denied the agricultural use classification based on the evidence and testimony. Maltby v. Arapahoe County Board of Commissioners, No. 68907 (Bd. Assess. App. Nov. 10, 2016).

Posted October 5, 2016

In-Kind Partition of Farmland Upheld. Three siblings inherited approximately 300 acres of farmland as tenants in common when their father died. The land was divided into several parcels and two of the siblings brought partition actions seeking to have the properties sold and the proceeds divided. The other sibling (the defendant) wanted an in-kind division with respect to her share of about 79 acres and the homestead. The trial court ordered the entire property sold with the proceeds divided equally. The defendant appealed. An appraiser had testified at trial that if the property were sold at auction he would recommend selling it in separate parcels to bring a higher total selling price. The appraiser also testified that the tract that the defendant sought would be worth approximately one-third of the total value of the 300-acre tract. He also testified that an in-kind division would be fair and equitable. Another appraiser testified that it would be better to sell the entire tract together, but still another appraiser testified that more money could be realized on sale if separate tracts were sold. The appellate court noted that the trial court had concluded that the defendant had failed to prove that the division of the properties in kind was equitable and practicable based on the testimony of two of the appraisers. But, the appellate court disagreed, noting that an appraisal is much more certain than speculation and that, in this case, the appraiser’s opinion was well supported. Accordingly, the court held that the defendant had proved that the division of the property was equitable and practicable. The court remanded the case for an in-kind partition of the property that the defendant requested, and for partition by sale of the balance with the proceeds split by the other siblings. Wihlm v. Campbell, No. 15-0011, 2016 Iowa App. LEXIS 943 (Iowa Ct. App. Sept. 14, 2016).

Posted September 27, 2016

Upon Death, Ownership Rights to Minerals Pass Immediately to Descendants. The plaintiffs, a married couple, owned surface rights and part of the mineral rights to land located in western Kansas. They filed a quiet title action claiming that the mineral rights owned by others had lapsed for non-use. Pursuant to the Kansas mineral lapse statute, they published notice of the potential lapse in a local newspaper and attached the notice to their petition. The petition named about 20 people believed to have a claim to the mineral rights. After publication of the notice many people filed claims to the mineral rights. The trial court was requested to hold a hearing to sort out the ownership issue, and several claimants (the defendants) filed answers to the quiet title suit, reasserting that they owned the mineral rights at issue. The plaintiffs moved for summary judgment on the basis that the defendants provided no proof of ownership due to a lack of a judicial decree of descent or a probate proceeding. The defendants claimed that the mineral interests passed directly from the prior owners to them under intestacy which did not require a judicial determination of their rights. The trial court determined that the defendants' claims were valid and that they could file a claim of ownership which would then require the court to determine ownership via a quiet title action. That finding was upheld on appeal. The owner of an unused mineral right is simply one who has acquired the right to possess, use and control the mineral interests at issue. Thus, when the ancestors died intestate, their ownership rights passed immediately to the defendants and gave them possession and use of the mineral rights making them owners capable of filing a valid claim and preventing their interests from lapsing. Nickerson v. Bell, et al., No. 114,507 (Kan. Ct. App. Sept. 16, 2016).

Posted September 11, 2016

Evidence Lacking To Support Boundary By Acquiescence. The plaintiffs, a married couple with a long history of court litigation in Iowa, sued a family member (the defendant) claiming that the defendant had acquiesced to the location of a boundary line. The trial court dismissed the petition for lack of evidence. On appeal, the court affirmed, noting that the trial court did not err in finding a lack of evidence that the parties mutually recognized a marked boundary for 10 years. There was no exclusive maintenance of the disputed area, and no clear evidence that a partial fence had been treated as a boundary for 10 years. Baculis v. Baculis, No. 15-1873, 2016 Iowa App. LEXIS 926 (Iowa Ct. App. Aug. 31, 2016).

Posted August 20, 2016

Farm Tenant Entitled to Damages From Landlord’s Conduct. Under Iowa law (Iowa Code §562.5A), a farm tenant is entitled to “aboveground parts of the plant” unless a written lease specifies otherwise. In this case, the prior owner of the leased ground sold it without giving proper statutory notice of lease termination. Thus, the oral cash lease renewed on the same terms and conditions without being impacted by the sale. After the defendant (the farm tenant) harvested the corn crop, the new landlord (the plaintiff) entered the leased premises to chisel-plow the ground in preparation for spring planting. The defendant had entered into an agreement with a third party to bale the stalks for $10/bale after the defendant harvested the corn crop. The defendant believed that he could get somewhere between $25 and $40 dollars/bale. However, the plaintiff entered the ground and chisel-plowed the cornstalks before they could be baled. The defendant sued for damages based on being able to obtain three bales per acre at a net return of $22.50/bale on 84 acres for a total damage amount of $5,670. The trial court ruled for the plaintiff, completely ignoring Iowa Code §562.5A. On appeal of that decision, the appellate court reversed for a determination of damages. Slach v. Heick, 864 N.W. 2d 553 (Iowa Ct. App. 2015). On the damage issue, the defendant claimed that he only plowed 64 acres, and the trial court agreed based on the testimony that showed that the defendant left a border unplowed. On appeal, the court affirmed. The appellate court noted that the defendant presented a conservation plan and maps that showed the need to retain an unplowed border area because the defendant was removing trees and fences. The defendant also testified that the plaintiff could have bailed the unplowed area, but chose not to. That testimony was not challenged. The court determined that, based on the evidence, the trial court decision awarding damages to the plaintiff based on 64 acres of plowing should be affirmed. Slach v. Heick, No. 15-1460, 2016 Iowa App. LEXIS 831 (Iowa Ct. App. Aug. 17, 2016).

Boundary by Acquiescence Established. The parties are neighbors that own adjoining tracts. A boundary dispute arose and the trial court determined that the defendants had acquired a part of the plaintiff’s property by acquiescence. The trial court quieted title to the disputed portion of the tract in the defendants. On appeal, the court noted that under state (IA) law (Iowa Code §650.14) a boundary line contrary to that stated in the tract’s legal description can be established if it is determined that the boundaries and corners were acquiesced to by both parties for at least 10 years. Acquiescence requires no affirmative claim of right and can be unintentional, and is largely based on the facts of the particular situation. It can even be inferred by silence or inaction of one party who knows where the true boundary to the property is, knows of the other party’s conduct and doesn’t dispute it for the statutory timeframe. Here, the plaintiff bought her tract in 1972 and the defendants bought their adjoining tract in 1993. In 1999, the defendants had vinyl fencing installed. In 2012, the county highway next to the tracts was repaved and the plaintiff conveyed her tract into a trust. The plaintiff requested a survey, and the survey showed that the defendants had built their fence and driveway on the plaintiff’s property. The plaintiff made an offer to the defendants to buy the disputed tract and the defendants declined, asserting ownership. The plaintiff sued and the defendants counterclaimed. Testimony at trial revealed that the parties had often discussed the boundary between the tracts, that the plaintiff knew the true location of the boundary and told that to the defendant and that the defendants continued to mow the disputed area without the plaintiff doing anything about it, even after the fencing and draining tile was installed. The appellate court affirmed the trial court’s determination that the plaintiff had acquiesced to the defendants’ conduct and that title to the disputed tract should rest in the defendants. Albert v. Conger, No. 15-1638, 2016 Iowa App. LEXIS 840 (Iowa Ct. App. Aug. 17, 2016).

Posted August 8, 2016

Presence of Crops Does Not Establish Possession of the Land. Almost 2,000 acres of farmland was leased to a tenant. The tenant subleased the property via multiple agreements to the plaintiff for the 2011 crop season or “for the year 2011.” The plaintiff did not reside on the leased premises, and planted winter wheat on the tract in the fall of 2011. In April of 2012, the tenant subleased the property to the defendant. During preparation for planting, the defendant determined that about 10 percent of the property contained winter wheat that was not maintained or fertilized. The defendant went ahead and fertilized the wheat and later harvested a small amount. The defendant informed the Farm Service Agency that he was the “operator” of the leased tract and that he had no knowledge of the sublease involving the plaintiff. In the spring of 2015, the plaintiff sued the defendant for conversion, civil theft, and unjust enrichment. The defendant moved for summary judgment and the trial court granted the motion. On further review, the appellate court affirmed. The court upheld the trial court’s determination that the plaintiff was not a holdover tenant because he had not remained in possession of the property after his tenancy expired at the end of 2011. Thus, the tenant only held a tenancy at sufferance. The court noted that the presence on the land of unharvested winter wheat did not give the tenant the power to hold the property or exercise dominion over it. Instead, the court held that growing crops are part of the land, and loss of possession meant loss of title to the crops. The court also determined that a tenancy at will did not exist because the lease had a fixed ending date. The court also held that the facts did not support a promissory estoppel argument. Raden v. Hess, No. A16-0169, 2016 Minn. App. Unpub. LEXIS 772 (Minn. Ct. App. Aug. 8, 2016).

Wood Chipping and Grinding Activity Is Not “Agricultural.” The plaintiff developed a process of grinding and chipping stumps, trees and wood waste into shreds that could be composted and turned into a usable and valuable agricultural commodity that could be used for landscaping and fertilizer. The defendant required the plaintiff barred the plaintiff’s activities absent a special permit. The plaintiff claimed that the permit requirement impermissibly interfered with agricultural activities protected by state (MA) law and the defendant’s zoning laws. The court upheld the permit requirement on the basis that the plaintiff’s activity was not “agricultural” because the plaintiff’s production process was not agricultural and was not incidental to any other agricultural or farming use. Cotton Tree Service v. Zoning Board of Appeals of Westhampton, No. 15-P-1441, 2016 Mass. App. Unpub. LEXIS 791 (Mass. Ct. App. Aug. 5, 2016).

Elements of Adverse Possession Established. A tract of farmland was only accessible by vehicle via a narrow private gravel road over an adjacent tract of land that the defendant’s owned. The defendants farmed the disputed tract for decades until learning of a third party’s claim of ownership. The plaintiffs filed a quiet title action to quiet title by adverse possession. The defendants maintained a levy on the tract to protect the field and occasionally granted permission for others to hunt on the property. The court quieted title to the tract in the plaintiffs via adverse possession on the basis of their use of about 12 acres of unfarmed wooded land that was part of the larger tract. The court noted that the actual possession element of adverse possession was less strict when undeveloped, wild land was involved and that usage sufficed for possession. The plaintiffs’ working of the land as their own also satisfied the “open and notorious” requirement of adverse possession. In addition, neighbors testified that they believed that the plaintiffs owned the property. The court also determined that the plaintiffs had not received permission to farm the disputed tract. As such, the “hostility” requirement of adverse possession was satisfied. Thus, the court concluded that the plaintiffs’ possession the property in an actual, open and notorious and hostile manner. Tiemann v. Nunn, NO. ED102920, 2016 Mo. App. LEXIS 744 (Mo. Ct. App. Aug. 2, 2016).

Posted July 4, 2016

No County or Public Road or Right-of-Way Easement In Existence. The parties own adjacent properties and a dispute arose concerning the existence of a county road, public road or right-of-way easement over the plaintiff’s tract. The trial court determined that a public road, county road and right-of-way easement existed. On review, the appellate court reversed. The appellate court determined that a county road could only be established by a formal act of the fiscal court and that had not happened. The appellate court also believed that the evidence indicated a clear intent to by the plaintiff (or predecessors in title) to abandon their interest in the alleged passway and dedicate it to public use. As for a right-of-way easement, the court agreed that such an easement had existed over the plaintiff’s property, but that the defendant had, based on the evidence, abandoned the easement by virtue of six years of non-use which was coupled with evidence of an intent to abandon – the use of an alternate route. Becraft v. Ellington, No. 2014-CA-001214-MR, 2016 Ky. App. Unpub. LEXIS 442 (Ky. Ct. App. Jul. 1, 2016).

Posted June 13, 2016

Entire Leased Tract To Be Classified as “Agricultural” or “Agricultural Use Waste.” At issue was the proper tax classification of a three-acre parcel of land that was part of a larger 16-acre tract. The full tract was subject to a farm lease and the majority of the entire parcel was used for ag purposes. However, the county classified the three-acres as “mixed-use” vacant property. Before the Board of Tax Appeals (BOTA), the BOTA determined that a 2013 directive and memorandum by the Division of Property Valuation mirrored Kan. Stat. Ann. §79-1476 and required a county appraiser to assume that non-productive areas of an “operating unit” were devoted to the production of crops and animals. Such a presumption, BOTA noted, could only be overcome with evidence that the area at issue is actively and routinely used for recreational, commercial or residential purposes. Here, there was no evidence that the three-acre tract were used for any purpose other than agricultural purposes. Thus, the BOTA concluded that the entire tract should be classified as “agricultural” and that the three-acre portion should be classified as “agricultural use waste” for real property tax purposes. In re Equalization Appeal of Regnier Family Limited Partnership II, No. 2015-2535-EQ, KS. Bd. Of Tax Appeals (Mar. 11, 2016).

Proper Valuation of New Oil Leases At Issue. New oil leases started production in the last half of 2013. For 2014 appraisal purposes, the county asserted that the 2014 Kansas Oil and Gas Guide should be followed by annualizing the 2013 production, applying an assumed 30 percent decline rate and a 40 percent discount rate in accordance with Kan. Stat. Ann. §79-331(b). The taxpayer requesed that the decline rate be set at the 50% maximum and that flush production (the initial "rush" of production from a producing well after it has come on line) be disregarded.  A small-claims hearing officer agreed. The county admitted that its original appraised values were not the result of properly appraising the subject properties, but rather were the result of using the taxpayer's data to set values in an attempt to discourage the taxpayer from appealing while the county appraier's office had a vacancy.  The taxpayer agreed with the small-claims hearing officer's decisision, but the Kansas Board of Tax Appeals (BOTA) determined that In re Tax Appeals of EOG, 263 P.3d 1207 (Kan. Ct. App. 2011) was instructive on the issue insomuch as it established how oil leases are to be appraised when only a few months of flush production exists before the appraisal date. Under that approach, all production before April 1, 2014, on the leases was to be calculated and a 40 percent discount set by Kan. Stat. Ann. §79-331 was to be applied to income and expenses. The result was that the decline rate exceeded 30 percent and the assumed decline rate of 30 percent was not to be utilized. The BOTA noted that the decline rate was probably over 50 percent, thus necessitating the present worth factor be based on the decline rate maximum of 50 percent. In re Protests of Trego County Appraiser, et al., No. 2015-5988-PR, KS. Bd. of Tax Appeals (Mar. 25, 2016).

Posted May 23, 2016

City’s Anti-Fracking Ordinance Struck Down. The plaintiff enacted a five-year moratorium on hydraulic fracturing and waste disposal within the city limits. However, the state (CO) had a detailed regulatory system as established by the Colorado Oil and Gas Conservation Commission. Such regulatory system, the court reasoned, was developed to further CO’s interest in the efficient and responsible development of oil and gas resources. The court reasoned that while CO cities had home rule powers that gave them sovereign authority over certain matters of local concern, the plaintiff’s moratorium involved a matter of mixed state and local concern and was, therefore, subject to preemption by state law by operational conflict – the impeding of the state’s interest in the efficient and responsible development of oil and gas resources. Accordingly, the ordinance was invalid and unenforceable because it rendered compliance with state rules and regulations superfluous for a lengthy period of time. City of Fort Collins v. Colorado Oil and Gas Association, No. 15SC668, 2016 Colo. LEXIS 443 (Colo. Sup. Ct. May 2, 2016). In another case decided the same day, the court also invalidated a similar city ban on fracking under the same rationale. City of Longmont v. Colorado Oil and Gas Association, No. 15SC667, 2016 Colo. LEXIS 442 (Colo. Sup. Ct., May 2, 2016).

Written Farm Lease Construed. In early 2007, the parties entered into a written cash lease for 85 acres of farmland that the defendant owned. The lease called for an annual cash rent of $17,680 ($208/acre), and specified that the tenant (the plaintiff) was to (among other inputs) acquire lime and trace minerals for use on the farmland and that the landlord (the defendant city) would reimburse the plaintiff for such expenditures with the cost amortized over seven years and the tenant being reimbursed for the non-amortized cost if the lease were terminated before the end of the seven-year period. The lease also specified that the plaintiff was to farm the land in accordance with good husbandry practices and was not to “remove… or burn any straw, stalks, stubble or similar plant material.” For expenses incurred on the landlord’s behalf (not counting input costs and expenses incurred for the tenant’s behalf), the tenant was to seek the landlord’s prior written consent. The lease stated that it would annually renew on the same terms and conditions unless proper notice to terminate was given (by September 1 to effectively terminate the lease as of the end of the next February under state (IA) law). In February of 2013, the city council held a budget meeting and suggested that the defendant terminate the lease and put the farmland out for bids in order to get a higher rent amount. In March of 2013, the city council approved the budget which included terminating the lease. However, it wasn’t until August 19, 2013, that the defendant gave the plaintiff notice of termination via certified letter. In December of 2013, the city council discussed the plaintiff’s baling of stalks and that the plaintiff had notified them that lime had been spread in the past. In January of 2014, the plaintiff’s attorney notified the defendant that the plaintiff was owed almost $5,000 for reimbursement of residual value of the lime expense and that the plaintiff was entitled to the value of the crop stover remaining after harvest of the 2013 crop. Effective March 1, 2014, the property was leased to another party. The defendant moved for summary judgment and the trial court determined that the lease had been properly terminated (formal vote of the city council was not necessary), that the plaintiff was not entitled to any reimbursement for expenditures for lime, and that the defendant’s counterclaim for damages for the improper removal of corn stover should be transferred to small claims court. On appeal, the appellate court determined that a city ordinance requiring the city council to make or authorize the making of all contracts did not apply because a lease termination was involved. Thus, the statutory notice of termination could be properly given by the city clerk carrying out the directive of the city council in sending notice of termination. The appellate court reversed on the lime expense reimbursement issue, noting that the lease did not require prior written authorization for input costs such as lime. As for the corn stove, the appellate court held that the lease clearly specified that the plaintiff was not to remove “stalks and stubble” as such items belonged to the defendant. Accordingly, IA Code §562.5A did not apply. That provision allows a tenant to take any part of an aboveground part of a plant associated with a crop unless the parties otherwise agree in writing. Here, the court held, the parties had clearly agreed otherwise. While the plaintiff argued entitlement to the corn stover on the basis that he had been removing it after harvest for several years (equitable estoppel) without complaint because the trial court had not addressed the issue and the appellate court was only reviewing the trial court’s opinion for errors. Hettinger v. City of Strawberry Point, No. 15-0610, 2016 Iowa App. LEXIS 467 (Iowa Ct. App. May 11, 2016).

Posted May 11, 2016

Feeding a Horse Makes the Owner a Farm Tenant Entitled to Statutory Notice of Termination Applicable to Farm Leases. The plaintiffs owned a small acreage with a residence that they leased to the defendants. They leased other portions of the acreage to other parties. The defendants lived in the residence and did not conduct farming activities on the portion of the acreage that they leased along with the house. The defendants had lived in the residence located on the tract for over two decades. The defendants had tried to purchase the property, but the deal went south and in a different lawsuit the court determined that no enforceable contract for sale of the acreage existed. After that litigation ended, the plaintiffs gave the defendants a 30-day notice of termination in accordance with the termination rules for residential tenancies, and then a 3-day notice to quit after the 30-day period expired. That was then followed- up with a forcible entry and detainer action. The defendants filed an answer claiming that they were “farm tenants” entitled to the six-month notice of termination under Iowa Code §562.5 because they grazed a 38-year old horse (which could never be used for agricultural purposes) on the premises. The trial court determined that the grazing of a horse did not constitute a “farm tenancy” and that the plaintiffs had appropriately terminated a tenancy at will. On appeal, in an opinion written by Anuradha Vaitheswaran, the Iowa Court of Appeals reversed. The court noted that the applicable statute (Iowa Code §562.1A(2)) defined “farm tenancy” as “a leasehold interest in land held by a person who produces crops or provides for the care and feeding of livestock on the land, including by grazing or supplying feed to the livestock.” The court also noted that Iowa Code §717.1(4) defined “livestock” as “an animal belonging to the . . . equine . . . species.” The court also claimed that the 2013 change in the farm lease termination statute to make it also applicable to pasture leases along with crop leases supported the defendants’ contention that they were “farmers” because there was no longer an exclusive requirement that the tenant, to be a tenant in a “farm tenancy,” cultivate the leased land. Another statute providing that a tenant leasing less than 40 acres can be terminated on 30-days’ notice was held to not apply because the leased property did not also involve an “animal facility” as that statutory provision required (Iowa Code §562.6), but merely involved a residential tenancy. The court, reversing the trial court’s decision and remanding the case for dismissal of the forcible entry and detainer action, blamed the absurd outcome of the case, where a non-farmer could be deemed to be a farm tenant entitled to the statutory six-months notice of termination, on the “clear legislative language” of the statutory provisions at issue. Unfortunately, the appellate court never bothered to analyze the reason the statutory timeframe for terminating a farm lease differs from that required to terminate a residential lease – to provide sufficient time for a farmer to secure a different tract to rent for crops or livestock. The tenant in the present case had no such concern if the lease were to be terminated. The Iowa legislature clearly never intended the farm lease termination statute to apply to residential parcels where the tenant has a garden and therefore is engaged in “crop production,” or where the tenant keeps a pet that happens to meet the definition of “livestock,” or where the tenant would never be able to file a Schedule F as a farmer, utilize farm income averaging, qualify as a beginning farmer under Iowa law or meet the USDA definition of a “farmer” for USDA purposes. The court never bothered to reason its way through any of these points. Ironically (or maybe not ironically), Judge Vaitheswaran was appointed to the Iowa Court of Appeals by current USDA Secretary Tom Vilsack. Porter v. Harden, No. 15-0683, 2016 Iowa App. LEXIS 478 (Iowa Ct. App. May, 11, 2016).

Posted May 10, 2016

Partial Partition Not Allowed Due to Lack of Possessory Interest. One of the defendants held fee simple ownership in a 255-acre farm which included a house and a garage. In early 2007, he entered into an installment sale contract for the sale of the farm with the other defendants and the plaintiffs. The contract called for $100,000 down and the balance paid in equal installments over 10 years. The contract also specified that the seller retained a life estate in the house and garage and that the buyers would not receive full legal title to the farm until the purchase price was fully paid. The contract also stated that the buyers could not assign their interest without the approval of the seller or lease the farm without the seller’s approval. The contact gave the buyers immediate possession of the farm upon signing, but not the house and the garage. Seven years later, two of the buyers sought a partition of the farm subject to the seller’s life estate. The trial court, however, granted the seller’s (and two of the buyer) motion to dismiss. The other two buyers appealed. The plaintiffs argued that they and the other buyers were all tenants in common with respect to the farm and, thus, had standing to seek a partition. However, the appellate court pointed out that none of the buyers yet had legal title to the farm. While they held equitable title and had the right to possession of the farm, the seller retained a contractual right to regain possession of the farm if the buyers defaulted. Thus allowing a partition, and possible sale, of the property, would not be permissible where the buyers didn’t have legal title to the property. The court also noted that state (IN) law also did not allow a partition action to be brought by remaindermen during the existence of a life estate. In addition, there is no authority allowing a partial partition of the farmland only but not the house and the garage. Also, the court reasoned that partitioning would be contrary to the contract provision barring assignment or sale of the property without the seller’s consent. Marvel v. Althoff, No. 63A05-1512-PL-2167, 2016 Ind. App. Unpub.  LEXIS 525 (Ind. Ct. App. May 6, 2016).

Posted April 28, 2016

Court Selects Route to Landlocked Parcel in Private Condemnation Action. The defendants owned a parcel of agricultural land, a portion of which was cut-off by a river and thereby landlocked. The defendants had grazed cattle on the landlocked parcel, and then later leased it out to others for cattle grazing purposes and recreational hunting. For many years, the defendants and their tenants accessed the property via a route along a tree line at the north side of the adjacent owner’s property. The tenant of the adjacent owner, the plaintiff in this case, planted row crops up to the tree line, but never objected to the use of the path. In 2012, the farm tenant of the adjacent property bought the adjacent property and again planted crops on the access, but this time blocked the defendant from using the path to gain access to their landlocked parcel. The blockage created a problem for the defendants when they wanted to sell the property. The defendants offered the property to the plaintiff, but the plaintiff refused to respond to the offer. The following year the defendants sold the property to a third party, contingent on the defendants obtaining an easement for access to the tract. The plaintiffs refused to grant an easement and the sale was not completed. The defendants then brought a condemnation action pursuant to state (IA) law and the plaintiff responded by filing a motion for declaratory judgment. The parties agreed that the court should select the condemned route out of three that were proposed. The plaintiff favored a route that didn’t interfere with their crops, but needed a grade and drainage work done, and the defendant favored the historic route. The third route was not deemed feasible. The trial court determined that the route not interfering with the plaintiff’s crops was the most feasible route. The defendants appealed. On appeal, the appellate court affirmed. The statute at issue, Iowa Code §6A.4(2), required the condemned public way to be located on or adjacent to a division line and along a line that is the nearest feasible route to an existing public road, or along a route established for a period of 10 years or more by an easement of record or by use by the property owner and the general public. The appellate court determined that the 10-year provision had not been satisfied due to lack of evidence that the general public used the route. The plaintiff’s proposed route, the court determined, ran adjacent to a division line, was nearest to a public road and satisfied the statute. While the cost of construction of the plaintiff’s route was more expensive for the defendant and required grading and needed drainage improvements, it also had the least impact on the plaintiff’s farming practices and would not cause permanent economic loss to the plaintiff as would the defendant’s proposed route. Thus, the appellate court determined that the trial court did not err in selecting the plaintiff’s proposed route and the condemned route. The dissent argued that the plaintiff’s proposed route was not a feasible route that did not provide reasonable access, and that the plaintiff had not met its burden of proof. The dissent pointed out that the review should have been de novo rather than simply a review for errors at law. Middle River Farms, LLC v. Antrim, No. 15-0044, 2016 Iowa App. LEXIS 366 (Iowa Ct. Ap. Apr. 27, 2016).

County Zoning Bars Rezoning of Parcel So As to Protect Farmland. The plaintiffs applied to have their nine-acre tract rezoned from A1 (agricultural) to A-2 (agricultural residential). The plaintiffs wanted to parcel out 1.08 acres that had a house on it from the nine acres and then build a new home on the 7.92 acre-tract. The plaintiffs then planned to sell the 1.08-acre tract to their son. A-1 classification prevented them from building a new residence without tearing the old residence down. The county zoning commission approved the zoning change request. On further review, the defendant (county board of supervisors), pointed out that the intent of the A-2 classification was to split farmable ground from an existing house so that the acres could be kept in production, not allow the subdividing of land in the county. The A-2 classification was not meant to enable more houses to be built. Accordingly, the defendant denied the rezoning application. The trial court held that the defendant did not have the ability to deny the application, but instead needed to ratify a new definition of A-2. Any ambiguity in a zoning ordinance was to be construed in favor of the landowner. On appeal, the appellate court reversed. The appellate court held that the plaintiffs did not have an absolute right to have their property rezoned, which the appellate court believed the trial court had concluded. The appellate court determined that the county zoning commission didn’t need to rewrite the A-2 classification to more clearly carry out its intent, and that the defendant acted properly in denying the rezoning request because rezoning would be contrary to the intent of the zoning ordinance, based on oral statements by members of the defendant as to the purpose of the A-2 provision. Riniker v. Dubuque County Board of Supervisors, No. 15-0926, 2016 Iowa App. LEXIS 407 (Iowa Ct. App. Apr. 27, 2016).

Posted April 17, 2016

Estoppel By Deed Applies to Oil and Gas Leases – No Windfall For Landowners Doing What They Were Already Obligated To Do. The plaintiffs, a married couple, owned a 62-acre tract. They entered into a five-year oil and gas lease with the defendant. At the time of entering into the lease, they believed that they owned all of the oil and gas rights on the entire 62 acres, but their predecessors-in-interest had reserved by deed in 1894 one-half of the oil and gas rights to the property. Under the lease, the landowners were entitled to a bonus payment of $80/acre. However, the defendant conducted a preliminary title search and discovered the extent of the plaintiffs’ ownership of the oil and gas rights before paying the bonus payment. Thus, the bonus payment paid on only half of the 62 acres, but the lease was not amended to reflect the one-half ownership of the plaintiffs. Two years after entering into the lease, the landowners, via a quiet title action, became the owners of the oil and gas rights on the full 62 acres. Three years later, the defendant exercised its option to extend the lease for an additional term and tendered a bonus payment of $70/acre for the full 62 acres. The plaintiffs refused the renewal payment and did not cash the bonus payment. The plaintiffs then sought a court declaration that the lease only applied to the oil and gas on the 31 acres that they actually owned at the time of original lease execution and, therefore, the remaining 31 acres were unleased and could be leased to another party for the then higher prevailing market rate. They also claimed that the defendant’s revised bonus payment of $80 on 31 acres of the property amounted to a modification of the lease and that the defendant, as a result, could extend the primary term of the lease only as to those 31 acres. The trial court granted summary judgment for the defendant and dismissed the plaintiffs’ motion for declaratory judgment on the basis that the lease covered the entire 62 acres and that the primary term was timely and validly extended. Thus, the lease remained in effect according to its terms. The court focused on the lease language that “[I]f LESSOR owns less than all of the oil and gas rights in the premises, LESSOR shall be entitled to only a share of the rentals and royalties equivalent to the proportion of such oil and gas rights owned by LESSOR.” In addition, under the theory of estoppel by deed, the plaintiffs’ subsequent acquisition of title to the previously-reserved one-half interest in the oil and gas rights to the property passed to the defendant under the terms of the lease, and the plaintiffs’ warranty under the lease estopped them from arguing otherwise. The Superior Court affirmed, and on further review, the PA Supreme Court also affirmed on the basis of the “proportionate reduction” clause in the lease and the plaintiffs’ general warranty of title. PA law, the court noted, barred the plaintiffs’ from denying the lease on the basis that they did not have ownership over the entire property subject to the lease at the time the lease was executed but which they subsequently acquired ownership of. The general warranty of title applied to the full 62 acres. That meant that the plaintiffs were obligated to quiet title in the 31 acres they did not own, and the “proportionate reduction” clause meant that the defendant did not have to make full payment until such time as the plaintiffs acquired full ownership. Once the plaintiffs perfected ownership to the oil and gas on the remaining 31 acres, the lease became vested in its entirety as to the defendant and the plaintiffs could not deny the validity of the initial conveyance. Shedden v. Anandarko E. & P. Co., L.P. No. 103 MAP 2014, 2016 Pa. LEXIS 689 (Pa. Sup. Ct. Mar. 29, 2016).

Posted April 6, 2016

Elements to Establish Equitable Mortgage Not Established As a Matter of Law. The plaintiffs owned and operated a family farm. However, the farm ran into financial problems, and two of the family members forged a creditor’s endorsement on checks made jointly payable to the farm and the creditor and then deposited the checks in the farm account. In mid-2010, the creditor began foreclosure proceedings against the farm, and the plaintiffs entered into a consulting agreement with an ag services firm that provided for advice on reorganization and debt restructuring from a third party. The agreement also required that the plaintiffs buy their crop inputs from the ag services firm, and specified that the plaintiff would pay the third party two percent of the gross loan amount or amount of credit applied for/restructured, amount/reduced, amount arranged for, obtained by or obtained from the results of the third party. The agreement also stated that any unpaid amount would attach as a first secured party to loans that the plaintiff obtained and the plaintiff’s property used to receive the loan(s) or restructuring. A decree of foreclosure was entered in early 2011, with the creditor sending the plaintiff a payoff schedule by mail. The creditor had become aware of the forgeries and misappropriated funds, and the payoff schedule incorporated an amount compensating the creditor for the forgery loss. A few days later, the plaintiffs entered into a repurchase agreement providing that they would sell their farm to the owner of the ag services business in exchange settling all debts with the creditor. Under the agreement, the ag services firm got a first secured interest on the farm including crops, crop insurance and all crops intended to be grown in 2011. The plaintiffs could remain on the property as tenants through 2011. The third party sent the plaintiffs an invoice for services, and days later, the plaintiffs executed warranty deeds conveying their property to the buyer’s irrevocable trust for $1.8 million in exchange for settling their debts. The plaintiffs didn’t pay the third party, and in early 2012, the trust sold the farm to a buyer for $3.25 million. The plaintiffs sued the trust and others based on the alleged existence of an equitable mortgage and fraudulent inducement and misrepresentation. The defendants claimed that the plaintiffs had acted with unclean hands – misleading the defendant about the forgeries. The trial court determined that an equitable mortgage existed as a matter of law. On appeal, the appellate court reversed. The court determined that fact issues existed as to whether there was inadequate consideration (a factor indicating the existence of a mortgage). While the plaintiffs retained possession (indication of mortgage), the court determined that factor was also not conclusive by itself. As to the existence of a debtor-creditor relationship, the court determined that one existed, but that it was just one of several factors. While the plaintiffs had the right to repurchase the property (indicating a mortgage), that was another factor in a list of numerous factors. While the defendants claimed that an absolute conveyance was intended, the court determined that was an issue to be determined based on all of the facts and circumstances that could help determine the parties’ intent. On the whole, the appellate court determined that it could not conclude that the plaintiffs had established the existence of an equitable mortgage as a matter of law. The court remanded the case. Brownlee, et al. v. Jamison, et al., No. 14-1862, 2016 Iowa App. LEXIS 300 (Iowa Ct. App. Apr. 6, 2016).

Posted April 2, 2016

Wildlife Rehab Facility Not a Proper Use in Residential Development. The plaintiffs owned just over 10 acres in a residential development. At the time the area was developed, the developer did not seek to change the existing zoning from agriculture to residential. The plaintiff had USDA permits to engage in wildlife rehab of injured animals and operated such a business on about one-third of the acreage where she has cages in a former pool house for raccoons, squirrels, bats, and other small animals. When the plaintiff applied to the defendant for a building permit to build an outdoor cage, the neighbors complained and the county planning and development commission ruled that a wildlife rehabilitation facility was an improper use. On appeal the defendant affirmed, and no further action was taken. Later, the plaintiffs were cited for code violations for the continued use of a portion of their property as a wildlife rehabilitation facility. The plaintiff then filed for a conditional use permit (CUP) on the basis that their facility was the same thing as a veterinary hospital which is an allowable conditional use. The CUP was denied and, on appeal, the trial court upheld the denial. On further review, the appellate court affirmed. The court noted that the prior action involved whether a wildlife rehabilitation facility was an acceptable use and is was determined not to be, and the plaintiffs did not appeal that decision. As to whether the denial of the CUP for the operation of the facility as a veterinary hospital was arbitrary and capricious, the court held that it was not. The plaintiffs were not denied a fair hearing and the Board’s decision was supported by substantial evidence. The hearing lasted five hours and many witnesses testified. In addition, the plaintiffs’ proposed use was neither essential nor desirable to the community. Indeed, 25 of the 28 property owners in the subdivision had signed a nuisance petition. There was substantial evidence to support the Board’s decision. Williams v. Oldham County Board of Adjustment & Appeals, No. 2013-CA-000999-MR, 2016 Ky. App. Unpub. LEXIS 212 (Ky. Ct. App. Mar. 18, 2016).

Posted April 1, 2016

Out-Of-State, Residency-Based Homestead For Spouse Voids Homestead For Other Spouse. The plaintiff and her husband were married in 1944 until his death in 2007. They jointly owned two properties, one in Florida and the other in Indiana until 1986 when she transferred her interest in the Indiana property to him and he transferred his interest in the Florida property to her. Thus, from 1986 on, the husband owned the Indiana property solely in his name and the plaintiff owned the Florida property in her name. The husband received a homestead exemption for the Indiana property and the wife received an exemption for the Florida property. In 2006, the county appraiser for the Florida property removed the plaintiff’s exemption for tax years 1996-2005 based on a state (FL) Constitutional provision that bars more than one exemption being claimed by a family unit. The husband cancelled his exemption in 2006 and the FL exemption was restored in 2007. The removal of the exemption on the FL property caused the appraiser to reset the value of the FL property to market value. The plaintiff sued to recover the additional taxes paid for 2002-2005 and a revaluation for 2007 forward. The plaintiff also challenged the constitutional provision as unconstitutional. The trial court granted the appraiser’s motion for summary judgment. The appellate court upheld the trial court’s determination based on the plain language of the provision that only one exemption could be claimed regardless of location. Endsley v. Broward County, No. 4D14-3997, 2016 Fla. App. LEXIS 4528 (Fla. Ct. App. Mar. 23, 2016).


Production and Storage Aspects of Oil and Gas Lease Not Severable. The successors to the plaintiff, married landowners, entered into an oil and gas lease with the defendant on their 250-acre property. Under the terms of the lease, the defendant acquired the right to produce oil and gas and “to inject gas for storage or repressuring in the substrata and to remove same there from by pumping or otherwise.” The lease was entered into in 1966. In 2013, the plaintiffs sought a trial court declaration that all production-related rights under the lease were terminated due to lack of production and that the production rights and storage rights were severable under the terms of the lease. The defendant claimed that the lease did not sever production rights from the storage rights, and the court agreed. The court determined that the lease was still in effect because the defendant continued to pay the storage rents. On appeal, the court affirmed. The court noted that the lease terms clearly provided that the lease would continue in effect as long as the land was operated for exploration or production of gas or oil, or it was found in paying quantities, or it was used for the storage of gas or the protection of gas storage. The court noted that language was clearly written in the disjunctive and there was no intent to sever production from storage. Also, the court noted that the lease allowed the defendant to be the “sole judge” with respect to whether the leased premises were being used for gas storage or for the protection of stored gas. Thus, a related impact of the court’s ruling was that a dual-purpose lease is a valid and enforceable lease. Loughman v. Equitable Gas Co., LLC, No. 155 WDA 2015, 2016 Pa. Super. LEXIS 183 (Penn. Sup. Ct. Mar. 22, 2016).


Township Ordered To Issue Permits For Barn and Other Structures. The defendants (a married couple) own 40 acres and built a greenhouse, gazebo and hay barn without first obtaining zoning permits from the plaintiff. The plaintiff claimed that the structures were not built in compliance with the zoning ordinance and requested a trial court order that the structures be removed. The trial court refused to issue the order because the ordinance was invalid and unenforceable because it hadn't been filed with the county clerk. On appeal, however, the appellate court noted that state law proclaimed that any structure that is built before a zoning permit is obtained is a nuisance per se and the court is to order the nuisance abated. While the appellate court determined that the structures were a nuisance per se, the court noted that it had the equitable power to eliminate the nuisance. The court determined that it could either order the structures razed or the necessary permits issued. The court ordered the permits issued. The court did so primarily because the plaintiffs had tried to get permits for the greenhouse and gazebo but were refused because the fine levied of $3,100 had not been paid. The court held that the plaintiff's position of paying the fine which it did not have the authority to impose or destroy the buildings was inequitable and in bad faith. Thus, the appellate court affirmed the trial court and ordered the permits to be issued for the standard fee. The plaintiff was also ordered to pay the defendants' attorney fees because of their conduct and the fact that the evidence supported the conclusion that the plaintiff brought the present action for the purpose of harassing and injuring the defendants after they failed to pay the illegally imposed fee. Claybanks Township v. Feorene, No. 322043, 2015 Mich. App. LEXIS 2258 (Mich. Ct. App. Dec. 8, 2015).


No Reversion To Adjacent Landowners When Railroad Initially Granted Fee Simple. The plaintiffs owned land abutting a railroad corridor. A railroad operated a 12.43 mile long line in Florida from 1910 through 1941. Through a series of deed transfers, the abutting owners transferred their interests in the northern part of the corridor via deeds. The railroad relocated the southern portion of the corridor in 1926-1927 and received deeds pertaining to the relocation. In 2003, the railroad then operating the line, petitioned the Surface Transportation Board (STB) to abandon the entire corridor. Pursuant to the STB's order the railroad granted the right to convert the railroad corridor to a public trail to the Trust for Public Land. The abutting landowners sued claiming that the conversion was a compensable taking of their private property interests in the corridor. The Court of Federal Claims, in 2012, determined that the 1927 deed for the southern portion of the corridor conveyed a fee simple interest to the railroad corridor to the railroad and that the 1910 deeds also did likewise with respect to the northern part of the corridor. As such, the abutting landowners had no compensable property interest that was taken that entitled them to compensation. On appeal, the court affirmed. The court noted that the deed language in all of the deeds clearly conveyed a fee simple interest on its face and contained no reference to an easement. In addition, the court noted that the Florida Supreme Court, on certification, that the railroad's interest in the corridor was not limited because the deeds were executed for valuable consideration and there was no state policy that limited the railroad's interest. Rogers v. United States, No. 2013-5098, 2015 U.S. App. LEXIS 22732 (Fed. Cir. Dec. 28, 2015).


New Rules in South Dakota For Determining Ag Classification of Property For Tax Purposes. The South Dakota legislature has modified the criteria used in determining whether real property is to be classified as “agricultural” for property tax purposes. Under the revised system, agricultural land must satisfy two out of three of the following criteria: (1) generate at least $2,500 of gross income from agricultural activities for at least three of the immediately prior five years that constitutes at least 10 percent of the taxable value of the bare land that is assessed as ag property (not counting improvements) and counting income from both the landlord and tenant under a crop share lease; (2) the property’s principal use is for the raising and harvesting of crops or timber or fruit trees or the raising of livestock, poultry, fish or nursery stock, or bees and apiary products, or horticulture with the intent to make a profit; and (3) the tract at issue contains at least 20 acres of unplatted land or is part of a management unit of at least 80 acres of unplatted land. The revised statute says that the same acreage restrictions apply to platted land (but not land platted as a subdivision, which is in an unincorporated area. Also, a board of county commissioners can increase the minimum acre requirement. S. 3, effective Mar. 10, 2016).


Unclear Will Language and Oral Farm Lease Undermine Adverse Possession Claim. The parents in this case had two children, a son and a daughter. The children were the adverse parties in the case. Before the father’s death in 2000, he farmed with his son on the tract at dispute and they utilized the outbuildings on the tract. Upon the father’s death the farmland passed outright to the surviving spouse, the parties’ mother. Mom died in 2004 with a will that conveyed all of the pasture and tillable ground to the son, the forest/timber land equally to the parties, the rental house to the son and the family house located on the disputed tract to the daughter. The rental house and the family house shared a common driveway and well, and the mother’s will specified that the driveway and well were to be shared equally. Unfortunately, the will language conveying the family house to the daughter simply stated that it was “the family house legally described as follows: Lot Seventeen (17), Block Two (2), in the Village of Giard, Clayton County, Iowa. Lot 17 was the disputed tract. In 2006, the mother’s estate conveyed Lot 17 to the daughter in fee simple. Both parties signed the deed as co-executors of their mother’s estate. The son continued to farm the disputed tract and utilize the outbuildings located on it. In 2012, the sister had the property surveyed and evicted her brother. The son sued to quiet title to the farmable portion of the tract and the outbuildings under a theory of adverse possession, claiming that he had occupied the tillable portion and outbuildings in a manner that was “hostile, actual, open, exclusive and continuous, under claim of right or color of title for at least 10 years.” The trial court agreed and quieted title to the tillable portion of the tract and the associated outbuildings in the son. On appeal, the court reversed. The court determined that the son had actually been using the land permissibly as a farm tenant under an oral lease with his father, and continued after his father died until his sister gave him notice of termination in August of 2012. The court determined that the evidence was insufficient to support the son’s claim of ownership of the farmland since the 1980s based on his rotational grazing and improvements he put on the property, and his ownership of the outbuildings since he was a child. The court also that the son’s claim of ownership based on equitable principles was not pleaded at trial and could not be considered on appeal. The court also noted that when the parties formed an LLC in 2005, they transferred all of the land into the LLC except the disputed tract, and that the son did not list the tract in his schedule of assets in his 2013 dissolution proceeding. The record also showed that the sister paid all of the property tax on the tract since it was conveyed to her in 2006, and he couldn’t have satisfied the 10-year adverse possession requirement in any event. Koether v. Elliott, No. 15-0172, 2016 Iowa App. 220 (Iowa Ct. App. Mar. 9, 2016).


Inadmissible Evidence Fouls Up Basic Trespass Claim. The plaintiff shared a one-half mile farmland boundary with an adjacent owner that was marked by a fence line consisting of trees, grass, shrubs and berry bushes designed to provide erosion control and benefit wildlife. The tenants of the adjacent owner partnered with a large-scale, award winning Iowa farming operation that actually farmed the adjacent land. The vegetation along the fence line was plugging field drain tiles on the adjacent farmland and causing other problems for the farming operation being conducted there. As a result, the farming operation contacted the defendant, a local excavation and dirt work company, to remove the trees and brush and fence remnants from the boundary line. The defendant did the work, clearing about 12 feet of land on each side of the boundary. The defendant assumed that the tenant had obtained the plaintiff’s permission to excavate on the plaintiff’s property, but that was not true. The plaintiff sent the defendant a letter requesting $57,750 as reimbursement for damage to his property and the letter was forwarded to the farming operation which accepted responsibility for the excavation without permission or consent. The farming operation declined to make the requested payment, instead, offering to reestablish the property line, grade the soil and perform “other work required to restore the productivity of the land affected.” The affected land was approximately one-half acre. The plaintiff, who has on prior occasions used the court system to file pleadings for the purposes of intimidation and harassment, has been sanctioned by a court and has also defaulted on promissory notes in other situations, refused the offer and sued for trespass, and the jury returned a verdict of $55,000 for loss of use and enjoyment, $40,000 for trees and shrubs (the cost of purchasing, planting and caring for them), $18,900 for a fence (materials, labor and surveying) and $5,000 for drain tile repair (materials and labor). A claim for lost profits from crop production from 2012 through 2014 caused by failure of field drain tile to work properly was rejected. The defendant appealed. The appellate court noted that the trial court entered evidence that the farming operation had agreed to indemnify the defendant against any judgment entered against the defendant. The defendant’s counsel had objected to that evidence at trial as irrelevant and claimed that the trial court abused its discretion in allowing it as evidence as irrelevant and prejudicial. The appellate court agreed and reversed the trial court’s jury verdict and award, and remanded the case for a new trial. On the issue of prejudice, the court noted that the evidence would tend to influence jurors to render a verdict based on insufficient evidence, and a verdict that would be larger than it otherwise would be if the jurors believed the defendant would be required to pay it. Buhr v. Mayer’s Digging Co., et al., No. 15-0211, 2016 Iowa App. LEXIS 215 (Iowa Ct. App. Mar. 9, 2015).


Oil and Gas Lease Not Void as Against Public Policy for Being Perpetual. This case involved a standard oil and gas lease requiring the producer to begin drilling operations on the leased property within 12 months or pay a delay rental of between $1 and $5 per acre. The specific lease language at issue stated, “This lease shall continue in force and the rights granted hereunder be quietly enjoyed by the Lessee for a term of ten years and so much longer thereafter as oil and gas or their constituents are produced or are capable of being produced on the premises in paying quantities, in the judgment of the Lessee, or as the premises shall be operated by the Lessee in the search for oil and gas.” In a separate provision, the lease stated, “This lease, however, shall become null and void and all rights of either party hereunder shall cease and terminate unless, within ___ months from the date hereof, a well shall be commenced on the premises, or unless the Lessee shall hereafter pay a delay rental of ___ Dollars each year, payments to be made quarterly until the commencement of a well. A well shall be deemed commenced when preparations for drilling have been commenced.” The lessor (landowner) claimed that the lease was void because it violated public policy as a perpetual lease. The lessor claimed that was the case because it didn’t state that development had to occur during the lease’s primary term which meant that the lessee could indefinitely extend the lease beyond the initial ten-year term even without taking any action to develop the property. The lessor claimed the lessee could do that by subjectively determining that oil or gas could be produced in paying quantities and paying the delay rental. The lessor also claimed that the lessee had breached implied covenants to develop the leased property. The trial court ruled for the lessor and the lessor moved to certify a class of over 700 landowners, which the court approved. On appeal, the appellate court affirmed class certification but otherwise reversed the trial court. On further review, the state (OH) Supreme Court affirmed. The Court reasoned that delay rental could only be paid during the 10-year primary term of the lease. That meant, therefore, that the lease couldn’t be extended indefinitely by the lessee paying delay rentals. Also, the Court held that the lease language stating “capable of being produced” and “in the judgment of the lessee” did not mean that the lease could be extended indefinitely without production because that language related to actual production rather than the possibility of production. The Court also noted that the lease language disclaimed any implied warranties which meant that there was no covenant to develop the property. Thus, the lease was not perpetual in nature and there was no breach of any implied covenant to develop. However, the Court did deny the lessee’s motion to toll the terms of the lease. State ex rel. Claugus Family Farm, L.P. v. Seventh District Court of Appeals, No. 2014-0423, 2016 Ohio LEXIS 91 (Ohio Sup. Ct. Jan. 21, 2016).


Expansion Activities at Vineyard Do Not Violate Conservation Easement. The plaintiff, a supporting entity to Ducks Unlimited, claimed that the defendant, the holder of a conservation easement for Ducks Unlimited on a 200-acre tract containing a vineyard, violated the terms of the easement when a vineyard on the property began expansion plans on the property. Those plans included the construction of a farm building housing a creamery, a bakery and a tasting room. The plans also included the construction of a small bridge and roads leading to the farm building and a parking lot to accommodate customers. Grapes would be planted on the property and dairy cows would also graze in pasture areas to produce milk for the creamery. A land trust expressed concern that the expansion plans violated the conservation easement on the property and the operator was questioned by Ducks Unlimited, but went ahead with the plans to expand the business. The plaintiff charged the defendant with 14 violations of the easement agreement. The trial court found no violations, noting that nothing in the easement agreement barred a farm building on the property containing a creamery and tasting room. Based on caselaw, the court determined that the bridge roads and parking lot also did not violate the easement terms. The court noted in particular the agricultural nature of the business and that it complied with the easement. Various land trust challenged the trial court’s decision and filed friends of the court briefs in support of the plaintiff. They claimed that the trial court’s ruling violated the state (VA) Constitution, the VA Conservation Easement Act, and the Open Space Lands Act by deciding the case on the basis of common law standards of restrictive covenants. On appeal, the court affirmed. The court first noted that any ambiguous terms in the easement would be construed against the plaintiff and in favor of the defendant. The court also determined that the barn and associated activities were within the definition of a “farm building” which was permitted under the terms of the easement, and that the plaintiff did not carry its burden of proof to establish that the barn was built in a prohibited “highly erodible area.” Similarly, the defendant had the authority to alter the topography to construct a parking lot, and the plaintiff was precluded from challenging the construction of the bridge. Wetlands America Trust, Inc. v. White Cloud Nine Ventures, L.P., No. 141577, 2016 Va. LEXIS 12 (Va. Sup. Ct. Feb. 12, 2016).


Proper Tax Classification For Residential Acreage Used for Growing Hay Is “Suburban Residential.” A married couple owned a home and 10.4 acres of surrounding land that they had acquired in 1994. The property had been used for agricultural purposes before 1994, and the couple built their home on the property in 1995. They grew hay for sale on 9 acres of the 10.4 acres. However, the county changed the tax classification of the property to “suburban residential” for the 2012 and 2013 tax years in accordance with Kan. Stat. Ann. §79-1476. The couple appealed the classification to the Board of Tax Appeals (BOTA) attempting to change the classification to “agricultural” to get a lower ad valorem tax rate. However, the BOTA upheld the county’s “residential” classification concluding that the property’s primary function was for residential purposes. The couple sought judicial review of BOTA’s decision, claiming that the BOTA misinterpreted Kan. Stat. Ann. §79-1476 and that a mixed-use classification should be allowed, and that the BOTA lacked substantial evidence to support its decision. The court, however, upheld the BOTA’s determination. The court noted that the statute at issue excludes from ag land classification land that is primarily used for residential purposes regardless of whether the land has a subordinate ag use. The court determined that the primary function of the entire property was for residential purposes and that determination was supported by substantial evidence primarily because the wife testified that the primary use of the property was for residential purposes and because they only started raising hay in 2011. The court also noted that the tract contained a pond, driveway and detached garage, all of which benefitted the home and couldn’t be used for ag purposes. The court also noted that the county (Wyandotte) was one of the three most-populated Kansas counties. The husband was also not a farmer, but a financial services professional. In re Jones, No. 113,157, 2016 Kan. App. LEXIS 8 (Kan. Ct. App. Feb. 12, 2016).


No Private Condemnation Allowed For Landlocked Parcel. The defendant owned tracts of real estate, one of which was landlocked but was bisected by a creek that would occasionally have substantial water flow in it as opposed to its normal status as a dry creek-bed. The 40-acre tract in issue came out of the Conservation Reserve Program in 2008 and was put into row crop production. While in the CRP, the defendant maintained weed control on the tract by accessing it on foot. The defendant obtained estimates from local contractors as to the cost of constructing a low water crossing and went with the low estimate of $10,000. The low water crossing that was constructed failed within weeks and the contractor advised the defendant that any repair would simply fail again. Consequently, the defendant brought a private condemnation proceeding seeking to acquire a public way over the plaintiff’s neighboring property pursuant to state (IA) law. The plaintiff objected to the proceeding on the basis that the property was not landlocked because modifications could be made to the property that would provide reasonable access. The trial court agreed with the plaintiff, determining that the plaintiff had met its burden of proof that the defendant was not authorized to gain a private right of way via condemnation. On appeal, the court affirmed. While the court noted that a party is not entitled to a way of necessity over land of another unless his own way is not reasonably adequate or its cost is prohibitive, the court went on to say that mere cost is not a factor in determining whether a private right of condemnation should be granted. Instead, the court said when reasonable access does not exist, the right to a private condemnation turned on whether the land can be changed by the owner to provide reasonable access. The court then adopted a proportionality test to be applied in cases where a natural obstruction makes land privately inaccessible. Under that test, if the cost of making the land reasonable accessible is disproportionate to the value of the land, the a private condemnation will be allowed. The court then viewed the testimony of one of the high bidders on the low water crossing as persuasive. That bidder testified that he could repair the low water crossing for $15,000 and that it would require about $500 of annual maintenance. The defendant’s expert testified that it would cost about $96,000 to construct a “vented ford” low water crossing and about $2,000 to $3,000 to annually maintain the crossing. The defendant also testified that his land was worth $8,000 per acre. That is an unusually high value given that substantially exceeds county average sale data. Based on that number, and the testimony of one of the high bidders, the court concluded that the cost of construction would be less than 5% of the total value of the farm. Thus, while the court stated that “mere cost is not a factor” in determining whether a private condemnation should be granted, its opinion turned on cost. The private right of way was denied. Evans v. Worth, No. 14-2009, 2016 Iowa App. LEXIS 89 (Iowa Ct. App. Feb. 10, 2016).


Farm Lease Violates State Constitutional Provision Where Farm Tenant Had Unilateral Ability to Lease Land For More Than 20 Years. A trust contained two tracts of agricultural land and entered into identical leases with the plaintiff effective March 1, 1997. The leases provided for an initial term of five years, but also contained an “option to renew” that said that the leases automatically renewed for four additional five-year terms unless the plaintiff provided written notice to the trust at least six months before termination of the current lease term, or within 30 days of the new lease term, that the tenant was electing not to lease the property for an additional five-year term. The lease also stated that the annual rent amount was to be adjusted annually by mutual agreement, but if they didn’t reach an agreement by August 1, then the previous year’s rent would apply. In a prior action, the parties initially battled over the rent clause, with the trust claiming that the tenant failed to negotiate in good faith and, as a result, had breached the lease. The court determined that the tenant had failed to negotiate in good faith, but that the lease had not been breached. The court established a fair rental rate for the property. On appeal, that determination was largely upheld. In a subsequent action, the parties were again at odds over a rental rate for the leased property, and the trustee moved for partial summary judgment on the basis that the lease violated a state (IA) Constitutional provision (Art. I, section 24) stating that no lease of agricultural lands “shall be valid for a longer period than twenty years.” The trial court concluded that to the extent the leases allowed the tenant to continue to lease the property beyond 20 years, the leases violated the Constitutional provision. On further review, the state Supreme Court affirmed. The court noted that the lease provisions could lock the landlord into the leases for a 25-year period, but not necessarily the tenant, and that the Constitutional provision was sufficiently broad to advance the larger purpose of promoting the alienation of agricultural lands by not excluding them from its terms. While the lease didn’t actually bar alienation of the leased land and the court did not analyze whether the lease provision involved a “renewal” or an “extension”, the Court appeared to be saying that any lease provision, regardless of how it is structured or labeled, that effectively gives the tenant the unilateral ability to tie up land for farming purposes longer than 20 years would be invalid beyond twenty years from its inception under the Constitutional provision. The Court also made no mention of how the Constitutional provision might apply to mineral and/or wind leases on agricultural lands that contain an initial term and then renewal options that extend the lease well beyond the 20 years from inception. However, the Court did rule in 1995 that a mineral lease is not a “lease or grant of agricultural lands” under the Constitutional provision (Howard v. Schildberg Construction Company, 528 N.W.2d 550 (Iowa 1995). In that case, the Court stated that “[O]ur constitutional agricultural land alienation restriction does not apply to agricultural land leased purely for non-agricultural purposes.” That language would also seem to apply to wind energy leases. Gansen v. Gansen, No. 14-2006, 2016 Iowa Sup. LEXIS 7 (Iowa Sup. Ct. Jan. 22, 2016).


Boundary By Acquiescence Established. The plaintiff owned a tract of land separated by a fence from another tract that the defendant sought to purchase from the neighboring owner. The plaintiff, however, claimed that the fence was not on the boundary between the tracts instead claiming that the surveyed boundary was properly set forth in the legal description to their tract, thirty-three feet onto the tract being sold. The plaintiffs sued to establish the boundary between the tracts, and the trial court determined that the fence had become the boundary by acquiescence. On appeal, the court noted that the fence had been in existence since at least 1992 and had been treated as the boundary between the tracts by the plaintiff’s predecessors and, as a result, the fence established a boundary by acquiescence. Nafziger v. Pender, et al., No. 15-0327, 2016 Iowa App. LEXIS 23 (Iowa Ct. App. Jan. 13, 2016).


Prescriptive Easement Not Established. The parties owned adjacent tracts of agricultural land. The plaintiffs purchased their tract in 1999. Their tract was divided by a creek with the only reasonable access to part of their property being by a pathway across land owned by the defendant’s predecessor. The predecessor provided the plaintiff with a key to the padlock on the gate to the pathway and the plaintiffs used the pathway for many years until being blocked by the defendant when the defendant acquired ownership after the predecessor’s death. The plaintiffs sued seeking to enjoin the defendant from denying access and seeking a declaratory judgment that they had acquired a prescriptive easement. The trial court rejected the plaintiffs’ claim, and the appellate court affirmed on the basis that the plaintiffs’ use of the pathway via permission or consent and that a relaxed standard that could apply under state (IA) common law also did not apply because the plaintiffs could not show that they had expended substantial sums or labor in reliance on the owner of the servient estate’s consent or oral agreement for usage. Van Hall v. Skunk River Block & Pallet, Inc., No. 14-1804, 2015 Iowa App. LEXIS 1163 (Iowa Ct. App. Dec. 9, 2015).


Wooded Portion of Small Acreage Properly Reclassified as “Agricultural.” The defendants bought a 5.18 tract in 1980 for $2,500 that contained woods, a mobile home, a detached garage and three pole barns. The plaintiff assessed the acre proximate to the mobile home as a residential homesite, the 2.72 acres of woods as excess residential, .68 acres as a ditch and .78 acres as a public road for a total assessed value of $44,000. The defendants appealed, and the county Property Tax Assessment Board of Appeals (PTAOB) reduced the assessment to $32,800. The defendants further appealed to the state board where the defendants claimed that the 2.72 acres of woods should be classified as “agricultural” because they purchased the property as a woods that he intended to grow and harvest. However, none of the trees had been harvested as of 2013, the year of assessment. The state board reclassified the woods as agricultural and the plaintiff appealed. The plaintiff claimed that because the defendants had no formal plans for harvesting trees the land was not devoted to an agricultural use. However, the court noted that the property tax assessment guidelines noted that a timber management plan was only one factor in determining the use of the property. The plaintiff also pointed out that the defendants had never harvested trees from the tract, but the court again pointed out that was only one factor out of several in determining the use of the property. The court noted that the board gave significant weight to the defendants’ testimony that when they purchased the property that the intended to harvest timber as had the prior owner, and that the defendants had not changed the use of the property that would indicate no intent to harvest timber. Accordingly, the court upheld the board’s determination. Dekalb County Assessor v. Chavez, No. 49T10-1502-TA-00006, 2016 Ind. Tax LEXIS 4 (Ind. Tax Ct. Jan. 29, 2016).


No Legal Malpractice For Title Work Where Client Didn’t Read Deed and Mortgage Before Signing. The plaintiffs, a married couple, bought a farm in late 2010 and closed on the purchase on December 15, 2010. The deed and mortgage specifically referenced a reservation of a passway over the farm in favor of adjoining property. The reservation was also referenced in a Certificate of Title that was prepared by the same attorney retained by the plaintiffs’ lender that did the title work for the farm and prepared the deed and mortgage. Eight months after the closing, a third party claimed a right to use the passway, citing the reservation in the deed. In April of 2012 the plaintiffs sued the attorney for malpractice, and paid $26,000 to the third party resulting in the third party retaining a license for life to use the passway over the farm. The attorney moved for summary judgment on the basis that the plaintiffs’ claim against him was time-barred. The trial court agreed and dismissed the claim. On appeal, the court affirmed. The court noted that the plaintiffs’ suit had to be brought within one year of the occurrence of the alleged malpractice. The alleged negligence occurred at the time of closing when the attorney didn’t inform the plaintiffs of the reserved passway, and the damage occurred at the time of purchase of the farm with the reserved passway. At that time, any damages were fixed and non-speculative as the difference in value of the farm without any deed reservation language and the value of the farm with the reservation. While the plaintiffs were unaware of the reserved passway until the third party made a usage claim, the plaintiffs admitted to not having read the deed and mortgage at closing or requesting that the language be explained to them. Thus, the plaintiffs failed to exercise reasonable diligence. Thus, the legal malpractice claim was time-barred as having been filed more than a year after closing. Curtsinger v. Patrick, No. 2014-CA-000609-MR, 2016 Ky. App. Unpub. LEXIS 94 (Ky. Ct. App. Jan. 29, 2016).


Court Refuses To Grant Private Road Across Farm. The plaintiff leased its 320-acre farm to a large-scale operator whose equipment weight exceeded a bridge load limit on a county road that lead to the plaintiff’s farm. As a result, the plaintiff sought to establish a mile-long private road across the defendant’s neighboring farm based on Rev. Stat. Mo. §228.342. That statute allows a private road to be established (or widened) in favor of any owner or owners of real property for which there is no access, or insufficiently wide access, from such property to a public road if the private road sought to be established or widened is a way of strict necessity. The court denied the petition on the basis that the plaintiff’s farm had access to a public road, and Missouri courts had consistently interpreted the statute to require a plaintiff to show that there weren’t any public roads through or alongside the land and that the private road requested is mandated by strict necessity. The court determined that the statute at issue was to be strictly construed because it was against the common law and common rights. Westrich Farms, L.L.C. v. East Prairie Farm, L.L.C., No. SD33826, 2015 Mo. App. LEXIS 1247 (Dec. 2, 2015).


Adverse Possession Claim Fails. The parties owned adjacent tracts of agricultural land separated by a fence. The tracts were originally owned by the defendant and her spouse at the time, with the plaintiff buying her tract in 1988. A fence ran was located on the boundary between the tracts in accordance with the legal description, but deviated away from the boundary line onto the defendant’s tract leaving a 1.1-acre parcel south of the boundary line. That disputed 1.1-acre parcel was on the plaintiff’s side of the fence, but was within the legal description to the defendant’s property. In 2014, the plaintiff filed a petition to quiet title in the disputed tract. That action was dismissed, but the plaintiff filed a separate action claiming ownership of the tract by adverse possession, claiming that she had occupied the disputed tract for more than 15 years and that her possession of it was open and obvious via the pasturing of horses and cattle, mowing and haying it. The trial court ruled against the plaintiff based on evidence that the defendant had told the plaintiff at the time of sale that the fence jogged south of the boundary and that orange survey flags marked the actual boundary, but that the plaintiff had permission to use the disputed tract. The defendant also used the tract to dove hunt and burn hay. On appeal, the court affirmed. The court determined that the plaintiff’s possession had not been exclusive and that she never claimed exclusive rights to the land as the adverse possession statute (K.S.A. §60-503) required. Bradford v. Parlett, et al., No. 113,391, 2015 Kan. App. Unpub. LEXIS 1031 (Kan. Ct. App. Dec. 4, 2015).


Oil and Gas Lease Not Abandoned Because It Was Not Severable. At issue is a 180-acre tract subject to an oil and gas lease that was entered into between each of parties’ predecessor in interest. The plaintiff, the current lessor claimed that the defendant (the current lessee) had abandoned the lease for failure to engage in oil and gas exploration for a five-year period. The lease durational provision specified that it lasted as long as drilling operations commenced or the leasehold used for the storage or protection of gas storage on the lands in the general vicinity of the leasehold. Since entering into the lease more than five years earlier, the defendant did not commence operations on the leasehold, but the Federal Energy Regulatory Commission established a 2,000-foot buffer zone around a gas storage facility which the leasehold was within. Thus, the leasehold was being used for the protection of natural gas. The plaintiff claimed that the defendant had abandoned the lease so as to allow the plaintiff to enter into a new lease agreement with another party. The plaintiff claimed it was entitled to a rebuttable presumption of abandonment under state (WV) law because there had been no production and sale or use of gas or oil on from the tract for more than 24 months. The trial court rejected that argument on the basis that the state law in issue did not apply to leases for gas storage purposes. However, the trial court determined that the lease was divisible (severable) and had two purposes, production and storage, and held that the portion of the lease related to production of oil and gas had lapsed for non-exploration and non-production after the initial five-year term, but that fact issues remains on how much of the property was being utilized for storage. The trial court later issued a final ruling that drilling by a new party could commence on areas not within the gas storage protection area and which extend horizontally under the gas storage protection area to the Marcellus Shale area. On appeal, the court reversed on the basis that the plain language of the lease unambiguously specified that only either production needed to commence within the initial five-year term or gas protection storage activities commenced within that same timeframe. As such the lease was not severable. K&D Holdings, LLC v. Equitrans, L.P., et al., No. 15-1166, 2015 U.S. App. LEXIS 22703 (4th Cir. Dec. 28, 2015).