Opinion
Case No. 8:01CV648
March 12, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Defendant IBP, Inc.'s Motion for Summary Judgment (Filing No. 29) and on the Cross Motion for Summary Judgment (Filing No. 35, Part 2) filed by the Plaintiff, James Neff Kramper Family Farm Partnership ("the Partnership"). Both parties have briefed the Defendant's motion, and the Plaintiff has briefed its motion for partial summary judgment. The parties have offered evidence in support of their respective positions (Filing Nos. 31 and 37).
The Partnership claims in its petition (Filing No. 1), and in its summary judgment motion, that in May and June of 2000, IBP trespassed against it by placing an air monitoring device and a groundwater well on property that the Partnership owns and leases to a tenant. IBP seeks summary judgment on the basis that it placed the air monitoring device and the groundwater well within Dakota County's right of way. The Court finds that none of the material facts relative to the placement of the environmental monitoring station are in dispute, and that the Defendant is entitled to summary judgment as a matter of law. For the reasons that follow, Defendant's motion will be granted and the Plaintiff's cross motion will be denied.
Undisputed Factual Background
The Partnership is an owner of agricultural land in Dakota County, Nebraska. IBP, Inc., owns and operates a wastewater treatment facility that is also located in Dakota County. In connection with the operation of that facility, IBP was required by regulatory authorities to place an air monitoring device and a groundwater well in locations near the facility. (Filing No. 31, Ex. A, Meyer Aff. at ¶ 2 (hereafter "Meyer Aff.")) The parties agree that by August 2000, this "monitoring station" as it is also known, was placed near a county roadway, now known as "C" Avenue, with the knowledge and consent of the Dakota County Board of Commissioners. (Meyer Aff. at ¶¶ 3, 4; Filing No. 31, Ex. B, Davidson Aff. at ¶¶ 6, 7 at 013 (hereafter "Davidson Aff.")) The monitoring station and well sit on an undeveloped area, which measures approximately twelve square feet, and is located between the road and the cultivated ground (Meyer Aff. Exs. 2, 3; Davidson Aff. Ex. 5 at 42-43.) There is no dispute that, in locating the monitoring station, IBP relied upon measurements made by the Dakota County Road Foreman, Arnold Mellick. (Meyer Aff. ¶¶ 3, 5)
"C" Avenue was first established by the Dakota County Board on July 19, 1894. It was to be placed on the section line, and the County paid the owners of adjacent land for the property on which the roadway was placed. (Davidson Aff. at Ex. 1.) The Partnership became titleholder to the land adjacent to "C" Avenue in 1979. (Filing No. 37, Ex. B, Affidavit of Patricia K. Messner at ¶ 2 (hereafter "Messner Aff.")) Current surveys of the roadway show that the center of the road is now located approximately eight feet to the west of the section line. (Davidson Aff. at Exs. 3, 4, and Filing No. 37, Ex. A and attachments.)
On December 20, 2001, the groundwater well was capped, though it remained accessible for testing through January 9, 2003, when it was abandoned. The well abandonment was completed according to the "regulated process by which the pipe is cut off three feet below the surface and filed with concrete grout, and the ground surface restored." On January 21, 2002, the air monitoring device was removed from its location, and nearly all of the land returned to its original condition. (Meyer Aff. at ¶¶ 6, 7)
In support of its summary judgment motion, IBP retained the services of a licensed agricultural appraiser to provide a valuation for the use of a small area of rural roadside similar to the area that IBP is alleged to have trespassed. The appraiser gave the opinion that the fair market rental value of the use of the subject land is approximately $7.50 per growing season. IBP calculates the total damages to be $22.50, representing lost rental value for the three growing seasons that the tract was restricted in whole or in part by the environmental monitoring station and well. (Davidson Aff., Ex. 5 at 41-42).
The Partnership offered the affidavit of Patricia Messner, the Partnership's managing partner, in opposition to the motion for summary judgment. Messner recounts several sales of the Partnership's land, and states that "the Partnership has no intention of selling any of its real estate for a price based on an agricultural value of the property." (Messner Aff. at ¶ 8). She also states that the well was placed in the middle of the entrance to one of the Partnership's agricultural fields thereby blocking the driveway to the field and affected her ability to sell the land, and that the well's abandonment has not been registered on the Nebraska Department of Natural Resources website. ( Id. at ¶ 11)
Right-of-Way Analysis
There is no dispute that, when it was originally created, the width of C Avenue was to be "4 rods" or 66 feet. Davidson Aff. at Ex. 2. Neb. Comp. Stat. 1895, § 4509. There is also no genuine dispute that the county's right of way is 66 feet wide. See also Bredehoft v. Platte County, 167 Neb. 603, 605, 94 N.W.2d 18, 20 (Neb. 1959) (holding that the 1895 statute dictated a right of way for the road of 66 feet in width, and that when the plaintiffs' predecessors in title accepted the compensation for the land taken, the taking of the entire 66 feet of right of way was concluded, even if the predecessors in title had not actually been compensated for the entire 66 feet). However, the resolution of this case turns on whether the 33-foot right of way on each side should be measured from the center line of the current road or from the historical section line. If the County's right of way is measured from the center line of the current road, then IBP's monitoring station is located within the right of way and IBP has not trespassed. If the County's right of way is measured from the historical section line, then a portion of the monitoring station (approximately six feet and the well) extends onto the Partnership's land and beyond the County's right of way and may constitute a trespass.
IBP relies upon an Opinion from the Nebraska Attorney General that addressed whether, in 1940, the Grant County Board was required to move a road several feet to reorient it to a position along the applicable section line. Grant County sought the opinion because it found that a schoolhouse and other structures had been constructed on the original section line. A later survey had established that the actual road was located a distance of several rods to one side of the section line. The Attorney General Opinion concluded that `[n]ot only is the Board not required to change the road to conform to the section line, but it would not be permitted to do so." 65 Op. Neb. Att'y Gen. 684 (1940) The Attorney General Opinion relies upon a 1929 Nebraska statute that declared all existing, legally-established roads to be "public roads" which could not be changed or vacated without public vote. See Neb. Rev. Stat. § 39-103 (1929).
IBP finds additional support for its position that the right of way follows the current roadway's center line in two modern statutes, Neb. Rev. Stats. § 39-1403 and § 72-221.01. One statute provides that a county road that runs along a county or township line shall be deemed to be on the county line, even if the local authorities had located a portion of the road to one side of the county line. Neb. Rev. Stat. § 39-1403. The other modern statute affects lands owned by the Board of Educational Lands and Funds. The statute provides that roads that have been established for more than 10 years and are located on a section line shall carry a right of way extending 33 feet from either side of the section line, and that for established roads that are "meandering" and not on a section line, the right of way shall be 66 feet through that part of the section where the established road meanders. Neb. Rev. Stat. § 72-221.01. These statutes indicate a legislative preference that right of way should follow the path of the actual road. The Court is persuaded by Defendant's argument that using the actual road instead of a section line as a reference point promotes clear and ascertainable boundaries and best promotes and protects the respective landowner's concomitant rights. See Filing No. 37, Ex. C. at Rhode Dep. at 34.
The Partnership relies on Olson v. Bonham, 212 Neb. 548, 324 N.W.2d 260, 263 (1982), in arguing that section lines should be used as the reference for delineating Dakota County's right of way. Olson recognizes the right of the public to establish a prescriptive roadway along a section line by adverse possession continuing throughout a ten-year period. The Partnership appears to argue that, based on Olson, the width of a public highway by prescription presents a question of fact that would preclude summary judgment. The Olson case was commenced by members of the public who were trying to show that a "private road," which the defendant landowner had barricaded to prevent use by others, was actually a public roadway by prescription. The case is easily distinguished from this case, however, because "C" Avenue is a statutorily-established road — not a public highway by prescription like the road at issue in Olson. Thus, the Olson Court's discussion relative to the fact-based inquiry needed to determine the width of a public highway by prescription is not relevant because there is no dispute that a statutorily-established roadway has a 66-foot wide right of way.
The Partnership may also be relying upon the cases cited in Olson, specifically including State ex rel. Game, Forestation Parks Commission v. Hull, 168 Neb. 805, 97 N.W.2d 535 (1959) and the Plischke trilogy, 180 Neb. 803, 146 N.W.2d 223 (1966); 181 Neb. 887, 152 N.W.2d 119 (1967); and 182 Neb. 153, 153 N.W.2d 359 (1967), to show that a genuine issue of material fact remains. However, even the Plischke trilogy distinguishes the 66-foot right of way that attaches to a statutorily established road from the variably-sized right of way which is "reasonably necessary for public travel" that attaches to a highway by prescriptive use. See Plischke v. Jameson, 180 Neb. 803, 146 N.W.2d 223 (1966); 181 Neb. 887, 152 N.W.2d 119 (1967); and 182 Neb. 153, 153 N.W.2d 359 (1967). To the extent the Partnership uses Plischke as an invitation to the Court to question whether there are two roadways involved in this dispute (as was the case in Plischke) — one road established by prescription and one road established by statute — the Court rejects the invitation. The Court finds that there is no evidence that two roads ever existed. The evidence before the Court demonstrates that only one road has ever existed at the location of "C" Avenue, though its name and its precise location has changed over the more than 100 years of its existence.
For all these reasons, the Court finds that IBP installed the environmental monitoring station within Dakota County's right of way along "C" Avenue; that IBP did not trespass on the Partnership's property; and that IBP is entitled to summary judgment on the Partnership's claims as a matter of law.
Damages
In the alternative, even if Dakota County's right-of-way should be measured from the historical section line rather than the center of the current roadway, the Court would still grant IBP's motion for summary judgment because the Partnership has failed to provide some evidence of significant damages. The Partnership urges the court to find that its alleged damages should be measured as the difference between the fair market value of the land with the restrictions and the fair market value of the land without the restrictions, citing Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 694, 515 N.W.2d 401, 441 (1994). IBP contends that proof of actual damages of a "significant nature" must be shown before the Partnership can secure an award for trespass to land, citing Hallowell v. Borchers, 150 Neb. 322, 336, 34 N.W.2d 404, 412 (1948). The Nebraska Supreme Court stated in Hallowell, more than fifty years ago, that if the "damage was of such trivial significance that no recovery should be had," then an award of damages for trespass would not be permitted. Id.
IBP offered the opinion of a licensed agricultural appraiser, Kenneth Beckstrom, as to the rental value, or the fair market value of the loss of use, of the tract of land that is the subject of this lawsuit, as it was before the environmental monitoring device and well were located there. In his opinion, the rental value of the tract was $7.50 per growing season. The Partnership's alleged loss of use of the tract continued, at the most, for three growing seasons. Assuming that the rental value of the tract while it was encumbered with the environmental monitoring station was zero, then the Partnership's total damages under Whitehead, as modified to take into account the temporary nature of the loss, is $22.50. This amount of alleged damage is not even one-sixth of the filing fee necessary to commence an action in this Court. The Partnership has not shown that a genuine issue of material fact remains relative to the value of its loss of use of the subject land. As a matter of law, the Partnership's alleged damages do not rise to the level required to state a claim for trespass under Hallowell. Accordingly, the Court would grant summary judgment to the Defendant under this theory as well.
Messner's Affidavit contains conclusory statements such as, the Partnership is "unable to sell its property due to the IBP placement of the well on the property." Messner Aff. at ¶ 11. However, these broad and sweeping statements are not supported by any facts, such as the existence of a potential buyer, the Partnership's readiness to sell, and the effect, if any, on any potential sale of the return of the well area to its natural condition following the abandonment of the well. In addition, Messner offers no facts to support the implication that the subject land could have been sold for commercial uses at a higher rate than the agricultural rate contained in Beckstrom's appraisal. Conclusory statements and opinions do not constitute facts and are not evidence of the kind needed to successfully resist a properly supported motion for summary judgment. See Luciano v. Monfort, Inc., 259 F.3d 906, 910 (8th Cir. 2001) quoting Helfter v. United Parcel Service, Inc., 115 F.3d 613, 616 (8th Cir. 1997) (holding that "conclusory . . . statements, standing alone, are insufficient to withstand a properly-supported motion for summary judgment.") Some evidence indicates that Partnership may not have lost anything. (Filing No. 37, Ex. C (1) Rhode Dep. 4:12-14; 37:7-10; and Ex. C(3) Mellick Dep. at 10-12.).
For all the reasons stated in this Memorandum,
IT IS ORDERED:
1. Defendant's Motion for Summary Judgment (Filing No. 29) is granted; and
2. Plaintiff's Cross Motion for Summary Judgment (Filing No. 35, Part 2) is denied.