Young v. DODGE COUNTY BD. OF SUP'RS

493 N.W.2d 160, 242 Neb. 1
CourtNebraska Supreme Court
DecidedDecember 11, 1992
DocketS-89-1476
StatusPublished

This text of 493 N.W.2d 160 (Young v. DODGE COUNTY BD. OF SUP'RS) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Young v. DODGE COUNTY BD. OF SUP'RS, 493 N.W.2d 160, 242 Neb. 1 (Neb. 1992).

Opinion

493 N.W.2d 160 (1992)
242 Neb. 1

Frank and Deldine YOUNG, Husband and Wife, Appellees,
v.
DODGE COUNTY BOARD OF SUPERVISORS et al., Appellants.

No. S-89-1476.

Supreme Court of Nebraska.

December 11, 1992.

*161 Dean Skokan, Dodge County Atty., and Joe Stecher, Fremont, for appellants.

Warren R. Whitted, Jr., and Christopher R. Knust, of Lieben, Dahlk, Whitted, Houghton & Jahn, P.C., Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

The Dodge County Board of Supervisors appeals from the judgment in a bench trial of a mandamus action, see Neb.Rev. Stat. § 25-2156 et seq. (Reissue 1989), in which the district court for Dodge County ordered the board to provide public "access" to isolated real estate owned by Frank and Deldine Young since its acquisition in 1977.

The mandamus was based on Neb.Rev. Stat. § 39-1713 (Reissue 1978), which provided:

When any person shall present to the county board an affidavit satisfying it (1) that he is the owner of the real estate described therein located within the county, (2) that the same is shut out from all public roads, other than a waterway, by being surrounded on all sides by real estate belonging to other persons, or by such real estate and by water, (3) that he is unable to purchase from any of such persons the right-of-way over or through the same to a public road or that it cannot be purchased except at an exorbitant price, stating the lowest price for which the same can be purchased by him, and (4) asking that a public road be laid out in accordance with section 39-1716, the county board shall appoint a time and place for hearing the matter....

Neb.Rev.Stat. § 39-1716 (Reissue 1978) stated: "The county board shall, if it finds that the conditions set forth in section 39-1713... exist, proceed to lay out a public road of not more than four nor less than two rods in width, to such real estate...."

STANDARD OF REVIEW

An action for a writ of mandamus is a law action. Nuss v. Pathfinder Irr. Dist., 214 Neb. 888, 336 N.W.2d 584 (1983); State ex rel. Blome v. Bridgeport Irr. Dist., 205 Neb. 97, 286 N.W.2d 426 (1979); State ex rel. Goetz v. Lundak, 199 Neb. 585, 260 N.W.2d 589 (1977); State ex rel. Rittenhouse v. Newman, 189 Neb. 657, 204 N.W.2d 372 (1973); State ex rel. Charvat v. Sagl, 119 Neb. 374, 229 N.W. 118 (1930); State v. Porter, 90 Neb. 233, 133 N.W. 189 (1911).

In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. In reviewing a judgment awarded in a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, *162 who is entitled to every reasonable inference deducible from the evidence.

Broekemeier Ford, Inc. v. Clatanoff, 240 Neb. 265, 267, 481 N.W.2d 416, 418 (1992). Accord, Ballard v. Giltner Pub. Sch., 241 Neb. 970, 492 N.W.2d 855 (1992); Albee v. Maverick Media, Inc., 239 Neb. 60, 474 N.W.2d 238 (1991); Justice v. Hand, 227 Neb. 856, 420 N.W.2d 704 (1988); Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).

"Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review." Huffman v. Huffman, 232 Neb. 742, 748, 441 N.W.2d 899, 904 (1989). Accord, Maack v. School Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992); Albee v. Maverick Media, Inc., supra; Boisen v. Petersen Flying Serv., 222 Neb. 239, 383 N.W.2d 29 (1986).

FACTUAL BACKGROUND

Following is a diagram based on introduced exhibits that shows various locations pertinent to the proceedings:

Hartman Island consists of 280 acres surrounded by the Platte River. There is no public road on the island. Youngs' tract, located on the south side of the island, is bounded on three sides by real estate owned by others and on the fourth side by the main channel of the Platte River.

When Youngs bought their island property in 1977, Hartman Island was accessible as follows: After exiting from the county road, which ended at the Platte's north bank, one drove eastward one-half mile on Ames Dike, which was situated near the river's north bank and was maintained by Ames Diking and Drainage District, a political subdivision of the State of Nebraska. At that ½-mile point, and after leaving Ames Dike, one proceeded south to the river across land owned by Tom Wolf, and then forded the Platte's channel for entry at the northwest corner of Hartman Island. Once on the island, and to reach their property, Youngs crossed tracts of adjacent landowners.

In 1988, Ames Diking and Drainage District, prompted by liability concerns, prohibited vehicular traffic on Ames Dike. Although Youngs filed an action for judicial acknowledgment of their prescriptive right to travel on Ames Dike, Youngs dismissed their suit. See, State v. Cheyenne County, 123 Neb. 1, 241 N.W. 747 (1932) (title by adverse possession cannot be acquired against the State); Neb.Rev.Stat. § 39-1404 (Reissue 1988) (title by prescription *163 cannot be acquired in a political subdivision's real estate).

After Youngs were unable to acquire a right-of-way for access to their insular property, they filed their affidavit with the Dodge County Board of Supervisors (County Board) on July 7, 1988, and requested that the county provide public access to Youngs' island property pursuant to the "isolated land" statutes, §§ 39-1713 and 39-1716. After a hearing, the County Board, on August 10, 1988, rejected Youngs' request for public access to their island property.

Youngs sued the County Board in a mandamus action to compel access to Youngs' island property. At trial, Youngs, without factual dispute by the County Board, established that Youngs' island tract lacked public access. The district court declined to apply the 1982 amendment of § 39-1716, namely, § 39-1716 (Reissue 1988), which, in addition to the requirements expressed in § 39-1713, required

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493 N.W.2d 160, 242 Neb. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-dodge-county-bd-of-suprs-neb-1992.