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Commissioners asked to settle access dispute

Tuesday, May 10, 2011

McCOOK, Nebraska -- A Red Willow County, Nebraska, landowner and the Nebraska Bureau of Educational Lands and Funds -- BELF -- can't agree on what kind of road is appropriate for grain trucks and combines, and, Monday morning, asked county commissioners to decide for them.

Michael and Cathy Sis of Bellevue, Nebraska, and the BELF each own land 3-31⁄2 miles south of McCook and east of Highway 83, the Sises about the eastern third of Section 17, the BELF all of Section 16. To access cropland on the western side of Section 16, the BELF and its renters have, for many years, used a 2,300-foot long, 15-20-foot-wide, two-track trail road across the Sis land.

However, on Jan. 16, 2010, the Sises informed the BELF that they would no longer permit free access, and BELF offered to purchase a non-exclusive, private controlled access easement for a road right-of-way for $1,700. The Sises demanded $1,700 per year, a figure they have reduced to $1,000 year year. Until the renters, Bob and Steve McConville of Indianola, paid $100 a month for several months last year, the Sises refused to allow the McConvilles use of the trail road to check and harvest their growing wheat.


Richard Endacott, executive secretary and general counsel for the BELF, told commissioners Monday morning that renters of the BELF land access cropland, in one large and two small parcels, off Highway 83 to the east across the Sis land, and that the remainder of the section is pastureland that is barely accessible by four-wheel-drive pickups and impassable by combines, machinery and grain trucks.

Without access across the Sis land, Endacott said, BELF would not be able to rent portions of Section 16 as cropland, and rental revenues would decline, a bonus paid by renters for cropland would be eliminated and both taxes paid to the county and funds available for public education would be reduced.

Neighboring landowners won't grant access, Endacott said, but it wouldn't do the BELF much good because the cropland can't be accessed with machinery from the east. "There's not any access to sell that would do us any good," Endacott said.

Endacott said the BELF and the McConvilles are not asking for improvements to the trail road. "We can use it as it is," Endacott told commissioners.


Endacott said that the BELF meets stipulations after which, by state statute, commisisoners must grant access, including: Land is shut off from all access; land was not isolated when it was purchased; the isolation was not caused by the owner; access is needed for the existing utilization; the land is surrounded by other landowners; and access cannot be purchased.

"The only feasible, inexpensive access is the existing access," Endacott said. Accessing the section from the northeast would require the county to revamp an existing, unused public county road at county tax payer expense and for the BELF to build a road across the northern section line. "There is no access equivalent," to the west access," Endacott said.

Endacott presented photographs of the now-unused portion of the county road. A neighbor, Larry Ruppert, said that the road was closed off many years ago in an agreement between his father and a former county commissioner, to discourage teen-age drinking parties in a nearby canyon. The road hasn't been graded for years -- at least 30 years, commissioner Earl McNutt guessed -- it has deep gullies and washes badly in heavy rains, Ruppert said.

The county road would end at Section 16. "We still couldn't make it through Section 16," Endacott said.

The south portion of the county road was never legally vacated, McNutt said.

"If enough money is spent, anyone can get access," Endacott said, by cutting through hills, cutting trees and grading. "What's best for the common good ..." Endacott said, "the existing access from the west is the way to go."

Endacott said the BELF is reluctant to raise the rent ($11,000 per year) to compensate for the "toll road situation" that the Sises want to create. The $1,000-a-year fee "is a pretty high price to pay each year," Endacott said. Endacott said the BELF across the state very seldom has trouble with access.

Endacott said that the BELF is willing to pay the Sises for access, at a fair price, to purchase the right to cross. "We're not trying to take your property away," he told Michael Sis. Endictt said that the BELF is offering the Sises $300 a year.


Sally Rasmussen, attorney for the Sises, challenged Endacott's claim that the land is shut off from all access, that the cropland portion of Section 16 is isolated. She told commissioners that County Road 235 is well-maintained to Larry Ruppert's driveway and could be continued to the northeast corner of Section 16 and maintained at county expense.

At that point, she said, a road following the section line, inside Section 16, is the responsibility of the BELF to build and maintain. "Section 16 has public access to the northeast corner," Rasmussen said.

The law states that "where ever possible," an access road shall be along a section line, and that the existing trail road off of Highway 83 does not follow a section line. "No where in the statutes," Rasmussen said, can one landowner stipulate where access will be.

"It is a constitutionally protected right to own property," Rasmussen said. It's not lawful, she said, to condemn private property to allow access for another private property land owner.

Rasmussen said that she and the Sises do not consider the $1,000-a-year fee out of line. "It is no where near exorbitant," Rasmussen said.

Ross Sis said that an existing oilfield road in the northeast corner of Section 16 could be extended to access the cropland portions of Section 16. Bob McConville told commissioners that "nobody in his right mind" would take a combine over land in the northeast corner of the section to the cropland on the west. Larry Ruppert agreed, "You'd have to be out of your mind," to drive grain trucks and combines over the rough terrain, he said.

Michael Sis disagreed with Endacott's claim that the west access off Highway 83 is the "most convenient and cheap" access. "Access to Section 16 is right there in front of you, from the northeast corner," he said. He argued that the terrain is not too rough for machinery and big trucks.

Ross Sis warned commissioners that -- if they grant access on the existing trail road -- other landowners will want the same treatment, "if it's easier to go through a neighbor ... if it's more convenient to cross private property."

The public hearing closed about 20 minutes past its one-hour time frame, and county attorney Paul Wood recommended tabling a decision until commissioners have the opportunity to study exhibits of photographs and affidavits presented by attorneys.

Commissioner Steve Downer said there may be other issues with fence lines, and that he's uncomfortable cutting off access to land in the middle of a lease. Fellow commissioner Vesta Dack suggested that BELF pay the Sises what they want and absorb the cost in the rent they charge. "Mike's got the ground. There's a reason why he wants more for what he's got," she said.

McNutt said, "To rehab that (county) road would cost taxpayers a fair sum of money. Nothing's been maintained for 30 years." McNutt warned that the commissioners' decision would most likely not make everyone happy.

Michael Sis said he is willing to grant the McConvilles a one-time access so that the McConvilles can repair a pump jack and water their cattle.

Commissioners will discuss and present their decision at 10:30 a.m., Monday, May 16.


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