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County: Land not officially isolated

Tuesday, May 17, 2011

McCOOK, Nebraska -- Red Willow County, Nebraska, commissioners, decided Monday morning they cannot grant a request for access to Section 16 south of McCook across a neighbor's property because Section 16 is not "isolated."

The Nebraska Bureau of Educational Lands and Funds -- BELF -- had requested that the county allow access to western areas of BELF-owned Section 16 via a two-trail pasture road that crosses Section 17, about one-third of which has been owned since 2005 by Michael and Cathy Sis of Bellevue, Nebraska. BELF officials and its tenants contend that pastureland within Section 16 and to the east of the farmland is too rough for large farm trucks, tractors, combines and machinery, making the Sis access the only feasible, inexpensive access.

The county could have granted the BELF request if Section 16 were landlocked, or isolated, without any public access, and met all the stipulations of state statutes.

However, Red Willow County Attorney Paul Wood, who sat in on testimony delivered during a public hearing May 9, told commissioners Monday morning that public access does exist to Section 16 by way of long-ago fenced-off County Road 387, meaning that Section 16 does not meet the legal description of "isolated land."

"There is a public way there," Wood said. County Road 387 "was never vacated," he said.

The county road is the south half-mile of Road 387, a stretch of road unused for years, ever since a neighboring landowner and a former county commissioner agreed to fence it off so that teenagers couldn't reach canyons they were using for beer parties. Although it hasn't been maintained for many, many years, it's in disrepair and it washes badly in heavy rains, the road has never been legally vacated. Road 387 is nothing more than a ghost of a road after it travels south of the driveway into Larry and Lynda Ruppert's farmyard, and it dead-ends at the northeast corner of Section 16.

Once it reaches Section 16, what remains of the road goes nowhere. It creates field access only, said Commission chairman Earl McNutt.

But, because it still exists on the county inventory of roads and was never legally vacated, it provides public access to Section 16, meaning Section 16 is not isolated or landlocked, according to Wood.

McNutt said it was maybe negligent of the county not to have maintained the south half of Road 387 over the past 30 years, but Wood corrected him: "It was not negligent. There was no need to maintain it. It was not maintained on purpose. No one did anything wrong." It's just that what worked in the past no longer works now, Wood said.

Because Section 16 does not meet the legal definition of isolated land, Wood said, the commissioners cannot grant the BELF request to create access to cropland on the western side of Section 16 by crossing land owned by the Sises. Although there are no roads on the east or south boundary lines of Section 16, pastureland within the BELF-owned Section 16 is accessed from the south across land owned by Potthoffs and Posts and from the east across land owned by Rupperts, with landowner permission.

State statute does not require public access to anywhere within privately-owned property, Wood said. How landowners or their tenants move on their own tracts of land is not the county's responsibility, he said.

Wood suggested that commissioners ask BELF officials if they would use County Road 387 if the county rebuilds and maintains the south half-mile cut off so many years ago. If the BELF does not think its representatives or its tenants would use the road, Wood said, commissioners may want to look into legally vacating the south half-mile of the road.

"It will cost the county to rebuild it -- it's won't be inexpensive," Wood said, but he urged caution in vacating the road. Vacating the road now could create isolated land for future landowners, he said.

Wood told commissioner Steve Downer that the possibility of claiming adverse possession or prescriptive easement of the existing access across the Sis land is a matter for the district court to take up.

There is a public way to the BELF land, Wood said, explaining that that is where the county's involvement ends.

A motion by Downer that commissioners find the county cannot grant the BELF's request for access was seconded by Vesta Dack. The vote was unanimous.

This is the third access argument that Red Willow County commissioners have been asked to decide -- the Smith-Lavarack dispute of 2003 and the Bamesberger-Quigley dispute of 2009.

McNutt said Monday, "It's ridiculous that we have to solve civil suits. We've got more important things to do than play referee."

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Honestly, I think the county had to get involved in this one since there was a closed road.

-- Posted by npwinder on Tue, May 17, 2011, at 5:04 PM

What are the statutes concerning, 'Adverse Possession' in Nebraska, do any have determinational strength when addressing a 'County road,' used or unused; especially if allowed to be fenced off?? A thought.

-- Posted by Navyblue on Thu, May 19, 2011, at 1:41 PM

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