Ag Law & Taxation Case Annotations :: Real Estate
Netahla v. Netahla, No. 109,297, 2013 Kan. App. LEXIS 76 (Kan. Ct. App. Sept. 6, 2013)(landowners held a determinable fee mineral interest that would revert to them when oil and gas ceased to be produced from the land, and sought declaratory judgment that such provision terminated under 1985 provision in deed; court determined that deed conveying mineral interest incorporated pre-existing oil and gas lease on the land that deemed payment of shut-in royalty to be constructive production; while no oil or gas production occurred at time of end of term of mineral deed, shut-in royalties continuously paid; court granted summary judgment to landowners because definition of production contained in lease incorporated into mineral deed; terms of mineral deed control).
Whiteman v. Chesapeake Appalachia, L.L.C., No. 12-1790, 2013 U.S. App. LEXIS 18359 (4th Cir. Sept. 4, 2013)(plaintiff owns farmland and defendant owns mineral rights on same tract by virtue of severance deed that granted surface estate to plaintiff while “reserving and excepting” mineral estate to grantor; plaintiff uses surface estate to graze sheep and hay production; defendant operates three natural gas wells (via permits from state which required plaintiff to be given notice) on ten acres that was formerly used for hay production and that acreage is no usable for any other purpose; defendant followed waste disposal method denoted on permits to dispose of drill cuttings; plaintiff sued for common law trespass, nuisance, trespass, negligence, intentional and negligent infliction of emotional distress, and sought injunction and damages; trial court granted summary judgment for defendant and appellate court affirmed; creation of drill waste pits necessary for recovery of natural gas and did not substantially interfere with surface use of property and was consistent with mineral lease and is common practice).
Beaverkettle Farms, LTD., v. Chesapeake Appalachia, LLC, No. 4:11CV02631, 2013 U.S. Dist. LEXIS 124509 (N.D. Ohio Aug. 30, 2013)(plaintiff owns over 4,000 acres and entered into oil and gas lease with company in 2004 that assigned lease to defendant; plaintiff sued to have lease nullified on basis that it did not anticipate use of fracking; plaintiff had earlier transferred some of subject property into conservation easements with state DNR to protect areas around creek and associated tributaries from development; lease agreement barred drilling near creek and associated streams and gave plaintiff right to approve drilling sites; plaintiff construed delay rental clause to require drilling to commence on or before May 5, 2011, but defendant disagreed with that interpretation; in early 2011, defendant notified plaintiff of plans to horizontal drill from another property that would go under plaintiff’s property and that drill site was larger than allowed in lease; plaintiff sought to nullify lease on basis that defendant had not paid in full for delayed drilling on balance of property and that plaintiff had not approved horizontal drill site and that fracking not anticipated in lease; court denied both parties’ motions for summary judgment because genuine issues of material fact exist as to whether plaintiff unreasonably withheld or delayed approval for drill site which means reserves for trial issue of whether defendant properly extended lease beyond primary term; likewise, genuine issue of material fact exists as to parties’ understanding of meaning of “delay rental” as used in lease, so issue of whether defendant required to tender delay rental payments during secondary term to be resolved at trial).
Jimmy Luecke Children Partnership v. Pruncutz, No. 03-10-00840-CV, 2013 Tex. App. LEXIS 10362 (Tex. Ct. App. Aug. 16, 2013)(partnership challenged a trial court’s judgment approving a commissioners’ report partitioning a 525.39 acre tract jointly owned by the partnership and a second owner; partnership argued that it was entitled to an implied easement along a roadway extending across the middle of the second owner’s property; in affirming the trial court’s judgment, appellate court ruled that partnership failed to establish three of the four requirements for an implied easement: (1) because a portion of the requested easement belonged to a third party, the partnership had not established the “unity of ownership” between the dominant and servient estates necessary for an implied easement; (2) the partnership did not establish “continuous use” of the easement such that the parties must have intended an easement to pass by implication; and (3) the partnership did not establish that an implied easement was a “reasonable necessity” because the commissioners granted the partnership two means to access its property, one that was specifically granted to provide access during flooding).
Kiesel, et al. v. Hovis, No. S-12-043, 2013 Ohio App. LEXIS 3562 (Ohio Ct. App. Aug. 9, 2013)(adverse possession case involving land between two adjacent farms; survey established boundary that resulted in smaller tract for plaintiff; plaintiff thus claimed title to land in dispute by adverse possession; both parties produced witnesses that testified about usage of tract in issue and jury returned verdict in favor of defendant, the legal title holder; plaintiff's sought judgment notwithstanding the verdict (JNOV) and trial court granted motion; on appeal, court reversed on basis that reasonable minds could have disagreed and jury verdict should have been upheld).
VIP Industries Inc. & Subsidiaries v. Comr., T.C. Memo. 2013-357 (petitioner transferred leasehold interest in real estate for fee interest in real estate in purported I.R.C. Sec. 1031 deferred gain exchange transaction; Treas. Reg. Sec. 1.1031(a)-1(c) authorizes exchanges of leasehold interest for fee interest if the leasehold interest is of at least 30 years; petitioner's ground lease entered into in 1993 with original term of 33 years and was not renewable or extendable; petitioner operated motel on property until 2006 then sold leasehold interest to investment firm and parked proceeds with qualified intermediary at time when 21 years remained on ground lease; petitioner held two replacement properties for use in trade or business and reported recognized gain of $2,104,632 (cash and debt relief actually received in transaction) on realized gain of $4,320,618; IRS denied gain deferral on basis that leasehold interest not "like-kind" to fee interests received where less than 30 years remained on interest at time transaction entered into; case decided on past precedent and not on basis of Treas. Reg. at issue, so uncertainty remains as to whether leasehold interests with less 30 years are categorically unqualified for I.R.C. Sec. 1031 treatment per the regulation).
Pennington v. Flaherty, No. DA 12-034, 2013 Mont. LEXIS 204 (Sup. Ct. Mont. Jun 18, 2013)(quiet title action brought by purchaser of property to clear any cloud brought by neighbor’s declaration that lots purchased were never to be sold; court granted summary judgment for purchaser finding no restrictions in chain of title and defendant’s claim that he was given a sales brochure and spent money to develop his own tract did not establish existence of negative easement against purchaser’s lots; appellate court held brochure did not create restriction on adjacent property nor mislead him; defendant failed to establish any evidence of restrictions; summary judgment for purchaser affirmed).
Faith United Methodist Church and Cemetery of Terra Alta, West Virginia, et al. v. Morgan, No. 12-0080, 2013 W. Va. LEXIS 691 (W. Va. Sup. Ct. Jun 13, 2013)(declaratory judgment case in which oil and gas rights between subsequent owners were subject of dispute; issue stemmed from 1907 deed conveying surface only; trial court held precedent, Ramage v. South Penn Oil Company, 118 S.E. 162 (1923) required finding word "surface" ambiguous and extrinsic evidence should be used to determine meaning; on appeal, court held “surface” when used as a term of conveyance is not presumptively ambiguous and expressly overruled Ramage; 1907 deed unambiguous and to be enforced; result was that deed specifying "surface only" did not convey oil and gas interests).
Johnson v. Johnson, No. 307572, 2013 Mich. App. LEXIS 930 (Mich. Ct. App. May 28, 2013)(plaintiff owned a 100 acre farm and mortgaged five acres for her son to build a barn on them; after the barn was complete, the plaintiff’s property taxes went up; plaintiff (mother) and defendant (son) went unannounced to an attorney’s office to draw up a deed; dispute arose regarding purpose of deed; plaintiff argued that she was transferring only five acres and defendant argued for transfer of entire farm; plaintiff was elderly and waited in car while defendant spoke to attorney alone; attorney prepared deed giving plaintiff life estate and transferring remainder to defendant; despite recommendation that deed not be filed until plaintiff’s death, deed was recorded by defendant; trial court held plaintiff did not intend to record deed and defendant removed deed from plaintiff’s safe and recorded without her permission and held deed should be set aside on basis of fraud, unconscionability, and lack of delivery; defendant appealed; appellate court held fraud was not proven because plaintiff could not have acted in reliance on misrepresentation to attorney because she was not present and removal of deed would be stealing rather than evidence of fraud; appellate court also held deed was not substantively unconscionable because transaction was a gift rather than business deal; appellate court also overturned trial court’s finding of lack of delivery because recording of a deed creates a presumption of delivery and there was lack of evidence regarding how the deed was recorded and whether defendant did steal deed from plaintiff’s safe; case remanded for reconsideration on the evidence for delivery; court also directed undue influence claim made by plaintiff be addressed on remand).
Fisher v. Township of Southampton, No. A-4568-11T3, 2013 N.J. Super Unpub. LEXIS 1240 (N.J. Super. May 23, 2013)(appeal from determination that wooded lot did not qualify for farmland assessment; at trial, directed verdict given to township because testimony was only that plaintiff harvested wood once or twice on lot to heat farmhouse on additional lot on which farming activities occurred and wood used once to repair barn; ruling affirmed and plaintiff’s contentions on appeal without sufficient merit to warrant discussion in a written opinion).
Sims v. Daker, No. 39760 2013 Opinion No. 64, 2013 Ida. LEXIS 163 (Ida. Sup. Ct. May 23, 2013)(boundary dispute in which plaintiff claimed fence line constituted boundary by agreement; trial court determined there was lack of evidence concerning when fence was put in, why built or in its location, or who owned property on either side when built, so there was no evidence to disprove fence intended to be boundary; trial court held boundary was uncertain and implied agreement existed that fence to be treated as boundary line; on appeal, decision affirmed based on principle that when fence line treated as boundary for long period in the absence of evidence of circumstances establishing fence, fence is presumed to be boundary).
H&H Farms, Inc., et al. v. Huddle, No. 3:13 CV 371, 2013 U.S. Dist. LEXIS 72501 (N.D. Ohio May 22, 2013)(case involves dispute over farmland that had been owned 100 percent by husband and wife before transfers of undivided fractional interests to defendant, a son; at time of case, mother had died and father owned 6 percent and defendant owned 94 percent; plaintiff was longtime farm tenant (and father's grandson and defendant's nephew); farther, as co-tenant in possession of farmland, executed 11-year recorded rental agreement with plaintiff for $150/acre/year; defendant (and 94 percent owner) did not consent to agreement and claimed that agreement was unenforceable and that plaintiff would be trespassing upon attempting to farm; defendant motioned for dismissal of case; under state (OH) law, each tenant holds title independently of every other tenant, and co-tenant out of possession entitled to receive share of reasonable rental value of property exclusively used by co-tenant in possession; possession of one co-tenant is presumed to be possession of all; defendant made no request to physically possess tillable land or was denied ownership rights in farm; father had duty to account for rents and profits and pay defendant 94 percent of net rental income; father has absolute right of possession; under state law, a lease does not divest co-tenants of their interests in property; defendant retains right of partition and, if exercised, lease would be terminated; defendant's motion to dismiss denied).
EQT Gathering Equity, LLC v. Fountain Place, LLC, No. 12-1730, 2013 U.S. App. LEXIS 10193 (4th Cir. May 21, 2013)(plaintiffs own oil and gas rights to property; defendant owns surface rights; controversy over which party required to bear the cost of relocating two pipelines on property; defendant placed fill dirt over one pipeline, which required plaintiff to relocate pipeline to safer location; defendant wanted to place cell phone tower on property, but second pipeline was in way, so defendant buried pipeline causing safety issues; plaintiff brought suit for injunctive and declaratory relief regarding the excavated pipeline; court denied injunctive relief due to defendant’s secession of excavating, but granted summary judgment finding defendant upset status quo, so it was required to pay for cost of pipeline relocation; remaining claim went to trial; jury found defendant responsible for depositing dirt on tops of pipeline and court held it responsible for costs; on appeal court held defendant upset status quo because pipelines were in existence at time defendant purchased property; placing fill dirt over top of pipeline was for defendant’s benefit, so it must bear cost of relocation of that pipeline; court stated same conclusion for excavated pipeline; district court judgment affirmed).
Miller v. Jones, No. A147325, 2013 Ore. App. LEXIS 478 (Ore. Ct. App. Apr. 24, 2013)(dispute regarding meaning of irrigation and access agreement drafted by predecessors-in-interest of adjoining landowners; court held agreement created express easement rather than mere license; court also held easement was appurtenant based on state preference for holding easements appurtenant when dominant estate identified unless specific language clearly demonstrates contrary intent).
Ellison v. Clackamas County Assessor, TC-MD 120314D, 2013 Ore. Tax LEXIS 73 (Ore. Tax Apr. 23, 2013)(world-class equine facility with proprietary construction plans appeals real property market improvement value of property; two assessments done of property; one used sales approach and both used cost approach; appraisals differed in square footage and price per square foot for each type of improvement; argument is that property has no real market value as personal residence and world class equine facility and should be assessed using cost approach; court held no immediate market for property designed to plaintiff’s exact specifications, so cost approach should be used, but insufficient evidence presented to reconcile appraisers’ differences (one appraisal showed a value of $14,591,127 and the other $18,275,412) to determine property’s real market value, so plaintiff’s appeal denied).
Mays v. Porter, No. 2011-CA-000362-MR, 2013 Ky. App. LEXIS 62 (Ky. Ct. App. Apr. 19, 2013)(children brought action against their mother to recover items stored in her garage; mother counter-claimed to set aside deed executed in favor of children; at trial mother testified and argument made without objection that deed was coerced through undue influence of mother’s husband prior to his death; husband refused to let mother ask questions regarding deed and had been violent, so mother signed to avoid an argument; after trial court held deed was result of undue influence; court also limited items in garage to be returned to children based on testimony of grandson regarding which items actually belonged to children; both holdings affirmed on appeal because substantial evidence in record supported findings).
Adams v. Kalmar, No. COA12-749, 2013 N.C. App. LEXIS 379 (N.C. Ct. App. Apr. 16, 2013)(dispute regarding spray easement; defendants granted spray easement to plaintiffs; plaintiffs planted Bermuda grass in easement; several years later defendants notified plaintiffs that they would be removing Bermuda grass in easement and replace it with soybeans; plaintiff brought suit; defendants counter-claimed for fraud and negligent misrepresentation; trial court granted summary judgment to plaintiff on defendants’ claims; on appeal, court affirmed dismissal of fraud claim because lack of expansion necessitating large area for easement caused by statutory moratorium rather than plaintiffs’ actions; this fact also permitted dismissal of negligent misrepresentation claim as well; court also affirmed in dismissing request to void easement for lack of meeting of the minds in contract formation because contract allowed for necessary actions in easement to comply with state regulations, which required Bermuda grass be grown for compliance; appellate court also affirmed court’s holding that defendants entitled to hay from grass grown on easement because plaintiffs’ purpose of easement was merely elimination of hog waste).
Thornock v. Esterholdt, No. S-12-0138, 2013 Wyo. LEXIS 46 (Wyo. Sup. Ct. Apr. 11, 2013)(land dispute between parties regarding whether appurtenant easement existed from language in deed of land conveyed in 1940s; question concerned effect of easement language from previous deed; district court held language of easement was too vague to be enforceable; evidence showed parties never made use of any easement so intent shows lack of easement granted at that time; on appeal, appellate court agreed under state law that every conveyance of real estate passes the entire estate unless expressly stated otherwise; trial court affirmed no appurtenant easement in dispute land exists).
LeBlanc Land Co. v. The Dow Chemical Co., No. 2012 CA 0963, 2013 La. App. Unpub. LEXIS 226 (La. Ct. App. Apr. 10, 2013)(plaintiff filed suit to claim ownership of tract of land via acquisitive prescription; defendant moved for involuntary dismissal for failure to prove claim; motion granted; plaintiff appealed; appellate court affirmed because evidence did not establish boundaries as claimed by plaintiff nor actual location of claimed boundary; further no survey or expert evidence presented to enable court to determine boundary even if plaintiff proved possession; dismissal affirmed).
Warren v. Treet, No. CA12-671, 2013 Ark. App. LEXIS 242 (Ark. Ct. App. Apr. 10, 2013)(partition action among siblings as tenants in common after disputes arose; court held sister entitled to farm home and all buildings on her section of the tract as fixtures; brother appealed claiming he purchased buildings and was entitled to them and underlying land; appellate court found no error in trial court’s factual findings regarding conflicting testimony and affirmed; brother argued he should be indemnified for costs incurred in improving and maintaining buildings; on appeal, court held brother did not request reimbursement in his petition, so no error in failing to award; trial court’s enforcement of tenants in common agreement to division of property was also affirmed).
Rohner v. Beets, No. WD75327, 2013 Mo. App. LEXIS 441 (Mo. Ct. App. Apr. 9, 2013)(adverse possession case on appeal; adjacent property owners disputed ownership of a sliver of land between their lots; plaintiff had planted trees and built retaining wall in area; 9 years later plaintiff sought permission from defendant to cross her lot to rebuild retaining wall; defendant later discovered plaintiff’s trees and wall were partially on her property, issue on appeal was whether permission given to cross lot to rebuild wall defeated hostile use of sliver of land; trial court had ruled permission not related to use of sliver and appellate court upheld finding sliver belonged to plaintiff by adverse possession).
Niles v. Eldridge, No. 20120294, 2013 N.D. LEXIS 44 (N.D. Apr. 4, 2013)(contiguous landowners entered into an oral agreement to share in the expense and benefits from an artesian well; when one of the parcels changed hands, the new owner denied that an easement for pipe existed; landowner argued the agreement was oral, so Statute of Frauds applied; trial court held that part performance took the agreement out of Statute of Frauds and the agreement granted an easement; on appeal court held that landowner’s claim of a mere license failed because she presented no facts regarding a license; court also held that contract had been fully performed and it was clear an agreement to run pipelines across land to supply water to contiguous landowners existed; trial court affirmed).
Milner v. Biggs, No. 12-3526, 2013 U.S. App. LEXIS 6754 (6th Cir. Apr. 1, 2013)(homebuyers brought suit against sellers, realtor, and home inspector after discovering the house purchased “as is” and inspected was full of mold and deteriorating; district court granted judgment on the pleadings and summary judgment to defendants ultimately dismissing all claims; court upheld dismissal of claims under state consumer protection act against realtor and inspector because the actions complained of were taken pursuant to pure real estate transaction not covered by statute; summary judgment of fraud and civil conspiracy claims also upheld because no facts alleged of knowledge of condition by sellers and evidence existed showing buyers provided notice of need to inspect for mold, but did not do it; summary judgment for inspector also upheld because certification of home inspector irrelevant and misrepresentation claim failed because buyers did not review report; claims against seller’s agents filed because no deceptive acts alleged; buyer’s agent claims also dismissed because statements complained of were “puffery”; complaints against title agency also dismissed because title was true and any errors created no loss to plaintiffs).
Covered Bridge Farms II, LLC v. Maryland, No. 1920, September Term, 2011, 2013 Md. App. LEXIS 36 (Md. Ct. App. Mar. 22, 2013)(separate farm corporations appeal district court decision that splitting parcels previously individually identified but uniformly enrolled in state agricultural land violated easement’s prohibition on subdivision of land; district court affirmed based on Stitzel v. Maryland, 6 A.3d 935 (Md. Ct. App. 2010)which held that conveyance of portion of land subject to agricultural preservation easement was subdivision even though land had been separate before becoming part of preservation program; because Stitzel facts were “on all fours with this one”, subdivision was a violation).
613 Agro Holdings, LLC v. Renick, No. 12-2425-JAR-KMH, 2013 U.S. Dist. LEXIS 35917 (D. Kan. Mar. 14, 2013)(6,682 acres sold at auction via auction company; sale brochure delivered to plaintiff said that defendant seller would convey certain mineral rights along with the real estate; plaintiff relied on representations in brochure and paid $8.9 million for the land and mineral rights advertised in brochure and purchase agreement executed same day; purchase agreement contained integration clause stating that final bids subject to sellers' acceptance or rejection, and that seller warranted that they were selling 100 percent of their ownership in the mineral rights being sold; all real estate sold "as is"; transaction closed and two years later, plaintiff discovered it had not acquired mineral rights; mineral rights were actually owned by separate branch of seller’s family that had transferred them to an LLC which then leased them to another entity in return for bonus lease payments and future royalty payments; buyer’s attorneys did not conduct mineral title search ; plaintiff sued for breach of warranty deed and seisin, breach of purchase agreement, breach of auction sale agreement, fraud, reformation of purchase agreement and specific performance; and defendant moved to dismiss claim based on breach of auction sale agreement and court granted motion because purchase agreement's integration clause was clear and unambiguous and barred separate contract action based on earlier oral or written assurances not incorporated into purchase agreement and neither alleged oral agreement or auction brochure incorporated into purchase agreement; auction brochure stated that purchase agreement controlled terms of sale; plaintiff can pursue contract remedy for breach of purchase agreement; on fraud claim that defendant's held themselves out as owning mineral rights that they promised to convey (plaintiff claimed that the family of sellers represented that actual part of the family that sold the land held mineral rights, but they actually did not (it was the non-contracting members of the family that held the mineral rights)); defendant’s motion to dismiss claim of fraud in inducement denied; defendant's motion for judgment on pleadings with respect to reformation and specific performance of purchase agreement claims denied).
Enbridge Energy, L.P. v. Engelking, No. 2012AP1188, 2013 Wisc. App. LEXIS 222 (Wisc. Ct. App. Mar. 12, 2013)(court overturned district court order finding for energy company and dismissal of landowner's claims against energy company for placement of additional pipelines across his parcel without his approval; court held easement over defendant's land did not cover entire parcel and remanded for finding of scope of easement; court did uphold finding that defendant not entitled to arbitrarily reject payment for pipe to be placed on easement and remanded for factual determination of "like consideration"; court reinstated defendant's trespass claims against company because pipe underground is a continuing trespass; court also reinstate claim of ejectment because terms deny defendant right to use and possess portion of land upon which energy company is trespassing because defendant cannot construct anything over pipelines that are trespassing).
Peterson v. Gentillon, No. 38878 2013, 2013 Ida. LEXIS 64 (Ida. Sup. Ct. Feb. 26, 2013)(partnership sought specific performance of agreement to exchange parcels pursuant to survey to ensure adequate room for center-pivot irrigation; deeds not transferred and property sold to third party; third party brought suit to quiet title in disputed parcel; trial court held statute of limitations had run against partnership's claim and ruled in favor of third party; appellate court held that because partnership was in possession of property, five-year statute of limitations does not bar lawsuit for specific performance; appellate court also held that 50 foot strip of property was held in trust for partnership and belonged to partnership; court also held it was error for trial court to determine third party easement was 30 feet when evidence insufficient to determine, so that issue was remanded; court also overturned injunction on partnership from spraying ingress and egress road with water from its center pivot because evidence showed water did not materially impede third party from using road; court declined attorney fee award for either party).
Sylvester Winery, Inc. v. Feichtinger, No. B235939, 2013 Call App. Unpub. LEXIS 1190 (Cal. Ct. App. Feb. 19, 2013)(water agreement executed on property as part of loan process; for 12 years, plaintiff received all water it needed from well pursuant to water agreement; defendant attempted to terminate water agreement after dispute with plaintiff; court held plaintiff entitled to water from well for any purpose without interference; on appeal, court held water agreement created appurtenant easement rather than merely a license; court also held that easement allowed for development of plaintiff’s property, so use was not limited to one property; judgment affirmed).
Schaeffer v. Putnam, No. 2-1062, 20912 Iowa App. LEXIS 160 (Iowa Ct. App. Feb. 13, 2013)(plaintiffs brought suit against former attorney for negligence and breach of fiduciary duty by attorney and his LLC established to secure plaintiffs’ loans; plaintiffs contend the breach renders the mortgages unenforceable; defendant brought counterclaim for unpaid legal fees and to foreclose on mortgage; jury found for defendant on negligence claims and court awarded unpaid attorney fees to defendant; in separate proceeding, court ordered in rem judgment in favor of defendant on agricultural property; plaintiffs appealed claiming failure of defendant to obtain mediation release before filing counterclaim seeking to foreclose on agricultural property meant district court lacked jurisdiction to hear counterclaim; appellate court held counterclaim foreclosing on agricultural property required mediation release in accordance with Iowa Code Sec. 654A, so district court lacked subject matter jurisdiction; matter reversed and remanded for dismissal of counterclaim without prejudice).
Skogen v. Skogen, No. 2011AP1218, 2012 Wisc. App. LEXIS 1015 (Wisc. Ct. App. Dec. 20, 2012)(upon last of parents to die, three sons owned farmland as tenants-in-common and operated farm as joint venture until sometime in 2005; in 2005 sons agreed to approximately equal division of farm based on survey; agreement broke down and partition action filed; one son filed counterclaim asserting adverse possession; trial court, on adverse possession claim determined that usage was permissive during parents' lifetimes and property divided; on appeal, court affirmed on basis that prior use was permissive and not adverse; trial court's use of equalized value approach to dividing property within court's discretion).
Howard v. Trotter, et al., No. 20120221, 2012 N.D. LEXIS 264 (N.D. Sup. Ct. Dec. 18, 2012)(evidence established that public road existed on section line which plaintiffs had been using to access otherwise inaccessible hay pasture until defendant's obstructed road blocking plaintiff's access and preventing plaintiff's from harvesting hay crop; 1927 county order establishing route as public highway entered into evidence; in ND congressional section lines are open to public travel without necessity of any prior governmental action by virtue of 1866 law (Sec. 2477) where the federal government made offer of section line easements on public land and such offer accepted by Territory of Dakota in 1877 which stated, "...all section lines in this Territory shall be and are hereby declared public highways as far as practicable, Provided, That they shall not interfere with existing highways...."; trial court award of $20,000 damages to plaintiffs upheld).
Haggart v. United States, No. 09-103L, 2012 U.S. Claims LEXIS 1603 (Fed. Cl. Ct. Dec. 18, 2012)(takings claims by different subclasses of landowners involving claims for easements, condemnations, and adverse possession related to conversion of railroad to trails under National Trails System Act Amendments of 1983; court held both subclasses of landowners in which easements were granted had valid takings claim as easements granted were strictly for railroad use and not for public trail use; class members whose land had been condemned for railroad purposes also had takings claims as condemnations were for railroad uses only; court held evidence insufficient to determine ownership of parcels affected by adverse possession, so summary judgment denied as to those parcels with factual inquiry to be developed at trial; court also awarded partial summary judgment holding federal government liable for takings as to any ownership interests proven on the date of the reversion and taking; court also held that measure of damages to be determined would be decrease in value of land by encumbrance of trail easement).
In re Estate of Koeferl, No. 2012AP80, 2012 Wisc. App. LEXIS 1007 (Wisc. Ct. App. Dec. 18, 2012)(decedent bought farm with co-habitator and took title as "husband and wife, as survivorship marital property"; upon decedent's death, estate argued that deed ambiguous because decedent and co-habitator never married; court determined that state law (Wis. Stat. Sec. 700.19) applied which specifies that creation of joint tenancy determined by intent expressed in document of title, instrument of transfer or bill of sale, and that if "husband and wife" specified in document, then joint tenancy results; no language in deed expressed intent to not create joint tenancy; joint tenancy created).
Idol v. Idol, No. COA12-503, 2012 N.C. App. LEXIS 1229 (N.C. Ct. App. Nov. 6, 2012)(appeal from an action for partition of property between four tenants in common; commissioners, after assessing property and building upon the property, apportioned tracts by equitable values rather than in equal tracts; court approved commissioner’s report and parties appealed; appellate court held that court review constrained by statute stating that the question of fact to determine whether the division by commissioners was fair and equitable is decided by the lower court and its decision will be upheld if there is any evidence in the record to support it; on review, the court held evidence supported values of structures assigned by commission and affirmed).
Koch v. Packard, No. 107,585, 2012 Kan. App. LEXIS 100 (Kan. Ct. App. Nov. 2, 2012)(the appellee claimed that a roadway across the appellant’s land gave him access to his tract and that the other party had obstructed the access by installing a gate; other party sued for damages and a permanent injunction to bar interference with alleged easement; at the time appellee bought his tract, he was told that the roadway was his access to the property and that was no other roadway to the land; appellee also obtained a warranty deed to the property that included a “perpetual road easement” for the purpose of ingress and egress to the property; appellee never requested permission to use the roadway because he thought he had acquired use of the roadway when he bought the property; evidence also showed that appellee and his invitees used the roadway and that the appellee had tried to maintain the roadway on one occasion; other parties had also used the roadway for many years up to the present time; trial court ruled for appellee; on appeal, court reversed noting that testimony of parties showed that persons other than appellee used roadway, even before appellee bought property; lack of exclusive use of the property was decisive; appellee could not acquire a prescriptive easement without establishing exclusive use; trial court’s judgment reversed).
Vaneman v. Reed, No. 2011AP1465, 2012 Wisc. App. LEXIS 867 (Wisc. Ct. App. Nov. 1, 2012)(appeal of grant of summary judgment to defendants on plaintiff’s claim of adverse possession; court affirmed on basis that plaintiff failed to establish exclusive possession of disputed property; plaintiff claimed he and his predecessors-in-interest had exclusive use of property from 1964; county held title to property beginning in 1958 and granted a perpetual easement to defendants in 1998; under previous statute plaintiff required to have exclusive possession for a minimum of 40 years to acquire land from county; in 1980 statute was changed to require only 20 years of possession, but plaintiff did not have exclusive possession until 2000; appellate court agreed defendants’ use was more than casual and defeated plaintiff’s claim because he was unable to meet the 20 year requirement).
Dewey v. Chesapeake Appalachia, LLC, No. 5:11CV5, 2012 U.S. Dist. LEXIS 153509 (N.D. W. Va. Oct. 25, 2012)(fracking company's summary judgment motion granted dismissing landowners' trespassing claim against company's pits containing drilling wastes buried on the landowners' property; company had oil and gas lease obtained from third party that was acquired through a deed severing the mineral rights from the land in 1950s; court held state permit allowed company to use pits in its operation and owners of subsurface rights have right to use land as necessary to conduct their operations, so there was no evidence of a trespass).
Voga v. Frisbee, No. 11 CV 7160, 2012 U.S. Dist. LEXIS 150501 (N.D. Ill. Oct. 19, 2012)(court considers defendant’s motion to dismiss for abstention under doctrine established in Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800 (1976); pending state court action regarding the administration of a family farm trust and allegations of a breach of fiduciary duty and legal effect of daughter’s changes to distributions in trust document while the benefactor was incapacitated; allegations also regarding propriety of distribution of federal estate taxes among beneficiaries; court held factors were in favor of abstention, but stayed proceedings rather than dismissed suit).
Rucker v. Delay, et al., No. 101,766, 2012 Kan. LEXIS 488 (Kan. Sup. Ct. Oct. 19, 2012), aff’g in part and rev’g in part, 235 P.3d 566 (Kan. Ct. App. 2010)(lower court’s held that reference to "royalty interest" in deed refers to share of production of oil and gas at severance and is personal property which relates to the proceeds from oil and gas if and when produced; "mineral interest" refers to oil and gas in place and constitutes present ownership of interest in real property and is commonly denoted by right of entry upon land to produce and conduct production activities; mineral interest vests immediately upon creation, but royalty interest does not vest until and unless there is production from the land, but a grant of non-participating mineral interest is devoid of all rights except the right to receive royalty and vests immediately; thus, reservation of "royalty interest" in deed violated rule against perpetuities; on further review, state Supreme Court affirmed lower court holding that deed language created a royalty interest (defendant failed to include in petition for review their claim that lower courts erred in finding that deed language created royalty, as opposed to mineral, interest – thus, issue not preserved for review); royalty interest held to be a reversionary interest not subject to rule against perpetuities; issue of whether a royalty interest created in transferee is a future interest that vests at production not squarely before court and not ruled upon; court, in dicta, said that USRAP did not apply because conveyance at issue before 7/1/92 effective date, but such comment incorrect because Kan. Stat. Ann. Sec. 59-3405(b) has retroactive effect and applies to pre-July 1, 1992 conveyances).
In re James R. & Marjorie V. Lemcool Trust, No. 306620, 2012 Mich. App. LEXIS 2074 (Mich. Ct. App. Oct. 18, 2012)(appeal from termination of tenancy in family real estate; defendant daughter claimed she was promised one-half ownership interest in property before investing substantial resources in repairing and maintaining property; trial court found no evidence that plaintiff with sole ownership interest made any promise or agreement and defendant was evicted; on appeal, court concluded that it was likely plaintiff encouraged defendant’s belief in her ownership interest, but because no evidence of an agreement was presented, the result was unfair to defendant, but inescapable; trial court decision affirmed).
Guth v. Tazewell County, No. 11-3452, 2012 U.S. App. LEXIS 21560 (7th Cir. Oct. 17, 2012)(plaintiff brought action under 42 U.S.C. § 1983 against county for alleged violations of her constitutional rights when the county denied her request to change the zoning of her parcels from agricultural to rural residential, which permits development outside the reach of public facilities; in an earlier state court action brought by the plaintiff due to the denial, a settlement was reached prior to trial in which the county agreed that the parcels should be rezoned because the previous denial had been that the parcels were too close to hog farms and at the time of the settlement, the hog farms were going to be closed; a hearing was held on the rezoning, but the request did not pass because less than a three-fourths majority voted in its favor; a year later the board granted the request, but the housing market (in 2008) had collapsed and the property was no longer worth more in the new classification; plaintiff brought suit in federal court; she alleged invidious discrimination and denial of equal protection because two other properties had been permitted to rezone, retaliation for exercising her first amendment right to bring a lawsuit; the district court granted summary judgment for the county and the plaintiff appealed; the appellate court affirmed summary judgment because there was no evidence of discrimination as the other parcels approved for zoning changes were located farther away from the hog confinement; the first amendment claim also failed because a suit regarding the value of personal property is not a public concern for which first amendment protections would apply; court held plaintiffs damage claim also failed because the housing collapse was not foreseeable by the county and is not liable for unforeseeable risks).
Jin v. KYB Farms, No. 42365-1-II, 2012 Wash. App. LEXIS 2448 (Wash. Ct. App. Oct. 16, 2012)(farm rental lease dispute between landowner and farm business/tenants; lease required $2000 per month rent on land and farm house, but tenants paid only $1200 per month, which was accepted by landlord for one and a half years; landlord then filed three day notice to pay rent or vacate claiming delinquent rent of $800 per month since the inception of the lease; notice was sent to tenants doing business as farm business; tenants submitted $1200 rent in response, which was not accepted by landowners, but tenants remained on property; unlawful detainer filed by landowners; after bench trial, court held tenants current on rent until three day notice to quit presented and restored property to landowners with judgment for delinquent rent; court awarded tenants attorney fees; on appeal tenants argued trial court lacked jurisdiction because notice was defective; appellate court disagreed because notice was not premature or addressed to wrong party; court also held amount due on notice was subject of dispute, so amount claimed did not affect court’s jurisdiction; court did reverse attorney fees award to tenants because they were not parties to the contract (which was with farm business); attorney fees for appeal awarded to landowners as prevailing party on appeal).
Wehde v. Jackson County Assessor, No. TC-MD 111096C, 2012 Ore. Tax LEXIS 330 (Ore. Tax Oct. 11, 2012)(appeal of partial disqualification of property from farm use special property tax assessment; one half of property was cleared and all but portion housing honeybees was disqualified because allowed to lie idle; other half, which was forested qualified as farm use due to productive trees; plaintiff contended cleared area provided flowers, clover, and other desirable plants and was honeybee forage area as testimony showed bees foraged for miles; plaintiff’s daughter also kept chickens, goats, and llamas on property but provided no evidence of making no profit from the animals; court held daughter’s animals do not constitute farm use because raised for personal consumption and evidence insufficient to conclude bees needs prevented active farming on area and alfalfa or other crops could be grown on land, so farm use assessment denied).
Corbin v. Frey, No. 2011-CA-000735-MR, 2012 Ky. App. Unpub. LEXIS 731 (Ky. Ct. App. Oct. 5, 2012)(mere non-use of easement insufficient to terminate easement; owner erected fence in middle of driveway easement, constructed barn at end of easement, never spread gravel to indicate driveway; neighbor planted trees and mowed grass up to fence of easement for period of more than 15 years; court held fence and barn construction established owners abandonment of easement and neighbor’s acquired their portion of easement by adverse possession through continued use of their side of easement; affirmed on appeal).
Morrow v. Morrow, No. 2009-CA-01319, 2012 Miss. App. LEXIS 606 (Miss. Ct. App. Oct. 2, 2012)(lower court divided inherited land equally among three children and denied request by plaintiff for equitable lien on property for improvements he made; plaintiff appealed; plaintiff claimed parents made an offer to each of the children that if any agreed to indefinitely helped the father farm the land, the child would inherit the property; plaintiff claimed he accepted the offer; the property was deeded to plaintiff after the mother was in an automobile accident; plaintiff agreed to deed property back to his parents so they could reserve a life estate; a second deed was executed and delivered according to notary signature in March 1996 conveying land to plaintiff with a life estate reserved for parents; it was filed in chancery court on April 23, 1996; a third deed, however, was executed conveying land from plaintiff to his parents on April 22, 1996 with the same notice of delivery by the notary signature; the deed was filed in chancery court on April 22, 1996; both parents were now deceased; lower court held deed was delivered at time of notary signature, which was March 1996 for deed 2 and April 22, 1996 for deed 3, rather than the time deed actually filed; appellate court affirmed chancery court decision on delivery, which meant deed 2 had no affect; appellate court also held plaintiff unable to establish doctrine of after-acquired property defense because he was aware of ownership of property at time deed 3 was executed; denial of request for equitable lien also affirmed because expenses claimed by plaintiff were for farming expenses for which plaintiff received income from activities).
Greenwood v. Lee, No. 07-11-00404-CV, 2012 Tex. App. LEXIS 8252 (Tex. Ct. App. Sept. 28, 2012)(based on language of written easement, easement limited in scope to ingress and egress; accordingly, installation of utility lines impermissible; easement width of 45 feet determined).
Reece v. Valois, No. E2011-02615-COA-R3-CV, 2012 Tenn. App. LEXIS 675 (Tenn. Ct. App. Sept. 27, 2012)(action brought by children to set aside warranty deed transferring 39 acres of mountain land from 98-year-old uncle to his 85-year-old niece; trial court found no evidence of any incompetence on part of uncle or undue influence by niece; court found long-term affectionate relationship between uncle and niece and previously between uncle and niece’s mother; children never mentioned concerns of incompetence when told deed would be transferred, they wanted payment for land; uncle also continued to hold farm worth more than $1 million at time of transfer; trial court denied request to set aside deed; children appealed; trial court opinion affirmed because evidence sufficient to uphold order).
Hilty Limited Family Partnership, LP v. Scott, No. WD 74539, 2012 Mo. App. LEXIS 1202 (Mo. Ct. App. Sept. 25, 2012)(farmland on which above-ground irrigation system present was transferred; land was subject to two mortgages at time of transfer with one mortgage secured by the real estate and “hereditaments and appurtenances thereto”; irrigation equipment had been acquired for the land, the purchase of which was financed by a bank with collateral for loan listed as “all equipment” which included the irrigation system, a bulldozer and a tractor; bank filed financing statement that incorrectly identified the debtor as “Deepwater Seed Farm” rather than “Deepwater Seed Farms” and search with Secretary of State’s office under debtor’s correct name did not reveal bank’s lien on irrigation equipment; no fixture filing made in real estate records as to irrigation equipment because bank didn’t think irrigation equipment was a fixture; land later sold at foreclosure and buyer had no knowledge of lien on irrigation system; plaintiff, as owner of irrigation equipment brought replevin action; trial court ruled for buyer at foreclosure sale largely because plaintiff present at foreclosure sale, bid on property and made no mention of any claim of ownership to irrigation system; appellate court affirmed on basis that buyer was purchaser for value and irrigation system was not personal property).
Town of Riverhead v. Taste of Country, Inc., No. 37847-10, 2012 NY Slip Op 32460U (N.Y. Ct. Sup. Sept. 20, 2012)(agricultural land owners were operating existing farm stand as a restaurant in violation of ordinance; property owners argued farm stand was pre-existing nonconforming use; zoning required that homemade or home grown products be sold at farm stand and not more than 40 percent of other items could be sold; court held facts undisputed that present use of farm stand as restaurant was not pre-existing nonconforming use and violated current township ordinance).
Sawyers, et al. v. Beller, et al., No. 2010-SC-000678-DG, 2012 Ky. LEXIS 134 (Ky. Sup. Ct. Sept. 20, 2012)(case involves right to use and maintenance of road; express easement; road could be used for vehicles and farm equipment to pass; road could be paved and/or graveled by holder of dominant estate; express agreement said that road was to be 16 feet wide; owners of servient estate to allow free and unrestricted use of road by owners of dominant estate).
Carlson v. Bd. of Adjustment of the City of Smithfield, No. 20110142-CA, 2012 Utah App. LEXIS 267 (Utah Ct. App. Sept. 20, 2012)(challenge of city board of adjustment decision that challenger’s neighbors have existing, nonconforming animal rights use to keep cattle on their property due to use since 1970; appellate court found challenger failed to meet his burden of proof and marshal evidence; sufficient evidence existed to support board’s decision; challenger also failed to preserve issues at board hearing, so not addressed at appellate level; court also upheld district court order allowing neighbors to intervene in challenger’s action against city; board decision affirmed).
In re Estate of McKillip, 284 Neb. 367 (2012)(three daughters inherited property from their father in equal shares; one daughter brought partition action; referee found partition in kind of real estate was not possible due to ill-will between sisters and recommended public sale; one daughter objected but court ordered sale; issue of sale timely appealed; court determined order of sale was a final, appealable order in probate due to substantial rights affected by sale and decided appeal; on appeal, court held party seeking partition must overcome presumption that in-kind partition was preferable; facts showed property as a whole did not have more value than separate parcels and two sisters wanted partition in kind to keep land in family, including proposed partition which could have been used; court disagreed with proposed partition plan and distributed tracts and equalized values through additional assets of estate; court also held referee was properly appointed, but probate court not able to award attorney fees once action appealed, and court erred because sister as personal representative was not required to post bond to perfect appeal).
Jones v. Brainerd, No. 4-12-0116, 2012 Ill. App. Unpub. LEXIS 2169 (Ill. Ct. App. Sept. 5, 2012)(neighbors sued for prescriptive easement over driveway; easement not recorded within deed; defendants argued they had obtained prescriptive easement for 20 years; trial court disagreed; on appeal, court agreed defendants had been given permissive use of driveway, so they could not establish hostile use or claim of right required for prescriptive easement).
Wetland Preservation LTD v. Roger A. Corlett, CPA, et al., No. 2011-A-0034, 2012 Ohio App. LEXIS 3431 (Ohio Ct. App. Aug. 27, 2012)(plaintiff bought three parcels of farmland in 1998 totaling 200 acres with intent to restore the land to wetlands and convert the land into a wetland mitigation bank; land preserved by permanent conservation easement and obtained approval to sell credits to developers; at time of purchase, land qualified under state law “current agricultural use valuation” (CAUV) statute for reduced tax valuation; county auditor initially approved CAUV classification for plaintiff, but reversed position nine years later; county board of revision upheld auditor’s determination; trial court reversed; on further review, court of appeals upheld trial court’s reversal on basis that statute classifies “land devoted exclusively to agricultural use” includes land “devoted to and qualified for payments or other compensation under a land…conservation program under an agreement with an agency of the federal government”; definition of “agriculture” constitutional).
Nixon, et al. v. AgriBank, FCB, 686 F.3d 912 (8th Cir. 2012)(plaintiffs were successors in title to land with oil and gas rights that defendant also claimed rights to; mineral rights determined to be insulated from Federal Farm Loan Act of 1916 five-year limitation and U.S. Supreme Court had also construed 6 C.F.R. Sec. 10.64 as giving blanket permission to Federal Land Banks to hold mineral rights more than five years; defendant's motion to dismiss granted).
Brown v. Summerfield Township, No. 304979, 2012 Mich. App. LEXIS 1664 (Mich. Ct. App. Aug. 23, 2012)(plaintiff owned less than 1.5 acres and defendant's ordinance prohibited the keeping of horses on such small acreage; plaintiff claimed preemption of state Right-To-Farm Law; trial court determined that plaintiff not covered by Right-To-Farm Law due to not being engaged in commercial farming operation, and granted summary disposition for defendant; appellate court affirmed because plaintiff provided no evidence of keeping horses with profit intent).
Morgan v. Nash County, 731 S.E.2d 228 (N.C. Ct. App. 2012)(defendant created LLC to buy tract of land that would be rezoned in attempt to incentivize corporation to build poultry processing facility; land purchased and tract rezoned to allow poultry processing and other beneficial economic uses; plaintiff challenged rezoning and claimed it had standing to sue based on fact that fields on which wastewater would flow located in watershed from which plaintiff (city) obtains half of its water supply; court held that plaintiff lacked standing to challenge rezoning because tracts on which wastewater to be disbursed not subject to rezoning and sprayfields could exist regardless of existence of processing facility; plaintiff did not suffer injury from rezoning).
Plymouth County v. Merscorp, Inc., No. C 12-4022-MWB, 2012 U.S. Dist. LEXIS 117709 (N.D. Iowa Aug. 21, 2012)(class action filed by county government to recover damages caused by defendants’ intentional failure to record all mortgage assignments and instruments as required by state law and sought damages for unjust enrichment for utilizing MERS System instead; defendants filed motion to dismiss, which was granted; court held state law (IA) does not require a mortgage assignment to be recorded and no unjust enrichment occurred, so there is no claim upon which relief could be granted.)
Estate of Werner v. Werner, No. A11-2198, 2012 Minn. App. Unpub. LEXIS 798 (Minn. Ct. App. Aug. 20, 2012)(appellate court overturned summary judgment that held quit claim deeds were unambiguous and demonstrated ownership of property to defendant; plaintiff presented other documents from defendant’s loam transaction with bank that required plaintiff and decedent to sign deeds enabling defendant to secure loan on property he was buying on contract from plaintiff and decedent; lower court erred in failing to find question of fact regarding effect of quitclaim deed under these circumstances and remanded for further proceedings; appellate court dismissed defendant’s counter claim for slander-of-title due to evidence presented.)
Ruvalcaba, et al. v. Baek, et al., No. 85732-6, 2012 Wash. LEXIS 541 (Wash. Sup. Ct. Aug. 9, 2012), rev'g., 159 Wash. App. 702, 247 P.3d 1 (2011)(plaintiffs sued defendant neighbors for condemnation of easement over defendant's property; plaintiffs had initially owned entire tract but later sold portion of property to others and retained landlocked portion without reserving easement; appellate court granted easement but Supreme Court reversed; plaintiffs landlocked their own parcel and waited 35 years to bring condemnation action; accordingly, no reasonable fact-finder could find reasonable necessity to satisfy Wash. Rev. Code Sec. 8.24.010 and Art. I, Sec. 16 of state constitution; attorney fees granted to defendants).
Davidson v. City of Edwardsville, No. 105,243, 2012 Kan. App. Unpub. LEXIS 672 (Aug. 3, 2012)(plaintiffs purchased property in residential/agricultural zoned municipal area to operate horse breeding and rescue operation; 10-acre property housed more than 40 horses at a time; after complaints, city issued notices to plaintiffs of violations of health and safety ordinances; plaintiffs brought suit alleging ordinances were zoning ordinances that could not dictate pre-existing uses and Kansas’ “right-to-farm” laws; district court held ordinances were not based on zoning, but municipality’s right to control health and safety issues and no nuisance lawsuit was at issue; on appeal, the court agreed; state law only presumes agricultural activities are not nuisances if conducted according to good agricultural practices and not a threat to health or safety and local governments could enact ordinances to protect health; also, ordinances were not zoning laws, but focused on health and safety; as such district court’s grant of summary judgment to the city dismissing plaintiffs’ claims was affirmed).
Hazel Green Ranch, LLC v. United States Department of the Interior, No. 10-16519, 2012 U.S. App. LEXIS 15568 (9th Cir. Jul 27, 2012)(rancher brought suit under federal Quiet Title Act seeking easement rights over county roads leading to Yosemite Valley floor by virtue of status as abutting landowner under state law; district court dismissed claim because county’s claim for ownership of road was dismissed in previous ruling, which was not appealed, so it became final judgment; because rancher’s claim was based solely on county’s ownership, rancher had no claim or easement to road; any damage from loss of easement must be sought against county; further Homestead Act did not save claim as rancher had no specific claim to easement and all common law implied easement claims were extinguished by public grant; appellate court affirmed dismissal with prejudice; concurrence argued no claim existed for rancher separate from public access rights, which are not sufficient to bring claim under Quiet Title Act).
The Carl Kaetzel Trust U/T/D/ December 10, 1977 v. Kaetzel, No. 74A01-1201-PL-36, 2012 Ind. App. Unpub. LEXIS 919 (Ind. Ct. App. Jul. 27, 2012)(son offered to purchase one specific trust property from his parents for agreed upon price as stated within one of the trusts and retention of life estates for parents and a sibling; deed prepared by son included purchase of all trust property for purchase price and severely limited life estates; parents signed deed without recognizing they were selling all of their properties; son began to treat parents poorly and invoked severe restrictions on their use of the property; parents filed suit for rescission of deed and constructive fraud and for damages caused to tractor by son; son brought counter-claim seeking forfeiture of life estate by sibling for failure to pay property taxes or insurance, conditions contained within deed but not conveyed to sibling; after hearing, trial court ordered rescission of deed based on breach of trust; appellate court reversed because trust stated son could purchase one of the properties for the agreed upon price so there was no breach of trust and remanded for entry in favor of son on deed; on remand, court held no constructive fraud occurred, no damages for tractor because it was in parents’ possession and no credible evidence of damages presented, and ordered damages to be paid to son by sibling for taxes and insurance, but would not forfeit life estate; parents appealed and son cross-appealed; appellate court held law of case was that no constructive fraud occurred so no review of that claim; court upheld denial of damages for tractor; court determined forfeiture would not be equitable especially considering the lack of notice of conditions and the fact damages had already been awarded).
RAMA Operating Company, Inc. v. Barker, No. 105,589, 2012 Kan. App. LEXIS 74 (Kan. Ct. App. Jul, 27, 2012)(defendant obtained an oil and gas lease from property owners; defendant had a title opinion done for a previous lease on the tract that showed a recorded release of the rights; defendant required a second release recorded; defendant assigned his rights to plaintiff; plaintiff appeared on the tract to commence drilling and was told by landowner there may be an adverse drilling lease; plaintiff was told by the prior lessee that the release was a mistake, so plaintiff abandoned its drilling and filed suit against defendant claiming a breach of warranty of title; defendant filed summary judgment which was denied; after a trial, the court ordered damages against defendant for expenses in commencement of drilling; defendant appealed the denial of his summary judgment; appellate court held that summary judgment should have been granted as plaintiff failed to respond with more than general denials of undisputed facts; specifically court held that state law requires actual lawful claims be brought against deed holder before any claim for breach of warranty applies; in this case, plaintiff merely stopped drilling and vacated without actual claim of superior right, plaintiff failed to present any specific facts to controvert recorded releases of prior lease or production history showing lack of continued production resulting in termination of lease regardless of release, so appellate court held trial court erred in failing to grant summary judgment and reverse and remanded).
Hertz v. Nowacki, No. A-0557-10T3, 2012 N.J. Super Unpub. LEXIS 1794 (N.J. Super. App. Div. Jul. 26, 2012)(plaintiff brought post-judgment motion to enforce earlier ruling granting her easement over property of two individuals to access her 15 acre farm; motion contained rambling complaints against prior parties, including claims against the city, which had been dismissed previously, and non-parties; trial court had dismissed entire motion; on appeal, court held that claims against non-parties to earlier action were properly dismissed; claims against the city were properly dismissed; case remanded for a hearing on claims regarding improper signage and intimidation of plaintiff blocking access to easement; court advised plaintiff that claims against nonparties for damage to her car, abuse of process, and other threats could be brought in separate tort action).
Robinson Township, et al. v. Commonwealth of Pennsylvania, et al., No. 284 M.D. 2012 (Pa. Commw. Ct. Jul. 26, 2012)(by a 4-3 majority, court overturned portions of new PA law that regulates Marcellus Shale development on basis the offending portions that gave the state decisionmaking authority over local drilling decisions violated constitutional due process requirements and impermissibly gave PA Dept. of Environmental Protection power to make legislative policy judgments; court noted that 150 unconventional wells had been drilled inside boundaries of several municipalities and portions of law prevented local governments from taking action to protect health and safety of citizens, and required localities to amend existing zoning laws; distinctions in law that treated oil and gas differently from other extraction industries constitutional because distinction based on legitimate differences that justified different zoning classifications).
Turner v. Steele, No. 105,552, 2012 Kan. App. LEXIS 72 (Kan. Ct. App. Jul. 20, 2012)(law firm awarded state court judgment against debtor in 2000; non-party bank received federal court default judgment against same debtor in 2001; both judgments properly recorded; bank promptly sought sheriff’s sale of property; property sold and redeemed; ten years later law firm sought sheriff’s sale of same property; landowners who redeemed property in bank action sought stay of sheriff’s sale in district court in which law firm’s judgment was entered pending outcome of quiet title action in district court in which real property is located; district court denied stay of sheriff’s sale finding landowners lacked standing and denied their motion to intervene in law firm’s lawsuit; landowners appealed; appellate court held landowners did have standing because as owners of property they have a protectable interest in the property that must be heard before a judicial ruling clouds their title; appellate court also held district court abused its discretion by failing to stay proceedings until quiet title matter resolved; of particular concern to court was law firm’s unexplained ten year delay in seeking to execute).
Biegler v. Kraft, CIV 1130, 2012 U.S. Dist. LEXIS 98997 (D. S.D. Jul. 17, 2012)(defendants attempted to sell property consisting of 314 acres, buildings, and a home in South Dakota through a two-step auction process; two highest bidders after closed bidding came to make final bids at attorney’s office; defendants sought to assign a high portion of purchase price to value of home to avoid capital gains taxes; plaintiffs objected to amount assigned in draft purchase agreement and were told it could be negotiated; after placing highest bid, agreement could not be reached on value of home and when negotiations fell apart plaintiffs canceled transfer of all earnest money; plaintiffs brought suit for specific performance of contract; defendants sought summary judgment; court held plaintiffs claim for partial performance was denied as no performance occurred by them when earnest money transaction canceled by plaintiffs; summary judgment denied as to whether sufficient terms were agreed to in auction setting to defeat statute of frauds; court also unable to determine whether allocation of price of home was essential term upon which to agree in order to establish binding contract for sale).
Hansford v. Silver Lake Heights, No. 102, 122, 2012 Kan. LEXIS 423 (Kan. Sup. Ct. Jul. 13, 2012)(tenant-in-common to property partitioned was also owner of adjacent property; no legal filings were made in partition action other than estate; after buyer had survey done indicating fence was not located properly, adjacent owner filed action to quiet title to disputed strip through adverse possession and boundary by agreement; summary judgment filed and court held for buyer finding adjacent owner who did not bring direct appeal challenging property description could not bring collateral action to partition action for description of property; adjacent owner appealed; decision affirmed by court of appeals and Supreme Court).
Reicherter v. McCauley, No. 106,622, 2012 Kan. App. LEXIS 71 (Kan. Ct. App. Jul. 13, 2012)(80-acre parcel held in joint tenancy with rights of survivorship between two cousins; shortly before his death, cousin quitclaimed property to himself in attempt to sever joint tenancy; deed given to attorney for recordation; attorney mailed deed to county recorder’s office; cousin died one day before deed received and recorded; trial court decided on summary judgment that quitclaiming deed self sufficient to sever joint tenancy and delivery to attorney for recordation was valid delivery; appellate court affirmed holding effective delivery of quitclaim deed by joint tenant to himself, when there are only two joint tenants, severs survivorship and creates tenancy in common; deed was effective upon delivery to self, so actual recording after death did not bar conveyance).
Crossing Vineyards & Winery v. Zoning Hearing Bd. of Upper Makefield Twp., No. 2156 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 484 (Pa. Commw. Ct. Jul. 11, 2012)(winery granted agricultural and agricultural sales permits; township passed new ordinance limiting outdoor events at wineries to fewer than 24 events and all events were required to end by 10 p.m.; winery had been holding more than 100 special events prior to enactment of ordinance and sought nonconforming use status for continuation of events outside new ordinance limits; zoning board held uses were not permitted under zoning classifications, so events were not legal at time they were held and not eligible for non-conforming use privileges; winery appealed zoning board decision holding prior special events were nonconforming uses; on appeal, court affirmed board’s opinion).
Hazard v. East Hills, Inc., No. 2011-316. 2012 R.I. LEXIS 118 (R.I. Sup. Ct. Jul. 6, 2012)(plaintiff filed claim against defendant for title to undeveloped eight acres of land alleged to have been in her family since the 1800s; no chain of title could be located for disputed land, but defendant’s property had chain of title from conveyance in 1895 from plaintiff’s great-great-great grandmother; grandmother conveyed property adjacent to plot at issue; later a boundary agreement that incorporated the disputed land was found in defendant’s title; defendant filed motion for summary judgment asserting doctrine of laches applied due to extensive upkeep and development on disputed land over 100 years, and in the alternative, property acquired through adverse possession; trial court granted motion finding laches barred claim, title acquired by defendant through adverse possession and Marketable Record Title Act applied granting title to defendant; on appeal, court held it was “hard-pressed to conceive of a clearer example of the proper application of laches” than the plaintiff waiting more than a century to bring claim to defend title to land; trial court affirmed and case dismissed).
Drescher v. Johannessen, No. 2012-269, 2012 R.I. LEXIS 108 (R.I. Sup. Ct. Jul. 5, 2012)(appellate court upheld trial court’s denial of plaintiff’s claim for failing to establish an easement by prescription over a right-of-way owned by defendant; plaintiff also failed to establish right-of-way was public road; court held plaintiff did establish actual use of easement; plaintiff’s claim failed, however, because use was infrequent and permissive; plaintiff also submitted subdivision plans for his property that included building a new road parallel to right-of-way at issue demonstrating no objective manifestation of the right to use easement; court also held right-of-way was not public road; no evidence presented to establish public accepted road as “public” even if a dedication of road for such purposes may have exists; all use of right-of-way was by few neighbors and permissive).
Machado v. Ryan, No. 37888, 2012 Ida. LEXIS 161 (Idaho Jun. 29, 2012)(two property owners sought to establish ingress and egress easements promised at time parcels deeded to them after burdened property owners brought suit to quiet title; first property owner had access through private lane that owner improved upon over time; second owner argued easement existed over plaintiffs’ property because creating access from public road would require significant investment; appellate court affirmed trial court’s holding that no express easement reserved because deeds stated only that it was “subject to” easements, but none were reserved; court affirmed finding of implied easement by necessity for first property owner using private lane, but overturned for second property owner; as to second owner, court found no “great present necessity” because public road on property could be accessed despite cost; court held location of home not readily accessible by public road was owner’s choice and owners cannot create their own necessity; first property owner was also given additional fifteen foot easement for snow removal over private lane by trial court; court remanded this issue for lack of evidence establishing necessity of width of snow removal easement; court also remanded for ruling on second owner’s claims of implied easement by prior use and easement by prescription the trial court had not ruled on; court clarified that on remand, amended statutory period of 20 years rather than 5 years did not apply to easement by prescription acquired before amendment).
Porter v. Cathey, No. 2011-CA-000398-MR, 2012 Ky. App. Unpub. LEXIS 443 (Ky. Ct. App. Jun. 29, 2012)(mother deeded 20 acres of land and house to her youngest daughter after she moved home to care for her mother; later mother deeded entire family farm to daughter reserving life estate; only consideration for both conveyances was “love and affection”; mother later brought action to set aside deeds due to undue influence, fraud, and elder abuse after son found out about transfers; court denied protective order and allowed attorneys who prepared deeds to testify at deposition regarding mother’s state of mind and intent in deeding property to daughter; mother’s own testimony established she deeded property to daughter because she “wanted to”; trial court granted summary judgment to daughter; on appeal court agreed no undue influence or fraud established; court also held no private action for “elder abuse”; trial court opinion affirmed).
Long Green Valley Association v. Prigel Family Creamery, No. 0350, 2012 Ms. App. LEXIS 87 (Md. Ct. App. Jun. 29, 2012)(community association’s appeal from decision granting dairy and creamery a permit for farm market or farm stand as defined under county ordinance; preservation board holding easement over property approved plans for building; zoning commission granted special exemption; board of appeals approved granting of exemption and district court affirmed board’s opinion; on appeal association argued dairy products not permitted to be sold at farm market and market would create negative impacts to rural community; appellate court affirmed board’s opinion holding county ordinance specifically permits sale of dairy products at farm markets; approved use is not a “commercial use” prohibited under state law; and no evidence presented of any negative impacts of proposed market).
Arntsen v. Laitila, No. 300418, 2012 Mich. App. LEXIS 1278 (Mich. Ct. App. Jun. 28, 2012)(after discovering dilapidated fence and that neighbor was growing crops on 14 acres of his property, landowner sent letter to neighbor in 1992 requiring lease and $10/year payment for neighbor’s continued use; landowner promptly followed up again in 2004 after neighbor informed potential buyers that landowner did not own 14 acres; landowner got around to filing suit in 2008 to quiet title in disputed property; court held without giving detailed findings that neighbor adversely possessed 14 acres; appellate court affirmed finding neighbor proved adverse possession of property for more than 15 years.)
Andrew v. Teller County Board of Equalization, No. 56142/2012 COA 104, 2012 Colo. App. LEXIS 1000 (Colo. Ct. App. Jun. 21, 2012)(property owner’s appeal from change in property classification from agricultural to residential; 35-acre plot with perpetual conservation easement classified as residential after owners built single family home on parcel; court upheld classification change because conservation easement required 80-acres and forestry uses required 40-acres under statute to be classified as agricultural; board decision affirmed).
Rogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 Tenn. App. LEXIS 402 (Tenn. Ct. App. Jun. 19, 2012)( property owner brought claim to determine width of gravel road that provides only ingress and egress to land and for interference with owner's right to use road; easement had been in place for eighty years and landowners’ right to easement by implication not at issue; defendant landowner installed posts next to road that restricted plaintiff’s use for pulling horse trailer down road; plaintiff sought to have easement widened to forty feet and damages for interference with use of road; trial court ruled on directed verdict that no evidence existed that easement should be forty feet or that defendants had interfered with plaintiff’s use of road by installing fence posts; court dismissed plaintiff’s suit; plaintiff appealed; appellate court affirmed holding that plaintiff not entitled to forty-foot easement for lack of evidence; court, however, overturned dismissal of plaintiff’s interference claim; court found plaintiff presented evidence that she had used her property for riding horses and had pulled trailers to and from her property for many years prior to the erection of the posts; plaintiff also presented evidence that posts were too close to road for her to continue to use the road in this manner and the posts do not actually enclose anything and were installed in retaliation for a previous legal suit against landowners, which established necessary elements of claim; case remanded to trial court for further proceedings regarding interference and other unresolved issues).
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, No. 11-246, 2012 U.S. LEXIS 4659 (U.S. Sup. Ct. Jun. 18, 2012)(property owner located near land acquired by U.S. government on behalf of Indian tribe for location of casino brought suit to challenge government action; government and tribe argued Quiet Title Act (QTA) expressly excluded claim to quiet title to lands involving Indian tribes; Supreme Court disagreed and held because property owner did not make claim to disputed land, his claim was not quiet title action; QTA does not foreclose action when there is no quiet title claim, so lawsuit falls within general waiver of sovereign immunity; D.C. Circuit affirmed and case remanded for further proceedings; dissent stated QTA should be bar to suit as opinion allows property owners to circumvent statute by recruiting others to make claims to reach result landowner foreclosed to make under QTA, allows for plaintiffs to circumvent expeditious resolution of challenges by bringing claims under other statutes, and brings uncertainty to Administrative Procedure Act in conflict with previous jurisprudence).
U.S. Bank v. Howie, No. 106,415, 2012 Kan. App. LEXIS 55 (Kan. Ct. App. June 8, 2012)(widow stopped making payments on promissory note signed only by deceased husband that was secured by mortgage signed by both; note held by bank and mortgage held by Mortgage Electronic Registration Systems, Inc. (MERS); bank sought to foreclose and MERS assigned mortgage to bank; widow filed summary judgment motion to dismiss foreclosure petition arguing Kansas law precluded recovery because bank failed to demand payment during statutory period after husband’s death and that note was irreparably severed from mortgage; district court ruled in favor of bank on both issues; widow appealed; appellate court held Kansas law relied on by widow does not apply to liens existing at time of husband’s death; court also held MERS was agent of bank, so note was not severed from mortgage)
Muzzy v. Uttamchandani, No. A146219 (Or. Ct. App. May 31, 2012)(quiet title action involving multiple deeds; plaintiff deeded property to his daughter, but retained a life estate; daughter deeded property back to plaintiff, but deed was not recorded until September 2004; daughter subsequently deeded property to defendant in July 2004, which was recorded in July 2004; in August 2004, defendant executed promissory note to daughter for free and clear title; other subsequent deeds were executed, but were not part of the appeal; plaintiff filed suit against defendant to quiet title to property; defendant argued he was a subsequent purchaser in good faith who filed his deed first, so he was owner of property; district court found defendant failed to provide consideration for deed, so he was not good faith purchaser and plaintiff owned property; defendant appealed; appellate court affirmed district court’s factual finding that no consideration was given for deed recorded in July 2004 because promissory note was granted after deed and was for “free and clear title” rather than recorded deed).
Budreau v. Schmitz, No. 2-207/11-1449 (Iowa Ct. App. May 23, 2012)(adjacent property owners disputed property lines after survey conducted; nuisance and trespass action against neighbors brought by plaintiffs; counter-claim to quiet title to property and trespass brought by defendant property owners; district court held metal pins established boundaries and ruled in favor of defendant property owners based on acquiescence in boundaries for more than 10 years; district court also dismissed plaintiffs nuisance and trespass claims; plaintiffs appealed; appellate court affirmed district court’s order quieting title as substantial evidence established pins were treated as boundary for 10 years; appellate court also upheld district court’s dismissal of plaintiffs’ claims because no specific factual findings were provided by district court on claim and plaintiffs failed to file a motion to enlarge findings to address dismissal now appealed).
The Nature Conservancy, Inc. v. Sims, No. 09-5634, 2012 WL 1813675 (6th Cir. May 21, 2012)(defendants, married couple, purchased farmland from plaintiff that was subject to conservation easement in favor of plaintiff specifying that land would remain undisturbed in its natural condition and barred any uses that significantly impaired or interfered with conservation values; farming permitted on part of premises along with residential use; grazing allowed on other part of farm; plaintiff’s representative made inspection and noted violations of easement restrictions; all violations remedied before trial except plaintiffs’ filling of sinkhole next to home with 6,269 cubic yards of fill material so as to make farming easier on farming portion of land and protect residence; trial court granted summary judgment for plaintiff and awarded fees and expenses on basis that plain language of easement violated; dissent pointed out that court ignored other language in easement that would allow conduct at issue).
Case v. Burton, No. A 144494, 2012 Ore. App. LEXIS 624 (Ore. Ct. App. May 16, 2012)(directed verdict granted when plaintiffs failed to affirmatively establish boundary line in adverse possession claim with clear and convincing evidence; witnesses at trial unable to agree from photograph to photograph where boundary actually existed during period claimed or whether irrigation pivot’s location established boundary; plaintiffs appealed; appellate court agreed boundary “moved” and plaintiffs failed to establish essential element of adverse possession claim; trial court’s opinion affirmed).
Cousins v. McNeel, No. 2110039, 2012 WL 1560236 (Ala. Ct. App. May 4, 2012)(property owner brought declaratory judgment action to determine boundary and trespass claim for cutting and removing timber from disputed area; neighbor filed counterclaim against seller for breach of warranty deed; court held that based on 1979 deed and established legal principles interpreting deed, plaintiff property owner owned disputed section of land and awarded damages for timber; trial court did not make any ruling regarding claim for breach of warranty deed against seller; neighbor appealed all issues; trial court’s opinion regarding ownership of disputed portion and award for cutting timber affirmed; appellate court found trial court held disputed land belonged to plaintiff so seller breached warranty deed by conveying property he did not own; appellate court held that trial court erred in denying neighbor’s breach of warranty claim and remanded for determination of damages).
Williams Bros. Inc. v. Peck, 966 N.E.2d 860 (Mass. Ct. App. 2012)(plaintiff landowner owner brought action that easement over estate had been extinguished when parcels affected came under common ownership for short period of time; servient land was briefly transferred to common owner in 1976 before parcels severed again shortly thereafter; plaintiff’s title did not include easement; defendants purchased property with expectation of easement still listed on their deed; after clearing trees and preparing land for cranberry bog, plaintiff brought suit; court agreed registration system did not abrogate common-law doctrine of merger and easement was extinguished; court held parties expecting use of easement have duty to ensure privilege still exists).
EnerVest Operating, LLC v. Sebastian Mining, LLC, 676 F.3d 1144 (8th Cir. 2012)(coal ownership and oil, gas, and other mineral rights in property were separately conveyed in different deeds; coal bed methane (CBM) gas rights in property were not specifically enunciated in any conveyance; parties moved for summary judgment on stipulated facts that included deeds to determine ownership of CBM rights; district court held CBM was conveyed to gas owners who were entitled to royalties; coal owners appealed; appellate court held coal rights were narrowly granted in language of deed but rights conveyed to gas owners were broadly granted; appellate court held that minerals with no known commercial value at time of conveyance not factually relevant when language of deeds provided clear notice of grantor's intent; argument that mineral owners would destroy coal owners' rights to coal in effort to collect CBM was unpersuasive to defeat language of conveyance; gas owners had CBM rights; district court order affirmed).
Philipello v. Taylor, No. 10-11-00014-CV, 2012 Tex. App. LEXIS 3324 (Tex. Ct. App. 2012)(dispute regarding 1/4 interest in mineral rights to property acquired through series of deeds; trial court held Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878 (Tex. 1940) doctrine applied, which requires that when there is a reservation in deed to one person and title is granted to another both the reservation and title grant cannot both be given effect; instead, the reservation fails; therefore 1/4 reserved interest ineffective, so interest failed to pass to plaintiff as subsequent owner; appellate court affirmed on appeal but for different reasons; held Duhig doctrine inapplicable; intent of parties clearly conveyed thorough all contracts relating to transfers which clearly made transfer subject to previous reservations and conveyances; further plaintiff’s deed clearly referenced reservation, so plaintiff had notice and could not procure greater interest than for which bargained and paid).
Demars v. Washington County, No. 82-CV-10-2449, 2012 WL 1450016 (Minn. Tax Ct. Apr. 24, 2012)(petitioners owned 23-acre tract with one acre used to raise asparagus, 18 acres for horse pasture, one acre for hay storage, 2 acres for farm buildings and enclosed areas for horses and one acre for home and garage; property held to satisfy requirements for ag land classification for ad valorem property tax purposes under MN Stat. Sec. 273.13, sub. 23(e); tract devoted primarily to agricultural use).
Abernathy v. Bertram, et al., 967 N.E.2d 510 (Ind. Ct. App. 2012)(plaintiff entered into farm cash lease agreement with landlord; plaintiff planted fall wheat for harvest next spring/summer; tenant failed to pay rent and landlord hired defendant to harvest crop; crop sold to elevator for $3,293.74; plaintiff sued landlord for breach of contract and quantum meruit and sued defendant for conversion, and trial court awarded plaintiff $3,950 (amount received on sale of crop plus value of straw, less $2,000 for rent owed); trial court rejected conversion claim and did not award plaintiff amount of crop insurance allegedly owed; court affirmed on all points - no "total loss" of crop pursuant to crop insurance policy and no evidence provided of amount of partial loss; conversion claim fails because no proof of knowing or intentional exertion of unauthorized control over tenant's wheat crop - mens rea not proven).
McCoy v. Barr, 275 P.3d 914 (Kan. Sup. Ct. 2012)(two-acre family cemetery reserved by original landowner when deeding land to his son in 1888; cemetery property landlocked by surrounding property; surrounding property conveyed to current owner in 1973; county assessed property taxes against cemetery property, which went unpaid; third party purchased cemetery property for hunting and petitioned court for easement; surrounding property owner cross-claimed against third party and county arguing sale of cemetery property void and against public policy; county counter-claimed to partition cemetery portion from remainder of cemetery property and acquire easement for public access to cemetery; surrounding property owner filed summary judgment for issues raised claiming easement to cemetery had been abandoned by original owners and whether cemetery land obtained by adverse possession; trial court determined tax foreclosure on cemetery void and set aside sale and found no adverse possession of property could be established; court ordered county to take control of cemetery and granted easement across surrounding property for public access to and from cemetery; surrounding property owner appealed whether an easement existed, scope of easement, and public visitation of cemetery; appellate court held no evidence of actual relinquishment of easement by original grantors, so easement still existed; appellate court remanded to trial court regarding scope of easement and whether cemetery required public access as these issues were not capable of resolution by summary judgment).
Estate of Becker v. Murtagh, 968 N.E.2d 433 (NY Ct. App. 2012)(case involves adverse possession claim between neighbors concerning beachfront boardwalk and dock; in 1960s, owners of adjoining lakefront properties relied on placement of wooden jetty as boundary line; plaintiff used jetty to support a dock and an extension to an existing boardwalk; plaintiff allowed neighbors to use and access both; prior owner of defendant’s property surveyed land in 1980s and discovered jetty, dock, and boardwalk part of her property, but no dispute arose; after defendant purchased property, he refused plaintiff access to dock and boardwalk; plaintiff claimed adverse possession of property; disputed issues in claim included whether hostility and exclusivity elements were met; district court found them lacking and ruled for defendant; plaintiff appealed; appellate court held hostility shown by plaintiff’s claim of right to property adverse to prior neighbor’s interests; mutual mistake regarding true boundary did not negate hostility; exclusivity also established even though plaintiff allowed friends to use area, because prohibited access to general public; appellate court held plaintiff used and controlled land for 21 years sufficient to establish adverse possession; district court decision reversed).
Richardson v. Board of Commissioners of Owen County, 965 N.E.2d 738 (Ind. Ct. App. 2012)(plaintiffs had no standing to challenge county decision to vacate portion of roadway providing access to cemetery in which daughter buried; county had not maintained road for decades prior to vacating road; plaintiffs not abutting landowners to vacated roadway; plaintiffs suffered no special injury under law; and alternative routes to access cemetery available to plaintiffs).
Spickler v. Ginn, 40 A.3d 999 (Maine Sup. Jud. Ct. 2012)(quiet title action to settle dispute regarding land conveyed to two different parties; first grantee did not record her deed after property conveyance until 1986; second grantees from same grantor recorded their deed in 1984; trial court jury found second grantee had actual notice of conveyance to first grantee; subsequent conveyances by second grantees to related parties were also found to have had notice of first grantee's interest; first grantee deemed owner of property; second grantee appealed only the legal conclusion from the jury's factual findings; appellate court clarified Maine's statute as "race-notice", meaning subsequent grantees who record their deed first can beat earlier grantees so long as the subsequent grantees had no actual notice of the earlier grantee's interest; based on jury findings of fact establishing second grantees all had notice of first grantee's interest prior to first grantee's recordation of property deed, court affirmed and vested title in first grantee).
Cahoon v. Hinckley Town Appeal Authority, 276 P.3d 1141 (Utah Ct. App. 2012)(plaintiff appealed denial of request by municipality for building permit for fence; plaintiff argued property line of front yard began in middle of street and ordinance ambiguous; court affirmed denial of permit, finding ordinance clearly and unambiguously did not contemplate inclusion of street in front yard's measurement).
Southwind Homeowners Ass’n v. Burden, 810 N.W.2d 714 (Neb. 2012)(defendants operated day care service out of single family home, which was subject to restrictive covenant forbidding operation of any business from home; homeowners’ association gave notice of violation and brought suit to enjoin activities when defendants refused to cease operation of daycare; homeowners’ association filed motion for summary judgment seeking to establish operation of daycare was violation; trial court granted motion; Supreme Court held restrictive covenant was not ambiguous and specifically prohibited operation of a business of any kind, so daycare was violation of covenant; court also held that Quality Child Care Act does not create public policy against prohibition of daycare through covenant; trial court decision affirmed).
Arndt v. Maki, 813 N.W.2d 564 (N.D. Sup. Ct. 2012)(co-representatives of deceased parents’ estates filed personal representative’s deed to son who farmed with father prior to death and contracted with mother prior to her death to purchase family farm; mother had inherited entire farm when father died intestate and all 10 children renounced interests in farm through waivers of inheritance, so mother could inherit and was free to dispose of as she wished; all children knew farm would be sold to son; neither contract for sale nor any other documents reserved mineral rights for remaining children; son paid off contract for deed and all proceeds paid to heirs; 20 years later co-representatives prepared and filed second personal representative’s deed conveying minerals underlying family farm to heirs of the parents; action to quiet title brought by son; counterclaim made for reformation of the mineral deed and contract for deed; summary judgment requested by son; trial court dismissed counterclaim, quieted title to son, and dismissed son’s claim for attorney fees and costs for slandering title to minerals; on appeal, court affirmed dismissal of reformation for lack of evidence and quieted title; court reversed dismissal of claim for slandering title because of lengthy delay in recording statements of claims coinciding with production of minerals within past five years, which permitted inference of intentional filing to slander title; appellate court remanded for resolution of claim).
Brinkwood Land Equities, LTD v. Hilo Brokers, LTD, et al., No. 30466, 2012 Haw. App. LEXIS 275 (Haw. Ct. App. 2012)(plaintiff bought $1.9 million parcel and paid $25,000 as earnest money deposit; plaintiff attracted to property due to its description and views of waterfalls; purchase contract included “frog pest alert”; buyer subsequently forms development company to develop property and discovers noise made by frogs and claimed that area was “populated by drug dealers and hookers”; plaintiff sued defendant for misrepresentation; trial court awarded summary judgment to defendant; on appeal, court affirmed; contract contained “frog pest alert” which disclosed noise of frogs could exceed 70 decibels all night long and “as is” disclosures; other “off-site” social conditions not “rooted in the land” and, as such, defendant had no duty to inspect or disclose facts concerning transient social conditions in the neighborhood; acceptance agreement allowed defendant to retain plaintiff’s initial deposit if plaintiff breached contract).
Rabo Agrifinance, Inc. v. Rock Creek Farms, 813 N.W.2d 122 (S.D. 2012)(foreclosure on mortgage secured by 17,000 acres of farmland; 44 parties named in complaint as lienholders; one lienholder redeemed from assignee of purchaser of sheriff’s certificate; lienholder filed Rule 60(b) motion after redemption to vacate portions of judgment; court granted motion finding parties waived redemption rights and revised order stating $1 million conviction lien against mortgagees be satisfied after deed received by purchasing lienholder and all appeals determined; mortgagees filed appeal of trial court decision, but failed to serve notice of appeal on United States or purchasing lienholder, who were both named parties in foreclosure action; court held notice of appeal to named party is jurisdictional requirement that cannot be waived and requires dismissal; appeal dismissed).
Gardner v. Prochno, 963 N.E.2d 620 (Ind. Ct. App. 2012)(tenant received timely, written notice of termination of year-to-year lease for 240 acres of 480 acre lease; tenant agreed lease terminated for half the property, but remained on 240 acres; landlord sent notice terminating remaining half of leased property one month before renewal date, but argued oral notice given and tenant had constructive notice terminating entire property; court held statute requires written notice of termination within three months, so notice given insufficient to terminate lease on 240 acres).
Koenig v. Koenig, No. A11-920, 2012 Minn. App. Unpub. LEXIS 201 (Minn. Ct. App. 2012)(parties entered into year-to-year written farm lease requiring written notice of termination; landlord provided valid notice of termination; new lease not entered into but tenants remained on land; written notice given within three months pursuant to statute terminating tenancy-at-will; landlord filed declaratory judgment action; court held written lease properly terminated and termination not waived by landlord because based terms of lease rather than a breach of lease; tenancy became tenancy-at-will when tenants remained and proper notice of termination given; court granted landlord’s motion for further relief to evict tenants; all issues affirmed on appeal).
Gay v. Dube, 39 A.3d 52 (Maine Sup. Ct. 2012)(competing claims for triangular piece of property and fee interests in adjoining road; court held road was “town way” for use by public that had not been abandoned; adverse possession claim proved by plaintiff because parcel used for more than 40 years; defendants’ claim for easement over road moot due to its public nature; all issues affirmed on appeal).
Walker v. Plummer, No. 40864-3-II, 2012 Wash. App. LEXIS 469 (Wash. Ct. App. 2012)(adverse possession case; adjacent property owners failed to establish adverse possession or boundary by acquiescence in disputed fence line; on appeal, evidentiary issue deemed waived because plaintiffs invited error by agreeing to strike testimony from videotaped deposition; court determined that land not held continuously for ten years because no proof predecessor used property for statutorily required period of time; also no proof predecessor believed fence was property line so claim for acquiescence failed; trial court affirmed).
Huskinson v. Nelson, 272 P.3d 519 (Idaho Sup. Ct. 2012)(boundary dispute between adjacent properties; plaintiffs claimed fence line in existence since 1947 established boundary by agreement; in granting summary judgment to defendants, district court disagreed because fence erected while parcels were under common ownership to separate cattle from farmed fields, so there was no agreement at the time built that fence established boundary; appellate court reversed and remanded for lower court to consider actions and acquiescence of subsequent landowners in 60 years since fence built to determine if agreement existed, including predecessor’s practice of farming to fence line and well-established wind break planted on other side of fence line).
Kiely v. Graves, 271 P.3d 226 (Wash. Sup. Ct. 2012)(adverse possession case; public alley ran along boundary between plaintiffs’ and defendants’ properties; in 2008, defendants petitioned city to vacate western portion of alley and merge it into their plat; city required defendants pay for survey, appraisal, and lot line adjustment; city also required indemnity agreement releasing city from any future encroachment or adverse possession claims; defendants complied with all conditions and in February 2009, city passed ordinance vacated alley to defendants; lot line adjustment recorded March 2009; June 2009, plaintiffs filed action for adverse possession of entire alley; after trial, court ruled plaintiffs proved adverse possession; appellate court held land granted for use as public thoroughfare creates easement rather than fee simple, but easement is still public property; statute prohibits claims by adverse possession against public property; until city vacated alley in 2009, alley was public property, so plaintiffs could not prove adverse possession for actions prior to this time; district court decision reversed.
Purnell v. Beard & Bone, 38 A.3d 534 (Md. Ct. App. 2012)(implied easement by necessity granted to landlocked property owner; properties were originally owned by common owner; parcels severed on same day in 1918; original grantor operated a business from landlocked parcel, so no intention to leave parcel landlocked; fair and equitable resolution is for both parcels severed on same day to share burden equally; easement by necessity established in equal width and length over both properties; district court affirmed).
Cutting v. Dansdill, 814 N.W.2d 622 (Iowa Ct. App. 2012)(appellate court affirms granting prescriptive easement for ingress and egress; plaintiffs used field drive across defendant’s land for personal use, agricultural tenant used to access fields, as well as Department of Natural Resources for stocking stream and other habitat improvement; court found use was open and notorious, claim of right adverse to defendants, and was continuous from at least 1985 through 2008, which satisfied the 10 year requirement).
Atkinson v. Billings, No. 2010-CA-000769-MR, 2012 Ky. App. Unpub. LEXIS 182 (Ky. Ct. App. Feb. 24, 2012)(defendant did not commit tort of conversion with respect to sale of hay bales located on property defendant purchased at auction; plaintiff had cut and baled hay on premises prior to sale and party conducting sale gave plaintiff 30 days after sale to remove bales; over ninety days after sale, defendant sold bales to third party for $4,180 ($38/bale); plaintiff sued to recover proceeds and resisted defendant’s summary judgment motion by claiming that question remained as to whether plaintiff had abandoned bales; trial court granted summary judgment for defendant but awarded plaintiff $1,393.34 (of $4,180 total) and later reduced it to $500 for plaintiff’s labor in cutting hay; on appeal, court determined that defendant did not commit tort of conversion because plaintiff had no right to possess hay at time of alleged conversion, and neither sale bond nor deed reserved right to possess corn; $500 award to plaintiff upheld on unjust enrichment theory).
The Edwards Aquifer Authority, et al. v. Day, et al., No. 08-0964, 2012 Tex. LEXIS 161 (Sup. Ct. Tex. Feb. 24, 2012)(Court unanimously holds (affirming court of appeals), on basis of oil and gas law, that landownership in TX includes interests in in-place groundwater; such water cannot be taken for public use without adequate compensation guaranteed by Article I, Section 17(a) of the TX Constitution; plaintiffs, farmers, had sought permit to pump underground water to grow and irrigate crops; underground water at issue located in Edwards Aquifer and plaintiffs' land situated entirely within boundaries of Edwards Aquifer; permit granted, but limited to 14 acre-feet of water rather than 700 acre-feet that was sought because plaintiffs could not establish "historical use"; Court determined that plaintiff's practice of issuing permits based on historical use was unjustified departure from Texas Water Code permitting factors).
Laux v. Harrington, 38 A.3d 318 (Sup. Jud. Ct. Maine 2012)(easement holder’s predecessor-in-title executed quitclaim deed favoring servient landowner’s predecessor-in-title that released interest in land, but QCD did not extinguish easement; no clear intent to abandon; in addition, evidence supported finding that easement use consistent with original purpose of easement; nominal damages awarded
Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458 (N.Y. Sup. Ct. 2012)(town enacted ordinance prohibiting activities relating to hydrofracking within town’s boundaries in response to petition from residents; plaintiff owned gas leases for 22,200 acres and invested $5.1 million prior to enactment of the ordinance; plaintiff brought suit arguing New York’s Oil, Gas, and Solution Mining Law (OGSML) preempted town’s ordinance; town filed motion for summary judgment; court examined earlier precedent interpreting identical provision in New York’s Mined Land Reclamation Law (MLRL) that found no preemption of local authority to zone mining activity (i.e., oil and gas drilling); court found no meaningful distinction between the two statutes and granted the motion finding current state mining law did not preempt local zoning authority; court did strike and sever provision invalidating lawfully issued permits granted by other governmental entities; court's decision raises significant cross-border implications, particularly with Pennsylvania, which allows fracking and limits municipal authority to regulate where drilling occurs; in addition, court's decision may be appealed or plaintiff may pursue constitutional takings claim against defendant; court's opinion also ignores the reality that a drilling area could cover many acres that overlap multiple towns with the result that local regulation could result in varying regulation of a particular drilling activity; court also ignored fact that while fracking has been conducted in the U.S. for over 60 years, there isn't hasn't been a single reported case involving contamination to groundwater).
Rinehart v. Bateman, 363 S.W.3d 357 (Mo. Ct. App. 2012)( property tax assessment dispute between county assessor and landowners regarding proper valuation of 3.3 acres of land used for hay cultivation; all parties agreed property was properly classified as agricultural, but disagreed as to why; assessor argued valuation should be made pursuant to statutory requirements for vacant and unused property classified as agricultural which examined best use of property and assesses property based on fair market value ($374,500 assessment); landowners claimed use of property was agricultural and valuation should be based on land’s productive capability ($400 assessment); hearing officer determined land was used for agricultural purposes and valuation should be based on productive capability, which she valued at $75 an acre; assessor appealed and district court reversed, holding property should be assessed at fair market value; landowners appealed; appellate court held that determination of use was question of fact for hearing officer and her decision upheld because not arbitrary, capricious or unreasonable; court also held that agricultural purpose under statute does require use to be profitable or meet other “objective” criteria proffered by assessor)
Hindmarsh v. Washington County Board of Equalization, No. 10A-143 (Neb. Tax Equalization and Review Commission, Feb. 17, 2012)(petitioner claimed that farmland and timberland should be valued less than fair market value due to flooding problems in recent years; while property did flood frequently, lack of evidence presented of value of comparable tracts; only assessed value of timberland from other counties presented rather than evidence of market value).
In re Application of Boy Scouts of America, 270P.3d 1218 (Kan. Ct. App. Feb. 17, 2012)(land owned by Boy Scouts determined to be exempt from property tax; Boy Scouts organization is community service organization, and land at issue used with predominant purpose of providing humanitarian services (charitable and educational) as evidenced by organization’s articles of incorporation and bylaws; organization met a community need by improving physical, mental, social, cultural and spiritual welfare of members in county where land located; non-exempt land uses minimal in scope and did not interfere with predominant purpose).
Long Green Valley Association, et al. v. Bellevale Farms, Inc., et al., No. 0228, 2012 Md. App. LEXIS 19 (Md. Ct. App. Feb. 14, 2012)(defendant (dairy farm) sold ag preservation easement to State of Maryland on behalf of Maryland Agricultural Land Preservation Foundation (MALPF), an entity of the Maryland Department of Agriculture; MALPF then approved defendant's proposal to construct and operate creamery, processing facility, farm store and parking lot on premises; adjoining owners and plaintiff (conservation organization) alleged that such development violated terms of easement and sought writ of mandamus to compel MALPF to enforce easement; trial court determined that plaintiff and adjoining owner lacked standing to sue; on appeal, court determined that standing existed on theory of special harm, but not theory of constructive trust or third party beneficiary; easement did not create charitable trust enforceable by third parties; easement is creature of property law and made no mention of "trust" or "trustee" and provided for modification or termination by agreement of the parties; easement also not perpetual, so charitable trust doctrine inapplicable; no charitable purpose reflected in easement - MALPF paid $796,500 for easement; third party beneficiary doctrine also inapplicable because easement is type of contract between contracting parties and easement not intended for direct benefit of third parties; standing exists on basis of special harm because MALPF approval defendant's proposal was a land use decision; case remanded to trial court and burden of rebutting allegation of specific harm to adjoining owner shifts to MALPF).
Lindsey v. Aldridge, et al., No. 2100491, 2012 Ala. Civ. App. LEXIS 36 (Ala. Ct. Civ. App. 2012)(plaintiffs, landowners, sued defendants (neighbors) over boundary line and also sought injunctive relief for what they claimed was a trespass; trial court ruled for defendants; on appeal, court determined that evidence sufficient to support finding that fenced enclosure of pasture not treated as boundary fence; but, evidence was sufficient to support finding that landowner failed to exclusively use land that was presently horse pasture).
O’Neill v. Pinkowski, 92 A.D.3d 1063 (N.Y. Ct. App. 2012)(defendant obtained permission from town to operate one-unit bed and breakfast at their home; plaintiff claimed that such use violated deed covenants that restricted property use to single family private residential purposes, and sought permanent injunction; trial court granted summary judgment for plaintiff; on appeal, court noted that plaintiff had to establish that covenants at issue ran with the land by showing that the grantor and grantee intended the covenant to run with the land, that there was privity of estate between the parties and that the covenant touches and concerns the land; court determined that plaintiff failed to carry burden; insufficient evidence present that parties intended covenants to run with the land – no deed language that covenants would be binding on sellers and their heirs and assigns; plaintiff not entitled to summary judgment).
Connor v. King, No. 66162-1-I, 2012 Wash. App. LEXIS 267 (Wash. Ct. App. 2012)(boundary dispute based on 1974 deed’s reference to an “existing fence”; question was whether current “zigzag” fence or former “straight” fence that no longer existed was referenced; property was split in 1974 and the deed referenced the property line as the fence; in 1977 the landowner purchased the second half of the property and the deed reference the boundary as a straight line; subsequent conveyances of the properties continued to carry this discrepancy; plaintiff also pled adverse possession claim for the use of the disputed area; trial court found evidence showed boundary in 1974 was straight line; adverse possession also was not proven because plaintiff could not establish continuous use of the area for 10 years; decision affirmed on appeal).
Martin v. Copeland, No. E2010-02639-COA-R3-CV, 2012 Tenn. App. LEXIS 56 (Tenn. Ct. App. 2012) (property line dispute between adjoining properties; competing surveys unable to decisively establish boundary; court took eastern point agreed to be most accurate and aligned with generally agreed upon western survey point to determine most appropriate and equitable boundary line based on the evidence presented).
Kallenberger v. Santa Cruz Cattle Co., No. 2010-CA-000234-MR, 2012 Ky. App. Unpub. LEXIS 71 (Ky. Ct. App., Jan. 27 2012)(consolidated appeals concerning issues related to the same tract of land; appeal found substantial evidence supported jury verdict finding defendant entitled to an easement by necessity for running a water line across the plaintiff’s property because the defendant’s property was land-locked and an earlier lawsuit mandated that the water company extend service to the defendant; appeal upheld zoning board decision denying application for commercial activity on plaintiff’s property not arbitrary as evidence demonstrated intended activity exceeded that stated in application, increased traffic to occur, and other adverse effects on neighboring property).
In re Protests of Oakhill Land Co.,269 P.3d 876 (Kan. Ct. App. 2012)(consolidated dispute regarding county’s reclassification of land from agricultural use to vacant land resulting in increase in property tax assessment for landowner; first year reclassification not upheld because notice by county to landowner required to be made by March 1 and cannot be altered after that time without county proving necessity for the delay; reclassification upheld for subsequent year for failure to prove agricultural land was active; mere existence of a lease does not establish property is active as required by statute; proof of some activity must be shown).
Steel Farms, Inc. v Croft & Reed, Inc., No. 37776, 2012 Ida. LEXIS 38 (Idaho Jan. 27, 2012)(farm corporation had multi-year lease with an option to purchase the property at the conclusion of the lease; corporation exercised option and immediately sold property to another entity; court concluded subsequent sale was a separate transaction after the corporation exercised its option to purchase under the lease, and was not a prohibited assignment of the option; court concluded that handwritten change written upon the original lease and initialed by representatives from both parties to the lease was valid additional language that both parties had agreed upon; court remanded for a question regarding authority of one party to act as an agent; agreement was also ambiguous regarding when the option was to be exercised, so parol evidence was necessary to determine intent of the parties; case also remanded for factual determination of whether an irrigation system was a fixture or personal property as it was not addressed in the lease and irrigation systems are not fixtures as a matter of law).
Aston Meadows, Ltd. v. Devon Energy Production Co., 359 S.W.3d 856 (Tex. App. – Ft. Worth 2012)(landowners claimed they were bona fide purchasers for value upon discovering that purchased tract of land spanning two contiguous counties had oil and gas lease encumbering property; lease had been filed in only one county; court held that instrument addressing land in contiguous counties need only be filed in one county and is sufficient to establish constructive notice under state (TX) law).
Rocky Mountain Power v. Jensen, No. 37998, 2012 Ida. LEXIS 34 (Idaho Sup. Ct. Jan. 26, 2012)(eminent domain case in which utility granted easement over ranch; plaintiffs failed to comply with deadline for designating experts for just compensation in suit for condemnation and specific performance of Occupancy Agreement; summary judgment granted to utility on just compensation and plaintiffs received award per the terms of the Occupancy Agreement)
U.S. Commerce Department Report (Jan. 26, 2012)(2011 worst year on record for new home sales; 302,000 new homes sold in 2011 making 2011 worse than 2010, which had been the worst year on record).
Urban, et al. v. Federal Home Loan Mortgage Corporation, No. 11-10915-FDS, 2012 U.S. Dist. LEXIS 8397 (D. Mass. Jan. 25, 2012)(plaintiff purchased foreclosed property from defendant at public sale; sale contract addendum stated that "if purchaser agrees to use the title insurance company utilized by the seller's attorney or agent, then seller agrees to pay for purchaser's owner's title policy"; after purchase, defendant did not honor provision; plaintiff purchased own title insurance policy for $680 and sued for breach of contract and breach of implied covenant; court refused to dismiss case - promise to pay for title insurance is valid exception to merger doctrine for promises that are additional or collateral to main promise to convey and are not inconsistent with deed; promise to pay for title insurance was in addition to delivery of deed; while contract not breached, plaintiff's complaint alleged that defendant barred occurrence of condition precedent "that would have obligated it to pay for the title insurance policy").
Jackson v. Herring, 86 So.3d 9 (La. Ct. App. 2012)(case involves dispute over boundary; plaintiff claims ownership over disputed property via adverse possession or via prescription; trial court ruled for defendant on basis that plaintiff's acts of possession were unconnected acts of trespass; trial court judgment affirmed on appeal; plaintiff could not utilize tacking).
McKenzie County v. Reichman, 812 N.W.2d 332 (N.D. Sup. Ct. 2012)(prescriptive easement found for public road used by public for more than 20 years across ranch and formal declaration made as a public road under state law; construction and maintenance of public highway is not type of land use normally subject to permission of a servient landowner; gates across road for working livestock not a permissive use because they did not restrict traffic flow other than for a very limited period; no inverse condemnation when landowner acquired land already burdened by prescriptive easement)
Morgan Woods Homeowners’ Ass’n v. Wills, 2012 Ohio 233 (Ohio Ct. App. 2012)(homeowners appealed magistrate court decision finding the chain link fence built on their property was in violation of homeowners’ association building and design specifications; on appeal, homeowners allege association’s standards were ambiguous and the design for the chain link fence was not rejected within 14 days as required under the association’s covenants, so the homeowners were justified in believing the fence had been approved; court rejected all arguments finding the restrictive covenants were enforceable; homeowners had notice their fence plans had been rejected, and homeowner’s decision to build unapproved fence violated covenants; court also upheld award for attorney fees for association because covenants specifically allowed for recovery of attorney fees in enforcement of violations; lower court affirmed on all counts).
DeFoor v. DeFoor, 722 S.E.2d 697 (Ga. Sup. Ct. 2012)(adverse possession case; no need to reside on subject property to establish adverse possession, exercise of dominion sufficient; evidence supported trial court determination of sufficient exercise of dominion over subject property via making improvements, paying taxes, renting out a part of the premises and harvesting timber for sale; acts made in public and were hostile).
Kahler v. Eytcheson, 2012 Ohio 208 (Ohio Ct. App. 2012)( defendant was renting a home from plaintiff and fell behind on rental payments; plaintiff brought a forcible entry and detainer to remove the defendant; defendant argued the agreement was for a contract sale of the property; after trial, magistrate court held the agreement between the parties was for a lease with an option to purchase and awarded back rental payments to the plaintiff; defendant’s fifteen assignments of error on appeal were all found to be without merit; magistrate opinion affirmed).
Clickner, et ux. v. Magothy River Association, Inc., et al., 35 A.3d 464 (Md. Ct. App. 2012)(case involves public right to use beach located along side of an island; trial court determined that defendant had demonstrated existence of prescriptive easement on public’s behalf and ordered fence to be removed that plaintiff had erected; trial court decision based on presumption of adverse use and that plaintiff had to prove permissive use; reversed on appeal because beach at issue was unimproved and in general state of nature such that presumption should have been that public use was by permission of owner).
Caluori, et al. v. Nadeau, No. PC-2007-0992, 2012 R.I. Super. LEXIS 10 (R.I. Super. Ct. Jan. 18, 2012)(parties own adjacent tracts with defendants acquiring their tract first; defendants used property for training and riding horses; electric fence constructed on plaintiffs’ property along with paddock; ownership of strip in dispute; defendant’s use not continuous or with intent to claim ownership; electric fence not boundary fence).
Henninger v. Brewster, 357 S.W.3d 920 (Ky. Ct. App. 2012)(adverse possession case involving ownership of lot; court notes that state (KY) statute is 15-year statute and that upon expiration of the 15-year period, adverse possessor's rights are inchoate and that deed from title owner to grantee during period of adverse possession is void as to adversely possessed land; record establishes that defendant's possession of lot was hostile and involved clearing of lot and placement of mobile home on lot and mowing activities; summary judgment granted for defendant).
Bowers, et al. v. Whitman, et al., 664 F.3d 1321 (9th Cir. 2012)(plaintiffs own real estate and claim constitutional taking occurred requiring compensation; state (Oregon) voters passed ballot initiative Measure 37 in 2005 requiring compensation be paid when land use regulations reduced fair market value of property where no physical taking of property present; in 2007 legislative session, initiative Measure 49 passed that extinguished Measure 37 and changed remedies available to property owners in the process of pursuing relief under Measure 37, but exempted property owner from the new remedies if owner had "a common law vested right...to complete and continue the use described in the waiver"; under state law, a landowner has a vested right to complete development of property if commencement of construction has been substantial or substantial costs have been incurred; court held that Measure 37 granted property owners only a cause of action, not vested final judgment recognized as constitutional taking; thus, property owners did not have a property interest that they could then use in challenging the reduced remedies contained in Measure 49).
Rehl v. Billetz,963 N.E.2d 1 (Ind. Ct. App. 2012)(easement case; defendant’s bought tract upon which prior owner had operated campground on northern portion and prior owner retained those two acres; access easement created to provide access to campground areas that prior seller retained over what would become plaintiff’s property; plaintiff claimed that increased campground business has increased traffic and scope of easement; trial court ruled for defendant and appellate court affirmed based on language of easement).
Greig v. Wallick, 2012 Ohio 77 (Ohio Ct. App. 2012)(homebuyer brought action against seller for fraudulent misrepresentation and concealment, and negligent misrepresentation after discovering water damage and bowing walls in basement of home that had been concealed with drywall and had not been disclosed on the Residential Property Disclosure Form at time of purchase; on appeal, trial court’s awards for economic, noneconomic, and punitive damages upheld).
Seagraves v. Fulton, No. 29269-0-III, 2012 WL 75784 (Wash. Ct. App. Jan. 10, 2012)(boundary line dispute case; plaintiff claimed that existing fence line established boundary, but true boundary is on plaintiff's side of fence; court determined that fence line established boundary based on mutual recognition and acquiescence).
Retherford v. Castro, No. 101000298CV, 2012 WL 28714 (Tex. Ct. App. Jan. 4, 2012)(under state (TX) law, professional real estate inspector qualifies for professional services exemption to liability under the TX Deceptive Trade Practices Act; exception inapplicable because inspection report addressing status of roof of inspected home not representations of fact; case remanded on issue of whether trial court determination supported on theory of negligent misrepresentation).
Engel, et al. v. Parker, 810 N.W.2d 861 (Wis. Ct. App. 2012)(adverse possession case involving strip of land one quarter mile long varying from fifteen to twenty-three feet in width along property border; no question exists that plaintiff adversely possessed strip on their side of fence for 20 years as of 1974 and tenant farmer then farmed as close as he could to the fence since 1977; plaintiff maintained fence until 1982; defendant claimed that 30-year statute of limitations for bringing adverse possession claim expired in 2004, but trial court rejected argument - owner-in-possession exception applied; trial court judgment affirmed).
Jacobsen v. County of Washington, No. 82-CV-10-2760, 2012 Minn. Tax LEXIS 1 (Minn. Tax Ct. Jan. 4, 2012)(case involved whether tracts at issue should be classified as “agricultural” under Minn. Stat. §273.13 so that it is eligible for “Green Acres” treatment; court holds that property fails to qualify because tracts at issue comprise less than statutory minimum 10 acres; while petitioners owned three tracts totaling over 14 acres, residence located on parcel of almost 10 acres; residence parcel had over five acres that were not being used for agricultural production and balance of other two tracts had only three acres that were in agricultural use; vacant land not being used for agricultural purposes).
Smith, et al. v. Arrington Oil & Gas, 664 F.3d 1208 (8th Cir. 2012)(Arkansas landowners seek summary judgment against defendant for defendant’s failure to pay cash bonuses of $300 per acre in addition to royalty payments in accordance with oil and gas leases; landowners executed leases and defendant failed to pay on bank drafts because it had made determination to abandon oil and gas exploration in the county after drilling dry well; trial court granted summary judgment on finding that lease agreements were binding and only subject to defendant’s good faith approval of title and cancellation unrelated to title; appellate court affirmed; language of written oil and gas leases coupled with bank draft issued to pay cash bonus constituted enforceable contracts; mutuality of obligation present even though bank draft contained “no-liability” clause because such clause contrary to language in lease; lease agreements were accepted in accordance with approval language and renunciation of lease does not preclude enforceability).
Pandey v. Banachowski, 2011 Ohio 6830 (Ohio Ct. App. 2011)(seller of property brought negligence action against real estate agents (defendants) for failing to secure the listed, unoccupied building; alleged negligence in leaving doors unlocked, which allowed a vandal to enter and set fire to the building; summary judgment granted to defendants; court held arson was not foreseeable when no previous vandalism occurred in the area to put the defendants on notice of criminal activity, so no duty to safeguard the property existed; defendants’ negligence was not the proximate cause of the fire because vandals could have broken in and there was no notice of criminal activity; for same lack of notice, arsonist’s action was intervening cause, relieving defendants from liability).
Beaudoin v. JB Mineral Services, LLC, 2011 N.D. 229 (2011)(oil and gas lease found to have terminated by its terms due to “unless” clause in lease; plaintiff entitled to statutory damages, costs and fees; lease specified that lease would terminate 120 business days from date of “notarized signature” unless defendant paid or tendered $45 per net mineral acre as a “supplemental bonus payment” before the termination date; lease executed and notarized on Jul. 20, 2009, but payment of sight draft required further authorization by defendant which defendant did not give; revised lease sent to plaintiff on Jan. 6, 2010 stating that plaintiff owned 3.68 fewer mineral acres than the amount covered in the original lease and extending term or original lease by six months; revised lease not executed and second sight draft not presented for payment; “unless” clause did not state condition subsequent upon which lease may be forfeited, but is construed as clause of special limitation; lease terminated automatically upon non-payment of bonus without need for any notice or demand on lessor’s part).
Standard Bank and Trust Co. v. Madonia, 964 N.E.2d 118 (Ill. Ct. App. 2011)(in case of first impression, court construes Illinois Banking Act (25 ILCS 5/28) such that plaintiff, successor in interest to original mortgage holder (another bank), became legal holder of mortgage and, thus, had standing to bring foreclosure action; debtor alleged numerous procedural defects; court noted that state of Illinois had approved merger at issue and original mortgagee merged with bank that ultimately merged with plaintiff, thus, plaintiff succeeded to mortgage rights possessed by original mortgagee by matter of law).
Miller v. Glacier Development Co., L.L.C., 270 P.3d 1065 (Kan. Sup. Ct. 2011)(Kansas Department of Transportation (KDOT) successfully decreased appraiser’s condemnation award to defendant derived from eminent domain action; trial court entered judgment against member of defendant personally for excess award that had been paid to defendant; court held that trial court’s judgment was void for lack of subject matter jurisdiction).
White v. Strange, 80 So.3d 1189 (Miss. Ct. App. 2011)(parties entered into contract to buy and sell real estate; valid contract executed that gave buyer eight days to inspect property and terminate transaction in writing; buyer indicated termination of contract via e-mail during eight-day period, but continued to arrange for inspections; court held the Uniform Electronic Transmission Act only applicable if all parties to transaction agree to conduct transaction by electronic means either in writing or by conduct; listing agreement for property at issue contained box that could be checked (but wasn’t) indicating that seller did not permit electronic signatures; e-mail insufficient to constitute “writing” that would terminate purchase contract under facts of case).
Plastow v. Lawyers Title Insurance Corp., No. 1:10-cv-703, 2011 U.S. Dist. LEXIS 145870 (W.D. Mich. Dec. 20, 2011)(plaintiff sued defendant seeking declaratory judgment that defendant obligated to defend plaintiff against claims of other property owners; plaintiff’s property bordered lake Michigan and question arose concerning boundary and others using beach and crossing and occupying what plaintiff believed to be plaintiff’s property; policy exceptions excluded from coverage “boundary line disputes not disclosed of record” and rights of “adjacent and abutting property owners in that portion of the premises lying along Grand Traverse Bay”; court holds that duty-to-defend coverage in general terms of policy not negated by exceptions; boundary line dispute was disclosed of record).
Carolina Plating Works, Inc. v. United States, 102 Fed. Cl. 555 (Fed. Ct. Cl. 2011) (competing summary judgment motions regarding the amount of just compensation required to be paid for property takings as a result of Rails-to-Trails-Act; railroad sought permission to abandon line, but instead sold line to another party; a Notice of Interim Trail Use was issued and party entered into a trail use agreement shortly thereafter; class-action brought by property owners for compensation; government stipulated taking did occur; plaintiffs argued that under state law easement would have been abandoned and property regained by owner, so compensation would be value of property unencumbered by easements versus value with perpetual trail easement; government argued easement never abandoned so damages determined by difference between value of property subject to rail easement versus trails easement; summary judgment denied; state law requires railroad to take external actions to show intent to abandon easement and question of fact remained regarding whether abandonment occurred).
Franklin Mills Associates, L.P. v. Nationwide Life Insurance Co., 836 F.Supp.2d 238 (E.D. Pa. 2011)(buyer of land bought tract subject to annual assessments; such assessments ran with the land under state (PA) law; buyer must pay assessments even though buyer not signatory to declaration of restrictions; declaration recorded and provided for obligation to pay annual assessments).
Soland, et al. v. Evert, et al., No. A11-100, 2011 Minn. App. Unpub. LEXIS 1037 (Minn. Ct. App. Unpub. 2011)(fence at issue constructed in 1947 that separated two parcels containing hogs; fence maintained in same location until 1973; defendant purchased one parcel in 1973 at which time survey conducted which revealed that fence not on surveyed land; plaintiff later purchased tract and objected to fence being several feet on plaintiff’s surveyed side of fence; court determined that defendant had obtained title to disputed strip under doctrine of practical location; prior owners had agreed to treat fence as boundary and it had been treated as such for at least 15 years as required by statute).
Ryan v. Lawyers Title Insurance Corporation, et al., 959 N.E.2d 870 (Ind. Ct. App. 2011)(plaintiff determined to not have right of first refusal to buy land from decedent's estate after seller died in 2006; 1972 deed gave plaintiff a right of first refusal to buy subject property that stated, if "the seller would elect to sell remaining part of this farm, purchaser to have first refusal", and that the option was "not to be construed as a covenant running with the land, but may only be exercised by the signatorys [sic] to this agreement"; court determined that right of first refusal personal in nature and only exercisable if the seller, and not the seller's estate, desired to sell the subject property to a third party).
Morrissey, et al. v. Town of Lyme, 162 N.H. 777 (N.H. Sup. Ct. 2011)(plaintiffs' land bordered wetland with frontage on pond located in town; pond held in trust by New Hampshire for public use; defendant owned property on opposite side of wetlands with pond frontage; defendant installed "beaver pipes" to stabilize pond's water level; discharge of water from pond muddied plaintiffs' property and plaintiffs sued for an unconstitutional taking; issue construed as one for inverse condemnation and rejected - mud was merely annoyance or inconvenience which caused drop in plaintiffs' land values, but did not constitute private nuisance; plaintiffs did not make valid claim for declaratory judgment).
U.S. Bank National Association v. RFC CDO 2006-1, Ltd., No. 4:11-cv-664 (D. Ariz. Dec. 6, 2011)(court enjoins mezzanine financier (lender that provides funds to an investor necessary to complete a deal for which regular lending has already been secured and who is typically secured by a second mortgage coupled with interest rate substantially higher than senior lender’s rate and who will be paid back after the senior lender but before the investor gets any money, and where the loan typically doesn’t require any payment during the term of the loan, but accumulates interests that are all paid at the end) from foreclosing on its equity in mortgage borrower after mezzanine lender failure to cure all defaults under senior loan; court follows Bank of America, N.A. v. PSW NYC LLC, 918 N.Y.S.2d 396 (2010)).
Long Green Valley Association, et al. v. Bellevale Farms, Inc., et al., No. 0228, 2011 Md. App. LEXIS 154 (Md. Ct. App. Nov. 30, 2011)(parties are two adjacent dairy operations, and defendant proposed to construct and operate creamery, processing facility and farm store on their property that plaintiff claimed violated an agricultural preservation easement held by the Maryland Agricultural Land Preservation Foundation (MALPF); MALPF determined that proposal was a "farm related use" and permissible with easement; trial court held that plaintiff lacked standing to challenge MALPF decision; trial court decision vacated as plaintiff had standing under third-party beneficiary or charitable trust theories and, as a neighbor, is prima facie aggrieved; case remanded).
Carter v. Fleener, 808 N.W.2d 756 (Iowa Ct. App. 2011)(boundary dispute case involving triangle-shaped strip of land between adjoining properties; plaintiff's maintained disputed area for 33 years, but survey in 2008 showed that disputed area within defendant's property description by deed; absent fenceline, substantial evidence present via usage of disputed area that delineated boundary; evidence demonstrated that prior owners of defendant's property had knowledge of "assumed" boundary line and failed to dispute the matter for at least 10 years; trial court has discretion to decide matter without appointment of commission; plaintiff's claim for damages to trees caused by defendant's poisoning of them in 2004 or 2005 not barred by statute of limitations because defendant did not raise statute of limitations as defense at trial).
Property One, Inc. v. USAgencies, L.L.C., et al., 830 F.Supp.2d 170 (M.D. La. 2011)(plaintiff is a real estate broker and defendant owned a building that needed a tenant; parties contracted for plaintiff to render brokerage services to help defendant obtain tenant for building; plaintiff claims that tenant found and defendant failed to pay brokerage commission; plaintiff sued for unpaid commission and for unjust enrichment; under state (LA) law, plaintiff entitled to commission even after termination of agency contract if plaintiff was “procuring cause” of sale or lease; unjust enrichment claim not dismissed; detrimental reliance claim not dismissed; motion for summary judgment denied).
McGregor, et al. v River Pond Farm, LLC, 719 S.E.2d 546 (Ga. App. 2011)(question of existence of prescriptive easement or easement acquired by adverse possession submitted to special master via state law which issued finding of prescriptive easement in favor of defendant; trial court affirmed; on further review, appellate court noted that issue of permissive use was involved, but special master failed to consider state statute specifying that “permissive possession cannot be foundation of a prescription until an adverse claim and actual notice to the other party”; trial court award of prescriptive easement in favor of defendant vacated and special master must reconsider prior decision).
Essential Botanical Farms, LC v. Kay, 270 P.3d 430 (Utah Sup. Ct. 2011)(boundary by acquiescence case; standard of proof to establish boundary by acquiescence is clear and convincing standard; defendant’s predecessors-in-interest acquiesced to barbed wire fence as property boundary and treated is as boundary and no evidence to the contrary; trial court grant of summary judgment which quieted title to disputed tract in plaintiff’s favor affirmed).
Fuchs v. Rabiola, 960 N.E.2d 1197 (Ill. App. Ct. 2011)(case involves trespass and quiet title action concerning defendant's use of grassy strip; court determined that no easement existed because defendant had verbally sought permission to use grassy strip; no easement by necessity because property not landlocked and means of ingress and egress present).
Connolly, et al. v. Maine Central Railroad Co., 30 A.3d 830 (Me. Sup. Jud. Ct. 2011)(plaintiff landowner sued defendant seeking right-of-way over defendant's property; at time strip of land in issue conveyed to defendant's predecessor-in-interest, land used for farming, but railroad track later built; no easement reserved over conveyed land; plaintiff sought easement to install utility lines over track; implied easement found to exist which was limited in scope).
Jones v. Kirk, 719 S.E.2d 428 (Ga. Sup. Ct. 2011)(petitioner claimed grandfather orally conveyed 2.2 acres; Georgia statute (OCGA §23-2-132) provided two conditions required (meritorious consideration and valuable improvements); meritorious consideration defined as natural love/affection between father and his son; plaintiff moved mobile home onto property; mobile home not considered an improvement to land, can easily be removed; grandfather installed and paid for septic system; court stated living on property several years did not satisfy the requirement for a parol gift of land; summary judgment properly granted).
Howe v. Palmer, 956 N.E.2d 249 (Mass. Ct. App. 2011)(trial court determined that defendant took advantage of and inflicted intentional emotional distress on plaintiff with result that deed in issue rescinded; deed had conveyed property to defendant; plaintiff suffers from severe dyslexia and slow mental processing; defendant befriended plaintiff and became his only friend; plaintiff felt intimidated and fearful of defendant; defendant moved to property and started a ministry; defendant coerced plaintiff to transfer half interest in property to defendant; plaintiff eventually moved off his property; plaintiff sued and defendant argued claims should fail due to statute of limitations; court stated plaintiff suffered several years of torment by defendant; jury found defendant's conduct was extreme, outrageous, and beyond the bounds of decency in a civilized community; appellate court affirmed trial court’s rescission of deed).
Marcus v. Seinder, 2012 Ohio 5592 (Ohio Sup. Ct. 2011)(plaintiff (borrower in the midst of bankruptcy) got approval from bankruptcy court to receive loan from lender so that borrower could retain farm; loan secured by farm; bankruptcy proceedings terminated and loan later modified and farm later conveyed to lender; borrower sued lender for reformation of associated deed, mortgage and land installment based on lender’s alleged fraudulent conduct arising from parties’ romantic relationship that gave lender opportunity to manipulate transaction and take advantage of borrower; court found significant evidence of plaintiff's knowledge and education in business; court stated plaintiff was knowledgeable in business and financial endeavors, no manipulation in financial decisions present).
Pankratz v. Hoff, 806 N.W.2d 231 (S.D. Sup. Ct. 2011)(plaintiff sued defendants for breach of option contract involving sale of ranch land; defendants, married couple, had agreed to sell part of ranch to plaintiff and leased balance of land (on which their son was part owner) to plaintiff; separate agreement gave plaintiff option buy part of ranch which, when plaintiff exercised option, son refused to agree to sale; son’s parents subsequently partitioned property; purchase price not agreed upon purchase price and plaintiff sued; trial court determined that defendants breached option agreement even though option language ambiguous, parol evidence established that parties intended option price to be average of $500/acre; on appeal, court determined that parties agreed that prorated purchase price to be utilized if lesser amount of acreage sold; trial court erred in using parol evidence to allow different remedy than one provided for by option agreement). parties met several times before execution of any contract; three separate negotiated legal contracts were executed consecutively (sale of property, lease of remaining property, option to purchase remaining property); plaintiff exercised option contract; defendant not sole property interest owner; defendant's son refused to sell his property interest; result was that trial court order of specific performance affirmed, but trial court determination of per acre price reversed and case remanded).
Thompson v. United States, 101 Fed. Cl. 416 (Fed. Cl. 2011)(plaintiff, a landowner owning land adjacent to abandoned railroad, claimed that its property rights were taken by the Rails to Trails Act (16 U.S.C. Se. 1247(d)) upon abandonment or railroad; under state law, deeds at issue transferred fee simple absolute to railroad rather than easement; three-step analysis set forth in Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) applied in analyzing property rights in railroad abandonment cases).
Lasater v. Hawkins, No. M2010-01495-COA-R3-CV, 2011 Tenn. App. LEXIS 552 (Tenn. Ct. App. Oct. 10, 2011)(defendants appeal a provision in a contract which was also set out in a deed that created a fee simple determinable; plaintiff, Texas attorney, requested Tenn. attorney to include self-enforcing rights if specific conditions were not fulfilled; plaintiff stated provision was to eliminate the possibility of a lawsuit to protect her rights on the issue; defendants raised defenses of waiver, laches, and impossibility of performance, court rejected; plaintiffs failure to assert right for four years does not constitute a presumed waiver; court noted the literal meaning of "clear" and "unambiguous" language in a contract controls).
Ormiston Family Ass'n v. Prater, No. C065502, 2011 Cal. App. Unpub. LEXIS 7698 (Cal. Ct. App. Oct. 7, 2011)(case involves boundary dispute between adjacent landowners; two deeds contained conflicting property line description of adjoining properties; plaintiff's family had owned the property at issue and cabin since 1942; cabin was later expanded which defendant claimed overlapped boundary line; plaintiff sought declaratory relief and title by adverse possession; statute contained five-year timeframe for adverse possession along with five actual occupation, hostile possession, claimed property as own, continuous use for five years and that claimant have paid taxes on property during that time of alleged possession; court found 10 years of tax bills and receipts adequate evidence; jury found plaintiff owned property by deed or adverse possession; appellate court affirmed).
Marsh v. Black, et al., No. 3:10cv547, 2011 U.S. Dist. LEXIS 116772 (W.D. N.C. Oct. 7, 2011)(defendant, county officials, required plaintiff to obtain a special use permit (SUP) to hold Hispanic rodeos at his farm while, according to plaintiff, not requiring similarly situated parties from doing the same; plaintiff alleges such disparate treatment violates his Fourteenth Amendment equal protection rights; defendant obtained permanent injunction which barred plaintiff from holding certain gatherings on his farm that required an SUP; plaintiff failed to show any similarly situated persons were treated differently; defendant entitled to summary judgment and action dismissed with prejudice).
Town of Tiverton v. Pelletier, No. N3/09-0238A, 2011 R.I. Super. LEXIS 131 (R.I. Sup. Ct. Oct. 7, 2011)(defendants move to dismiss plaintiff's complaint charging defendants with manufacturing compost in violation of applicable zoning laws; activity occurred in R-80 district in town "composed of agricultural uses, low density residential areas and certain open spaces..."; ordinance does not refer to "compost," composing," or "manufacturing"; contradictory evidence presented concerning application of state Right-to-Farm Act; no precedent authority for court to rely on; dictionary definition of "compost"; evidence established that raw materials to make compost trucked in from off-site and that volume of various materials utilized to make compost compel conclusion that defendant engaged in manufacturing "compost" in violation of applicable ordinance; defendant's motion to dismiss denied).
Smith v. Smith, et al., 2011 Ark. App. 598 (Ark. Ct. App. 2011)(adverse possession case; claim vested in 1973 before 1995 statutory requirements enacted which included payment of taxes; additional statutory requirements not applied retroactively and did not apply).
Flynn Builders, L.C. v. Lande, 807 N.W.2d 296 (Iowa Ct. App. 2011)(plaintiff drafted house plans, gathered estimates and constructed home for defendant; plaintiff filed a mechanic's lien after defendant refused to pay; mechanic's liens are tied to equity; creditability of the parties are given substantial weight in reaching the conclusion; burden of proof is on party asserting lien; defendant refused to pay due to additional mark-up on materials; court found the agreement met all the elements of a contract; plaintiff's evidence proved existence of contract and substantial performance; de novo review affirmed enforcement of mechanic's lien).
Eldenbrady v. City of Albion, 294 Mich. App. 251 (Mich. Ct. App. 2011)(state tax court denied personal residence exemption for petitioner; appellate court reversed; facts involved petitioner's 10-acre parcel contiguous to property where home located; 10-acre parcel contained abandoned school building and was zoned residential; petitioner's planted garden on 10-acre parcel and fenced it, and planned to convert school building to art center; personal residence exemption sought for 10-acre parcel; parcel was not occupied, zoned residential and was adjacent to actual dwelling unit of petitioners; case remanded with instructions to grant exemption).
Myers v. Dee, et al., 2011 MT 244 (2011)(plaintiff sought to condemn defendant's land to create private road access to plaintiff's property, but trial court granted summary judgment for defendant because state (MT) law required proof of existing farm or residence before state's eminent domain statutes could apply; plaintiff's property included a cabin; cabin had no windows, doors, running water, or sanitary system and was deemed uninhabitable and not considered a residence; court stated that had there been disputed issues of material fact about the cabin, a jury would resolve the factual issues, but plaintiff failed to establish genuine factual issue as to the existence of "residence" under state statute (Mont. Code Ann. Sec. 70-30-102(36)) because cabin had not been inhabited for several decades; court affirmed summary judgment for defendants).
Little v. Town of Fabius Zoning Board of Appeals, 87 A.D.3d 1363 (N.Y. Sup. Ct. 2011)(defendant's zoning officer issued certificate of compliance for occupancy of mobile home by tenants; zoning board upheld determination based on zoning ordinance that permitted mobile homes that were "used as a dwelling by employees of an active farm operation"; plaintiffs, neighbors, appealed, and court determined that board's finding that property in question was an active farming operation and tenants were employees of farming operation was not unreasonable nor irrational; defendant followed correct constitutional procedures for public hearing and due process).
Nixon v. Agribank, FCB, No. 4:11CV00125, 2011 U.S. Dist. LEXIS 113370 (E.D. Ark. Sept. 30, 2011)(plaintiff seeks declaratory judgment to quiet title to oil and gas rights and claims that defendant retained mineral rights beyond five years in violation of 12 U.S.C. Sec. 781 Fourth (b) of Federal Farm Loan Act of 1916; plaintiffs claim ownership to subject land as successor in interest derived from transfer from Federal Land Bank to plaintiff’s predecessor in title; FLB transferred title in 1938 but reserved a one-half interest in oil, gas, coal and other minerals in and on the property; court ruled that plaintiff’s action fails; defendant’s retention of mineral rights not subject to 1916 Act because provision of Act at issue inapplicable to mineral estates in accordance with 6 C.F.R. 10.64).
The Piper Group, Inc., et al. v. Bedminster Township Board of Supervisors, 30 A.D.3d 1083 (Pa. Sup. Ct. 2011)(case involves 15-year challenge to defendant's zoning rules which limited the number of homes that can be constructed in township's ag preservation district (a majority of the township); court holds that plaintiff (developer) not entitled to build approximately 350 homes on 400 acres of land in township; after constitutional challenge, defendant changed minimum lot size from one-acre to approximately .75 acres and the construction of one home for each two acres of land; state law and Municipalities Planning Code do not require specific plans submitted under a curative amendment challenge to be approved in their entirety if there is a finding of a defect in zoning rules).
Kjerstad Realty, Inc. v. Bootjack Ranch, Inc., et al., 2011 S.D. 67 (S.D. Sup. Ct. 2011)(case involves question of whether plaintiff substantially performed with real estate sale contract to be entitled to 5 percent commission upon sale of 6,385-acre ranch; sale agreement entered into in 2006 involved a one-year contract to list ranch at price of $3.658 million and provided for 5 percent commission if sale occurred within the year or within 180 days after one-year period ended if sale was to someone that had been shown ranch during the one-year period; selling price reduced to $3.1 million and ranch later taken off market; neighbor, who was tenant on part of ranch, ultimately bought ranch five months later for slightly less than $3.1 million and plaintiff sued for commission; plaintiff never physically showed ranch to buyer; issues of material fact remain for jury consideration on question of whether plaintiff rendered sufficient performance to earn commission).
Neugebauer v. Neugebauer, 2011 SD 64 (, 2011)(son rented 159-acre farm from mother for nearly 20 years at $39.75/acre and, in 2008, purchased farm from her via contract for deed; purchase price was set at 1984 appraised value of $117,000 (price was 1984 option price, which option son did not exercise) with payments of $6,902.98 over 30 years; fair market value of farm was $697,000; purchase contract executed at office of son’s lawyer who never represented that he was only the son’s lawyer and did not suggest that mother obtain her own counsel; mother was 84 at time contract executed, hard of hearing and had only an eight-grade education; mother later became suspicious and sought rescission of contract on basis of undue influence, and damages for breach of pre-contract oral lease; jury decided for son on lease claim and court granted mother’s rescission claim based on presence of confidential relationship and that four elements of undue influence established; court ordered contract rescinded and ordered son to pay rent for 2009 and 2010; decision affirmed on appeal).
Cedar Farm v. Louisville Gas and Electric Company, 658 F.3d 807 (7th Cir. 2011)(case involves oil and gas lease parties entered into; plaintiff claimed that defendant breached lease and sought ejectment of defendant and lease termination; summary judgment for defendant on ejectment claim proper because damages remedy allowed by lease and plaintiff failed to prove money damages would be inadequate remedy; no specific evidence provided for jury concerning environmental impact of defendant's conduct).
Manley v. Meyer, No: SD20709, 2011 Mo. App. LEXIS 1285 (Mo. Ct. App. Sept. 28, 2011) (verbal farm pasture lease agreement; plaintiffs permitted to graze cattle, harvest hay, hunt and ride ATV’s under lease; parties got into dispute and agreed to terminate lease; settlement agreement allowed plaintiffs to access property to remove cattle, but defendants refused to allow removal of all cattle; plaintiffs filed suit for conversion and breach of settlement agreement; defendants appealed trial court judgment in favor of plaintiffs for $28,000 damages and allege insufficient evidence to support damage award, and no evidence to support defendant’s wife liability under any claims; appellate court found substantial evidence to prove wife’s liability and to support trial court damages award because facts presented basis for rational estimate of damages without resorting to speculation).
LeCompte, et al. v. Zoning Board of Appeals for Village of Barrington Hills, et al., 958 N.E.2d 1065 (Ill. Ct. App. 2011) (plaintiffs filed complaint for administrative review of final decision by zoning board; board upheld order directing plaintiffs to stop using property for commercial boarding of horses because it was not permitted agricultural use; appellate court affirmed finding use was not agricultural as defined by zoning ordinance).
Giltner v. Ivers, et al., 954 N.E.2d 1035 (Ind. Ct. App. 2011) (petitioner owned undivided 20% interest in 100-acre parcel of land; respondents owned other 80%; respondents filed motion to compel partition of land at trial court; trial court appointed three commissioners, who reported petitioner should receive 16.5 acres; trial court refused to set aside commissioner’s report; on appeal, petitioner argued report should have been set aside because it would materially damage him, did not reveal property’s value or methodology used to value property, division not proportionate to ownership interests and no reason given, report not signed and sworn in open court; appellate court concluded petitioner did not show he was prejudiced and affirmed).
City of Baker City v. United States., et al., No: 08-717-SU, 2011 U.S. Dist. LEXIS 105915 (D. D. Ore. Sept. 19, 2011) (city filed complaint under Declaratory Judgment Act (28 U.S.C. §2201) and Quiet Title Act (28 U.S.C. §2409a) against U.S. Forest Service, USDA, U.S Dept. of Interior, and Bureau of Land Management seeking access to certain claimed water pipeline easements; federal district court granted defendant's motion for partial summary judgment on applicability of reasonable regulation to city’s easements; rights-of-way granted; United State's motion for partial summary judgment on issue of access roads denied; question of fact remained as to scope of city’s easements and access rights to city’s valid easements).
Brown v. Brown, No. 2100205, 2011 Ala. Civ. App. LEXIS 247 (Ala. Ct. App. Sept. 16, 2011) (petitioner appeals from a judgment canceling two deeds executed by respondent on grounds that deeds resulted from petitioner’s exercising undue influence over respondent; appellate court held trial court did not err in finding petitioner had become dominant party in relationship with respondent and affirmed trial court on undue influence claim).
Mendocino Redwood Co. v. Unlimited, No. A130208, 2011 Cal. App. Unpub. LEXIS 6921 (Cal. Ct. App. Sept. 13, 2011)(defendant's claim for prescriptive easement on road to gain access to defendant's property upheld; easement greatly limited in scope and defendant does not have an easement by necessity).
Fredrickson, et al. v. Riepe, et al., No. A11-158, 2011 Minn. App. Unpub. LEXIS 881 (Minn. Ct. App. Sept. 12, 2011) (boundary dispute between adjacent landowners; trial court determined that “slightly crooked horse fence” separating parcels and line extending north from fence established boundary by practical location through express agreement, and that appellant's chopping down and moving fence was conversion and trespass; trial court awarded compensatory and punitive damages and prejudgment interest).
Crone v. Nuss, et al., 263 P.3d 809 (Kan. Ct. App. 2011) (plaintiffs filed action to quiet title to farmland claiming ownership by adverse possession; trial court held plaintiffs did not present sufficient evidence to establish right to title under Kansas law; appellate court affirmed on basis that plaintiffs failed to prove adverse possession for requisite 15 year period; plaintiffs cut, baled, and planted grass, disked and turned soil, cleared certain areas, constructed fences to block access, gave people permission to hunt disputed property; however, period of continuous possession was only 12 years at which time legal title owner cut plaintiffs off and demanded they stop trespassing).
Hammack v. Coffelt Land Title, Inc., 348 S.W.3d 75 (Mo. Ct. App. 2011) (plaintiff sued defendant land title company for negligence and breach of contract over handling of deed and money received from sale of farm property; trial court found in favor of defendant; plaintiff asserted, on appeal, that trial court erred in finding general warranty deed executed by defendant, defendant’s wife and defendant’s brother was effective to transfer title to purchasers of farm property and, because general warranty deed not delivered into escrow to title company, relation-back doctrine not applicable; plaintiff further argued even if contract controlling as escrow agreement, terms of contract not fulfilled; appellate court affirmed; general beneficiary deed executed by two grantors that conveyed title in one grantor’s one-half interest to trust was terminated when grantors and others transferred title by general warranty deed held in escrow; escrow of deed occurred before one grantor’s death and terminated beneficiary deed under Mo. Rev. Stat. §461.033.5).
Atlantic Coast LEH, LLC v. Township of Little Egg Harbor, 26 N.J. Tax 151 (N.J. Tax Court 2011)(county taxation board plaintiff a farmland assessment application for plaintiff's real estate which was a 12-acre parcel that contained a cell tower and an apiary; most income from the property came from the cell tower and court upheld board's denial of assessment of property as farmland).
Musselshell Ranch Co., et al. v. Seidel-Joukova, et al., 261 P.3d 570 (Sup. Ct. Mont. 2011) (plaintiffs, ranching operation, appealed trial court order allowing culvert and rock bridge placed in irrigation ditch by defendants, servient owners, to remain in ditch; trial court concluded structure did not unreasonably interfere with plaintiffs’ easement rights in ditch; appellate court reversed; “secondary easement” in Montana allows owner of ditch easement right to enter onto servient tenement to maintain ditch; interference with canal or ditch easement is prohibited; defendant's placement of permanent, irremovable culvert seriously interfered with plaintiffs secondary easement rights; appellate court ordered removal of structures).
Winn v. Welch Farm, LLC, et al., No. M2010-02558-COA-R3-CV, 2011 Tenn. App. LEXIS 481, (Tenn. Ct. App. Aug. 31, 2011)(plaintiff sued on numerous theories to recover damages to unimproved tract of real estate incurred upon excavation of lot when water immediately filled excavated troughs; investigating engineer determined that drainage flow of lot had likely been altered by development of surrounding property such that “structural integrity” of purchased lot destroyed; trial court dismissed case; no contract of sale between parties and deed contained no representations concerning condition of lot as being suitable for building, and no similar representations made on any similar document or in any statement by defendants; summary judgment for defendant property on bad faith misrepresentation issue; summary judgment for defendant also proper on lack of disclosure claim; state law does not recognize implied warranty pertaining to sale of real estate).
Engelking v. Cosby, No. 03A01-1101-CC-17, 2011 Ind. App. Unpub. LEXIS 1215, (Ind. Ct. App. Aug. 31, 2011)(plaintiff, in early 2007, seeded and fertilized land owned by defendant that plaintiff had hayed for many years via oral agreement in exchange for rental payment; defendant’s son later cut and sold hay; trial court award compensatory damages of $5,974.73; defendant had not given any notice that arrangement was going to be terminated; trial court judgment affirmed).
Texas S.B. 18 (Act Relating to the Use of Eminent Domain Authority)(after several years of trying to enact legislation, effective Sept. 1, 2011, S.B. 18 specifies that eminent domain can only be exercised for "public use" (which is undefined in the Act) and replaces all statutory references to "public purpose"; Act adds public hearing and notice requirements and voting mandates to exercise of eminent domain; Act adds specific requirements for bona fide written purchase offers; Act requires that all public and private entities wanting to exercise eminent domain power to submit letter to state comptroller for review by TX legislature; Act provides landowners with statutory rights to repurchase property that doesn't meet "public use" requirement).
Papco, Inc. v. United States, et al., 814 F.Supp.2d 477 (W.D. Pa. 2011)(plaintiff owned oil, gas and mineral rights to property and sought to quiet title to drilling, production, and related development; defendant (surface owner) argued that sandstone part of surface estate; court found the defendants did not provide enough evidence on record for "reasonable awareness" of interest in sandstone; statute of limitation began upon receipt of map 17-years later; mineral determination based on state law in location of property and intentions of the parties; sandstone has commercial value apart from land; court granted summary judgment, except plaintiff's Quiet Title claim §2409(a)(g) for which court does not have subject matter jurisdiction).
Caciopoli v. Lebowitz, 26 A.3d 136 (Conn. Ct. App. 2011)(case involves claim of intentional trespass by one landowner against adjacent landowner who didn't determine property line between parcels and had tree service company remove trees and plantings on plaintiff's property; trial court awarded $150,000 to plaintiff for loss of value of property; state (CT) law does not eliminate common-law remedies for timber trespass and is not exclusive remedy; three year statute of limitations for tort actions applicable; equitable estoppel not proven; intentional tort proven; plaintiff's real estate appraiser qualified; trial court judgment affirmed).
City of El Paso v. Ramirez, et al., 349 S.W.3d 181 (Tex. Ct. App. 2011) (interlocutory appeal where city challenged trial court's partial denial of its plea for jurisdiction, and contends underlying case should be dismissed in entirety under doctrine of sovereign immunity; appellees, property owners and operators of agribusinesses near landfill, filed suit against city for inverse condemnation alleging landfill retention ponds overflowed from heavy rains, ruined crops and destroyed structures; city claimed sovereign immunity and contended appellees failed to identify applicable waiver; appellate court held appellees' claims failed to rise to level of inverse condemnation and other claims barred by sovereign immunity; case remanded and appellees allowed to amend pleadings).
Federal Housing Finance Agency News Release (Aug. 24, 2011)(over past four quarters, seasonally-adjusted housing prices fell 5.9 percent, and housing prices 0.6 percent lower in second quarter of 2011 than in first quarter of 2011; June 2011 housing price index 18.8 percent lower than April 2007 peak; in Iowa, housing prices have decreased 1.61 percent over last five years; national average decline over past five years is 18.78 percent).
Kennedy v. Kennedy, No. A-10-941, 2011 Neb. App. LEXIS 112 (Neb. Ct. App. Aug. 16, 2011) (landlord, aunt of tenant, owned 80 acres of farmland and cash-rented the land to the tenant; case involved tenant’s claim for lost profits caused by landlord’s refusal to allow tenant to farm ground during 2008 crop year; landlord did not give tenant timely written notice of termination for year-to-year farm lease as required by state law with respect to 2008 crop year; trial court awarded damages to tenant for approximately $25,000; landlord appealed claiming that parties had reached prior oral agreement that tenant would not farm ground in 2008; appellate court affirmed on issue of tenant’s right to farm land in 2008 under year-to-year lease, and landlord liable for damages for breach of lease; court reversed trial court’s award of damages based on evidentiary error made by trial court).
Knoll v. MTS Trucking, Inc., et al., No. A10-1736, 2011 Minn. App. Unpub. LEXIS 767 (Minn. Ct. App. Aug. 15, 2011) (case involves appeal from trial court judgment arising out of asphalt contractor’s deposit of contaminated fill on appellant’s real property; appellant claimed that trial court erred by granting summary judgment in favor of contractor and ruling that appellant’s claim barred by two-year statute of limitations for improvements to real property and by awarding attorney’s fees to contractor under MN Environmental Response and Liability Act (MERLA) on basis that contractor were prevailing parties; appellate court affirmed trial court’s grant of summary judgment on statute of limitations issue because this was an “improvement to property”; two-year statute of limitations applied, not six-year statute under Minn. Stat. §541.051 for pollution-related claims; appellate court reversed attorney’s fees award under MERLA because appellant’s claims were not frivolous or brought in bad faith).
Cupp, et al. v. Heath, et al., No. E2010-02364-COA-R3-CV, 2011 Tenn. App. LEXIS 434 (Tenn. Ct. App. Aug. 11, 2011) (defendant built partition fence on property line established by survey he commissioned; plaintiff adjoining landowner hired another surveyor to resurvey northern line because he believed defendant had built fence much too far to south; subsequent survey confirmed defendant incorrectly encompassed 35 acres of plaintiff’s land; plaintiff filed suit to establish subsequent survey as indicator of correct property line and trial court found that subsequent survey was correct; defendant appealed and appellate court affirmed).
Frederick Farms, Inc. v. Olmsted County, 801 N.W.2d 167 (Minn. Sup. Ct. 2011)(plaintiff, family farming joint venture, challenges change in property tax classification for grain bins that it uses from agricultural homestead to agricultural-nonhomestead; joint family farm must own or lease property rather than merely use it in order for a party in the joint family farming venture to claim agricultural-homestead classification for property tax purposes).
Mayer v. Countrywide Home Loans, 647 F.3d 789 (8th Cir. 2011) (plaintiff defaulted on mortgage and defendant mortgage company subsequently foreclosed on plaintiff’s property; plaintiff filed suit, alleging that mortgage company violated MN Farmer-Lender Mediation Act (FMLA) by failing to engage in mediation before foreclosure and mortgage was procured through fraud; FMLA stays foreclosure proceedings against qualified debtors to allow mediation with creditors; mortgage must be on ag property “principally used for farming” to trigger statutory protection; trial court held plaintiff’s property was ineligible for statutory protection and fraud claim was untimely and without merit; appellate court affirmed, but on a different basis than relied on by district court; plaintiff did not provide enough evidence to establish mortgaged parcel was principally used for farming).
Ingham v. O’Block, et al., 351 S.W.3d 96 (Tex. Ct. App. 2011) (plaintiffs appeal trial court ruling declaring defendant's property not burdened by easement in favor of plaintiffs; plaintiffs routinely subleased ranch to deer hunters and claimed access right through defendant's property for hunting; plaintiffs assert trial court erred by not finding easement by estoppel, easement by necessity and easement implied from prior use; appellate court affirmed; insufficient evidence to conclude easement by estoppel (“friendly neighborly permission” to use land not enough); plaintiffs failed to prove historical necessity for easement by necessity; no evidence showing apparent use of road to establish implied easement).
Zillmer v. Sawyer County Board of Appeals/Adjustment, 803 N.W.2d 867 (Wisc. Ct. App. 2011) (plaintiff raised cattle in area that was later rezoned to prohibit livestock grazing and defendant determined that plaintiff was engaged in non-conforming use; trial court reversed and appellate court reversed trial court; defendant properly denied plaintiff's request for livestock grazing because it constituted an illegal expansion of a non-conforming use).
Burg v. Dampier, et al., 346 S.W.3d 343 (Mo. Ct. App. 2011) (involves dispute over use of non-exclusive roadway and utility easement; plaintiff owned tract of residential property benefitted by easement running across tract owned by defendant; trial court ordered defendants to remove all obstacles and encroachments from easement area and awarded plaintiffs $5000 damages for nuisance created by defendants; court enjoined defendants from engaging in future conduct impairing or obstructing plaintiff’s use, enjoyment, maintenance of easement; appellate court affirmed on all counts).
McCraney v. Gibson, et al., 952 N.E.2d 284 (Ind. Ct. App. 2011) (landlord allowed tenant one pet on property per lease agreement; landlord aware that tenant’s dog was one-half bullmastiff and one-half boxer; prior to lease signing, tenant inspected fence enclosing property and found no issues; after lease signed, tenant informed landlord that gate was inadequate to restrain dog; plaintiff suffered hemorrhagic contusion and subdural hematoma when knocked down by dog after he escaped enclosure; plaintiff sued landlord and trial court found no evidence that landlord had actual knowledge of dog's dangerous propensities; appellate court affirmed and found that duty of reasonable care imposed upon landowner is measured by landowner’s control of property and knowledge of dog’s dangerous propensities; little or no evidence landowner had knowledge).
Zillmer v. Sawyer County Board of Appeals/Adjustment,803 N.W.2d 867 (Wis. Ct. App. 2011) (county board of adjustment appeals trial court ruling reversing board’s non-conforming use determination in regards to livestock grazing activities; farmer began raising cattle in an area rezoned in 1971 to prohibit livestock grazing; appellate court reversed trial court ruling; concluded board correctly denied farmer’s request for livestock grazing as an improper expansion of a non-conforming use).
Winecellar Farm, Inc. v. Hibbard, 27 A.3d 777 (Sup. Ct. N.H. 2011) (adjacent property owners dispute right to purchase farm property from estate and right to continue haying activity in perpetuity; appellate court held that evidence did not support application of part performance doctrine for right to purchase land; no detrimental reliance, and payments not shown to be consideration for right to purchase; hay lease not enforceable in perpetuity because unreasonable restraint on alienation of property).
Steiner v. Windrow Estates Home Owners Assoc., Inc., 713 S.E.2d 518 (N.C. Ct. App. 2011) (county board found plaintiffs violated restrictive covenant for keeping of livestock; plaintiffs filed a declaratory judgment action seeking declaration that restrictive covenant not be enforced against them; trial court granted plaintiff’s motion and permitted goats, “Fred” and “Barney,” to be kept on plaintiff’s lot; appellate court affirmed holding that goats were kept for pleasure rather than profit or utility and were pets, not livestock; restrictive covenant was so broad as to allow for “virtually any animal which may be treated as a ‘household pet’ to be kept on homeowner’s property, so long as the animal is not kept, bred, or maintained for any commercial purposes and does not attach horses or horsemen).
In re Prather, 267 P.3d 78 (N.M. Ct. App. 2011) (state land trust sold to purchaser who bought land for grazing purposes; original purchaser received patent in 1947 and sold land in 1982; land contained surface and subsurface metamorphic rock and character of surface use for grazing did not change until after 1982 sale; successor landowner’s lessee mined and sold rock for use in railroad beds and paid landowner royalties; successor of original purchaser sued state commissioner of public lands to quiet title to rock when commissioner asserted ownership of rock and right to royalties based on general mineral reservation in 1947 patent; trial court held for commissioner; appellate court held trial court did not err in determining, under required analysis of intent of the parties of original sale transaction, that based on sale transaction documentation, including patent, and also based on all surrounding circumstances, the intent of the conveyance transaction was that the rock was included in the reservation of “all minerals of whatsoever kind” in the patent).
In re Wine, 260 P.3d 1234 (Kan. Ct. App. 2011)(in determining appraised value of property for tax purposes, county may not consider location of lakefront property for purposes of determining market value of improvements on leased ground; county also incorrectly allocated value of leasehold interest to tenant rather than to the city).
Hoyte v. Recontrust Company, N.A. et al., No. C11-5389BHS, 2011 U.S. Dist. LEXIS 72936 (W.D. Wash. Jul. 7, 2011)(under state (WA) law, property that is used principally for agricultural purposes must be foreclosed judicially; deed of trust to subject property stated that property was not used principally for agricultural purposes; but, plaintiff claimed that on date deed of trust executed property contained apple orchard of over 100 trees which annually produced apple crop for commercial sale; in recent years, plaintiff processed the apples for juice for personal consumption; plaintiff failed to establish that "principal" use of property was production of apples, thus plaintiff not entitled to injunctive relief).
Fay v. Dominion Transmission, Inc., No. 3:10cv1384, 2011 U.S. Dist. LEXIS 71968 (M.D. Pa. Jul. 5, 2011)(case involves dispute concerning storage of natural gas under land that plaintiff owns; storage field surrounded by "buffer zones" in which no natural gas can be extracted because of interference with operation of storage field; buffer zones effectively bar plaintiff from entering into lease for natural gas deposits under plaintiff's property or an agreement to store gas on plaintiff's property; plaintiff alleges trespass, unjust enrichment, conversion, chemical contamination, negligence, taking under the PA Eminent Domain Code and Fifth Amendment of U.S. Constitution, and violation of right to pure water guaranteed under PA Constitution; parties agree that sole remedy rests in PA Eminent Domain Code; thus, only portion of complaint brought pursuant to Eminent Domain Code proceeds to discovery to determine if defacto taking has occurred).
Affeldt v. Green Lake County, 2011 WI 56 (2011)(landowners set forth sufficient evidence to rebut presumption that county roadway is four rods wide; landowners objected to county's removal of trees and fences along their farm property as not being within county's right-of-way).
Grgich v. Grgich, 262 P.3d 418 (Utah Ct. App. 2011) (in divorce proceeding, husband appealed trial court’s order concerning distribution of farm property; husband argued trial court erred in concluding wife’s claim to property was not barred by statute of limitations and that 1990 quitclaim deed purporting to convey farm to husband and three children was invalid; appellate court affirmed; held wife’s claim challenging validity of deed transfer tolled until time of trial when wife learned of conveyance; court affirmed trial court ruling that 1990 quitclaim deed was invalid for lack of delivery; no evidence of present intent to transfer).
Beus v. Beus, 254 P.3d 1231 (Sup. Ct. Ida. 2011) (involves rights of three brothers (residuary beneficiaries under testamentary trust); one brother leased trust property until trust terminated; trustee terminated lease; district court ruled lease was properly terminated, brother was not entitled to compensation for improvements made to leased property, and loans secured by brother against trust property were his obligation alone; appellate court held that terminated lease at end of crop year in which trust terminates was reasonable; court remanded case to determine whether brother installed tile during farm lease and if entitled to compensation; finally, court held that testator intended to treat sons equally and district court did not err in holding balance owing on farm loan was obligation of son).
Hawkins v. Bonneville County Board of Commissioners, 254 P.3d 1224 (Idaho Sup. Ct. 2011)(court upholds defendant's decision to grant neighbors of plaintiff variances allowing them to replace old homes on two parcels of land; plaintiff's claim that new homes would increase traffic on adjacent road and increase likelihood that gates would be left open and his cattle escape insufficient to show prejudice to plaintiff's rights).
Campbell v. Smith, et al., 2011 Ohio 3002 (2011)(defendant permanently enjoined from operating duly licensed junk yard on property because junk yard constituted a nuisance; junkyard not a pre-existing non-conforming use).
Wilson & Son Ranch, LLC v. Hintz, et al., 253 P.3d 470 (Wash. Ct. 2011)(defendant held both an express easement coinciding with a gravel road that ran across the plaintiff’s property and an easement by prescription that allowed the defendant’s use of portions of the road not subject to the express easement; scope of express easement not exceeded because language creating easement in deed was an ingress/egress easement with no limitations and present use consistent with longstanding use of the easement).
Samuel C. Johnson 1988 Trust, et al. v. Bayfield County, 649 F.3d 799 (7th Cir. 2011)(defendant not entitled to construct snowmobile trails across private property without acquiring rights-of-way or exercising power of eminent domain; defendant did not hold reversionary interest in property upon railroad abandonment of rail line; railroad company at issue not chartered within 15 years of 1852 Act and had also used power of condemnation to obtain rights-of-way necessary to operate line; upon abandonment of line in 1980, federal law allowed plaintiff to acquire right-of-way one year and one day later; defendant did not buy right-of-way from railroad at that time; snowmobile trail can be built on line across private property, but defendant must pay for such right or condemn the property).
In re Petition of Guite, 2011 Vt. 58 (2011)(case involves action against former owner of cemetery on farm; petitioner had buried remains of parents in cemetery before selling farm in 1983 and claimed title to plot; 1853 deed excepted out burial plot and was not simply a burial easement).
R and B Farms, Inc. v. Cedar Valley Acres, Inc., 281 Neb. 706 (2011)(boundary dispute case involving attempted reformation of contract of sale of land and quiet title to disputed area; trial court determined mutual mistake occurred requiring reformation; issue of mutual mistake before court on appeal, but not supported by record; reversed).
Mulford, et al. v. Walnut Hill Farm Group, LLC, 712 S.E.2d 468 (Va. Sup. Ct. 2011)(plaintiff did not have legal right to access his property via a roadbed in question; roadbed not a public road; no prescriptive easement present).
Eimstad v. Lane County Assessor, No. TC-MD 101235D, 2011 Ore. Tax LEXIS 226 (Ore. Tax Court 2011)(taxpayer not entitled to ad valorem real property tax assessment as farm because property not used primarily for making profit; taxpayer's testimony was that he intended to start vineyard and grow hay and blueberries and filberts on 9.27 acres; statute focuses on current use of land, and land had been laying fallow for more than one year; sales of a few pounds of honey insufficient to show profit).
Schable, et al. v. Troyan, et al., 2011 Ohio 2452 (Ohio Ct. App. 2011)(conversion of 64-acre parcel in residentially-developed area to viticulture is an “agricultural activity” that is exempt from otherwise applicable zoning requirements; activity involved installation of several 250-gallon tanks, planting of three acres of grapes capable of producing 12 tons of grapes annually (15,000 bottles of wine); winery activities are an ag activity and court’s decision in Terry v. Sperry, 186 Ohio App.3d 798 (Ohio Ct. App. 2010) thus inapplicable; because ag activity involved, pavilion used for wine making and selling exempt from township zoning regulations and past use of pavilion immaterial; crush pad attached to winery also exempt from township zoning; bridge constructed to provide access to forested portion of lot entitled to variance from setback requirements – no detrimental impact on adjoining properties or on delivery of governmental services and owner unaware of setback requirement at time bridge built; concurring opinion noted that ag use occurred after residential development of surrounding property and could constitute a nuisance, but that issue was not before the court).
Ciszek, et al., v. Kootenai County Board of Commissioners, et al., 254 P.3d 24 (Sup. Ct. Ida. May 26, 2011) (paving company submitted single rezoning application asking to change zoning of adjacent ag lots to mining; trial court ruled that defendant’s approval of two zoning changes pursuant to single application submitted by paving company was not arbitrary and capricious; zoning activity was reasonable because it kept mining activity in contiguous zone; property owners objected to zoning changes and appealed; appellate court found no violation of due process as property owners had sufficient opportunity to express views and no evidence of illegal contract to zone).
Emmert v. Mickelson, 800 N.W.2d 958 (Wis. Ct. App. 2011)(defendant enjoined from removing plaintiff's survey stakes; defendant failed to prove title by adverse possession for failure to farm disputed property continuously for 20 years and boundary lines not established with any certainty).
United States v. Buchman, 646 F.3d 409 (7th Cir. 2011)(defendant defaulted on FSA loans and plaintiff sued to foreclose mortgages on land that served as collateral for the loans; default judgment for plaintiff entered; defendant filed bankruptcy on day before property to be auctioned off, but couldn't propose plan for paying off debt and bankruptcy court lifted automatic stay so that sale could proceed; parcels brought $322,000 at sale - insufficient amount to allow debtor to pay off debt in full; plaintiff sought to set sale aside on basis that price was inadequate; motion denied, as was debtor's motion to redeem parcels because debtor had waited too long; deficiency judgment entered for unpaid portion of loans (plus interest); only issue on appeal was selling price of property and defendant submitted appraisals indicating that property worth $513,000; trial court's order confirming sale affirmed - appraisals of doubtful value).
Loutre Land and Timber Company v. Roberts, et al., 63 So.3d 120 (La. Sup. Ct. 2011)(case involves title to disputed 15-acre tract; fence separating adjacent tracts had been in place at least 30 years).
Haik, et al. v. Biddulph, 254 P.3d 171 (Utah Sup. Ct. 2011)(recordation of agreement of sale of water right put plaintiff on record notice of equitable interest in water right, but notice of equitable interest insufficient under the facts to subvert plaintiff's claim of having purchased same water right in good faith).
Woods v. Taylor, No. 2009-CA-002126-MR, 2011 Ky. App. Unpub. LEXIS 393 (Kent. Ct. App. May 6, 2011)(defendant held prescriptive easement for use of roadway over plaintiffs' land).
Wright v. Sourk, 258 P.3d 981 (Kan. Ct. App. 2011)(plaintiff obtained title to disputed strip of real estate by adverse possession; fact that deed filed with county register of deeds does not put party claiming title by adverse possession with imputed constructive notice that bars adverse possession claim based on good faith belief of ownership).
Joines v. Joines, No. COA10-951, 2011 N.C. App. LEXIS 882 (N.C. Ct. App. May 3, 2011)(property line established by preponderance of evidence and plaintiff awarded damages for defendant's trespass).
Blair v. Berks County Board of Assessment Appeals, 20 A.3d 629 (Pa. Commw. Ct. 2011)(property tax assessment case involving farmland that was part of a forest reserve).
City of Buckley v. Toman, et al., No. 3:10-CV-05209-RBL, 2011 U.S. Dist. LEXIS 47238 (W.D. Wash. May 3, 2011)(conservation easement claimed by U.S. against defendant's private property violates Statute of Frauds and is void).
Bedrock, LLC v. Denver County Board of Equalization, 259 P.3d 514 (Colo. Ct. App. 2011)(defendant appeals Board of Assessment order that reclassified parcel of real estate as ag property for tax years 2007 and 2008; reversed - no grazing of livestock or crop growing activities present; property not sufficiently connected to other land and not connected by use with other land so as to be classified as ag land; property not used for conservation purposes; Douglas County Board of Equalization v. Clarke, 921 P.2d 717 (Colo. 1996) distinguished).
Gail v. Berry, et al., 343 S.W.3d 520 (Tex. Ct. App. 2011)(motion for reformation of warranty deed granted and upheld on appeal; sales contract for 176.52 acres reserved to sellers all minerals, royalties and timber interests in the land, but deed did not contain mineral reservation; lawyer who prepared sales contract and deed used title insurance commitment's legal description of property (which did not contain mineral reservation) when preparing warranty deed and did not compare deed with sales contract; scrivenor's error sufficient to show mutual mistake; deed not ambiguous).
Kluge Estate Winery & Vineyard, LLC v. Farm Credit of the Virginias, ACA, No. 3:11-cv-00028, 2011 U.S. Dist. LEXIS 40082 (W.D. Va. Apr. 13, 2011)(case involves action brought by original owner of property under Farm Credit Act of 1971 to enjoin sale at public auction of real estate that had been foreclosed on and ownership transferred to another party; plaintiff claimed that defendant violated Ag Credit Act of 1987 by failing to notify plaintiff of appraised market value of property and plaintiff's right to buy property at appraised value or right to offer property at price below appraised value; plaintiff also claims defendant violated ACA 1987 by failing to notify plaintiff of minimum amount, if any, required to qualify as acceptable bid and that division of property into five tracts also violates Act; Act contains no express provision giving borrowers private right of action, but court did not rule on issue; plaintiff did not make clear showing that it is likely to suffer irreparable harm in absence of injunctive relief; preliminary injunction denied).
City of Dublin v. Pewamo, Ltd., 2011 Ohio 1758 (Ohio Ct. App. 2011)(case involves plaintiff's acquisition of 3 acres of 60-acre tract for road improvement purposes; tract purchased in 1999 for $1.2 million and case involves damages to remaining 57 acres caused by limiting access to adjacent highway and designation of 57 acres as a planned commercial development and research park; trial court did not prejudice defendant by refusing to instruct jury that it could not consider speculative and potential future access to tract in determining damages to 57 acres; trial court did not err by refusing to give proper and complete jury instruction on internal circuity of travel; trial court did not err by allowing evidence, testimony and argument that defendant would have access to state highway when plaintiff's engineer denied that such access existed; no error on appraisal valuation; jury's finding of zero damage to 57 acres not against clear weight of evidence).
Hochstetler Living Trust v. Friends of the Pumpkinvine Nature Trail, Inc., 947 N.E.2d 928 (Ind. Ct. App. 2011)(railroad acquired fee simple interest in disputed strip of land and subsequently conveyed the strip to defendant; strip did not revert to adjacent owner upon abandonment of rail line).
Maitra v. Douglas County Asessor, No. TC-MD 101052B, 2011 Ore. Tax LEXIS 167 (Apr. 1, 2011)(plaintiff's property had been disqualified from ag valuation because assessor believed tract was not in a farm use (3.96 acre orchard); plaintiff did not personally farm tract but leased it to a tenant who failed to keep the property up due to physical problems; property not for ag assessed valuation).
National Assoc. of Realtors Report (U.S. Home Sales Report, Mar. 16, 2011)(for the month of February 2011, homes sales in the U.S. dropped 9.6 percent from the previous month, a record low for the past nine years, with the percentage decline being the largest since July of 2010; median home price fell 5.2 percent from February of 2010; compared with February 2010, home sales down 2.8 percent; housing starts for February 2011 at lowest point in last 27 years; foreclosures and short sales accounted for 39 percent of February transactions (up 37 percent from January 2011); new home sales accounted for less than 10 percent of overall sales; all-cash purchases constituted 33 percent of all transactions in February (a record); note: these numbers resulted even though for fiscal year 2010 (Sept. 27, 2009 - Oct. 2, 2010), IRS data indicate that more than 2.1 million tax returns legitimately claimed the first-time homebuyer tax credit at a taxpayer cost of $15,642,149,000; IRS data re-establishes notion that "targeted" tax cuts generally are not effective).
Northern Natural Gas Company v. Approximately 9117.53 Acres, 781 F.Supp.2d 1155 (D. Kan. 2011)(case involves plaintiff's motion to confirm condemnation based on Certificate of Public Convenience and Necessity issued by FERC; motion granted).
Osterhaus v. Toth, et al., 249 P.3d 888 (Kan. Sup. Ct. 2011), aff'g., 187 P.3d 126 (Kan. Ct. App. 2008)(plaintiff, buyer of home sued defendants (seller, real estate agent and real estate agency) for problems associated with leaking basement on purchased home; allegations involved defendants' breach of the Kansas Consumer Protection Act (KCPA), fraud, negligent misrepresentation and breach of contract; trial court granted summary judgment for defendants on all claims; seller had completed and given to buyer disclosure statement that did not indicate problems with basement wall and water in basement that seller actually knew about; trial court noted that plaintiff had independent inspection performed before closing which revealed "major cracking" in basement wall; summary judgment improper simply because buyer signed buyer acknowledgment and agreement - plaintiff may have relied on the representations; "as is" and release provisions do not necessarily bar plaintiff's breach of contract claim - factual finding necessary as to whether reasonable inspection would have revealed defects in foundation that should have then been included as unacceptable conditions listed by plaintiff in form Amendment; claims for fraud and misrepresentation subject to two-year statute of limitations and issue remanded for determination of when fact of plaintiff's injury was reasonably ascertainable by plaintiff; matter remanded on KCPA issue and on whether agent breached Brokerage Relationships in Real Estate Transactions Act by not revealing known facts about the home on seller's disclosure statement).
Muse v. Banks, et al., No. 2010-CA-000101-MR, 2011 Ky. App. Unpub. LEXIS 200 (Ky. Ct. App. Mar. 11, 2011)(plaintiffs have right to exclude defendants from using abandoned roadway located on plaintiff's property; road did not provide "necessary access" to defendant's property).
Hirsch v. Ebinger, 334 S.W.3d 695 (Mo. Ct. App. 2011)(evidence insufficient to establish existence of prescriptive easement for plaintiff over driveway used for access to plaintiff's property; post-1987 use via permission and prior use not proven by evidence).
McCoy v. Thompson, et al., No. 2009-CA-001585-MR, 2011 Ky. App. LEXIS 38 (Ky. Ct. App. Mar. 4, 2011)(defendant acquired 25-acre parcel via adverse possession; well-established boundary line and tract enclosed by fence for statutory period and fence believed to be dividing line and defendant maintained fence).
Thurman v. Hutchison, No. 2010-CA-000050-MR, 2011 Ky. App. Unpub. LEXIS 134 (Ky. Ct. App. Feb. 18 2011)(prescriptive easement right-of-way case).
Bargman, et al. v. Wilson, 943 N.E.2d 1236 (Ill. Ct. App. 2011)(partition action involving the issue of award of attorney fees).
In re Agard, 44 B.R. 231 (Bankr. E.D. N.Y. 2011)(loan servicer for bank motioned for relief from automatic stay to foreclose on secured interest in debtor's real estate; debtor claimed that bank only received its interest via assignment from Mortgage Electronic Registration System as original lender's nominee and, thus, had no enforceable right against debtor's property; court held that under Rooker-Feldman doctrine court accepts state court judgment of foreclosure as evidence of bank's secured creditor status which gave servicer standing to seek relief from stay; court granted servicer's motion).
Ricko Construction, Inc. v. Owen Dubois, et al., 57 So.3d 564 (La. Ct. App. 2011)(plaintiff did not establish ownership of disputed tract via easement by prescription over past 30-years).
In re Appeal of Kimbrough, 247 P.3d 644 (Idaho Sup. Ct. 2011)(cases involves assessed value of taxpayers' farm and homesite of 14.76 acres which is primarily devoted to growing alfalfa; assessed value more than doubled from 2006 to 2007 allegedly attributable to homesite and residential improvements which were valued separately from ag land; trial court correct to hold that county properly valued homesite at market value separately from adjacent ag acreage under state law).
Euler v. Marks, No. 09-09-00344-CV, 2011 Tex. App. LEXIS 791 (Tex. Ct. App. Feb. 3, 2011)(trustee entitled to possession of property as a result of trustee filing forcible detainer action; trustee's claim based on substitute trustee's deed filed to correct5 incomplete property description in prior deed (incomplete metes and bounds description).
Northrop v. Boerst, 795 N.W.2d 719 (Wisc. Sup. Ct. 2011)(boundary between adjacent properties was center of road; court reached determination based on evidence of common usage and acquiescence; boundary could not be determined by deed and original monuments or markers).
Renaissance Dairy, LLP v. Tobkin, et al., No. A10-911, 2011 Minn. App. Unpub. LEXIS 105 (Minn. Ct. App. Feb. 1, 2011)(option agreement associated with real estate conveyance transaction involving dairy not ambiguous).
Brunson v. American Home Mortgage Servicing, Inc., et al., 411 Fed. Appx. 165 (10th Cir. 2011)(plaintiff defaulted on loan obtained to buy property on which plaintiff intended to build personal residence; defendant began foreclosure proceedings and plaintiff sued for wrongful foreclosure, claiming that defendant did not give plaintiff copy of promissory note and, thus, plaintiff did not know if note terms were justifiable; plaintiff also claimed that defendant needed to prove ownership or possession of note; court upholds trial court's grant of defendant's motion to dismiss for failure to state claim on claims of wrongful foreclosure and negligence; appellate court determined that argument concerning promissory note was a defense to a foreclosure action and not a claim for relief and refused to consider it because it was not raised at the trial court level).
Robinson, et al. v. Estate of Harris, et al., 705 S.E.2d 41 (S.C. Sup. Ct. 2011)(challenge to validity of deed executed in 1940s barred by doctrine of laches; court did not make any specific findings of fact or analyze requirements needed to establish elements of laches).
Flinn v. Bosch, et al., No. 0-631/09-1909, 2011 Iowa App. LEXIS 36 (Iowa Ct. App. Jan. 20, 2011)(farmer acquired easement by implication and easement of necessity for ingress and egress to access farm field that had been cut off by sale and development of adjacent property; even though no easement of record, farmer had been using currently-existing driveways for over twenty years).
United States Bank National Association, et al. v. Ibanez, 941 N.E.2d 40 (Sup. Jud. Ct. Mass. 2011)(plaintiffs, arguing that they had fee simple title to various properties, were trustees that had foreclosed on the properties and subsequently purchased them at foreclosure sales; trial court denied default judgment for plaintiffs; on appeal, court affirmed; sales held to be invalid under state law because plaintiffs had not been assigned the mortgages until after sales completed even though foreclosure sales named the plaintiffs as holders of the mortgages; even though mortgages pooled together in trust (known as a "pooling service agreement") and converted to mortgage-backed securities, mortgages securing notes remained legal title to the tracts and securitization documents did not establish valid assignments to plaintiffs before foreclosure sales - indeed, plaintiff's didn't obtain assignment of note until more than a year after going to court; court noted that while assignment need not be in recordable form at time of notice of sale or at later foreclosure sale, where pool of mortgages is assigned to securitized trust, there must be proof that assignment made by party that held the mortgage).
Masek v. Estate of Masek, No. A-10-279, 2010 Neb. App. LEXIS 196 (Neb. Ct. App. Dec. 28, 2010)(title to disputed tract of land not quieted in plaintiff due to lack of present intent to deliver deed; deed executed in 1977, not recorded and stored in decedent's desk for 30 years).
Tilton, et al. v. Gardner, et al., 52 So.3d 771 (Fla. Ct. App. 2010)(tracts of land not qualified to classified as "agricultural" for ad valorem real property tax purposes; lack of evidence of current use in agriculture).
Samsel v. Uniform Construction Code Board of Appeals,10 A.3d 412 (Pa. Comw. Ct. 2010)(plaintiff's proposed construction of stable for race horses constituted agricultural building and is exempt from state Construction Code).
Sweeney, et al. v. Koehler, et al., No. E2009-02306-COA-R3-CV, 2010 Tenn. App. LEXIS 762 (Tenn. Ct. App. Dec. 7, 2010)(boundary dispute case; plaintiffs not entitled to rebuttable presumption of ownership over disputed tract via payment of taxes for over 20 years; boundary line determined by usage as posited by defendant).
Sullivan v. Wallace, et al., 51 So.3d 702 (La. Sup. Ct. 2010)(co-owner of timberland (as immovable property) cannot be held liable to co-owners for treble damages under state law upon harvesting and selling timber without consent of co-owners ).
Building Industry Association of Central California v. County of Stanislaus, 190 Cal. App. 4th 582 (Cal Ct. App. 2010)(defendant's Farmland Mitigation Program (FMP) conditioning development approval on dedication of permanent easements on equivalent area of comparable farmland which developer bears sole responsibility to obtain not facially invalid; trial court determination reversed).
Watters v. Medinger, No. 0-638/10-0090, 2010 Iowa App. LEXIS 1422 (Iowa Ct. App. Nov. 24, 2010)(ownership of disputed strip of land established via adverse possession).
Vokal v. Vokal, No. A10-573, 2010 Minn. App. Unpub. LEXIS 1133 (Minn. Ct. App. Nov. 23, 2010)(Defendant unreasonably interfered with natural flow of surface water which damaged plaintiff; trial court also properly denied defendant's claim of adverse possession over disputed strip of land).
Cousins v. McNeel, 62 So.3d 1039 (Ala. Civ. App. 2010)(boundary line dispute case; deed relies on unidentified location of fence to establish boundary of property and genuine issue of material fact existed as to original location of fence).
Davis v. Fendell, No. 28046-2-II, 2010 Wash. App. LEXIS 2590 (Wash. Ct. App. Nov. 18, 2010)(easement case; one easement determined to have public access and could not be adversely possessed; other easement not abandoned by non-use).
Sivos v. Eppich, et al., 78 A.D.3d 1360 (N.Y. Sup. Ct. 2010)(plaintiff's construction of home on farm ground she believed would be conveyed to her via oral agreement coupled with expenditure of significant amounts of money and labor to maintain farm constitutes sufficient evidence from which jury could conclude that plaintiff's conduct is explainable only by reference to oral contract; denial of defendant's motion for summary judgment seeking dismissal of plaintiff's claim for specific performance affirmed).
Diefenthaler v. Schuffenecker, 942 N.E.2d 1137 (Ohio Ct. App. 2010)(trial court's declaration of plaintiffs as owners of disputed strip of land via adverse possession reversed to the extent it failed to specify a formal and enforceable property description as part of its judgment).
Eastwood v. Horse Harbor Foundation, Inc., et al., 241 P.3d 1256 (Wash. Sup. Ct. 2010)(landlord sued tenant for commission of waste on leased property; court finds that duty to not commit waste is a tort duty that is independent of the lease agreement; thus, commission of waste does not limit landlord’s recovery to breach of lease agreement; court found evidence of proximate cause and directors of corporation for which tenant worked individually liable for gross negligence in permitting waste).
Elm Retirement Center, LP v. Callaway, 246 P.3d 938 (Ariz. Ct. App. 2010)(plaintiff entered into contract to buy home advertised as having 3,792 square feet; purchase agreement did not denote square footage, but only stated that any reference to size of home was an estimate and stated that if square footage was material to the buyer that it had to be verified during inspection period; buyer sued claiming home only had 3,605 square feet and trial court dismissed case; affirmed on appeal - fraud claims barred by statute of limitations and verification provision constituted disclaimer of liability for any representation of size of home).
McGrath v. Allstate Insurance Co., 802 N.W.2d 619 (Mich. Ct. App. 2010)(defendant refused to pay for water damage to plaintiff's home caused by breakage of frozen pipes caused by lack of heat to home; jury ordered defendant to pay $100,000, but jury award vacated on appeal and defendant granted summary judgment because plaintiff did not live in the house at time pipes burst and had not lived there for the prior two years, thus requirement of insurance policy that plaintiff "reside" in the home not satisfied; plaintiff failed to notify defendant of change in occupancy status of home - simply notifying defendant of change in billing address not sufficient notice of change in occupancy status).
Bellis v. Kersey, et al.,241 P.3d 818 (Wyo. Sup. Ct. 2010)(adverse possession case involving location of fence).
Bryer v. The Woodlands Land Development Company, L.P., et al., No. 09-0900326-CV, 2010 Tex. App. LEXIS 7424 (Tex. Ct. App. Sept. 9, 2010)(plaintiff did not have right of ingress or egress over tracts of real estate, and only had an easement that had been relocated by a development company; express easement as stated in deed was subject to relocation).
Pinal County v. United States, No. CV-09-00917-PHX-NVW, 2010 U.S. Dist. LEXIS 92347 (D. Ariz. Sept. 3, 2010)(deed construction case involving easements by county and federal government and condemnation action by county; condemned property subject to highway easement and conservation easement and conservation easement yields to highway easement).
Wilson v. Fieldgrove, 787 N.W.2d 707 (Neb. Sup. Ct. 2010)(oral cash farm lease did not die with tenant and surviving spouse, as sole beneficiary of tenant's estate, entitled to lease termination notice in accordance with state law (six months notice before March 1); court reasoned that cash lease does not require personal services (so lease did not end on tenant's death) but stated that crop-share lease does require personal services of tenant and would end on tenant's death with no further notice of termination required; court did not state how, in cash lease situation, crop is to get planted and harvested without tenant's personal services).
Lambright, et al. v. Trahan, et al., 322 S.W.3d 424 (Tex. Ct. App. 2010)(easements set forth in express grant were private easements for the use and benefit of parties to the litigation and did not constitute public roads; easements (with the exception of one road) could not be blocked by a gate; no dedication of roads to public use due to no acceptance by the public).
Smith v. Pennock, 239 P.3d 922 (Mont. Sup. Ct. 2010)(plaintiffs have road easement through defendant's property; easement language ambiguous and road easement provided the only reasonably convenient access to building on tract).
Camus, et al. v. Culpepper, et al., No. 64907-8-I, 2010 Wash. App. LEXIS 1941 (Wash. Ct. App. Aug. 30, 2010)(trial court's order regarding easement upheld over portion of deceased parents' farm property).
Yellin v. Kassin, 3 A.3d 584 (N.J. Super. Ct. 2010)(driveways of adjacent properties met at common point and formed a continuous driveway making it possible to access each property from two streets; no adverse possession elements or prescriptive easement grounds present for either party).
Max's Place LLC v. DJS Realty,1 A.3d 1199 (Conn. App. Ct. 2010)(restrictive covenant determined to be null and void).
Ruggles v. Ruggles Family, et al., 2010 Ohio 3923 (Ohio Ct. App. 2010)(case involves dispute between siblings related to several family-owned farms; partition action and dispute over property ownership).
Esau v. Villarreal, No. 13-09-00243-CV, 2010 Tex. App. LEXIS 6755 (Tex. Ct. App. Aug. 19, 2010)(specific performance of real estate contract improperly awarded; buyer did not have sufficient financing to purchase lots at issue).
Briar Meadows Development, Inc. v. South Centre Township Board of Supervisors, 2 A.3d 1303 (Pa. Commw. Ct. 2010)(plaintiff, real estate developer, sought rezoning of property from "agricultural" to "commercial/industrial"; defendant denied plaintiff's request and trial court granted developer's motion to leave to present additional evidence and remanded case to defendant to hold hearing; use variance not approved; trial court's decision affirmed; no spot zoning involved).
Polk County Board of Review v. Property Assessment Appeal Board, et al., No. 0-496/09-1542, 2010 Iowa App. LEXIS 855 (Iowa Ct. App. Aug. 11, 2010)(10.55-acre tract improved with residence and barn was agricultural in nature for property tax purposes; alfalfa produced on 6 acres and 2 acres used for grazing horses; owner participated in federal farm programs and filed Schedule F).
Polk County Board of Review v. Property Assessment Appeal Board, et al., No. 0-314/09-1310, 2010 Iowa App. LEXIS 834 (Iowa Ct. App. Aug. 11, 2010)(land properly valued as agricultural for property tax purposes; land contained residence, hay barn and sheep barn; property owners provided evidence showing income received from farming).
Rucker v. DeLay, et al., 235 P.3d 566 (Kan. Ct. App. 2010)(reference to "royalty interest" in deed refers to share of production of oil and gas at severance and is personal property which relates to the proceeds from oil and gas if and when produced; "mineral interest" refers to oil and gas in place and constitutes present ownership of interest in real property and is commonly denoted by right of entry upon land to produce and conduct production activities; mineral interest vests immediately upon creation, but royalty interest does not; thus, reservation of "royalty interest" in deed violated rule against perpetuities).
Drescher v. Johannessen, No. NC-2006-0497, 2010 R.I. Super. LEXIS 111 (R.I. Sup. Ct. Jul. 20, 2010)(case concerns ownership and use rights with respect to driveway that provides access to plaintiff's 60-acre tract but which defendant is the record owner of; plaintiff claims existence of easement by prescription which requires proof of same elements as adverse possession; plaintiff failed to satisfy burden of proof of elements by clear and convincing evidence and evidence did not support argument that driveway was a public roadway).
Price Farms, Inc. v. McCurdy, et al., 42 So.3d 1099 (La. Ct. App. 2010)(real estate broker sought recovery of one-half of commission paid to another broker who represented purchaser in sale of three pieces of ag property; court upheld trial court determination that no implied agreement existed).
Proctor v. Davison, et al., 2010 Ohio 3273 (Ohio Ct. App. 2010)(case involves condemnation of small acreage for state road project that split farm; case involves battle over proper way to value the property for "just compensation" purposes).
Gilman, et al. v. Blocks, et al., 235 P.3d 503 (Kan. Ct. App. 2010)(written declaration between adjoining landowners created easement rather than license and one party's landscaping unreasonably obstructed the use of the easement).
Barra, et al. v. Norfolk Southern Railway Co., 75 A.D.3d 821 (N.Y. Ct. App. 2010)(railway crossing may have created prescriptive easement and landowners entitled to have their claims measured in accordance with law before 2008 amendments to state law).
Marsh v. Union County Board of Adjustment, No. COA09-1353, 2010 N.C. App. LEXIS 1117 (N.C. Ct. App. Jul. 6, 2010)(rodeo events held on plaintiff's land were not bona fide farm activities and, thus, were subject to county's land use regulations and could only be conducted via permit conditions).
Estate of Tremblay v. Burgin, No. 289480, 2010 Mich. App. LEXIS 1133 (Mich. Ct. App. Jun 22, 2010)(deed reformation case; 15-year statute of limitations applied to plaintiff's claims and those claims accrued before 1988; case dismissed as time-barred).
Schleiger v. Yaunkunks, No. 38955-0-II, 2010 Wash. App. LEXIS 1279 (Wash. Ct. App. Jun 16, 2010)(defendant obtained easement over portion of cul-de-sac lying within adjoining lot because common grantors amended the boundary between the lots and granted an easement to benefit defendant's lot; defendant properly relied on recorded documents when he purchased lot).
Anderson v. Carrington, No. 03-08-00352-CV, 2010 Tex. App. LEXIS 4578 (Tex. Ct. App. Jun. 18, 2010)(purchasers of tract of land claimed title to disputed land against claim of another party who claimed title via adverse possession; adverse possession claim failed).
Moehring v. Myers, No. 01-09-00204-CV, 2010 Tex. App. LEXIS 4604 (Tex. Ct. App. Jun. 17, 2010)(trial court correct in holding that land contained in bankruptcy estate need not be sold at public auction).
Farrar, et al. v. Mobil Oil Corp., 234 P.3d 19 (Kan. Ct. App. 2010)(certification of class action against defendant upheld concerning lawsuit brought by oil and gas lessors of mineral interests in Hugoton field alleging breach of express and implied covenants in the alleged improper deduction of expenses from payment of royalties to lessors).
Insko v. Mosier, et al., 234 P.3d 984 (Ore. Ct. App. 2010)(plaintiff sufficiently proved existence of prescriptive easement over road used to access landlocked parcel).
Townsend v. Morton, 36 So.3d 865 (Fla. Ct. App. 2010)(uncontested evidence revealed that defendant tricked plaintiff into signing warranty deed transferring real estate in fee simple; deed rescinded).
Nielson v. Robbins, No. 63479-8-I, 2010 Wash. App. LEXIS 1130 (Wash. Ct. App. Jun. 1, 2010)(two deeds containing incorrect legal descriptions purporting to gift property were void because they violated the statute of frauds; not possible to reform deeds because they constituted a unilateral gift).
Pfeilfelmann v. First National Bank of St. Ignace, No. 289965, 2010 Mich. App. LEXIS 1013 (Mich. Ct. App. Jun. 1, 2010)(boundary by acquiescence not established by the evidence; silence and inaction since 1971 concerning misplaced fence did not show that such silence manifested a belief that fence was boundary to the property; there was never a mistake concerning the true boundary line).
Hahn v. Tanksley, et al., 317 S.W.3d 145 (Mo. Ct. App. 2010)(deed not set aside due to lack of evidence supporting rescission of deed).
Linn Farms and Timber Partnership v. Union Pacific Railroad Company, et al., No. 4:09CV00663 JLH, 2010 U.S. Dist. LEXIS 51714 (E.D. Ark. May 25, 2010)(plaintiffs motion for summary judgment seeking to quiet title to mineral rights acquired through tax deeds denied).
In re Estate of Loomer, 782 N.W.2d 648 (N.D. Sup. Ct. 2010)(trial court's partition of farmland not clearly erroneous and claimed misconduct by referee appointed to assist in partition of land did not require appellate court to reverse).
Steuck Living Trust v. Easley, 785 N.W.2d 631 (Wisc. Ct. App. 2010)(plaintiff's failed to establish title to disputed tract via adverse possession; hunting and related activities of plaintiffs' predecessors do not constitute open, notorious, visible, exclusive and hostile use of disputed area; swampy area and man-made ditch do not constitute substantial enclosure as defined by state law; adverse possession not established via doctrine of acquiescence).
Wetherell, et al. v. Douglas County, et al., 230 P.3d 976 (Ore. Ct. App. 2010)(Land Use Board of Appeals did not err in reversing county's plan amendment and zone change concerning 259-acre parcel; parcel was agricultural land).
Roehrs v. Rasmussen, No. A09-1354, 2010 Minn. App. Unpub. LEXIS 424 (Minn. Ct. App. May 11, 2010)(plow lines in field that had been treated by the parties and their predecessors as the property boundary for more than 20 years established the property boundary irrespective of survey).
Arengard v. Cayko, et al., 782 N.W.2d 54 (N.D. Sup. Ct. 2010)(plaintiff not entitled to property tax exemption for residence located on farm; plaintiff's non-farm income exceeded $40,000 and ratio of non-farm income to farm income too high).
Blad, et al. v. Parris, No. A09-908, 2010 Minn. App. Unpub. LEXIS 417 (Minn. Ct. App. May 11, 2010)(trial court correctly concluded that landowner breached farm lease agreement with tenant; landlord failed to communicate intentions with tenant before tenant incurred land preparatory expenses for spring planting and before tenant planted crop; tenant reasonably relied on parties' custom in preparing ground and planting crop in absence of written agreement).
Northrup, et al. v. Opperman, 784 N.W.2d 736 (Wis. Ct. App. 2010)(trial court correctly concluded that parties had acquiesced to different boundary than described in their deeds, but erred in determining that corner marking the section line between their properties had been obliterated).
Leisz v. Avista Corp., et al., 232 P.3d 419 (Mont. Sup. Ct. 2010)(trial court erred in finding that prescriptive easement for ingress and egress had been abandoned; use was only periodic and unexplained; dissent (correctly) noted that majority wrong because evidence established affirmative conduct on plaintiff's part established intent to abandon easement [note: abandonment of an easement requires some affirmative act]).
American Land Holdings of Indiana, LLC, et al. v. Jobe, et al., 604 F.3d 451 (7th Cir., 2010), aff'g., 655 F. Supp. 2d 882 (S.D. Ind. 2009)(plaintiffs owned mineral rights created via 1903 severance deed and sued for declaratory judgment that they had right to remove coal from property by surface mining; court concluded that term deed's use of phrase "all coal" was not intended to include coal removable only by destroying the surface and that parties to deed had expectation that damage to surface by mining would be limited to five acres (of 62-acre tract); other deed language consistent with underground mining and surface mining unknown in county at issue in 1903; appellate court affirmed).
Rice v. McGhee, No. CA09-844, 2010 Ark. App. 393 (Ark. Ct. App. 2010)(court affirms trial court order which authorized the sale of real estate an confirmed the sale and partially distributing the estate).
Merrill Lynch Mortgage Lending, Inc., et al. v. Wheeling & Lake Erie Railway Co., 2010 Ohio 1827 (Ohio Ct. App. 2010)(trial court judgment upheld which granted summary judgment to owner of parcel which declared that owner holds express easement appurtenant to use railroad crossing over railroad tracks
Rockies Express Pipeline, LLC v. 4.895 Acres of Land, No. 2:08-cv-554, 2010 U.S. Dist. LEXIS 40687 (S.D. Ohio Apr. 26, 2010)(case involved compensation required for taking of property via permanent, non-exclusive pipeline easement; pre-taking highest and best use of property is agricultural - evidence lacking that property could be developed within reasonable time given applicable zoning laws and infrastructure hurdles).
Flying Elk Investment, LLC v. Cornwall, 232 P.3d 330 (Ida. Sup. Ct. 2010)(misplaced fence resulting in 19 acre tract of land in favor of defendant had been in place for nearly 70 years and had been treated as the boundary between the adjacent tracts; fence established boundary by agreement (acquiescence).
Gerstenberger Farms, Inc. v. Grimes, et al., No. 291318, 2010 Mich. App. LEXIS 726 (Mich. Ct. App. Apr. 22, 2010)(trial court summary judgment award to defendant upheld - plaintiff not entitled to specific performance and damages under farm lease agreement; plaintiff's alleged right of first refusal to buy the land if the owner put it up for sale not supported by the evidence and not definite enough to support claim for specific performance).
Heirs of Simmons v. Bouligny, et al., No. 13-09-00269-CV-2010 Tex. App. LEXIS 2949 (Tex. Ct. App. Apr. 22, 2010)(evidence supported jury verdict that land held in peaceable and adverse possession for statutory timeframe via deed and was openly used).
Moore, et al. v. Stills, et al., 307 S.W.3d 71 (Ken. Sup. Ct. 2010)(recreational use not sufficient to establish adverse possession of another's land under either common law or statutory law and petitioners failed to prove "well definded boundary" element of claim).
Snead, et al. v. C&S Properties Holding Co., LTD, et al., 692 S.E.2d 212 (Va. Sup. Ct. 2010)(defendant's man-made improvements and obstructions on their property in area subject to easement in favor of plaintiff prevent plaintiff from use and enjoyment of significant portion of easement, and plaintiff entitled to injunctive relief; defendant's improvements prevented plaintiff's use of approximately two-thirds of the width of the easement).
Bailey v. Town of Saltville, 619 S.E.2d 491 (Va. Sup. Ct. 2010)(1909 agreement and deed concerning railroad right of way conveyed fee simple interest (rather than merely an easement) to railroad which abandoned line in 1993 and defendant is now owner of strip of land conveyed by 1909 deed; agreement and deed to be read together and no words of limitation present in deed to modify words of grant and no termination date specified).
Thurlkill v. Wood, 2010 Ark. App. 319 (2010)(case involves ownership over .849-acre tract; trial court judgment affirmed that defendant obtained title to tract via old fence line located 164 east of boundary as described in plaintiff's deed because fence line established a boundary by acquiescence between the parties; origin of mistaken boundary dated to error in 1845 plat due to an offset in lines and corners of survey to account for curvature of earth; preponderance of evidence present that parties and predecessors had occupied respective tracts based on mistaken belief that marker marked common corner).
Deltic Timber Corp. v. Newland, 2010 Ark. App. 276 (2010)(factual dispute remains concerning parties' intent with respect to "excepting" clause in deed concerning reservation and/or conveyance of mineral interests).
Smith v. Wells Fargo Bank, 991 A.D.2d 20 (D.C. Cir. 2010)(defendant was bona fide purchaser of real estate at foreclosure sale because plaintiff failed to prove that defendant was on inquiry notice of any irregularity in prior conveyances of the real estate via power of attorney that allegedly did not give transferor authority to convey the property; but, trial court erred in striking affidavits that plaintiff submitted in support of plaintiff's forgery claim and material factual issue remained concerning whether forgery impacted chain of title and case remanded for trial on forgery issue).
Palizzi, et al. v. City of Brighton, 228 P.3d 957 (Colo. Sup. Ct. 2010)(under Colorado's rules for property valuation in condemnation cases, all evidence relevant to determining present market value of condemned property is admissible, including evidence of most advantageous potential future use of entire property; trial court did not err in admitting evidence regarding tract's highest and best use based on property's potential for development).
Home of Economy, Inc. v. Burlington Northern Santa Fe Railroad, 780 N.W.2d 429 (N.D. Sup. Ct. 2010)(plaintiff failed to prove existence of public road by prescription and failed to establish an easement by estoppel).
Danielson, et al. v. Furulie, et al., No. 28075-6-III, 2010 Wash. App. LEXIS 576 (Wash. Ct. App. Mar. 18, 2010)(party entitled to attorney fees and costs related to dissolving wrongfully issued injunction in boundary dispute matter; preliminary restraining order prohibiting movement of common fence was not necessary and was wrongful).
Shupe v. Boulder County, 230 P.3d 1269 (Colo. Ct. App. 2010)(plaintiff's use of property found to be agricultural and not residential for purposes of ad valorem real property taxation).
Moore v. Stillis, 307 S.W.3d 71 (Ky. Sup. Ct. 2010)(case involves descendant's petition to quiet title to wild, formerly strip-mined land adjacent to farmland acquired from ancestors via claim of adverse possession through recreational use of subject area; appellate court reinstated jury verdict in favor of plaintiffs; court reverses appellate opinion and reinstates JNOV in favor of record owners because plaintiffs failed to sufficiently define and mark boundary of their claim and recreational use not adequate to establish adverse possession).
Arkansas State Highway Commission v. Lewis, 2010 Ark. App. 234 (2010)(court upholds trial court's award of $190,000 to defendant, landowner who had two tracts of land condemned for road project; trial court did not abuse its discretion in admitting into evidence sale of other farmland as a comparable sale).
Lawrence v. Barnes, 2010 Ark App. 231 (2010)(court upholds trial court's order reforming warranty deed in which mineral rights were reserved. but reversed on attorney fee award).
Hensley v. Duke, No. E2009-00482-COA-R3-CV, 2010 Tenn. App. LEXIS 183 (Tenn. Ct. App. Mar. 10, 2010)(plaintiff, landlord of farm property and house on property, entitled to award for damages to leased property by defendant (tenant) caused by defendant's dogs and horses; written lease created specific duty of care owed by tenant to maintain the property and that any repairs or replacements had to be to the satisfaction of the plaintiff).
Blue Heron Nurseries, LLC, et al. v. Funk, et al., 930 N.E.2d 824 (Ohio Ct. App. 2010)(plaintiff not engaged in agricultural activities on subject property and is, therefore, not exempt from township's residential zoning restrictions).
Braunstein v. Robinson Family Limited Partnership, LLP, 226 P.3d 826 (Wyo. Sup. Ct. 2010)(adverse possession case involving application of state's "fence-out" rule; issues require factual development and trial court's award of summary judgment reversed and case remanded).
Williams v. Fagnani, 228 P.3d 71 (Alaska Sup. Ct. 2010)(court's earlier decision that plaintiff entitled to implied roadway easement over defendant's property and that defendant entitled to maintain locked gate across roadway if plaintiff advised of lock's combination vacated; on remand, lower court to determine facts relevant to inconvenience that gate will cause plaintiff and facts relevant to defendant's justification for the gate and whether gate unreasonably interferes with plaintiff's use of easement).
Way v. Berks County Board of Assessment, 990 A.2d 1191 (Comw. Ct. Pa. 2010)(plaintiff's land held to not qualify for preferential tax assessment under the PA Farmland and Forest Land Assessment Act of 1974 (i.e., Clean and Green Act) because the land at issue did not meet the 10-acre requirement and did not produce at least $2,000 in annual income from products).
Wisdom Fishing Camp, Inc. v. Coop, et al., No. 2009-CA-000689-MR, 2010 Ky. App. Unpub. LEXIS 154 (Ky. Ct. App. Feb. 26, 2010)(plaintiff's improvements and structures (as part of its fishing camp and full service marina) placed on land leased from the U.S. Army Corps of Engineers subject to property tax because improvements were not part of federal leasehold interest, but were additions thereto).
Buckner v. Castro, 306 S.W.3d 655 (Mo. Ct. App. 2010)(plaintiff not entitled to prescriptive easement for lane; plaintiff failed to prove adverse nature of use so no presumption of adversity arose due to rural nature of land at issue; even if prescriptive easement created, it would have been extinguished due to many years of non-use and intent to abandon manifested by non-use).
Quarles, et al. v. Smith, No. W2009-00514-COA-R3-CV, 2010 Tenn. App. LEXIS 136 (Tenn. Ct. App. Feb. 24, 2010)(third party had properly acquired title to disputed strip of land by adverse possession).
Belager-Price v. Lingle, 28 So.3d 706 (Miss. Ct. App. 2010)(restrictive covenants in deed requiring that lot be used for residential purposes ambiguous; thus, defendant need not construct single-family residence before constructing horse barn on property; defendant's intent to construct residence when financial situation allowed justifies non-conforming use during interim period).
Gloe v. Leaman, No. A-09-326, 2010 Neb. App. LEXIS 28 (Neb. Ct. App. Feb. 16, 2010)(case involves ownership claims by the parties to 160-acre island in Platte River; defendant acquired title to island via adverse possession against prior owners, and plaintiff did not acquire ownership via riparian rights to balance of upstream portion of island - island not formed by accretion or reliction but was added to island as a consequence of prior owner's addition of dike; trial court's boundary description modified based on additional information).
Perkins v. Henry, 2010 Ark. App. 126 (2010)(restrictions in real estate deed invalid and unenforceable; no general plan of development when property subdivided; other lots within same subdivision violated the deed restrictions leading to "many inconsistencies" in the restrictions; only written restrictions in one of the three deeds).
Consolidated Drainage District No. 2 v. Mosk, 306 S.W.3d 649 (Mo. Ct. App. 2010)(plaintiff failed to establish common law dedication of defendant's land adjacent to plaintiff's ditch which would allow plaintiff to remove plaintiff's fence along ditch and place spoil from dredged ditch on bank - plaintiff showed no intent to set land apart for public use; no easement by necessity or prescriptive easement supported by the facts).
McCully, Inc. v. Baccaro Ranch, 778 N.W.2d 115 (Neb. Sup. Ct. 2010)(defendant's motion to dismiss denied and case remanded to trial court on issue of defendant's breach of listing agreement for sale of ranchland).
Koepp, et al v. Holland, 688 F.Supp.2d 65 (N.D. N.Y. 2010)(case involves plaintiffs' claim to real property involving strip of land 40 feet wide near lake shore formerly used as railbed and 40-foot strip to access plaintiffs' properties).
Rose v. Ben C. Hebert Heirs, 305 S.W.3d 874 (Tex. Ct. App. 2010)(defendant granted no-evidence motion for summary judgment against plaintiff; defendant did not owe plaintiff any duty to plaintiff concerning plaintiff's injuries from striking bull on roadway; defendant owned pasture that was leased to tenant, but did not own the bull - defendant did not exercise sufficient control over the bull to restrict it to the pasture on the date of the collision).
Walter v. Keith, No. 287101, 2010 Mich. App. LEXIS 203 (Mich. Ct. App. Jan. 28, 2010)(fact that survey revealed that fence actually on plaintiff's property immaterial because defendant established that fenceline had been treated as boundary between the parties since 1965; defendant replacement of southwest corner of fence which had been removed years earlier so that prior owner could access landlocked parcel does not negate acquiescence to established boundary line).
Teadtke v. Havranek, 777 N.W.2d 810 (Neb. Ct. App. 2010)(court affirms trial court's determination that plaintiff had established existence of public prescriptive easement for ingress and egress over defendant's property by clear, convincing and satisfactory evidence).
Myers v. Leedy, 915 N.E.2d 133 (Ind. Sup. Ct. 2009)(buyer of farmland under installment contract who cash leased the land to tenant defaulted on contract and forfeited interest in land; seller ordered tenant off property and tenant sued for damages; trial court ruled for tenant and appellate court reversed; on further review state Supreme Court reversed appellate court – seller had actual knowledge that tenant was farming the land but failed to join tenant in tenant’s forfeiture action against buyer, and forfeiture of buyer’s interest did not extinguish tenant’s leasehold interest; seller filed suit seeking forfeiture at a time when seller knew or reasonably should have known that tenant was in possession of property and tenant’s leasehold interest survives forfeiture action under state law unless tenant is made party to forfeiture action even though tenant had constructive notice of forfeiture action).
Smith v. Security Investment LTD, 223 P.3d 451 (Utah Ct. App.2009)(ownership of disputed area determined to have been acquired via a boundary by acquiescence).
Aberdeen Investors, Inc. v. Adams County, 240 P.3d 398 (Colo. Ct. App. 2009)(defendant must reclassify 14 parcels as agricultural from vacant; property was leased to cattle company which grazed cattle on the parcels for two years as required by statute).
Crosby v. Post, et al., No. 285764, 2009 Mich. App. LEXIS 2411 (Mich. Ct. App. Nov. 19, 2009)(fence line originally intended as boundary line; farming of disputed area bounded by fence support finding of boundary by acquiescence for required 15-year statutory period).
Kosok v. Fitzpatrick, 778 N.W.2d 171 (Wisc. Ct. App. 2009)(plaintiff established statutory elements of adverse possession of disputed strip of land for 20 years; fence remnants were sufficient to "raise a flag of hostility" and were in fact treated as the boundary between the properties - acquiescence present).
Hopkins v. State, No. 03-07-00253-CV, 2009 Tex. App. LEXIS 8780 (Tex. Ct. App. Nov. 13, 2009)(case involves dispute over ownership of strip of land between adjoining land of parties, and plaintiff's inverse condemnation action against defendant for compensation for taking of portion of disputed area for drainage easement; trial court entered "take nothing" judgment and plaintiff appealed; on appeal, plaintiff's claim to ownership under "strip and gore" doctrine failed because deed clearly described the precise boundary with the disputed strip and conveyed grantor's intent not to convey disputed strip; adverse possession elements not present).
Young v. Ledford, 37 So.3d 832 (Ala. Ct. Civ. App. 2009)(boundary-line tree is owned by the adjacent owners as tenants in common; thus, no particular adjacent owner can cut or destroy such a tree without the consent of all owners; concurring judge would modify rule to allow an owner to cut such tree without other owner's consent if nuisance present).
Bernasek v. Umatilla County Assessor, No. TC-MD 081035C, 2009 Ore. Tax LEXIS 248 (Ore. Tax Ct. Oct. 30, 2009)(portion of plaintiffs' (married couple) property qualifies for farm use special assessment under state law; however, balance of property not eligible for special assessment because plaintiff did not use property for farming activities).
Keene v. Zoning Board of Adjustment, Etc., et al., 22 So.3d 665 (Fla. Ct. App. 2009)(horseback riding school and the boarding and stabling of horses on private landowner's property adjacent to plaintiff's property is properly characterized as a commercial-agricultural use that is impermissible under county's development Code; defendant's issuance of special use permit allowing such usage improper).
Verma v. Tilley Farms, Inc., 221 P.3d 23 (Ariz. Ct. App. 2009)(state statute allowing timeframe for buyer of real estate to rescind purchase contract once seller provides buyer with affidavit concerning certain statutorily required attributes of the land upheld as constitutional and seller compliance with statute is mandatory unless waived by buyer; as applied to buyers in the case who had actual knowledge of a federal flood easement over the property at issue, two buyers allowed their statutory rescission rights to lapse and are bound by the purchase contracts, but third buyer properly invoked rescission right).
Jones v. Sparks, 297 S.W.3d 73 (Ky. Ct. App. 2009)(plaintiff's thirteen-year use of road over defendant's property via oral agreement did not give rise to easement; no written agreement executed and facts do not support easement by estoppel, no easement by implication because common ownership not present, and no easement by way of necessity because plaintiff has other access route to property).
Downs v. Lyles, 41 So.3d 86 (Ala. Ct. Civ. App. 2009)(adjoining landowner dispute; jury determination of willfull and malicious trespass upheld; trial court's determination finding negligent excavation and deprivation of lateral support reversed as not supported by the evidence; no need to prove adverse possession because parties stipulated that boundary line was existing fence line).
Daisy Farm Limited Partnership v. Morrolf, 915 N.E.2d 480 (Ind. Ct. App. 2009)(parties' riparian lot lines consistent with the lots' property lines; plaintiff failed to show that it acquired a portion of defendant's adjoining lot via adverse possession - conflicting evidence existed on whether plaintiff exercised exclusive control over subject area, and plaintiff's payment of taxes on disputed area not demonstrated to be clearly reasonable).
Armstrong v. Fischer, 776 N.W.2d 287 (Wisc. Ct. App. 2009)(plaintiff, based on evidence, entitled to rebuttable presumption that land at issue was not wild or unoccupied; thus, presumption of permissive use of road and surrounding land not applicable; case remanded to trial court with defendant having opportunity to present rebuttal evidence).
Broadwater Development, L.L.C., et al. v. Nelson, 219 P.3d 492 (Mont. Sup. Ct. 2009)(60-foot emergency public access and utility easement over defendant's property is valid and enforceable against defendant, and Notice of Invalid Easement filed in Recorder's Office is invalid and of no legal effect).
Schultz v. Southeast Supply Header, LLC, 661 F.Supp.2d 1260 (S.D. Ala. 2009)(plaintiff's claims for negligence, trespass, nuisance and inverse condemnation arising from defendant's installation of underground interstate natural gas pipeline dismissed; plaintiff sold defendant 50-foot wide permanent right-of-way easement and plaintiff signed a release which released defendant from all claims and damages of every kind whatsoever, present and future, to interests of the undersigned arising from or related to the surveying, preparation, laying and construction of a pipeline and appurtenances under, upon, and across the plaintiff's land).
Burdette v. Brush Mountain Estates, LLC, 682 S.E.2d 549 (Va. Sup. Ct. 2009)(statute requiring estates in land be conveyed by deed or will inapplicable to conveyance of easement (easement is not an "estate"); but deeds at issue along with plat which was incorporated for descriptive purposes did not contain operative words manifesting an intent to grant an easement).
Premiere RV & Mini Storage LLC v. Maricopa County, 215 P.3d 549 (Cal. Ct. App. 2009)(upon division of land into multiple parcels, a division for property tax assessment purposes occurs upon county assessor completing process of identifying and valuing the new parcels rather than at the time of sale).
Johnston v. Cornelius, 218 P.3d 129 (Ore. Ct. App. 2009)(defendant failed to prove by clear and convincing evidence that driveway easement had been extinguished, and plaintiff proved that defendant substantially interfered with plaintiff's use of the easement).
O'Connor v. Columbia Gas Transmission Corp., 643 F.Supp.2d 799 (W.D. Va. 2009)(easement condemnation case).
Maidstone on the Potomac, LLC, et al. v. CSX Transportation, Inc., No. 3:08-CV-155, 2009 U.S. Dist. LEXIS 65086 (N.D. W.V. Jul. 28, 2009)(adverse possession case).
Magee v. United States, 342 Fed. Appx. 19 (5th Cir. 2009)(plaintiff conveyed farm to Farm Service Agency (FSA) in satisfaction of $686,349 debt and entered into five-year lease-back agreement under which plaintiff could buy the property back at the end of the five-year term at its appraised value at that time; FSA appraised property at $899,000 and plaintiff objected; FSA NAD ultimately upheld appraisal value and plaintiff brought court action; court held that plaintiff failed to show that FSA's decision was arbitrary or capricious, and plaintiff's claim for damages based on federal farm policies without merit).
Karnitz v. Wells Fargo Bank, N.A., 572 F.3d 572 (8th Cir. 2009)(reversal of district court judgment concluding that mortgage was invalid under Minnesota law because both spouses did not sign it; plaintiffs estopped from claiming invalidity of mortgage because nonsigning spouse knew of and intended to mortgage the homestead, retained the benefits of the mortgage and defendant changed position based on assumed validity of mortgage; dissent pointed out that defendant never detrimentally relied on the non-signing spouse's language or conduct in making loan - nothing the plaintiff's did or said caused defendant to lend funds or forego obtaining non-signing spouse's signature on necessary documents).
Grygiel, et al. v. Monches Fish & Game Club, Inc., 770 N.W.2d 749 (Wisc. Ct. App. 2009)(plaintiff's claim for misuse of easement over its property by defendant properly dismissed by trial court; burden on servient estate by increased number of easement users was merely de minimis).
Fawcett, LTD v. Idaho Northern & Pacific Railroad Co., 293 S.W.3d 240 (Tex. Ct. App. 2009)(seller terminated real estate sale contract upon learning of survey mistake; contract clause provided that either party could terminate the contract if the actual acreage contained in a survey varied by more than 10 percent from 5,000 acres; court held that contract terms allowed seller to terminate the contract, and title problems were not relevant to the termination provision in the contract).
Nourachi v. United States, 632 F.Supp.2d 1101 (M.D. Fla. 2009)(1937 deed's description of property subsequently conveyed at tax sale ambiguous, and use of extrinsic evidence appropriate to determine intent of parties at time of conveyance; if defendant determined to be owner of subject property, state Marketable Record Title Act cannot divest defendant of ownership rights).
Coley v. Fain, et al., 20 So.3d 824 (Ala. Ct. Civ. App. 2009)(adverse possession case).
Holley Homestead Trust v. Harrison, 11 So.3d 511 (La. Ct. App. 2009)(adverse possession case; plaintiff met statutory requirements for adverse possession claim).
Rucker Properties, L.L.C. v. Friday, et al., 204 P.3d 671 (Kan. Ct. App. 2009)(right of first refusal contained in lease agreement which would take effect on sale of subject property not triggered by quit claim deed of property which was executed as gift by family members in favor of specific members of the family; defendant had also acquired portion of tract via adverse possession).
Townsend v. Nickell, et al., No. 9-030/08-1058, 2009 Iowa App. LEXIS 274 (Iowa Ct. App. Apr. 8, 2009)(adverse possession case).
Walker, et al. v. Sapelo Island Heritage Authority, et al., 674 S.E.2d 925 (Ga. Sup. Ct. 2009)(quiet title action; evidence of continuous farming of property, erection of fences and construction of buildings were indicia of possession under state statute which raised a material question of fact concerning possession for requisite period of time under a claim of right).
Highland Lakes Country Club and Community Assoc. v. Nicastro, et al., 966 A.2d 1102 (N.J. Super. Ct. 2009)(no claim for negligence against surveyor in boundary dispute case had accrued because adjoining landowner had not shown error in survey, and claim against surveyor was contingent on property owner's liability to adjoining landowner).
Holly Creek Production Corporation v. Rose, 284 S.W.3d 542 (Ky. Ct. App. 2009)(oil and gas lease not forfeited either for failure to bury lines or pay royalties; lease contained no end date to landowner's option of requesting that lines be buried, and farm-tap sales to be included in calculation of royalties; case remanded for determination of which party is to bear cost for burying pipelines).
Bay Area Council Boy Scouts of America v. Myers, No. 03-04-00653-CV, 2009 Tex. App. LEXIS 1976 (Tex. Ct. App. Mar. 27, 2009)(trespass to try title action; summary judgment for defendant affirmed; plaintiff could not establish superior title or elements of adverse possession or prior possession).
Romero v. Bernell, 603 F.Supp.2d 1333 (D. N.M. 2009)(defendant cannot object to a partitioning of property on the ground that the future principal value of the property appears to be for wind farm development; right to harvest wind is an inchoate interest in the land which does not become vested until reduced to possession by employing it for a useful purpose, much like water).
White Earth Band of Chippewa Indians, et al. v. County of Mahnomen, 605 F.Supp.2d 1034 (D. Minn. 2009)(Indian tribe's casino property not subject to property tax because property was acquired under federal land settlement statute and, thus, held in trust by United States).
Windham Land Trust, et al. v. Jeffords, et al., 967 A.2d 690 (Me. Sup. Jud. Ct. 2009)(restrictive language in deed imposing a conservation easement on part of defendant's property precludes the defendant's from using the tract for activities by the paying public).
Hammack v. Coffelt Land Title, Inc., 284 S.W.3d 175 (Mo. Ct. App. 2009)(negligence case involving claim for breach of escrow account in land sale transaction).
Southeast Alaska Conservation Council, et al. v. Alaska, 202 P.3d 1162 (Alas. Sup. Ct. 2009))(defendant's conveyance of 250,000 acres of land to University of Alaska unconstitutional).
Babel v. Schmidt, 765 N.W.2d 227 (Neb. Ct. App. 2009)(boundary between adjacent properties determined to be current thread of stream; appellee failed to prove that an avulsive event occurred that fixed location of boundary even though stream moved).
TE Products Pipeline Co., LLC v. Davidson Ranch, Inc., No. 4:08CV000204 BSM, 2009 U.S. Dist. LEXIS 16348 (E.D. Ark. Mar. 2, 2009)(oil pipeline easement case).
Hoskins v. Williams, No. E2008-00481-COA-R3-CV, 2009 Tenn. App. LEXIS 79 (Tenn. Ct. App. Feb. 23, 2009)(plaintiffs not entitled to easement over driveway for ingress and egress; plaintiffs only entitled to express easement granted in deed for access from a different point).
Hammond v. Lovvorn, 16 So.3d 813 (Ala. Ct. App. 2009)(property owner entitled to erect gate across dirt road over which other party had easement; owner acted reasonably in erecting gate to prevent dumping and offered easement holder a key to the gate to allow them use of the easement; burden on easement holder negligible).
Marsh v. Tax Commission, 2009 UT App 44 (Utah Ct. App. 2009)(plaintiff's property, separated by state highway, valued for tax purposes as separate parcels rather than as a single farm; property on east side of road not entitled to agricultural use assessment because it did not meaningfully contribute to the west side's property farm production).
Shah v. Smith, 908 N.E.2d 983 (Ohio Ct. App. 2009)(case involves existence of purported driveway easement; deed which referred to existence of easement found to be part of sales contract and ran with the land)
Lawrence County v. Shaffer, et ux., et al., No. M2007-01696-COA-R3-CV, 2009 Tenn. App. LEXIS 66 (Tenn. Ct. App. Feb. 12, 2009)(private gate installed across unpaved rural road ordered to be removed; road determined to be county road inasmuch as road's entire length contained in easement specifying that no private party was allowed to obstruct).
Mark, et al. v. Long, et al., 907 N.E.2d 759 (Ohio Ct. 2009)(one-year notice not required to terminate oral lease because relationship between parties was a periodic tenancy).
Howe, et al. v. Boyle, 766 N.W.2d 243 (Wisc. Ct. App. 2009)(insufficient evidence present to establish acquisition of title via adverse possession).
Garner v. Griffin, No. 13-06-621-CV, 2009 Tex. App. LEXIS 550 (Tex. Ct. App. Jan. 29, 2009)(recording of oil and gas lease, statement in late father's will and payment of property taxes on subject property did not establish ownership by adverse possession).
Winfield, et al. v. Kasel, et al., No. A08-0812, 2009 Minn. App.
Unpub. LEXIS 103 (Minn. Ct. App. Jan. 27, 2009)(title to disputed tract acquired by adverse possession; statutory elements satisfied).
Campbell v. Degraw, No. 8-1054/08-0942, 2009 Iowa App. LEXIS 25 (Iowa Ct. App. Jan. 22, 2009)(plaintiff failed to prove that the parties owned adjacent properties, and that for a period in excess of 10 years, the parties mutually recognized, acknowledged and treated as the boundary, a line definitively marked by a fence or in some other manner).
Windham v. Riddle, 672 S.E.2d 578 (S.C. Sup. Ct. 2009) (installment land contract did not create appurtenant easement for access and irrigation purposes; installment land contract not tantamount to conveyance and additional steps needed to create appurtenant easement).
Shaffer v. O’Toole, 964 A.2d 420 (Pa. Super. Ct. 2009)(defendants acquired title to one-acre tract via adverse possession; evidence showed that defendants mowed the tract, constructed gold fish ponds and water pumps and developed walking trails).
Longoria, et al. v. Lasater, et al., No. 04-08-00078-CV, 2009 Tex. App. LEXIS 188 (Tex. Ct. App. Jan. 14, 2009)(denial of plaintiffs’ claim that 3/21 mineral interest was held in trust and should have been conveyed to them in 1950 by trustee instead of being passed down to defendants upheld on appeal; person through whom plaintiffs claimed title died before 1950 trust deed and defendants established clear chain of title to disputed 187.5 mineral acres).
Johnson, et al. v. La Mesa Farms, Inc., No. 07-07-0241-CV, 2009 Tex. App. LEXIS 57 (Tex. Ct. App. Jan. 7, 2009)(trial court decision ordering partition and sale of farmland upheld; evidence sufficient to support forced sale because land could not have been divided equally without impairing its value given the lack of uniformity in land quality, and sub-surface minerals not spread uniformly throughout the tract).
Capps v. Abbott, 987 N.E.2d 984 (Ind. Ct. App. 2008)(title to property acquired by adverse possession; plaintiffs exercised degree of use and control over subject parcel that was normal and customary, and demonstrated an intent to claim full ownership of tract superior to rights of all others, and plaintiff’s actions sufficient to give actual or constructive notice of intent for statutory period).
Watson v. Mense, No. WD 69255, 2008 Mo. App. LEXIS 1715 (Mo. Ct. App. Dec. 16, 2008)(adverse possession case).
Double J Farmlands, Inc. v. Paradise Baptist Church, et al., 999 So.2d 826 (Miss. Sup. Ct. 2008)(plaintiff’s adverse possession claim failed due to plaintiff’s inability to prove that possession was hostile).
Huber v. Knock, et al., 2008 Ohio 5900 (Ohio Ct. App. 2008)(trial court properly reformed deed that had conveyed real property; parties produced clear and convincing evidence that seller had intended to convey an access easement at time of sale and owner of burdened land believed that an access easement was to be conveyed).
Kiesling v. Andrews, 273 S.W.3d 67 (Mo. Ct.
App. 2008)(farm deeded to daughters properly petitioned; grandson living on farm did not acquire ownership interest via adverse possession because possession lacked hostility).
Dick Bedlington Real Estate, L.L.C. v. Tawes, No. 59387-1-I, 2008 Wash. App. LEXIS 2484 (Wash. Ct. App. Oct. 20, 2008)(two separate real estate purchase and sale agreements not enforceable for failure to violate the statute of frauds; inadequate legal description).
Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618 (6th Cir. 2008)(defendant has right to clear an 80- foot swath of mature pine trees on plaintiffs' property in order to maintain natural gas pipeline pursuant to 1947 easement even though easement not utilized since 1947).
Thompson v. Town of Brooklyn, 760 N.W.2d 184 (Wisc. Ct. App. 2008)(case involves road improvement project; plaintiff's claim for damage to fence and vegetation not permitted because deed by which plaintiff obtained title to the property did not convey land within the road right-of-way; but defendant denied summary judgment on plaintiff's claims that project changed certain field access roads and driveway).
Claggett v. Maryland Agricultural Land Preservation Foundation, et al., 957 A.2d 1083 (Md. Ct. App. 2008)(landowner who obtained release of owner's lot from terms of easement may construct dwelling on lot and sell the house and lot free of easement restrictions).
McFarland v. Kempthorne, 545 F.3d 1106 (9th Cir. 2008)(plaintiff not entitled to easement by necessity over federal land (in Glacier National Park) to access plaintiff's property because plaintiff still has year-round access to his property, even though such access limited to non-motorized means in winter months; defendant's regulation of access supported by rational basis).
Camp Clarke Ranch, L.L.C., et al. v. Morrill County, 758 N.W.2d 653 (Neb. Ct. App. 2008)(defendant's decision to vacate public road not judicial in nature and is not subject to judicial review).
Thorn v. Olson, 758 N.W.2d 224 (Wisc. Ct. App. 2008)(adverse possession case; statutory requirements satisfied).
Dinnell v. Weir, No. A-07-885, 2008 Neb. App. LEXIS 181 (Neb. Ct. App. Sept. 23, 2008)(adverse possession case; plaintiff met statutory requirements; fact that normal farming practices required land to lay fallow for periods of time did not negate satisfaction of continuity requirement and defendant’s argument to the contrary meritless).
Jernigan v. McLamb, et al., 665 S.E.2d 589 (N.C. Ct. App. 2008)(plaintiff entitled to easement by necessity; plaintiff lacked legally enforceable access to farm property).
Zanelli v. McGrath, 166 Cal. App. 4th 615 (Cal. Ct. App. 2008)(easement extinguished under doctrine of merger).
R.C.R., Inc. v. Deline, 190 P.3d 140 (Wyo. Sup. Ct. 2008)(easement case involving Wyoming law).
Precious Offerings Mineral Exchange, Inc. v. McLain, 194 P.3d 455 (Colo. Ct. App. 2008)(owner of unpatented mining claim, like a federal oil and gas lessee, does not have standing to bring action to condemn easement of necessity; plaintiff failed to establish easement by implication over access road).
Black Stone Acquisitions Partners I, L.P. v. Black, et al., No. 1:07CV9, 2008 U.S. Dist. LEXIS 60061 (N.D. Miss. Aug. 6, 2008)(case involves construction of language in deed reserving a one-half interest in all minerals; issue is whether lignite is “minerals”; plaintiff’s motion for summary judgment denied as fact issues remain concerning what parties intended “all minerals” to mean; in Mississippi, whether something is a mineral is fact question).
Schneider v. United States, No. 8:99CV0315, 2008 U.S. Dist. LEXIS 57422 (D. Neb. Jul. 29, 2008)(plaintiffs motion for redetermination of damages in rail-to-trail case denied; proper measure of damages is not difference in affected property’s value before and after the taking, but rather incremental difference between value of land burdened by recreational trail and value of land burdened by railroad easement as stated in court’s 2003 order).
East Hampton Livestock Corp. v. Fleming, et al., 53 A.D.3d 641 (N.Y. Sup. Ct. 2008)(plaintiff’s adverse possession claim fails because plaintiff’s usage of subject area was not hostile; plaintiff role with respect to the subject acreage was essentially one of trustee that maintained the parcel for the benefit of the residential lot owners).
Golden Gate Water Ski Club v. Contra Costa County, et al., 165 Cal. App. 4th 249 (Cal. Ct. App. 2008)(defendant’s order requiring destruction and removal of all dwelling units, outhouses and docks erected by plaintiff on Golden Isle affirmed; plaintiff in violation of land use ordinance limiting urban development in County to 35 percent of its land, reserving the remaining 65 percent for agriculture, open space, wetlands, parks and other non-urban uses).
Owen, et al. v. Allen, et al., No. A119427, 2008 Cal. App. Unpub. LEXIS 5945 (Cal. Ct. App. Jul. 23, 2008)(preliminary injunction against defendant for violating restrictive covenant reversed; covenant did not meet requirements of a covenant running with the land or of an equitable servitude because there was nothing in recorded instrument reflecting original grantor’s intent that restrictive covenant bind subsequent purchasers).
Weeks, et al. v. Krysa, et al., 955 A.2d 234 (Sup. Jud. Ct. Me. 2008)(evidence insufficient to establish title to undeveloped, waterfront lot by adverse possession).
Burlison, et al. v. United States, 533 F.Supp.3d 419 (6th Cir. 2008)(Tennessee landowners hold easement over field-access road across wildlife refuge, and defendant lacks authority to regulate easement).
In re Rafter Seven Ranches, LP, No. 05-40483, 2008 Bankr. LEXIS 1989 (Bankr. D. Kan. Jul. 15, 2008)(court issued order requiring debtor to comply with provision in parties’ joint settlement agreement which prohibited debtor from taking any action to create any lien or encumbrance on farmland; immediately before scheduled auction of farmland, debtor’s partner filed Notice of Suit with Register of Deeds as to subject land and court ruled that such filing would place cloud on title in violation of settlement agreement).
In re Rafter Seven Ranches, LP, No. 05-40483, 2008 Bankr. LEXIS 1993 (Bankr. D. Kan. Jul. 15, 2008)(settlement agreement entitled debtor to all farm income generated from property at issue; court interpreted agreement as granting debtor an interest in net income from crops growing at time agreement entered into; as such, high bidder at auction entitled to income from crops growing on property that were planted after agreement entered into).
In re Appeal of Parker, 664 S.E.2d 1 (N.C. Ct. App. 2008)(property owner challenges County method of land valuation as not conforming to state law; court holds that Property Tax Commission did not err when it confirmed the County’s valuation method).
Silicon Valley Taxpayers Association, et al. v. Santa Clara County Open Space Authority, 187 P.3d 37 (Cal. Sup. Ct. 2008)(special countywide assessment to fund open space program violates Proposition 218 because assessment did not comply with statutory special benefit and proportionality requirements).
In re Opening a Private Road, 954 A.2d 57 (Pa. Commw. Ct. 2008)(Private Road Act constitutional, and landowner with landlocked tract entitled to private road across Homeowner Association property; even though landowner would benefit privately from opening of road, public benefited by allowing the public road because it was not in the public interest to have land that could not be used).
Grubka, et al. v. Van Deusen, No. 276322, 2008 Mich. App. LEXIS 1394 (Mich. Ct. App. Jul. 10, 2008)(no boundary by acquiescence where fence between adjoining tracts located in woods, woven from tree-to-tree and origin and purpose of fence not determined; no acquiescence in law or fact).
Reyes v. Saenz, No. 04-08-00021-CV, 2008 Tex. App. LEXIS 5065 (Tex. Ct. App. Jul. 9, 2008)(defendant failed to offer evidence to establish that access route to landlocked parcel was the "only practicable way" to reach plaintiff's property; trial court's award of summary judgment for defendant reversed).
Acton v. Acton, 283 S.W.3d 744 (Ky. Ct. App. 2008)(sufficient evidence produced for court to determine that farm could be partitioned; trial court’s determination that farm indivisible and must be sold reversed).
Rinn v. Wennenweser, No. 01-07-00763-CV, 2008 Tex. App. LEXIS 4978 (Tex. Ct. App. Jul. 3, 2008)(easement case involving 1901 easement over large tract of land upheld as valid).
Ferguson v. Sharp, et al., No. E2007-001178-COA-R3-CV, 2008 Tenn. App. LEXIS
375 (Tenn. Ct. App. Jun. 30, 2008)(defendants installation of gate on right-of-
way located on defendant's property but used by plaintiff to access plaintiff's land permanently enjoined; gate not necessary for defendant's safe use and enjoyment of defendant's property and plaintiff had prescriptive easement).
Frye, et al. v. Presley, et al., No. E2007-00510-COA-R3-CV, 2008 Tenn. App. LEXIS 372 (Tenn. Ct. App. Jun. 27, 2008)(evidence indicated that defendant had prescriptive easement over driveway at issue in case).
Zweygardt v. Elbert County, 190 P.3d 848 (Colo. Ct. App. 2008)(defendant’s statutory authority to require private access ranch road comply with fire code and access requirements inapplicable to farms and ranches; summary judgment for defendant reversed and case remanded for determination by trial court of whether property traversed by the road qualifies as a farm or ranch as defined by state law).
Isom v. Clark, No. 26281-2-III, 2008 Wash. App. LEXIS 1447 (Wash. Ct. App. Jun. 19, 2008)(evidence sufficient to support elements of adverse possession; title to disputed strip quieted in plaintiffs).
Brumbaugh v. Mikelson Land Company, 185 P.3d 695 (Wyo. Sup. Ct. 2008)(subdivision lot owners sued for declaratory and injunctive relief against successors in interest to subdivision developer for enforcement of rights they claimed they were entitled pursuant to subdivision’s restrictive covenants and plat; court held that covenants did not grant lot owners right to connect to water system developed by successor-in-interest or to central livestock facilities located in common area – covenants neither expressly or impliedly create those rights).
Porter v. Morrill, et al., 949 A.2d 526 (Conn.
Ct. App. 2008)(quiet title action; description of disputed parcel in 1816 deed was sufficient to convey title, and plaintiff had acquired title by adverse possession even if it was not the record owner of the parcel).
Biagini v. Beckham, et al., 163 Cal. App. 4th 1000 (Cal. Ct. App. 2008)(public use of road as shown by plaintiff insufficient to constitute implied acceptance of defendant’s statutory offer to dedicate it for public use; accordingly, plaintiff’s cutting down of trees and other vegetation on defendant’s adjacent property improper and plaintiff liable for $4,296 in damages).
Costa v. Furtado, No. NC-2006-0443, 2008 R.I. Super. LEXIS 69 (R.I. Sup. Ct. Jun. 5, 2008)(trespass case; no easement established or proven).
State v. United States, 528 F.3d 712 (10th Cir. 2008)(quiet title action brought by state of Utah against private landowner; state claims title to lakebed of Utah lake, a navigable body of freshwater, under equal footing doctrine upon admission to Union on Jan. 4, 1896; landowner traces title to 63-acre slough to patent issued by defendant in 1881; state officials failed to approve decision to agree to quiet title in private landowner).
Lunt v. Lance, 186 P.3d 978 (Utah Ct. App. 2008)(plaintiff established elements for prescriptive easement, but scope of easement limited by plaintiff’s abandonment of portion of easement).
Torgelson v. 17138 880th Avenue, 749 N.W.2d 24 (Minn. Sup. Ct. 2008)(MN Constitution precludes forfeiture of homestead obtained under drug asset forfeiture statute).
Sunrise Valley, LLC v. Kempthorne, 528 F.3d 1251 (10th Cir. 2008)(sand, gravel and rock located on and under plaintiff’s property are “minerals” that are reserved to the U.S. under the Stock-Raising Homestead Act of 1916; subject property homesteaded under patent that excepted and reserved to the U.S. all the coal and other minerals in the property combined with the right to prospect for, mine and remove such minerals).
Holoubek v. Romshek, et al., 749 N.W.2d 901 (Neb. Ct. App. 2008)(real estate contract rescinded; after purchase, discovery was made that adjacent owner claimed 6.3-acre rectangular tract that plaintiffs had allegedly purchased from contract seller; error caused by scrivenor’s error in deed filed in 1922; trial court, on remand, to consider plaintiffs’ damage claim).
Haight, et al. v. Serena Construction Company, LLC, et al., No. 60311-6-I, 2008 Wash. App. LEXIS 1178 (Wash. Ct. App. May 19, 2008)(title to disputed strip of property obtained by adverse possession; adverse possession elements satisfied).
Kelly v. Enbridge (U.S.) Inc., No. 07-3245, 2008 U.S. Dist. LEXIS 39854 (C.D. Ill. May 16, 2008)(defendant had no property interest in plaintiff's property with respect to pipeline, but court allowed correct party to be added as defendant; easement valid and allows easement holder to enter property to construct and maintain second pipeline).
Grice v. Vermont Electric Power Company, Inc., 956 A.2d 561 (Vt. Sup. Ct. 2008)(defendant allowed, under state law, to condemn an easement over plaintiff’s farm for installation of electrical-transmission line, removal of “danger trees” outside the easement and access to easement at all points in event of emergency).
Daisy Farm Limited Partnership v. Morrolf, 886 N.E.2d 604 (Ind. Ct. App. 2008)(riparian rights of shoreline boundaries where property lines meet shoreline at right angles to be determined by straight extension method rather than right angle method; but trial court’s determination that plaintiff had not acquired titled to a portion of defendant’s lot via adverse possession reversed – trial court failed to determine whether defendant (or predecessors in interest) exerted sufficient control, intent, notice and duration over subject property, and trial court failed to consider whether plaintiff had reasonable belief that it had paid taxes on disputed strip).
Hoose v. Doody, 886 N.W.2d 83 (Ind. Ct. App. 2008)(plaintiff failed to obtain title to disputed tract via adverse possession due to failure to pay taxes reasonably believed in good faith to be due on the disputed tract; prescriptive easement claim fails for failure to raise issue at trial).
American General Financial Services, Inc. v. Carter, 184 P.3d 273 (Kan. Ct. App. 2008)(real estate foreclosure case involving relative priorities of a lien for unpaid sales tax and later purchase money mortgage given by defaulting taxpayers to acquire the property which is later sold at foreclosure; court held that mortgage given to secure the loan used by taxpayer to buy the property has priority).
Township of Piscataway v. South Washington Avenue, LLC, et al., 947 A.2d 663 (N.J. Super. Ct. 2008) (plaintiff sued to condemn defendant’s farm and five years later filed a declaration of taking and deposited an estimate of the farm’s fair market value as of the date suit was filed; farm’s value increased substantially during the five-year period; condemnation allowed, but compensation level set at farm’s value as of date declaration of taking filed).
Engel v. Carlson, No. A-07-016, 2008 Neb. App. LEXIS 94 (Neb. Ct. App. May 13, 2008)(claim for prescriptive easement over road used to access farm dismissed because use of road began with permission of a tenant of the defendant’s predecessor in interest and continued only by permission; thus statute never tolled and permissive use could be terminated at any time).
Meerland Dairy, LLC, et al. v. Ross Township, et al., 2008 Ohio 2243 (Ohio Ct. App. 2008)(township’s amendment to existing zoning code to prohibit “agribusinesses” by declaring that such enterprises are not “agriculture” and classifying them as a conditional use for which a permit must be obtained from the relevant zoning authority not within scope of authority of township trustees under state law; at issue is 2,100-head dairy operation operating on 100 acres).
Pardee v. Jolly, 182 P.3d 967 (Wash. Sup. Ct. 2008)(suit for specific performance of option to purchase real estate; substantial evidence supported trial court finding that plaintiff timely made final option payment, but evidence did not support trial court’s finding that payment made at same time plaintiff notified defendant of intent to exercise option; thus, plaintiff did not perform according to terms of option contract, but plaintiff may be entitled to equitable grace period; case remanded to trial court for determination whether grace period should be extended and whether specific performance should be ordered).
Ralph Naylor Farms, LLC v. Latah County, et al., No. CV07-139-S-EJL, 2008 U.S. Dist. LEXIS 37152 (D. Idaho May 6, 2008)(case involves state inverse condemnation action, federal takings violation and violations of substantive due process and equal protection; plaintiff owns farmland for which he sought to obtain water rights for crop irrigation and facilitation of mineral extraction, but water right and mining applications denied; court dismissed all of plaintiff’s claims).
Brackey v. Washington County, No. C4-06-7837, 2008 Minn. Tax LEXIS 8 (Minn. Tax Ct. May 6, 2008)(parcel of land not qualified for ag land classification because property intended for development and not used primarily for agriculture (sale of Christmas trees)).
Strome v. Lane County, 183 P.3d 237 (Ore. Ct. App. 2008)(defendant has statutory authority to proceed with legalization of road – process of conducting a survey and issuing order to eliminate doubts as to road’s location and its lawful establishment as a county road; plaintiff’s request for injunction denied).
Roberts v. Russolino, et al., No. K.M. 06-415, 2008 R.I. Super LEXIS 57 (R.I. Sup. Ct. Apr. 29, 2008)(Zoning Board’s approval of local Planning Board’s decision to grant master plan approval for cluster development of residential subdivision upheld; involves development of farmland which has been in the same family for over 300 years).
Spaulding v. Pouliot, 181 P.3d 243 (Ariz. Ct. App. 2008)(party asserting ownership of property by adverse possession via prescriptive easement does not bear the burden of proving that use not with implied permission of true owner; trial court wrongly interpreted prior caselaw and case remanded to trial court for entry of appropriate judgment).
Keen v. Campbell, 249 S.W.3d 927 (Mo. Ct. App. 2008)(trial court’s decision ordering partition and sale of farm property rather than partition in-kind upheld where partition in-kind would greatly prejudice one owner; evidence demonstrated that property odd-shaped, portion of property much more productive, and farming operations would be much more difficult with partition in-kind).
Clark County v. Federal Aviation Administration, 522 F.Supp. 437 (D.C. Cir. 2008)(Federal Aviation Administration (FAA) ordered to reconsider its decision to allow construction of wind farm near site of new Las Vegas Airport; evidence indicated that turbines would interfere with airport radar systems and that FAA determination arbitrary and capricious).
Schuck v. Rural Telephone Service Co., Inc., 180 P.3d 571 (Kan. Sup. Ct. 2008)(defendant’s taking of easement via eminent domain for laying of telecommunication cable on farmland proper; defendant vested with discretion for determining necessity for taking of land for public purposes, and plaintiff failed to establish prerequisites for injunctive relief and lawful public purpose existed for taking).
Wenzel Estate v. Wenzel, 747 N.W.2d 103 (N.D. Sup. Ct. 2008)(state partition statute vesting courts with equitable powers in partition actions does not include the power to order one party to buy out the other party’s share of jointly owned property; case remanded to determine whether personal property involved can be partitioned without great prejudice to the parties involved).
Richardson v. Zoning Commission, 944 A.2d 360 (Conn. Ct. App. 2008)(operation of equine facility on 6.4 acre tract began in 1973; zoning regulations revised in 1984 and use became nonconforming; property owner sought permission to construct 12,000 square foot indoor riding arena; such proposal held to constitute a change to defendant’s permitted use of the property requiring special permit to be filed and public hearing held).
Ambrosia Land Investments, LLC v. Illinois Mine Subsidence Insurance Fund, et al., 521 F.3d 778 (7th Cir. 2008)(Illinois 10-year construction statute of repose applies to construction-related improvements to real property; coal mine is an improvement to real property, but defendant coal company sued in its capacity as owner of the mineral estate for negligent failure to provide adequate subjacent support; as such, coal company not protected by statute of repose and trial court’s grant of summary judgment reversed and case remanded).
Phillips, et al. v. Woods, et al., No. E2007-00697-COA-R3-CV, 2008 Tenn. App. LEXIS 193 (Tenn. Ct. App. Mar. 31, 2008)(boundary dispute case; defendant found to have retained an easement by necessity and title reformed due to defendants’ adversely possessing the disputed property for over 30 years).
Berry, et al. v. Mullins, 2008 Ohio 1475 (Ohio Ct. App. 2008)(boundary dispute case; evidence established that boundary properly determined by survey references to descriptive elements (e.g., area, quantity and frontage) rather than by reference to natural and artificial monuments).
Power Gas Marketing & Transmission, Inc. v. Cabot Oil & Gas Corporation, et al., 948 A.2d 807 (Penn. Sup. Ct. 2008)(case involves a joint operating agreement (entered into in
1969) between the parties involving contribution of for oil and natural gas leases to a newly-formed joint venture; joint operating agreement also included preferential purchase rights; claim was that the preferential purchase rights clause violated the rule against perpetuities; court holds that legislature’s repeal of the rule against perpetuities effective for interests created after 2006 should apply in this case because policies prompting the creation of the rule are “no longer laudable” and applying the rule in this case would hurt the oil and gas industry).
Jacks, et al. v. Taylor, 27 So.3d 504 (Ala. Ct. Civ. App. 2008)(boundary-line dispute involving claim of adverse possession; claim failed).
Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252 (Colo. Sup. Ct. 2008)(state’s confined aquifer rules upheld; rules based on finding that San Luis Valley’s confined aquifer is overappropriated and any new groundwater withdrawals must be matched in equal measure to amount withdrawn; trial court’s holding that rules do not violate either CO statutes or CO Constitution upheld; confined aquifer does not contain any unappropriated water, thus restrictions on withdrawals from the aquifer do not violate the constitutional right to appropriate).
Jones v. Stahr, et al., 746 N.W.2d 394 (Neb. Ct. App. 2008)(right of first refusal to buy real estate, after seller has determined both to sell the entire remaining property and to accept terms and conditions specified by potential buyer, ripens into an option; because options are assignable, provision in option holder’s acceptance reserving right to assign does not constitute material deviation).
Matoush v. Lovingood, 177 P.3d 1262 (Colo. Sup. Ct. 2008)(easement case; when easement expressly created, but never used, use of easement area not adverse and did not trigger statutorily-mandated period of time for adverse possession until easement holder need to use the easement, demanded to use it, and was denied the right to use it; result was that burdened property owners had not terminated the easement holder’s right to use the easement as a surface right-of-way).
Stokes v. Cottrell, et al., 58 So.3d 123 (Ala. Ct. Civ. App. 2008)(quiet title action involving farm property).
Mier v. Zimmerman, et al., No. 273312, 2008 Mich App. LEXIS 503 (Mich. Ct. App. Mar. 13, 2008)(farm lease case involving issue of abandonment).