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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

Pat Harts et al., appellees, v. County of Knox, 

Nebraska, appellant, and Epic Land and 

Cattle, LLC, intervenor-appellant.

___ N.W.2d ___

Filed December 18, 2020. No. S-20-014.

1. Political Subdivisions: Judgments: Appeal and Error. In appeals 

involving a conditional use permit or special exception under Neb. Rev. 

Stat. § 23-114.01(5) (Reissue 2012), the findings of the district court 

have the effect of a jury verdict and the court’s judgment will not be 

set aside unless the court’s factual findings are clearly erroneous or the 

court erred in its application of the law.

2. Decedents’ Estates: Property. The right to possession of an intestate’s 

property and the right to take through intestate succession accrue immediately on the death of the ancestor, subject only to the control of the 

court for purposes of administering the estate.

3. Easements. Any person with a possessory interest in land may create an 

easement burdening that person’s interest; however, that easement cannot last beyond the interest held in the burdened property by the grantor 

of the easement.

4. ____. Co-owners must act together to burden their land with an easement and other servitudes.

5. Estoppel: Deeds. Estoppel by deed is a defensive bar which precludes 

one party to a deed and his or her privies from asserting as against 

another party and his or her privies any right or title in derogation of the 

deed or from denying the truth of any material facts asserted in it.

6. Ratification: Agents: Words and Phrases. Ratification is the affirm

ance of a prior act done by another, whereby the act is given effect as if 

done by an agent acting with actual authority.

Appeal from the District Court for Knox County: Mark A. 

Johnson, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/05/2021 08:11 AM CST
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

John Thomas, Knox County Attorney, for appellant.

Jason S. Doele and Tracey L. Buettner, of Stratton, 

DeLay, Doele, Carlson, Buettner & Stover, P.C., L.L.O., for 

intervenor-appellant.

Mark D. Fitzgerald, of Fitzgerald, Vetter, Temple, Bartell & 

Henderson, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

In 2003, H & H Cattle Co. (H & H Cattle), the predecessor 

in interest of Epic Land and Cattle, LLC (Epic), obtained an 

impact easement from Bernadette Tramp, the mother of the 

plaintiffs in this action. Such an impact easement was required 

by the zoning regulations of the County of Knox, Nebraska 

(County), where a feedlot was to be constructed within a particular distance of a dwelling unit or other designated location. 

Thereafter, the County’s board of supervisors approved a conditional use permit for an expansion of H & H Cattle’s feedlot 

to 6,000, and later 7,500, head of cattle.

Approximately 14 years later, H & H Cattle sought expansion of its feedlot to 20,000 head of cattle. Relying in part on 

the 2003 impact easement, the board of supervisors granted the 

conditional use permit to allow expansion. Pat Harts, Donna 

Poppe, Mardell Hochstein, Kelly Tramp, Sandee Zoucha, Allen 

Tramp, Carol Norris, and Dale Tramp (collectively the children) challenged the approval in district court. Following a 

trial de novo, the district court reversed and vacated the decision approving the permit. The County and Epic (collectively 

appellants) appeal. We affirm.

BACKGROUND

At issue in this appeal is an easement purportedly granted 

over a quarter section of land located in the County. Prior 
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308 Nebraska Reports

HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

to 1951, the land was owned by Emma Tramp. Emma deeded 

this quarter section to her son, Sylvester Tramp, on November 

9, 1951. Sylvester married Bernadette on June 2, 1942.

Sylvester died intestate on June 3, 1997. No probate proceedings were commenced at that time. Sylvester was survived 

by Bernadette and their eight children. The children are the 

plaintiffs in this litigation.

On June 25, 2003, Bernadette signed a document labeled 

“Waiver & Easement” concerning the quarter section of land at 

issue. This quarter section contained Bernadette’s residence, of 

which she was the only occupant. The document was recorded 

with the County’s register of deeds. Following the signature 

and recording of the easement, H & H Cattle’s application for 

a confined feeding operation with 6,000 head of cattle was 

approved by the County.

On July 6, 2011, Bernadette filed an application for the informal appointment of a personal representative for Sylvester’s 

estate and was appointed as personal representative. The sole 

asset of the estate was the quarter section of land at issue 

on appeal.

On July 12, 2011, Bernadette, as personal representative, 

signed a lease for two “wind towers” to be located on the 

quarter section. This lease was also recorded with the register 

of deeds. It appears from the record that these leases were the 

impetus behind probating Sylvester’s estate.

The family reached an agreement regarding the distribution of Sylvester’s estate. On July 13, 2011, an attorney for 

the estate sent Bernadette and her daughter Mardell a draft 

agreement providing that the quarter section be distributed to 

Bernadette for life, with the remainder interest divided among 

the eight children. Bernadette and the children eventually 

signed this agreement, and a copy was apparently sent to all 

parties. Approval of the agreement was sought and granted by 

the probate court on April 12, 2012.

On July 12, 2012, that agreement was recorded with the 

register of deeds. The deed of distribution specifically stated 

that the quarter section was deeded to Bernadette for life, 
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HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

with the remainder to the children, “subject to easements and 

restrictions of record.”

On December 12, 2017, the board of supervisors approved 

H & H Cattle’s application for a conditional use permit to 

increase the number of cattle at its feedlot. The expansion to 

6,000 head of cattle necessitated the impact easement, and the 

number of cattle at the feedlot increased to 7,500 head. The 

2017 approval sought an increase to 20,000 head of cattle.

Bernadette and the children filed a challenge to this approval 

in district court. Bernadette subsequently died on August 9, 

2018; her estate has not been probated. The district court 

reversed and vacated the board of supervisors’ grant of the conditional use permit. The County and Epic both appeal.

ASSIGNMENTS OF ERROR

Although filing separate briefs, the County and Epic generally assign, restated, that the district court erred in (1) concluding that Bernadette lacked the authority to grant the easement; 

(2) determining that the children did not receive the property 

subject to easements and restrictions of record; (3) not applying the doctrine of estoppel by deed; (4) finding that the children lacked notice of the easement at issue and, accordingly, 

that the children did not ratify the easement; and (5) failing to 

take into account “the inequities of overturning the . . . County 

Board of Supervisor[s’] grant of the permit” and in not giving 

consideration to the board of supervisors’ exercise of its discretion and the regularity of its official acts.

STANDARD OF REVIEW

[1] In appeals involving a conditional use permit or special 

exception under Neb. Rev. Stat. § 23-114.01(5) (Reissue 2012), 

the findings of the district court have the effect of a jury verdict and the court’s judgment will not be set aside unless the 

court’s factual findings are clearly erroneous or the court erred 

in its application of the law. 1

1 See In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
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HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

ANALYSIS

Validity of Easement.

The primary issue on appeal is whether the easement signed 

by Bernadette in favor of H & H Cattle was effective in binding Bernadette and the children.

[2] The quarter section in question was owned by Sylvester 

until his death in 1997. Sylvester died intestate. When a person 

dies, the title to his or her property immediately devolves in 

the heirs, subject to administration. 2 “‘Where an ancestor dies 

intestate his lands descend instantly to his heirs. It does not 

require settlement of his estate or a probate order declaring 

heirship to vest his title.’” 3 In other words, “the right to possession of an intestate’s property and the right to take through 

intestate succession accrue immediately on the death of the 

ancestor, subject only to the control of the court for purposes 

of administering the estate.” 4

In Nebraska, the fact that an estate is not probated, as was 

the case here, does not prevent an heir from taking under a 

will or under intestacy. Neb. Rev. Stat. § 30-2499 (Reissue 

2016) provides: “In the absence of administration, the heirs 

and devisees are entitled to the estate in accordance with . . . 

the laws of intestate succession. . . . Persons entitled to property by . . . intestacy may establish title thereto by proof of 

the decedent’s ownership, his death, and their relationship to 

the decedent.”

At the time of Sylvester’s death in 1997, the laws of 

intestate succession, specifically Neb. Rev. Stat. § 30-2302(3) 

(Reissue 2008), provided that Bernadette, as Sylvester’s surviving spouse, was entitled to the first $50,000, plus onehalf of the remaining estate, while under Neb. Rev. Stat. 

2 Neb. Rev. Stat. § 30-2401 (Reissue 2016). See, Wilson v. Fieldgrove, 280 

Neb. 548, 787 N.W.2d 707 (2010); Brtek v. Cihal, 245 Neb. 756, 515 

N.W.2d 628 (1994).

3 Brtek v. Cihal, supra note 2, 245 Neb. at 771, 515 N.W.2d at 638.

4 23 Am. Jur. 2d Descent and Distribution § 13 at 706 (2013).
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HARTS v. COUNTY OF KNOX

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§ 30-2303 (Reissue 2016), Sylvester’s eight children were to 

divide the remainder.

[3,4] It was during this time that Bernadette signed the 

easement at issue. Any person with a possessory interest in 

land may create an easement burdening that person’s interest; 

however, that easement cannot last beyond the interest held in 

the burdened property by the grantor of the easement. 5 And 

co-owners must act together to burden their land with an easement and other servitudes. 6 Since a grantor cannot establish an 

easement in an estate that the grantor does not own, the holder 

of an undivided interest, such as a tenant in common or a joint 

tenant, cannot create an easement that binds the shares of the 

other co-owners. 7

Bernadette was not the sole owner of the quarter section, 

but instead co-owned the property with her children. For that 

reason, Bernadette was unable to execute an easement that 

bound the shares of her children. The district court did not err 

in so finding.

Defenses—Overview.

The appellants argue that even if Bernadette’s easement 

did not bind the children, several affirmative defenses apply 

and the easement should nevertheless be enforceable. From 

a review of the record, various affirmative defenses were 

presented to either the lower court or this court. The children 

argue that none of these defenses were raised in any responsive 

pleading and thus have been waived.

We agree with the appellants that their defenses of estoppel by deed and ratification were raised and tried without 

objection to the district court 8 and, as such, have not been 

waived. We also address the more general contention that the 

5 Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in 

Land, § 3:4 (2020).

6 Id.

7 Id.

8 Neb. Ct. R. Pldg. § 6-1115.
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HARTS v. COUNTY OF KNOX

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appellants relied upon Bernadette’s easement. However, the 

defenses of caveat emptor and adverse possession were not 

raised below and we do not address them here.

Estoppel by Deed.

[5] We turn first to the contention that the children are 

estopped from contending that the easement was invalid. 

Estoppel by deed is a defensive bar which “precludes one 

party to a deed and his or her privies from asserting as against 

another party and his or her privies any right or title in derogation of the deed or from denying the truth of any material facts 

asserted in it.” 9

Generally the doctrine operates by estopping a grantor “who 

conveys by warranty deed an interest that he or she does not 

then own, but later acquires,” from “denying the validity of 

the first deed.” 10 This doctrine reasons that an “uninformed 

grantee should not be penalized if the grantor did not own 

the property at the time of the conveyance yet subsequently 

acquired it.” 11 “Implicit in [this doctrine] is a recognition of 

the possibility that the grantor may never acquire sole title to 

the property and that the grantee, therefore, may never benefit 

from an estoppel.” 12

At the trial level, and in their briefs on appeal, the appellants 

argued that the deed of distribution was the operative deed for 

purposes of the doctrine of estoppel by deed. The appellants 

argued that by both its language and its status as a personal 

representative’s deed, that deed gave the children their remainder interest in the land “subject to easements and restrictions of record,” which included the easement Bernadette 

9 28 Am. Jur. 2d Estoppel and Waiver § 5 at 469 (2011). Cf., Stratton 

v. McDermott, 89 Neb. 622, 131 N.W. 949 (1911); Omaha Bridge & 

Terminal R. Co. v. Whitney, 68 Neb. 389, 99 N.W. 525 (1903); Holt 

County v. Scott, 53 Neb. 176, 73 N.W. 681 (1897).

10 28 Am. Jur. 2d, supra note 9 at 469-70.

11 23 Am. Jur. 2d Deeds § 278 at 277 (2013).

12 Ianotti v. Ciccio, 219 Conn. 36, 47, 591 A.2d 797, 802 (1991).
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HARTS v. COUNTY OF KNOX

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signed in favor of H & H Cattle. It was only in its reply brief 

that Epic raised as the operative deed the easement between 

Bernadette and its predecessor, H & H Cattle.

As an initial matter, we conclude that the appellants are not 

entitled to utilize the defense of estoppel by deed as to the deed 

of distribution. Generally, “[s]trangers to the deed are neither 

bound by, nor entitled to invoke, . . . estoppel [by deed].” 13

While Bernadette, individually and as personal representative, 

and the children and their privies, as parties to that deed, are 

eligible to utilize this defense, the appellants, as strangers, 

are not.

As for the easement, Bernadette and H & H Cattle were 

parties to the easement and their privies now hold those interests. Accordingly, Epic, as H & H Cattle’s successor, is not a 

stranger for purposes of estoppel by deed. But the defense is 

still without application, because Bernadette never held sole 

title to the quarter section of property.

Upon Sylvester’s death, Bernadette owned just over onehalf of the quarter section at issue. Later, following the family agreement, Bernadette owned a life estate in that quarter 

section. As we concluded above, at no point did Bernadette 

own an interest sufficient to grant an easement that would 

bind her children. As a general proposition, “title cannot be 

created or acquired by estoppel.” 14 Where Bernadette did not 

own such an interest, she could not grant such an interest to 

H & H Cattle.

For these reasons, the appellants’ arguments regarding estoppel by deed are without merit.

Ratification.

We turn next to the assertion that the children failed to 

take issue with Bernadette’s grant of the easement, which was 

recorded with the register of deeds, and later accepted the 

13 31 C.J.S. Estoppel and Waiver § 62 at 405 (2019).

14 Id., § 9 at 352.
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HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

personal representative’s deed. As such, they effectively consented to, or ratified, the easement.

Ianotti v. Ciccio 15 is instructive. There, the court noted that 

the cotenant

never ratified the quitclaim deed by which her husband 

purported to grant an easement to the defendant. She neither signed the deed, nor executed and delivered her own 

deed. Significantly, although the trial court made no such 

express factual finding, [the cotenant] testified that she 

had been unaware of the existence of the quitclaim deed 

until it had been brought to her attention by a prospective purchaser of the plaintiffs’ property. The trial court’s 

express finding that the defendant had acquired none 

of [the cotenant’s] interest in the plaintiffs’ property is 

inconsistent with any claim of ratification. 16

[6] We find instructive, though we do not expressly adopt, the 

Restatement (Third) of Agency. According to the Restatement, 

ratification is the “affirmance of a prior act done by another, 

whereby the act is given effect as if done by an agent acting 

with actual authority.” 17 “A person ratifies an act by (a) manifesting assent that the act shall affect the person’s legal relations, or (b) conduct that justifies a reasonable assumption that 

the person so consents.” 18

“A person is not bound by a ratification made without 

knowledge of material facts involved in the original act when 

the person was unaware of such lack of knowledge.” 19 Notice 

in this context means actual notice, and not notice as otherwise 

set forth in the Restatement. 20

15 Ianotti v. Ciccio, supra note 12.

16 Id. at 44, 591 A.2d at 801.

17 1 Restatement (Third) of Agency, § 4.01(1) at 304 (2006).

18 Id., § 4.01(2).

19 Id., § 4.06 at 336.

20 Id., § 1.04(4) at 70 (“[a] person has notice of a fact if the person knows the 

fact, has reason to know the fact, has received an effective notification of 

the fact, or should know the fact to fulfill a duty owed to another person”).
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HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

The parties have stipulated that the easement was filed with 

the register of deeds, but the record does not show that the 

children were actually aware of its existence. Though some 

of the children recall seeing or hearing about the owner of 

H & H Cattle visiting Bernadette around the time the easement 

was signed, the record does not show that the children were 

informed of the nature of the visit. Neither does the record 

show that the children were informed that Bernadette later 

signed the easement H & H Cattle sought. While the record 

indicates that one of Bernadette’s daughters might have been 

aware of the signing of the easement, as we have held above 

with respect to Bernadette, that knowledge is not binding on 

her siblings.

We review the district court’s findings for clear error and 

find none. Given the record as outlined above, the district 

court’s finding that the children were unaware that the easement had been signed was not clearly erroneous. Hence, they 

could not have ratified the signature and, in turn, the easement. The appellants’ argument regarding ratification is without merit.

Reliance by and Deference to 

Board of Supervisors.

Finally, Epic argues that the board of supervisors reasonably 

relied on the easement in granting the earlier feedlot permits, 

and at this late date, the children should not be found to object. 

Relatedly, the County argues that this court defers to and gives 

discretion to the official acts of county officials.

That Bernadette was not record owner of the quarter section was information available to the appellants by a record 

search. Indeed, it is apparent from the record that the company 

that sought to lease the property for placement of “wind towers” was able to determine that Bernadette was not record 

owner. Instead, the County and the board of supervisors acted 

in accordance with representations made by Epic’s predecessor without independently determining whether they were 
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HARTS v. COUNTY OF KNOX

Cite as 308 Neb. 1

valid. On these facts, any reliance on the easement was 

not reasonable.

To the extent that generally this court gives deference to 

the acts of a public official, this deference and discretion is 

not unlimited. In this instance, Bernadette had no authority 

under the law to bind the children to the easement. The County 

cannot correct this failure through an official act of its board 

of supervisors.

There is no merit to these assertions or to the appellants’ appeal.

CONCLUSION

The order of the district court is affirmed.

Affirmed.