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291 Nebraska Reports

NAMN, LLC v. MORELLO

Cite as 291 Neb. 462

NAMN, LLC, appellee, v. Bernard

J. Morello, appellant.

___ N.W.2d ___

Filed July 24, 2015. No. S-14-861.

1. Declaratory Judgments: Equity: Appeal and Error. In reviewing an 

equity action for a declaratory judgment, an appellate court tries factual 

issues de novo on the record and reaches a conclusion independent of 

the findings of the trial court, subject to the rule that where credible 

evidence is in conflict on material issues of fact, the reviewing court 

may consider and give weight to the fact that the trial court observed the 

witnesses and accepted one version of the facts over another.

2. Easements: Real Estate: Conveyances: Time. An easement by implication from prior use arises only when (1) the use giving rise to the 

easement was in existence at the time of the conveyance subdividing the 

property, (2) the use has been so long continued and so obvious as to 

show it was meant to be permanent, and (3) the easement is necessary 

for the proper and reasonable enjoyment of the dominant tract.

3. Easements: Conveyances: Appurtenances. Once an implied easement 

is created, it becomes appurtenant to the dominant tenement and remains 

in existence upon a subsequent conveyance unless and until it is somehow terminated.

4. Easements: Proof. Reasonable necessity is required for implied easements in favor of the grantee (implied by grant) but strict necessity 

is required for implied easements in favor of the grantor (implied 

by reservation).

5. ____: ____. A greater degree of necessity is required for easement by 

necessity than for easement implied from prior use.

Appeal from the District Court for Douglas County: James T. 

Gleason, Judge. Affirmed.
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NAMN, LLC v. MORELLO

Cite as 291 Neb. 462

Larry R. Forman, of Hillman, Forman, Childers & 

McCormack, for appellant.

Damien J. Wright, of Welch Law Firm, P.C., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman, 

and Cassel, JJ.

Miller-Lerman, J.

NATURE OF CASE

Bernard J. Morello appeals the order of the district court for 

Douglas County which ruled that NAMN, LLC, had a permanent easement implied from prior use over Morello’s property 

for vehicle ingress and egress and that NAMN was entitled to 

make reasonable upgrades to the easement. Morello asserts, 

inter alia, that equitable considerations preclude a judgment 

in NAMN’s favor and that NAMN did not make an adequate 

showing of necessity to establish an implied easement from 

prior use. We affirm.

STATEMENT OF FACTS

Morello owns property at the northwest corner of 42d and 

Center Streets in Omaha, Nebraska. NAMN owns property 

immediately to the west of Morello’s property. Throughout 

this litigation, and hereinafter in this opinion, NAMN’s property is referred to as “Lot 9” and Morello’s property is referred 

to as “Lot 10.” A residential home is located on Lot 9, and 

there are no structures on Lot 10. Lot 10 separates Lot 9 from 

42d Street, which is to the east of both properties. Both properties are bordered on the south by Center Street; however, 

a retaining wall that was built by the city of Omaha (City) 

stands between Lot 9 and Center Street. At one time, Lots 9 

and 10 were both owned by the same person.

NAMN filed this action against Morello in the district 

court on June 12, 2013. NAMN sought an order declaring 

that a permanent easement exists over Lot 10 as reasonably 

necessary to allow vehicular access to Lot 9 from 42d Street. 
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NAMN also sought an order allowing NAMN to construct a 

concrete driveway over a portion of Lot 10 to connect Lot 9 

to a curb ramp leading to 42d Street. NAMN sought other 

relief, including costs of the action and an injunction prohibiting Morello from interfering with NAMN’s easement. NAMN 

alleged that Lot 9 was “‘landlocked,’” because Lot 10 stood 

between Lot 9 and 42d Street and the City’s retaining wall 

stood between Lot 9 and Center Street. In his answer, Morello 

raised various affirmative defenses, including defenses he 

described as “negligence” and “equitable estoppel.”

At a bench trial, the court received various pieces of evidence offered by NAMN, including plats, maps, deeds, and 

photographs intended to demonstrate the chain of title for the 

parties’ respective properties and the situation of each property 

with respect to one another and with respect to 42d and Center 

Streets. The evidence indicated that Anita Fuentes acquired 

title to Lot 9 in 1988, at which time, the City owned Lot 10. 

The City deeded Lot 10 to Fuentes in 1993. Fuentes deeded 

Lot 9 to other owners in 1999, but she retained ownership of 

Lot 10 until 2012.

On May 18, 2012, a sheriff’s deed transferring ownership 

of Lot 9 to a business entity was filed, and on July 2, a quitclaim deed from the business to NAMN was filed. At the time 

NAMN acquired Lot 9, the title to Lot 10 was still in Fuentes’ 

name. However, on August 23, a sheriff’s deed transferring 

ownership of Lot 10 to the Land Reutilization Commission of 

Douglas County was filed. On August 27, a special warranty 

deed from the commission to Morello was filed, and thus, 

Morello acquired Lot 10 after NAMN had acquired Lot 9. As 

noted, NAMN filed its complaint against Morello in this action 

in June 2013.

At trial, NAMN called Jeffrey Rothlisburger as a witness. 

Rothlisburger testified that he and his wife were the members 

of NAMN. Rothlisburger testified that he is a mortgage broker 

and real estate agent and that NAMN owns several residential 

properties, including Lot 9. He testified that NAMN bought 

Lot 9 with the intent of fixing up the property and reselling 
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Cite as 291 Neb. 462

it. Rothlisburger testified that there is a single-family residence located on Lot 9 but that there is no structure located 

on Lot 10. Rothlisburger described Lot 10 as a “postage stamp 

[and an] abnormally small-sized lot.” With regard to access 

to Lot 9 from Center Street, Rothlisburger testified that there 

is no driveway from Center Street to Lot 9 and that it would 

not be practical to build such a driveway, because the City had 

built a retaining wall on the strip of land located between Lot 9 

and Center Street, which strip of land had been deeded to the 

City as part of a widening of Center Street. He testified that 

Lot 9 was accessible on foot from Center Street, because the 

City had built a stairway into the retaining wall.

With respect to access to Lot 9 from 42d Street, which 

Lot 9 does not abut, Rothlisburger testified that a curb ramp 

was cut into the sidewalk along 42d Street leading onto Lot 10 

and that there was gravel on an area running from the curb 

ramp west across Lot 10 and onto Lot 9. He testified that the 

City had installed a sign on 42d Street north of the curb ramp. 

The sign reads “driveways.”

Rothlisburger testified that if one drove a vehicle across 

the graveled area on Lot 10 continuing west onto Lot 9 and 

then parked, one would be able to enter the house on Lot 9 

from the rear through a handicapped accessible entrance and 

one would not need to walk around to the front of the house. 

Rothlisburger testified that the curb ramp, the “driveways” 

sign, and the gravel area were all present at the time he purchased Lot 9. He further testified that there was no street parking allowed on either side of Center Street and no parking on 

42d Street within six blocks to a mile of Lot 9.

When asked the purpose for which NAMN needed an easement over Lot 10, Rothlisburger testified that it was needed 

for vehicular access to Lot 9 and its house: “We would simply 

have no place to park at all. And the property is set up by the 

City this way. And it was — there’s just no other way for it 

to work.” Rothlisburger further testified that NAMN had been 

using the graveled area on Lot 10 to reach Lot 9 and would 
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like to pave over the area or at least continue using the gravel 

for access to Lot 9.

During Rothlisburger’s testimony, NAMN offered into evidence photographs consistent with his testimony regarding 

the relative sizes of Lots 9 and 10, the existence or absence 

of structures on each lot, and the presence of gravel on both 

lots as well as the “driveways” sign on 42d Street and the 

retaining wall on Center Street. NAMN did not call any 

other witnesses. Morello did not present any evidence for 

the defense.

In the district court’s judgment filed August 26, 2014, it 

stated that NAMN sought a declaration that it possessed an 

implied easement for ingress and egress across Lot 10 and 

sought an order allowing NAMN to construct a concrete driveway over that portion of Lot 10 which connects the driveway 

ramp off of 42d Street to Lot 9. The court stated that NAMN 

asserted two theories to support such relief: (1) an easement implied from prior use and (2) an easement implied 

by necessity.

The court first considered whether the evidence supported 

a finding that there was an easement implied from prior use. 

The court cited Hillary Corp. v. United States Cold Storage, 

250 Neb. 397, 550 N.W.2d 889 (1996), for the proposition that 

an easement implied from prior use (sometimes referred to 

as “former use”) arises only where (1) the use giving rise to 

the easement was in existence at the time of the conveyance 

subdividing the property, (2) the use has been so long continued and so obvious as to show it was meant to be permanent, 

and (3) the easement is necessary for the proper and reasonable enjoyment of the dominant tract. The court considered 

each element.

With regard to the first element, the court found that Lots 9 

and 10 had both been owned by Fuentes and that the property 

was subdivided when Fuentes sold Lot 9 in 1999. The court 

further found that it was apparent from photographic and 

other evidence that the curb along 42d Street was modified 

by a permanent manmade driveway ramp and that Lot 9 was 
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Cite as 291 Neb. 462

connected to the driveway ramp via a gravel path running 

across Lot 10. The court found that the worn appearance of 

the gravel path and the condition of the driveway ramp indicated that they had been present “for years” and most likely 

predating the 1999 conveyance of Lot 9 for a significant 

amount of time. The court found that the size and nature of 

Lot 10 indicated that it would have served Fuentes “very little 

purpose . . . beyond offering a means of ingress and egress for 

the house located on Lot 9.” The court therefore found that the 

use of the easement was in existence at the time the property 

was subdivided in 1999.

With regard to the second element, the court again noted 

the worn appearance of the gravel path and the driveway ramp 

and stated that such appearance indicated that modifications 

had been present and heavily used for years. The court further 

noted that the gravel path connected to the driveway ramp in 

a manner suited to provide vehicular access from 42d Street 

to Lot 9 and that such easement is open and obvious to any 

casual observer. The court also noted the sign installed by the 

City indicated the presence of driveways. The court noted that 

Morello failed to offer any evidence to contradict such evidence, and it therefore found that the use of the easement had 

been so long continued and so obvious as to show it was meant 

to be permanent.

With regard to the third and final element, the court noted 

that in Hillary Corp., supra, this court indicated that the 

required degree of necessity to establish an implied easement 

by prior use was “reasonable necessity.” The court found that 

photographic, testimonial, and other evidence regarding Lots 9 

and 10 indicated that “an easement across Lot 10 is the only 

possible means of providing vehicular access to Lot 9.”

The court rejected Morello’s argument that the easement 

was not necessary, because Lot 9 was close to Center Street 

and was accessible on foot via the steps built into the retaining wall. The court stated that although pedestrian access alone 

might be sufficient to negate a claim of easement by “strict 

necessity,” the theory of easement implied from prior use under 
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consideration required the lesser standard of “reasonable necessity” and that the evidence showed the easement across Lot 10 

was “reasonably necessary” for the convenient and comfortable 

use and enjoyment of Lot 9.

The court found that NAMN had produced sufficient evidence to support all the elements necessary to establish the 

existence of an easement implied from prior use. The court 

further noted that Morello had failed to produce any admissible evidence to counter NAMN’s evidence or to support the 

affirmative defenses pled in his answer. Because it found an 

easement implied from prior use, the court stated that it was 

not necessary to address whether an easement could also be 

implied by necessity, and the court therefore refrained from 

“such superfluous analysis.”

The court next concluded that because NAMN had an easement for ingress and egress over Lot 10, such easement carried with it by implication the right to do what was reasonably 

necessary for full enjoyment of the easement as long as the 

owner of the easement did not increase the burden on the servient tenement or unreasonably interfere with the rights of the 

owner of the servient tenement. The court found that NAMN 

had shown that a concrete driveway was reasonably necessary 

for the full enjoyment of the easement and that Morello had 

not shown that a concrete driveway would unreasonably interfere with his rights as owner of Lot 10.

The district court therefore ordered that NAMN, as owner 

of Lot 9, possessed a permanent easement implied from prior 

use over Lot 10 to allow vehicular ingress and egress to Lot 9. 

The court further ordered that it was within NAMN’s rights to 

make upgrades that were reasonably necessary for full enjoyment of the easement as long as such upgrades did not unreasonably interfere with the rights of the owner of Lot 10. The 

court finally ordered that Morello was enjoined from interfering with NAMN’s use and enjoyment of the easement, and the 

court awarded costs of the action to NAMN.

Morello appeals the district court’s order.
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NAMN, LLC v. MORELLO

Cite as 291 Neb. 462

ASSIGNMENTS OF ERROR

We note first that although Morello assigns 11 errors, he 

does not argue most of the assignments of error in his brief. 

Errors assigned but not argued will not be addressed on 

appeal. In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 

538 (2013).

Morello assigns and argues four assignments of error which 

we consolidate into three. Morello claims, restated, that the 

district court erred when it (1) granted an easement to NAMN, 

because NAMN’s conduct precludes it from receiving equitable relief; (2) applied the incorrect legal standard as to the 

degree of necessity required for an easement implied by prior 

use; and (3) granted an easement in favor of NAMN where 

the land abuts a public road.

STANDARD OF REVIEW

[1] In reviewing an equity action for a declaratory judgment, 

an appellate court tries factual issues de novo on the record 

and reaches a conclusion independent of the findings of the 

trial court, subject to the rule that where credible evidence 

is in conflict on material issues of fact, the reviewing court 

may consider and give weight to the fact that the trial court 

observed the witnesses and accepted one version of the facts 

over another. Hillary Corp. v. United States Cold Storage, 250 

Neb. 397, 550 N.W.2d 889 (1996).

ANALYSIS

Easement Implied From Prior Use 

and District Court’s Findings.

[2] As an initial matter, we note that this case involves an 

easement implied from prior use and, except for brief mention of easement by necessity, we do not consider other easements, servitudes, or licenses, such as prescriptive easements, 

expressly written rights, unrecorded servitudes, or adverse 

possession. As noted by the district court, an easement by 

implication from prior use arises only when (1) the use giving rise to the easement was in existence at the time of the 
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Cite as 291 Neb. 462

conveyance subdividing the property, (2) the use has been so 

long continued and so obvious as to show it was meant to be 

permanent, and (3) the easement is necessary for the proper 

and reasonable enjoyment of the dominant tract. See Hillary 

Corp., supra.

[3,4] We have noted that once an implied easement is created, it becomes appurtenant to the dominant tenement and 

remains in existence upon a subsequent conveyance unless 

and until it is somehow terminated. Id. Nebraska follows the 

minority rule that reasonable necessity is required for implied 

easements in favor of the grantee (implied by grant) but that 

strict necessity is required for implied easements in favor of 

the grantor (implied by reservation). Id. See 1 Restatement 

(Third) of Property: Servitudes § 2.12, comment e. (2000).

In the present case, the district court found that an easement was in existence when Fuentes subdivided the property 

in 1999, that the easement was so long continued and so obvious as to be permanent, and that the easement was reasonably 

necessary for the proper and reasonable enjoyment of Lot 9. 

Morello’s properly assigned errors address the overall equities of the case and the “reasonably necessary” finding, but do 

not address the two findings of the district court regarding the 

unity of ownership and the longstanding and obvious nature 

of the easement. We therefore accept these two findings as the 

law of this case.

Equities.

Morello attributes great weight to the fact that Rothlisburger, 

on behalf of NAMN, had considerable knowledge about real 

estate matters and asserts that because Rothlisburger did not 

exercise diligence prior to buying Lot 9, NAMN is not entitled 

to relief. Although Morello asserted numerous defenses and 

affirmative defenses in his answer encompassing his equitable 

argument, Morello offered no admissible evidence at trial in 

support of these allegations. We thus understand that Morello 

relies on the evidence received at trial generally to the effect 

that Rothlisburger bought Lot 9 on short notice and without 
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formal inspection. We do not believe these facts or others in 

the record preclude granting relief to NAMN.

The district court found and the evidence shows that the 

gravel path from the driveway ramp at 42d Street west across 

Lot 10 to Lot 9 was open, obvious, and long standing. It was 

not unreasonable for Rothlisburger to expect access to the rear 

of the home on Lot 9 to continue. Similarly, when Morello 

bought Lot 10 after NAMN acquired Lot 9, it would not 

be unreasonable for Morello to share that expectation. And 

Morello does not assert that he was assured that Lot 10 was 

unencumbered by an easement. Compare Neary v. Martin, 57 

Haw. 577, 579, 561 P.2d 1281, 1283 (1977) (referring to negotiations in which it was agreed that land conveyed would “not 

be encumbered by an easement”).

Both parties bought their lots on short notice. Both parties 

acquired eccentric properties: vehicular access to Lot 9 was 

not certain, and the usefulness of Lot 10 was not apparent. 

The district court found that Morello failed to offer admissible 

evidence that would show that recognition of an easement 

would interfere with Lot 10, which the district court found to 

be “a small, irregular grass lot currently devoid of any usable 

structures.” We are not persuaded that the equities preclude 

the relief granted to NAMN.

Degree of Necessity.

Morello asserts that the district court erred as a matter of 

law when it concluded that the degree of necessity required 

to grant an easement implied from prior use was governed by 

the “reasonably necessary” standard, rather than the greater 

degree of necessity standard required to grant an easement 

by necessity. Morello contends that the district court ignored 

“necessity” in its analysis. We find no merit to this assignment 

of error.

In the district court’s judgment, it referred to Hillary Corp. 

v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 

(1996), and summarized the elements necessary to establish an 

easement implied by prior use recited earlier in this opinion. 
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After the district court found sufficient evidence of the first 

two elements, it proceeded to evaluate the evidence as to the 

third element, i.e., whether “the easement is necessary for 

the proper and reasonable enjoyment of the dominant tract.” 

The district court stated that this “degree of necessity . . . is 

‘reasonable necessity’ rather than strict necessity.” The district 

court used the correct standard under Nebraska jurisprudence. 

See Hillary Corp., supra.

[5] As in Nebraska, it is generally agreed that a greater 

degree of necessity is required for easement by necessity than 

for easement implied from prior use. 28A C.J.S. Easements

§ 110 (2008). It has been stated:

This lesser showing of necessity may stem in part from 

an often unspoken realization on the part of the fact 

finder that a prior use indicates a need for a particular 

easement. See Michael V. Hernandez, Restating Implied, 

Prescriptive, and Statutory Easements, 40 Real Prop. 

Prob. & Tr. J. 75 (2005) (“The easement implied by prior 

use is based on the maxim . . . whatever is necessary and 

related is appended . . .”).

Boyd v. BellSouth, 369 S.C. 410, 421, 633 S.E.2d 136, 

142 (2006).

The district court recited the correct legal standard and 

performed its review of the evidence accordingly. The district 

court referred to the evidence, not repeated here, and determined that under the circumstances, vehicular access to Lot 9, 

upon which the house sits, was reasonably necessary. The district court’s understanding that vehicular access to a house 

is reasonably necessary is not uncommon. See, e.g., Boyd, 

supra (reversing summary judgment and noting that driveway 

easement to access rear entrance could be reasonable mode 

of enjoying the building at time of severance); Rosendahl v. 

Nelson, 408 N.W.2d 609 (Minn. App. 1987) (affirming grant 

of easement implied by prior use to permit vehicular access 

to property with no driveway). We find no error in the district 

court’s recitation or application of the law.
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Abutting a Public Road.

Morello claims that the district court erred when it granted 

an easement to NAMN where the evidence shows that 

NAMN’s Lot 9 abuts a public road, i.e., Center Street. We 

reject this claim.

In connection with this assignment of error, Morello asserts 

that access to Lot 9 on foot is sufficient and that because 

Lot 9 abuts Center Street where there are stairs to the house on 

Lot 9, an easement is not reasonably necessary. We are aware 

that there is authority for the proposition that where land abuts 

a public road, no easement of necessity can be established. 

See 25 Am. Jur. 2d Easements and Licenses § 33 (2014). 

However, we need not consider this proposition or Morello’s 

corresponding argument in this case, because the district court 

decided this case based on the theory of an easement implied 

by prior use rather than by strict necessity. Specifically, in 

the district court’s judgment, it found an easement existed by 

implication from prior use and stated that “it is not necessary 

to address whether NAMN’s easement could also be implied 

out of necessity.” Based on the foregoing, we analyze the 

significance of Lot 9’s proximity to Center Street under the 

jurisprudence of easements implied by prior use.

We have previously been presented with and rejected an 

argument comparable to the one urged by Morello. In Hillary 

Corp. v. United States Cold Storage, 250 Neb. 397, 411-12, 

550 N.W.2d 889, 898 (1996), we stated as follows:

[I]n Hengen v. Hengen[, 211 Neb. 276, 318 N.W.2d 

269 (1982)], this court addressed whether the owners 

of the southwest quarter of a section of land had an 

implied easement, arising from use before severance of 

the section, to obtain irrigation water from a canal in the 

northwest quarter. The court found an implied easement 

existed, stating that “[t]he necessity involved . . . is to 

transport the irrigation water from the canal in the northwest quarter to the southwest quarter . . . .” 211 Neb. at 

284, 318 N.W.2d at 275.
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Thus, the Hengen court found the easement was necessary for the proper and reasonable enjoyment of the dominant tract without discussing possible alternative methods 

of transporting the irrigation water. [Appellant’s] argument, that the necessity element was not met because of 

the existence of possible alternative methods of transportation, is an argument grounded in strict necessity instead 

of the reasonable necessity standard applicable in the 

instant case.

The outcome of this case is resolved by application of the 

jurisprudence associated with an easement implied by prior 

use, under which the existence of alternative means of access 

do not preclude a finding that the easement sought is reasonably necessary and should be granted. See id. We therefore 

reject Morello’s assertion that Lot 9’s proximity to a public 

road precluded relief.

CONCLUSION

The district court found the evidence adduced at trial 

showed that the gravel path across Lot 10 leading west to 

Lot 9 was used as an easement when Lots 9 and 10 were 

subdivided, that the use was so long and obvious that it was 

meant to be permanent, and that the easement is reasonably 

necessary for the proper and reasonable enjoyment of Lot 9. 

We reject Morello’s assignments of error challenging the district court’s judgment granting an easement implied by prior 

use to NAMN and permitting reasonable improvement of the 

easement. Accordingly, we affirm.

Affirmed.

McCormack, J., not participating.