Nebraska Supreme Court Holds Implied Easements Attach to Land by Judicial Decree

When purchasing real estate in Nebraska, purchasers should take notice of the Nebraska Supreme Court’s recent decision in Woodle v. Commonwealth Land Title Insurance Company. In this case of first impression, the court held that implied easements do not actually exist until a court recognizes the existence of the same, and therefore, title insurance may not cover implied easements.

In Woodle, two adjoining landowners utilized a driveway located on the plaintiffs’ property under an express easement. The plaintiffs commenced a quiet title action and asked the court to terminate the easements. The adjoining land owners responded that they had continuously used the driveway since 1992, and therefore, they had implied easements to use the driveway. The district court extinguished the express easements, but recognized the implied easements.

Thereafter, the plaintiffs sued to recover indemnification and loss-of-use damages from their title insurer, Commonwealth Land Title Insurance Company (“Commonwealth”).

In the action against Commonwealth, the plaintiffs claimed their title insurance policy covered the implied easements. The plaintiffs’ title insurance policy, however, stated it would not cover any easement “attaching to or created subsequent to the date of the policy.” Commonwealth argued that the implied easements did not attach to the land as a result of the conveyance in 1992, but only attached when the district court recognized them in the plaintiffs’ suit against the adjoining landowners.

The district court agreed with Commonwealth, as did the Nebraska Supreme Court. The court held that implied easements only attach to land upon judicial recognition. Because the district court recognized the implied easements after the date of plaintiffs’ title policy, it did not insure against any claims related to the easements.

A full copy of the opinion is available here.

Brent W. Beller