A legal dispute over County Road 50 appears to still be headed to trial, even though a motion for summary judgment was granted in the case earlier this year.
Plaintiff John Mai has filed a motion to vacate the April order issued by Dawes County District Judge Travis O’Gorman and asked for a trial to resolve outstanding claims and counterclaims not addressed in the summary judgment. The trial, originally scheduled for Aug. 1-2, was continued during a court hearing last week and a new date is expected to be set at an Aug. 27 hearing.
“The order is flawed and subject to reversal on appeal, by the reason of, but not limited to, the failure of the right of way as ordered to include the road in dispute,” Mai’s motion reads.
Mai has long maintained that he was informed when he purchased his property that the road had been closed. He spent thousands of dollars improving the road to serve as his private driveway, erected a sign over it and planted trees. Dawes County Road Superintendent Larry Hankin issued a driveway permit to the Michael and Diana Lecher in 2016 to create an approach off of County Road 50 into their home. He also granted a request for a driveway permit that same year to the David and Marie Shumway. After Mai raised objections to those permits, a road study conducted by Hankin later in 2016 determined that the entire north-south portion of the road remained as an open public road.
The Dawes County Commissioners reached a compromise, vacating a portion of County Road 50 but keeping part of it open as well, to preserve access for both the Lechers and the Shumways.
Mai sued, seeking to have the road declared as closed. After three years of legal wrangling, Judge O’Gorman ruled in favor of the Lechers, Shumways and Dawes County in April.
“The north/south portion of County Road 50 was established and remains a public county road except as partially vacated by Resolution 2016-26,” reads the April Dawes County District Court order. “Dawes County’s right and interest in County Road 50 begins with its west edge on the Section line between Sections 11 and 12 and extends 66 feet east into Section 12, Township 32, Range 44, of Dawes County, Nebraska.”
Shumway has filed a motion to revise the order, asking the court to include the portion of the county road that lies in Section 11 that has not been vacated by the commissioners.
Mai’s motion to vacate also argued that point and said three counterclaims were not addressed in the order, prompting the need for a trial. Mai alleges that the summary judgment order uses findings of fact that are disputed, includes material orders as matter of law, found that the road was established on the west 66 feet of Section 12 without evidence and relies on inadmissible evidence and affidavits that were impeached.
“The Order as written does not declare the road in its current position to be a public road. If it is a public road outside of the right of way set forth in the Order, then the County has taken part of Section 11 which is Plaintiff’s property. Therefore, Plaintiff’s claims of inverse condemnation and bona fide purchaser for value as to unrecorded easements are factual issues which must be tried. Plaintiff’s claims for adverse possession and trespass are also issues for trial,” Mai’s motion reads.
He also alleges that factual evidence presented to the court requires either a judgment in his favor or a trial on the finding of consent to the road by landowners when it was established, whether any road existed by prescriptive public use, the historic and current locations of the road and the finding that the road was established by petition.
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In addition, Mai is disputing the admissibility of testimony and county records.
“The Order fails to acknowledge that factual issues as to the authenticity and admissibility of the County Clerk testimony and the County ‘Road Records’ as a result of false certifications by the County Clerk and the failure of the County Clerk to maintain and safeguard the records and make the same publically,” his motion reads. “The Order holds that the County owned the land at issue without any record of ownership recorded in the land record as required by Nebraska law.”
Attorneys for MMNE, LLC, a Colorado company that filed as an intervener in the case last November, argued last week that the trial should be postponed as a new attorney, Andrew Collins, has taken over the case and needs time to become familiar with it.
Jamian Simmons, who represents the Lechers, objected to the postponement of the trial, noting that MMNE filed as an intervener in 2018 and never took part in any of the hearings until recently. There are only two members of the LLC, she continued, and one of them is Mai, who obviously knows the case.
Judge O’Gorman granted the continuance on the trial but denied the request to vacate his summary judgment order.
“We’re not starting over,” he said.
Judge O’Gorman in April found that County Road 50 was established lawfully in 1887, and it appeared as an open road in atlases in 1913 and 1977, as well as on Highway and Transportation maps in 1938 and 1954. Dawes County elected to vacate a portion of the road that ran east and west in 1986 and declared the north-south portion an open minimum maintenance road.
“This entire dispute centers on whether County Road 50 is a public road. If it is an open county road, Mai cannot prevail on any of his claims,” Judge O’Gorman wrote in his summary judgment. “Although Mai places a lot of focus on the work he has done to the road and his attempts to keep others from traveling on the road since he acquired the property in 1999, the pertinent inquiry must go back much further. If the road was properly established as a county road, the law is clear that it cannot be said that a county has abandoned or vacated a roadway simple because of a failure to maintain the road. Rather, for a roadway to lose its public character, there must be an unqualified vacation of the roadway by the county board.”
No such evidence of the county’s vacating the road exists, Judge O’Gorman found.
“While Mai focuses on the apparent error in 1986 regarding County Road 50 (or 19) this is simply a red herring,” he wrote. “Furthermore, the simple fact that the Dawes County Commissioners actually took action in 1986 and again in 2016 with regard to County Road 50 is strong evidence of Dawes County’s control over County Road 50 on behalf of the public from 1887 to 2016. … The road was never abandoned by Dawes County. Although the evidence also establishes that Mai made significant and costly improvements to the road, all of his claims must fail. All of his claims are dependent on a finding that County Road 50 was not an open public road prior to his purchase of his property in 1999.”