Abandonment

Abandonment is the voluntary and intentional relinquishment of a right to property. Mueller v. Bohannan, 256 Neb. 286, 589 N.W.2d 852 (1999). See also Davco Realty Co. v. Picnic Foods, Inc., 198 Neb. 193, 252 N.W.2d 142 (1997).

The fact that there was a diminution in the number of travelers on a road along the river since a bridge was built over the river did not constitute an abandonment of the road. Sturm v. Mau, 209 Neb. 865, 312 N.W.2d 272 (1981). See also Smith v. Bixby, 196 Neb. 235, 242 N.W.2d 115 (1976). The fact that only a few members of the public still use a road does not mean the road has been abandoned. Breiner v. Holt County, 7 Neb.App. 132, 581 N.W.2d 89 (1998).

“Abandonment of an easement must be pled and proved, the burden of proof being on the party alleging it.” Mueller v. Bohannan, 256 Neb. 286, 589 N.W.2d 852 (1999); Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996); Masid v. First State Bank, 213 Neb. 431, 329 N.W.2d 560 (1983); Agnew v. City of Pawnee City, 79 Neb. 603, 113 N.W. 236 (1907).

“Nonuse of an easement for a period less than the prescriptive period of 10 years will not itself work an abandonment of the easement. [citations omitted] However, nonuse of an easement for a period less than the prescriptive period, accompanied by acts clearly indicating an intention to abandon the right, will work an extinguishment of the easement.” Mueller v. Bohannan, 256 Neb. 286, 589 N.W.2d 852 (1999); Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996); Mader v. Mettenbrink, 159 Neb. 118, 65 N.W.2d 334 (1954); Williams v. Lantz, 123 Neb. 67, 242 N.W. 269 (1932).

“An intention to abandon an easement cannot be inferred from the mere fact that the easement was not used for a period of years in excess of the prescriptive period. [citations omitted] However, nonuse of an easement for a period sufficient to create an easement by prescription will raise a presumption to defeat the right, but this nonuse is open to explanation and may be rebutted by proof that the owner had no intention to abandon his easement while thus omitting to use it.” Mueller v. Bohannan, 256 Neb. 286, 589 N.W.2d 852 (1999) (quoting Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996)); Masid v. First State Bank, 213 Neb. 431, 329 N.W.2d 560 (1983); Agnew v. City of Pawnee City, 79 Neb. 603, 113 N.W. 236 (1907).

” ‘An easement may be abandoned by unequivocal acts showing a clear intention to abandon and terminate the right, or it may be done by acts in pais without deed or other writing. The intention to abandon is the material question, and it may be proved by an infinite variety of acts. It is a question of fact to be ascertained from all the circumstances of the case….’ ” Mueller v. Bohannan, 256 Neb. 286, 589 N.W.2d 852 (1999) (quoting Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996) (quoting Mader v. Mettenbrink, 159 Neb. 118, 130, 65 N.W.2d 334, 343 (1954)). See  Williams v. Lantz, 123 Neb. 67, 242 N.W. 269 (1932).

In determining whether there was an intent to abandon an easement, ” ‘ “[t]ime is not a necessary element; it is not the duration of the nonuser, but the nature of the acts done by the dominant owner, or of the adverse acts acquiesced in by him, and the intention which the one or the other indicates, that are important….” ‘ ” Mueller v. Bohannan, 256 Neb. 286, 589 N.W.2d 852 (1999) (quoting Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996) (quoting Mader v. Mettenbrink, 159 Neb. 118, 130, 65 N.W.2d 334, 343 (1954)). See also Williams v. Lantz, 123 Neb. 67, 242 N.W. 269 (1932).