Legal Memorandum: Injunction against Planned Abutting of Land

Issue: Under Nebraska law, is a landowner entitled to an injunction against the planned erection of a fence?

Nebraska law specifically dictates that “the right of reasonable convenient egress and ingress from lands or lots, abutting on an existing street or road, may not be denied except with the consent of such lands or lots, or with the condemnation of such right of access to and from such abutting lands or lots.”  Neb. Rev. Stat. § 39-1729 (1999).  Therefore, in Anderson v. State, 247 Neb. 871, 876, 530 N.W.2d 899, 902 (1995), the court noted that “[a]s a general rule, a property owner may not recover damages for the obstruction of a street or highway unless he or she has sustained an injury different in kind, and not merely in degree, from that suffered by the public at large.”

In Lieb v. Pitsch, 216 Neb. 136, 137, 342 N.W.2d 377, 378 (1984), the plaintiffs obtained an injunction prohibiting the defendants, adjoining land owners, from erecting a chain link fence on their property.  The court granted the injunction, finding that the fence would create a “multiplicity of problems” and that the fence had to be removed to a distance of at least three feet from the plaintiffs’ property (where originally erected it stood only ten inches from the plaintiffs’ property).  216 Neb. at 137, 342 N.W.2d at 378.  The defendants appealed the grant of the injunction.  Id. at 137-38, 342 N.W.2d at 378.  The court acknowledged that

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