Docket 82112 Document 2020-45328
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`CERTIFICATE OF MAILING
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`I, MICHELLE MILLER, hereby certify that I am a legal assistant of RENDAL B. MILLER,
`ESQ., and that on the ZC/day of October, 2020, I placed a true and correct copy ofthe foregoing
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`or attached document in the US. Postal Service Mailbox, prepaid, in Winnemucca, Nevada entitled
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`Notice ofEntry of Order, to:
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`James F. Sloan, Esq.
`977 West Williams Avenue
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`Fallon, Nevada 89406
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`DATED th1s
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`/C/
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`day of October 2020.
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`bM
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`ICHELLE MILLER
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`NOTICE OF FNTRV OF ORDER
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`Page 2
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`CASE NO.
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`DEPT. NO.
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`CV 0021509
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`11
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`IN THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF
`NEVADA
`IN AND FOR 'I‘HE COUNTY HUMBOLDT
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`«100-
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`KIMBLE WiLKINSON,
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`Plaintifi‘,
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`vs
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`TY ALBISU, JOHN ALBISU,
`ROSIE ALBISU, and ANCHOR
`S-RANCH AND RENTALS, LLC,
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`Defendants.
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`BENCH TRIAL FINDINGS OF
`FACT AND CONCLUSIONS
`OF LAW AND JUDGMENT
`'
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`The above-entitled case came before this Court for a bench trial beginning on
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`September 9, 2020 and ending on September 10, 2020; the Honorabie Michael R.
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`a Decision as stated below.
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`, 1.
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`FINDINGS OF FACT
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`l. Defendants, Ty Albisu and Rosie Albisu, are residents of Humboldt County.
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`Nevada.
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`E 2. Defendant John Albisu is now deceased.
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`': 3. Defendant Anchor S-Ranch and Rentals, LLC is a Nevada Limited Liability
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`Company.
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`4. Defendant Ty Albisu is a managing member of Anchor S—Ranch and Rentals,
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`LLC.
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`1
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`5. Plaintiff owns real property in Humboldt County near McDermitt where Plaintiff
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`raises cattle and conducts other ranching business.
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`g 6. Plaintiff owns 120 acres of land known as Assessor’s Parcel Number 03-07441— 1
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`02 located on both sides of Nouque Road and east of US. Highway 95 in
`McDermitt, Nevada.
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`. 7. Plaintiffowns additional land on the west side ofUS. Highway 95 in McDermitt,
`Nevada, and resides on this property. This property is called Minor Ranch.
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`8. Plaintiffand his Wife own one-half(1/2) interest in Minor Ranch.
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`9. The Wilkinson Family Trust owns the remaining one-half(1/2) interest in Minor
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`Ranch.
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`10.Plaintiffand Wife lease the remaining one-half(1/2) interest in MinorRanch from
`the Wilkinson Family Trust.
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`I
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`11. Defendants om most ofthe real property between Plaintiff‘s properties.
`12. Plaintiffhas been driving cattle across Defendants” land since 1994.
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`13.Plaintifi’s
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`family has been driving cattle across Defendants’
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`land for
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`approximately one hundred fony (140) years.
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`14. Frank Albisu, Defendant Ty Albisu’s father, originally owned Defendants’ land.
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`liFrank Albisu was aware of Plaintiff's ancestors driving cattle across Defendants’
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` land.
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`i 16.0n or about April 1, 1985, Frank Albisu split his land into smaller parcels and
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`signed a parcel map. ()nthis parcel map, Frank Albisu stated that he owned the "
`8%:
`parcels, and “[did} hereby grant the easements as indicated hereon.”
`9: g 17.Theparcel map dedicated.sixty-foot (60’) easements for existingroads.
`to: i 18. The parcel map dedicatedthirty-foot (30’) easements along the boundaries ofeach '
`11% E
`parcel for roadways and utilities.
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`l9. Defendants John Albisu and Rosie Alhisu purchased the land between Plaintiffs
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`land with a Quit Claim Deed executed June 5, 1997.
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`‘20. Defendants John Albisu and Rosie Albisu never consented to Plaintiff driving
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`cattle across their land.
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`*
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`i
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`21 . Defendants Ty Albisn, John Albina, and Rosie Albisu were on notice ofPlaintiffs
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`cattle driving across their land.
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`22.Defendant Ty Albisn, both verbally and in writingcontinuously told Plaintiff to
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`stay off his land.
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`23.Defendants have chained and padlocked gates that Plaintiff uses to access
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`Defendants’ land.
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`24. Defendants have parkedvehieles and placed boulders in front of gates so that
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`3
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`26.A cattleguard once existed on the fence line between Plaintiff and Defendants’
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`properties; AFN 03—0741-02 and APN O3-074l-07.
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`. 27. This cattleguardrwas located at Gate 1. Court ’3 Exhibit 1.
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`28. The cattleguard was gified to Plaintiffby Humboldt County.
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`38.'Ihe accidental bum was arguably benefieial' to Plaintiff, and 31‘? native-grass
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`34. Plaintiff’s estimation ofcost to replace the cattleguard is approximately $5,746.00.
`j 35.DefendantTy Albisuset.aprescribedburnthat-accidentally spread onto Plaintiff’s
`a
`land.
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`29.011 or about February 2018, Defendant Ty Albisu, unhappy with the installation
`ofthe cattleguard, used a skid steerto forcefully remove the cattleguard-from the
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`?
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`ground.
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`.
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`30. The cattleguard sustained damage, but actual causation is unknown.
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`31.1t is unknown whether the cattleguard was damaged prior to the removal.
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`32.The cattleguard is old.
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`33. Plaintiff’s estimation ofcost to repair the cattleng is approximately $1,216.00.
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`36.The uncontrolled fire burned approximately fifty (50) acres of Plaintiff’s native»
`grass.
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`,
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`. 37. The fifiy (50) acres ofnative grass is valued at $20.00/acre, and Plaintiffthus lost
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`$1000.00 in grass.
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`eventually grew back.
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`39. The loss in value of the native grass is incalculable after a winter kill.
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`40. Plaintiffhas traversed Defendants’ property with hundreds ofcattle (four hundred
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`(400) head in the Spring and eight hundred (800) head in the Fall) on a seasonal
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`basis since 1994.
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`41 . A seasonal basis is three (3) times per year—once in the Spring, and twice in the
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`Fall.
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`42. Plaintiffs route in the Fall is as follows: Starting from Plaintiff‘s property APN
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`03-0741-02, Plaintiff drives cattle and farm equipment
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`through Gate 1 and
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`continues East. along the Southern boundary line of APN 03-0741-07, APN 03-
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`0741—06, and APN 03-0741-05 toward Gate 2. Plaintiff then drives South along
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`the fence; line of APN 03-0741-09 and APN 03-0741—01 to Gate 3, and cuts
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`diagonally Southwest through APN 03—O741wl7, Plaintiff then traverses East
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`along the Southern boundary line of APN 03-0741-16 through Gates 4 and 5, and
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`then along the Southern boundary line of APN 03—0171-03. Plaintiff finally cuts
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`diagonally Southwest across the Northern half of APN 03—0171-06, passes.
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`through Gates 6 and 7, and continues across US. Highway 95 through Gate 8 to
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`Minor Ranch. Court ’5 Exhibit 1 (hereinafter “Fall Routei’).
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`lx
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`; 43. Plaintiffs route in the Spring is as follows: Plaintiff starts atMinor Ranch at Gate
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`8, crosses US. Highway 95, through Gates 6'and 7, and diagonally Northeast
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`across the Northern half of APN 03-0171-06. Plaintiff continues East along the
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`Southern boundary of APN 03-0171—03 and turns North through Gates 4 and 5.
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`5
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`Plaintiffcontinues North along the Eastern boundary of APN 03-0171-03 through
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`Gate 9 and along the Western boundary of APN 03-0741-03 and across Nouque
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`Road. Court ’3 Exhibit 1 (hereinafter “Spring Route”).
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`44. Frank Albisu was aware of Plaintiff‘s use of Defendants’ land prior to 1997.
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`1‘ 45.Defendants have been on actual notice ofPlaintiff’s use ofDefendants’ land since
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`2018.
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`46. Witnesses Barry Wilkinson, Nick Wilkinson, and Chris Bengoa have been aware
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`of Plaintiff using Defendants’ land since 1994.
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`. 47.Plaintiff did not engage in violent behavior to assert his right to use Defendants’
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`land.
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`E 48.P1aintiff’s use of Defendants’ land has been historically peaceable.
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`; 49. Defendants presented no evidence that Plaintiffharassed and threatened them.
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`50. There is no corroborating evidence outside of Defendant Rosie Albisu’s testimony
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`that Plaintiff got into a fistfight with John Albisu.
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`5 1 .Piaintiff testified at trial that he has never been in a fistfight in his life.
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`52.Defendant Rosie Albisu felt threatened and bullied by Plaintiff.
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`53. Defendant Rosie Albisu did not experience severe emotional distress as a result of
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`Plaintiff‘s threats and/or harassment.
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`54John Albisu died in August 2018.
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`.
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`55. There is no evidence that John Albisu died as a result of Plaintiff‘s actions.
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`56. Minor Ranch has an adjudicated water right from the Quinn River Point of
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`- Diversionv6395-l (hereinafter “POD 1”) and the Quinn River Point of Diversion
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`6395-5 (hereinafter “POD 5”).
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`57.POD 1 is situated just inside the Southern boundary of Defendants” parcel and
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`directs water in a Southeastern direction across Plaintiff 5 land.
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`58.POD 5 is situated on Tribal lands to the Northwest of the Northwest corner of
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`Plaintiffs land, and flows through the Southwest corner of Defendants’ - land?
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`whereupon it continues into Plaintiff’s land.
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`59. Plaintiff has a water right in the water flow from POD 1.
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`60. Plaintiff has a water right in the water flow from POD 5.
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`61. Plaintiff utilizes the PODS as irrigation for hay cultivation.
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`62. Defendants are diverting the POD water onto their own land.
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`63. One POD is being restricted by an undersized twelve-inch (12”) culvert.
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`64. The other POD is being restricted by an artificial dirt dam, or what is otherwise
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`known as a berm.
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`65. This blockage remains unresolved.
`66. Plaintiff has been unable to irrigate his fields properly in 2019-2020 without
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`access to the POD water.
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`67. Plaintiff’s. acres yield between 1.75-2 tons of hay per year, worth $100.00/ton.
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`68. Plaintiffspeculates that he has suffered a total loss of$3 5,000.00—$40,000.00 from
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`inadequate irrigation.
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`69. Defendant Ty Albisu believes that Plaintiff misappmpriated t-posts, wire, and
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`other fencing materials worth $6,000.00 total.
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`70. Defendant'l’y Albisubelieves that Plaintiff‘s cattle driving has resulted in $879.30
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`worth of damage to his land.
`.2; 71.Defendant Ty Albisu believes he has lost twenty (20) head oflivestock as a result
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`39
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`ofPlaintiff’s cattle driving across Defendants’, land.
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`"
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`II. CONCLUSIONS OF. LAW
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`A. Trespass to Land or Chattels ~ Cattleguard _ ‘
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`The Supreme Court ofNevada has held that a civil trespass occurs when a.
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`person substantially interferes with another person’s property rights. See Lied v.
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`Clark County, 94 Nev. 275, 278a?9 (1978); see also. Rivers v. Burbank: l3 Nev. 398,
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`408 (1878),. Here, Plaintiffhas a valid property right in the cattleguard gifted to him
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`by Humboldt County, and Defendants clearly interfered with such a right upon
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`foroefirfly removing the cattleguard from the ground.
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`However, this Court is unconvinced by Plaintiff’s causation argument. It is
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`3 unknown whether the cattleguard was damaged prior to its removal. Thus, PlaintifiP
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`controlled ofhis prescribed burn and it spread tol’laintifl’s land. However, Plaintiff
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`has not suffered any real damage flom the burn. The grass eventually grew backand ‘
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`was arguably beneficial to. the land itself. Although Plaintiff claims that he lost V
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`$1,000.00 in native grass, this Court finds the interference with Plaintiff’s land
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`insubstantial with minimal damage. Absent any real loss, this Courtfinds that
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`Defendants’ accidental bum does not constimte trespass to chattels.
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`C. Preeeriptive Easement —— Cattle and Equipment
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`The Supreme Court ofNevada has held that the “elements of an easement of
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`prescription are five years’ adverse, continuous, open and peaceable use. The
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`standard of proof in establishing a prescriptive easement is clear and convincing
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`evidence.” Wiy’on v. Cyril Hamel 1985 Trust, 105 Nev. 608, 608 (1989).
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`i.
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`Adverse~To establish one’s claim to interest in another’s land, the
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`claimant’s use must “be hostile to the title ofthe owner ofthe servient estate.”
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`Howard v. Wright, 38 Nev 25, 29 (1914). Basically, the claimant must assert a tight
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`to the land. Jordan v. Bailey, 1 13 Nev. 1038, 1044 (1997). This means that the
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`claimant must use the land without the landowner’s permission. Here, it is clear that
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`Plaintiffhas crossed Defendants’ land for decades without Defendants’ permission.
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`. Defendants have repeatedly told Plaintiff to stay offtheir land, have put padlocks
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`and chains on gates to prevent Plaintiff’s enuy, and have used their vehicles to
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`obstruct Plaintifl’s access to the land. Thus, Plaintifl’suse of Defendants’ land is
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`adverse.
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`ii.
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`Continuous—~Nevadalaw does not provide avelear standard for continuous,
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`use. However, the Third Restatement of Property: Servitudes clarifies this
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`requirement: “the adverse possessor must (mentally) remain in an adverse posnue to
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`the holder ofthe servient estate throughout the prescriptive period, [but] does not -
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`require that actual physical use he made constantly, or even frequently.”
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`Restatement (Third) ofProperty: Servitudes § 2.17(i) (2000). Here, Plaintiff has
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`been driving cattle across Defendants’ land for over twodecndes. This meets the.
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`I
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`statutory requirement of five (5) years.
`it
`In addition,
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`If the use continues to be open or notorious . . . the fact that no
`physical use of the inchoate servitude is made for some period of
`time does not stop the prescriptive period-from rurming. Seasonal
`uses, intermittent uses, and changing uses all may meet the
`continuity requirement so long as they are open and notorious. Id.
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`Thus, although Plaintiff only crosses Defendants’ land seasonallywthree (3) times
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`per year“— this use still constitutes continuous use. Plaintiff’s mentality has also
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`remained adverse to Defendants’ interest in the land, because Plaintiff uses the land
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`asthough it were his own. Therefore, Plaintiff’s use is continuous.
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`iii.
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`Open—The Supreme Court ofNevada has held that a person’s use is open if 1
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`I
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`it is not clandestine. Howard, supra. Therefore, a landowner need not have actual
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`notice of the use, only constructive notice. See id. Nevada law requires only that the
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`use is not secret. [(1. Here, Plaintiff drove hundreds of cattle across Defendants’ land
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`three (3) times per year. This use is sufficiently open and notorious. Plaintiff did not
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`drive his cattle under the cover of night, or attemptto do so in secret. Defendants
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`have been well awareof Plaintiffs use since 2018, and have even tried to limit and '
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`prevent access to Defendants’ land.
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`Although Defendants’ did not have actual notice of Plaintiff” 5 use for the five
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`(5) year statutory period, Defendants were still put on constructive notice of such -_
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`.
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`use. This means that notice could have been derived from the facts and
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`circumstances. See Sprague 12. Lucky Stores, Inc., 109 Nev. 247, 250-51 (1993).
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`Here, Defendants’ notice could have been derived from the fact that Plaintiff’s use
`was not in secret and there was also sufficient evidence ofPlaintiff’s use—
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`I
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`trampling of grass and movement of;hundreds of cattle in plain sight on a seasonal
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`basis. Defendant Ty Albisu also testified that Frank Albisu was aware of Plaintiff’ s ,
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`use, which further implies Defendants’ notice. Thus, Plaintiffs use was open and
`notorious.
`V
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`iv.
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`PeaceablemNevada law does not provide a working definition for the
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`peaceable requirement. However, peaceable is generally defined as “free from strife
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`or disorder.”‘ Strife is defined as “bitter sometimeS'violent conflict or dissension.”2
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`Here, Defendants present no evidence that Plaintiff exhibited violence in using
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`Defendants’ land. Although Defendant Rosie Albisu claims that Plaintiff and
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`Defendant John Albisu got into a fistfight, Defend-ants present no corroborating
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`evidence of this allegation and Plaintifftestified thathe had never been in a fistfight
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`in his life. Absent any such corroboration, thisCourt cannot find that Plaintiff has
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`been violent towards Defendants while using the land.
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`" ‘ Merriam-Webster, Peaceable (Sept. 29, 2020) https://www.merriam—webster.com/dictionary/peaceable
`2 Merriam-Webster, Strife (Sept. 29, 2020) httpsz/lwww.merriam—webster.com/dictionary/strife
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`11'
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`Instead, Defendantsrclaim that Plaintiffs cutting of locks and fences and
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`putting new padlocks on gates constitutes violent entry and therefore cannot be
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`peaceable. However, the Supreme Court ofNevada has held that an appropriator of
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`land “is not a trespasser in going upon the lands of another
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`for the purpose of
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`removing dams, etc, by which the flow of water so previously appropriated was
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`obstructed and diverted.” Ermor v. Raine, 27 Nev. 178 (1903). In that case, the
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`appropriator tore out the dams that were blocking the water flow to his property, and
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`the Court still found this entry peaceable. See id. Similarly, this Court finds that the _
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`Plaintiffs cutting of locks and fences, etc. is peaceable insofar that Plaintiff was
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`asserting his right to use Defendants’ land.
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`Ultimately, Plaintiff and his family have been driving cattle across
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`Defendants’ land for generations, and have done so historically without violence.
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`Defendants also present no evidence beyond accusations of Plaintiff’s violent
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`’ behavior. Thus, thisCourt finds no evidence that Plaintiffs use has not been
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`peaceable.
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`Therefore, this Court finds that Plaintiff has shown, by clear and convincing
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`evidence, that Plaintiffs use of Defendants’ land has been adverse, continuous,
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`open, and peaceable for well over the statutory period. Plaintiff is therefore entitled
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`to drive cattle across Defendants” land along the designated Fall and Spring Routes.
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`This is the only prescriptive easement granted by this order and its scope is limited
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`to Plaintiff’s movement of cattle. However, Plaintiff may also move farming
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`equipment for purposes of haying, irrigation, and feeding cattle from Nouque Road
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`’ along the Southern and Eastern boundary lines of APN 03-‘0741-07, to and from
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`Gate 1.
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`D. Declaratory Judgment
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`NRS 30.030 provides that
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`Courts of record within their respective jurisdictions shall have
`power to declare rights, status and other legal relations whether or
`not further relief is or could be claimed
`The declaration may be
`either affirmative or negative in form and effect; and such
`declarations shall have the force and effect of a final judgment or
`decree.
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`NRS 278.372(9)(d) —- (e) further provides that, inthe creation of a parcel map, all
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`public easements for utilities must be clearly designated.
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`In 1985, Frank Albisu designated easements for the following: a sixty—foot
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`(60’) easement along existing roads, and a thirty-foot (30’) easement along the
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`perimeter of each parcel. These easements were restricted to uses for utilities and
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`roadways. This Court need not look any further than the parcel map to determine
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`» that these easements remain valid. Ultimately, this Court declines to render
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`declaratory judgment on this issue.
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`E. Water Rights
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`The Supreme Court of Nevada has held that .3 water right grants the holder an
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`easement for the purpose of maintaining such water rights. Ermor v. Raine, 27 Nev.
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`178 (1903). Nevada law also provides that “one who holds a right to water prior to
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`that of another is permitted to peaceably enter and maintain the waterways.” Estate
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`ofHage v. US, 82 Fed. Cl. 202, 211 (2008). Thus,‘Plaintiff is entitled to an
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`easement to enter Defendants’ land to maintain his water rights at POD 1 and POD
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`5. Such an easement implies that Defendants may not interfere with Plaintiffs entry
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`to maintain the ditches. Defendant musttherefore remove the twelve-inch (12”) .
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`.
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`culvert and berm obstructing the flow of water to Plaintiff’s land.
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`In addition, Plaintiff claims he lost $35,000.00—$40,000.00 worth of native
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`hay due to Defendants’ obstruction of irrigation water to Minor Ranch. However,
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`Plaintiff provides almost no evidence as to causation for the loss of hay, or actual
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`loss. This Court therefore declines to grant any sort of monetary relief.
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`F. Preliminaryor'l’ermanent Injunctive Relief
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`» NRS 33.010 provides that
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`An injunction may be granted in the following cases:
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`1. When it shall appear by thecomplaint that the plaintiff is entitled
`to the relief demanded, and such‘relief or any part thereof
`consists in restraining the commission or continuance of the act
`complained of, either for a limited period or perpetually.
`V When'it shall appear by thetcomplaint or affidavit that the
`commission or continuance of some act,.during the litigation,
`“ would produce greater irreparable‘injury' to the plaintiff.
`
`‘Mien it shall appear, during the litigation, that the defendant is
`doing or threatens, or is about to do, or is procuring or suffering
`to be done, some act in violation of the plaintiff’s rights
`respecting the subject of the action, and tending to render the
`judgment ineffectual.
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`The Plaintiffhere requests this Court to permanently enjoin Defendants from
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`interfering with Plaintist right to drive cattle across Defendants’ land. However,
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`this Court finds a pennanent’injunction superfluous in conjunction with a
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`prescriptive easement. An easement is a right of way, meaningsthat a servient estate .
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`l4
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`must not interfere with the easement holder’s right to use-the land for its designated
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`purpose. City ofLas Vegas v. ClijfShadows Prof’l Plaza, 129 Nev. l, 7 (2013)..
`Thus, this Courtdenies injunctive reliefto Plaintiff. This Court also need not
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`‘
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`I
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`address Plaintiff’s request for a preliminary injunction, because it is now moot.
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`G. Easement by Necessity
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`The Supreme Court of Nevada has heldthat “An easement by necessity will
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`‘ generally be found to exist if two requirements are met: (1) prior-common
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`K ownership, and (2) necessity at the time of severance.” Jackson v. Nash, 109 Nev.
`i
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`1202, 1208 (1993). “Easements by necessity are most ofien created where a
`possessor ofland has no access to any public roadway except by way ofpassage
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`
`Here, there is no evidence that Defendants’ and Blaimifi’3 land were once
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`under common ownership. Both parties only presented evidence at trial that Frank
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`C Albisu was the Original owner of Defendants’ land, and that Plaintiffs land has been
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`in Plaintiff’s family for generations. Thus, Plaintiff fails, to meet the common
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`ownership requirement, and this Court’s inquiry must end. In addition, this Court
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`finds an easement by necessity superfluous in conjunction with a finding for a -Y
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`prescriptive easement. Ihns, an easement by necessity is unwarranted. .2
`
`H. Unauthorized Use of Water
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`‘
`
`‘ NRS 533.460 provides that
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`The unauthorized use of water to which. another person is entitled, or
`the willful waste of water to the detriment of another, shall be a»
`misdemeanor, and the possession or use of such water without legal
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`right shall be prime facie‘evidence of the guilt of the person using or
`diverting it.
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`
`I NRS 297.225 also provides that
`
`Any person who knowingly diverts or causes to be diverted to his or
`her own or some other person’s use any irrigation water to which -
`another person has a vested right, without Such rightfiil user’s
`permission, is guilty of a misdemeanor.
`
`Here, Defendants have illegally obstructed the water..ditches from POD 1 and '
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`POD 5 that lead to Minor Ranch. Plaintiff has an adjudicated water right in these
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`PODS, and such interference with Plaintiff’s rights is inappropriate. However, this
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`Court finds that such an interference constitutes a criminal matter, and should be
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`reserved for the Humboldt County District Attorney. Absent a civil statute for the
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`unauthorized use of water, Plaintiff is not entitled to relief.
`
`II. DEFENDANTS’ COUNTERCLAIMS
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`A. Damage to ReaIHProperty, Forage and Fences, andLoss of Livestock
`
`The Supreme Court ofNevada has held that a civil trespass occurs when a
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`person substantially interferes with another person’s property rights. See Lied v.
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`Clark County, 94 Nev. 275, 278-79 (1978); see also Rivers v. Burbank, l3 Nev. 398,
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`408 (1878). Defendant Ty Albisu claims that Plaintifi trespassed onto Defendants’
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`land andmisappropriated fencing and other equipment belonging to Defendants.
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`Such a claimwould normally constitute a trespass, because misappropriation would
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`constitute an interference with Defendants’ properlyrights.
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`However, Defendants fail to show causationethat Plaintiff was the cause-in-
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`fact of Defendants’ missing equipment—or damages, or that the equipment ever
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`existed at all. Thus, such claims are merely speculative. Defendants also claim that
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`Plaintiff is responsible for twenty (20) missing livestock, but again provided no
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`evidence of causation or damages. Furthermore, Defendants claim that Plaintiff‘s ‘
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`cattle driving has caused damage to theirigrass. However, this Court finds such
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`damage minimal and merely a byproduct of the ranching business. Defendant is
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`therefore not entitled torelief.
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`B. Intentional lnfliction of Emotional Distress
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`“A prima facie case of intentional infliction of emotional distress (IIED)
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`requires, among other elements, that the defendant’s conduct was extreme and
`outrageous with either reckless disregard or intent to cause the emotional distress.”
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`Maduike v. Agency Rent-A-Car, 114 Nev. l, 4 (1998). “[E]Xtreme and outrageous
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`conduct is that which is ‘outside all possible bounds of decency’ and is regarded as
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`‘utterly intolerable in a civilized community.”’ Id. Furthermore, “persons must
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`necessarily be expected and required to be hardened ... to occasional acts that are
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`definitely inconsiderate and unkind.” Id. The second element of IIED is the victim
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`must have suffered severe or extreme emotional distress. Star v. Rabello, 97 Nev.
`124, 125 (1981).
`I
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`Here, Defendant Rosie Albisu claims that; she feltvthreatened and harassed by ‘
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`Plaintiff. At trial, Defendant Rosie Albisu claimed that Plaintiff backed her into a
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`corner and yelled and cussed at her. However, this does not amount to outrageous
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`conductgthat is outside all possible bounds of decency, and is not utterly intolerable.
`
`17
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`Moreover,‘Defendanthosie Albisu fails to show that she suffered severe
`emotional distress from her encounters with Plaintiff, and also fails to provide
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`sufficient evidence outsideflofher testimony that such encounters even occurred.
`This Court finds that Defendant Rosie Albisu was.notseverelytraumatized by
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`Plaintiff’s actions. Defendant therefore fails to establish the outrageous conduct and
`‘ severe distress requirements ofIIED.
`
`111. Judgment
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`Based on these findings, this Court grants the following: »
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`(1) A prescriptive easement. so that Plaintiff may. seasonally drive cattle across
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`. Defendants’landalong the designated Spring and Fall Routes outlined in Court’s
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`Findings of Fact 42~43-the scope of this easement does not extend to the
`movement offarming equipment, except for-the route designated by this Court
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`
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`from Nouque Road along the Southern and Eastern boundary lines of APN 03-
`0741—07 to and from Gate 1.
`I
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`(2) Plaintiff has a watertight to'POD 1 and POD 5' located on Defendants’ land.
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`- Plaintiff is therefore granted a right-of-wayr toenter Defendants’ land for the *
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`limited purpose of maintaining those PODS.
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`(3) Defendant shall not interfere with Plaintiffs water rights in the PODS. Defendant
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`.
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`must remove the twelve-inch (12”) culvert and berm blocking POD 1 or POD 5
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`3 Instead, Nevada. law requires Defendant Rosie Albisu to behardened to hurtful
`i speech and intimidation tactics.
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`within thirty (30) days ofthis Order. If Defendant fails to remove the culvert and
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`berm within the allotted time, Plaintiff may enter; Defendants’ land and remove?
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`the obstructions himself.
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`IT IS SO ORDERED.
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`DATED: October 6‘1
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`, 2020.
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`.
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`”1/
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`n mm,
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`HONORABLE MICHAEL R. MONTERO
`DISTRICT JUDGE
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`v19
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`

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`CERTIFICATE OF SERVICE
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`I hereby certify that I am an employee of the Honorable Michael R. Montero,
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` 3 copyoftheenclosed ORDERupon the followingparties:
`
`3 District Court Judge, Sixth Judicial District Court and am not a party to, nor interested
`3
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`in, this action; and that on October 1, 202ml caused to be served a true and correct
`_
`
`James F Sloan, Esq
`977 West Williams Avenue
`Fallon, Nevada 89.406
`Via US Mail
`-
`
`. Randal B. Miller, Esq.
`115 West 5“? Street, Box 7
`» Wirmemucca, NV 89445
`Hand-delivered to‘Hungboldt County Courthouse, DCTBox
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`’
`
`3
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`;
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`1
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`13,5: sm—
`TAYLOR-M. STOKES
`LAW CLERK
`SIXTHJUDICIAL DISTRICT COURT.
`DEPT II
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`.
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`.
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`'
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`20
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`

`

`Docket 82112 Document 2020-45328
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`

`

`
`
`1
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`2.
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`Defendants admit the allegations set‘forth in paragraphs 2,3,4, and5 ofPlaintiff’s
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`Complaint, except Defendants allege JOHN ALBISU is deceased and Defendant, ROSIE
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`ALBllSU, is the Executor or personal representative of the Estate of JOHN ALBISU, and the
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`AWN Estate has not been properly joined as a Defendant.
`\OOONQU)
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`3.
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`Defendants deny the allegations set forth in paragraphs 6, 7, 8, and 9 ofPlaintifi’s
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`Complaint upon the grounds they do not have sufficient information or knowledge to form a
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`belief as to the truth of said allegations.
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`4.
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`Defendants admit the allegations set forth in paragraph 10 of Plaintiff’s
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`Complaint, except Defendants deny the land is vacant and Defendants deny they are collectively
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`10
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`joint owners.
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`11
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`5.
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`Defendants deny the allegations set forth in paragraphs 11 and 12 of Plaintiff’s
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`12 Complaint.
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`13
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`6.
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`Defendants deny the allegations set forth in paragraphs 15, l6, 17, 18, and 19 of
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`14 Plaintiffs Complaint upon the grounds Defendants do notpresently have sufficient information
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`15
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`16
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`and knowledge to make an accurate denial or admission to said allegations.
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`7.
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`Defendants admit the allegations set forth in paragraph 20 of Plaintiff’s
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`17 Complaint.
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`18
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`8.
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`Defendants admit the allegations set forth in paragraph 21, of Plaintiff’s
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`l9 Complaint, except Defendants deny JOHN ALBISU and ROSIE ALBISU eventually quit
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`20
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`21
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`22
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`23
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`24
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`complaining about the cattle crossing the land.
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`9.
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`Defendants deny the allegations set forth in paragraph 22 ofPlaintiff‘ s Complaint
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`upon the grounds the allegation does not make sense and Defendants do not have sufficient
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`information and knowledge to form,a beliefas to the purpose ofsuch allegation as to relevance.
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`10.
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`Defendants admit the allegations set forth in paragraph 23 of Plaintiffs
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`(775)423-3006-Facsimile(775)423-1066
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`JamesP.Sloan,Esq.-AttorneyatLawJamesP.Sloan,Ltd..AProfessional
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`
`
`
`
`Corporation977WestWilliamsAvenue,Fallon,Nevada89406
`
`
`
`
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`25 Complaint.
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`26
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`///
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`
`
`

`

`
`
`
`JamesF.Sloan,Esq.oAttorneyatLawJamesF.Sloan,Ltd.-AProfessional
`
`
`
`
`
`
`
`
`
`Corporation977WestWilliamsAvenue,Fallon,Nevada89406
`
`
`
`(775)423-3006-Facsimile(775)423-1066
`
`
`
`
`
`H
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`\OOOQO‘xUt-DAWN
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`NNNHP-‘Hv—‘P—‘Hl-w‘r—lh—IH
`
`l 1.
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`Defendants deny the allegations set forth in paragraph 24 ofPlaintiff s Complaint
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`upon the grounds the word “agent” may or may not give Defendant, TY ALBISU, authority to
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`act in a Special or general manner for parties mentioned.
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`12.
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`Defendants admit the Quitclaim Deed referred to in paragraph 25 of Plaintiff’s
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`Complaint may contain general terms except Defendants deny the term “easement” presumes,
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`grants or gives any prescriptive use to Plaintiff.
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`l3.
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`Defendants deny the Humboldt County Assessor’s Office has any authority to