dissenting.
*203I respectfully dissent. This action, as the majority opinion notes, is at law with jury waived. The judgment of the District Court must therefore be affirmed unless it is clearly wrong. I believe it is and that accordingly the judgment should be reversed. There is no dispute in the evidence on any material fact. Both the District Court and this court have, I believe, in a wholly unprecedented way, misapplied established legal principles.
The lower court found: “. . . that the parties to the easement agreement . . . both have abandoned the purpose for which the easements were mutually conveyed and, therefore, the easement should be extinguished by operation of law.” (Emphasis supplied. )
This court finds: “The record thus reveals an agreement between two adjacent property owners to mutually develop their respective properties for the benefit of both,” and it finds “both parties . . . manifested by their conduct their intention to abandon the agreement which was aimed at the mutual development of their adjacent properties.” These findings are without evidentiary support.
The majority opinion is somewhat vague as to rationale, but its findings of abandonment and mutual rescission seem to be bottomed on two findings of fact, viz, (1) Picnic did not do the paving it agreed to do; and (2) neither party erected the building each contemplated; in Davco’s case, an addition to its existing building, and in Picnic’s case, the construction of a restaurant. The first is simply a breach of contract by one party. As to the second the court, wholly without evidentiary support and by some sort of judicial legerdemain, reads into the transaction an agreement that the grants were conditioned upon each party carrying through with its separate, proposed plans. There is no evidence whatever of any such agreement. The defendant cites no authority which engrafts such a condition as a matter of law *204and our research has disclosed no such authority. Davco by testimony denies it has abandoned its plans.
The record establishes only this: The parties, by grant, exchange easements on their respective properties. In addition, Picnic agreed, as part of the consideration for its easement, to pave the portion of its own property covered by the easement as well as part of the Davco property. Although there is no dispute about what each of the parties “proposed” to do in the way of building on its own property, and that they have not done it, there is not one scintilla of evidence supporting the proposition that there was any agreement that such improvements be made, or that the making of such improvements was a part of the consideration for the exchange of the easements and the agreement of Picnic to pave, or that the grants were conditioned in some way. There is not one scintilla of evidence in the record to support the majority opinion’s finding that the contract was “rescinded by mutual consent.” The instruments by which the easements were granted recite that their “purpose” is to give “ingress” and “egress.”
The record establishes that Davco had done everything that it was required to do by the agreement. Its performance was complete. It conveyed the easement. Picnic’s performance was partial. It conveyed the easement. It had not performed the balance of the agreement, that is, doing the paving.
In this case this court would enforce a forfeiture of an interest in real estate against a grantee who has fully performed its part of the contract. Then this court goes on to cancel the whole transaction, including the reciprocal deeds of grant. The sole beneficiary of this court’s action is the property owner who is in default.
The court here completely misapplies established principles with reference to the abandonment of an *205easement. There is no evidence here at all that Davco abandoned the easement. There is no evidence here that Picnic abandoned its easement. The evidence does show that Picnic needed the easement across a corner of the Davco property because that was the only way it could establish access to West Dodge Road. Its purpose in acquiring the easement, as recited in the grant itself, was to gain the needed access. That purpose was wholly accomplished. Davco’s purpose was to acquire an easement for a driveway on the Picnic property, the effect of which was to expand its lot and also to give it an exit to the south. The recited purposes of both easements were wholly accomplished. The only part of the agreement which failed was Picnic’s refusal to perform its agreement to pave.
The result the trial court reached, and which the majority of this court now reaches, is arrived at on the theory of abandonment, but in legal contemplation there is no evidence of abandonment of the easements.
Abandonment is the voluntary and intentional relinquishment of a right to property. 1 C. J. S., Abandonment, § 1, p. 4. Mere nonuser does not result in abandonment. 1 C. J. S., Abandonment, § 3(2), p. 10. Nonuser of an easement for a period less than 10 years will not of itself work an abandonment of a right. Agnew v. City of Pawnee City, 79 Neb. 603, 113 N. W. 236. Even if the owners of the servient estate maintain obstructions thereon for a period less than the period of limitation, the easement is not lost. Ballinger v. Kinney, 87 Neb. 342, 127 N. W. 239. There was no obstruction placed at all in this case, much less obstruction for the statutory period. An easement may be abandoned only by unequivocal acts showing a clear intention to abandon and terminate the right. Mader v. Mettenbrink, 159 Neb. 118, 65 N. W. 2d 334; Williams v. Lantz, 123 Neb. 67, 242 N. W. 269; Polyzois v. Resnick, 123 Neb. 663, 243 *206N. W. 864. The owner of an easement may abandon it by some affirmative act which renders the use of the easement impossible. Toelle v. Preuss, 172 Neb. 239, 109 N. W. 2d 293. Title to real estate is not lost by a mere failure to assert it. Hadley v. Platte Valley Cattle Co., 143 Neb. 482, 10 N. W. 2d 249.
In the case before us, neither party did any act which would evidence an abandonment of the easement which each acquired. After the exchange there was no communication between the parties until shortly before this action was commenced. Then Picnic asked Davco to execute a written surrender of the easement because Picnic wished to sell its property and to do so free of the easement. Davco refused except upon payment of a consideration. Picnic refused to pay consideration. Thereafter Davco demanded performance of the paving agreement by Picnic and this suit ensued. The easements were executed on January 7, 1970. Davco demanded performance on December 20, 1974.
It would appear in this case that the trial court confused “purpose of the easement” with the “proposed” business plans of each of the parties for their respective properties. There appears at 28 C. J. S., Easements, § 54a, p. 718, the following: “An easement granted for a particular purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment.” Numerous cases are cited in the accompanying footnote. This may be the principle on which the trial court was relying. An examination of the numerous opinions cited in the footnotes show that none support the result reached in this case. Some, in fact, require the opposite result. See, Kogod v. Cogito, 200 F. 2d 743; Gerbig v. Zumpano, 7 N. Y. 2d 327, 197 N. Y. Supp. 2d 161, 165 N. E. 2d 178. The trial court apparently confused “purposes” with the parties’ separate motivations. This court carries the matter *207one step further by finding an “agreement” when there is no evidence of such an agreement.
I would reverse the judgment of the District Court and remand for a new trial on the issue of damages.
White, C. Thomas, J., joins in this dissent.