863 N.W.2d 798 (Neb. 2015), S-14-523, Hauxwell v. Henning

Docket Nº:S-14-523
Citation:863 N.W.2d 798, 291 Neb. 1
Opinion Judge:Heavican, C.J.
Party Name:SELMA B. HAUXWELL, APPELLEE, v. H.W. FERDINAND HENNING ET AL., APPELLEES, AND RYAN R. HANZLICK ET AL., APPELLANTS
Attorney:Robert S. Lannin and Wesley Bottorf, Senior Certified Law Student, of Shively & Lannin, P.C., L.L.O., for appellants. Roger L. Benjamin, P.C., for appellee Selma B. Hauxwell.
Judge Panel:HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
Case Date:June 05, 2015
Court:Supreme Court of Nebraska
 
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Page 798

863 N.W.2d 798 (Neb. 2015)

291 Neb. 1

SELMA B. HAUXWELL, APPELLEE,

v.

H.W. FERDINAND HENNING ET AL., APPELLEES,

AND

RYAN R. HANZLICK ET AL., APPELLANTS

No. S-14-523

Supreme Court of Nebraska

June 5, 2015

Page 799

Appeal from the District Court for Furnas County: DAVID URBOM, Judge. Reversed and remanded for further proceedings.

Robert S. Lannin and Wesley Bottorf, Senior Certified Law Student, of Shively & Lannin, P.C., L.L.O., for appellants.

Roger L. Benjamin, P.C., for appellee Selma B. Hauxwell.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 800

[291 Neb. 2] Heavican, C.J.

NATURE OF CASE

Ryan R. Hanzlick and his wife acquired two tracts of land through treasurer's tax deeds. A trust controlled by Hanzlick subsequently acquired title to the two tracts by quitclaim deed. The trust and Hanzlick and his wife in their individual capacities are the defendants-appellants (collectively referred to as " the Hanzlicks" ). Selma B. Hauxwell, the plaintiff-appellee and the adjacent property owner, does not appear in the official records of the county register of deeds as the owner of the two tracts, but had allegedly been using those tracts since 1971.

After the Hanzlicks acquired the property, Hauxwell filed a complaint seeking to quiet title by claim of adverse possession. The Hanzlicks filed a counterclaim asking the district court to find that they were the owners of the two tracts and to eject and enjoin Hauxwell from the property. The district court found that Hauxwell had acquired title to the property through adverse possession and did not address any other issues regarding the tax deeds. The Hanzlicks now appeal. We [291 Neb. 3] find the district court erred in determining that Hauxwell had standing to challenge the tax deeds and in failing to address the Hanzlicks' counterclaims.

BACKGROUND

Hauxwell, along with her first husband, purchased a parcel of land (Broeker land) in Furnas County, Nebraska, in 1959. Hauxwell's first husband later passed away, and Hauxwell subsequently remarried. Hauxwell is still the record owner of the Broeker land. Hanzlick, as trustee of Midwest Investments Irrevocable Trust, is recorded in the official records as the owner of two tracts of land (Tracts 1 and 2) adjacent to the Broeker land. Tracts 1 and 2, collectively, consist of approximately 21.45 acres. There is a former open-pit silica mine on the first tract, and the second tract consists of 2 acres and is a " deeded easement" across the Broeker land to reach the nearby county road. Hanzlick acquired Tracts 1 and 2 by treasurer's tax deeds in 2010. Hanzlick and his wife deeded title of the tracts to the trust by quitclaim deed.

Hauxwell currently resides in an assisted living facility in Arapahoe, Nebraska. Ihling Lee Carskadon, Jr., is Hauxwell's son and her attorney in fact. Carskadon testified at trial that he has performed work on Tracts 1 and 2 since at least 1971, including controlling the musk thistle and shearing cedar trees on the property. Before 2001, Carskadon's cattle would regularly graze on Tracts 1 and 2. In 2001, Carskadon began renting out the Broeker land and Tracts 1 and 2 to a neighbor. Besides Hauxwell's family or tenants, no one else has had access to the property

Page 801

since 1971. Carskadon, however, did testify that neither he nor anyone else in his family has paid any property taxes for either tract. Further, the record does not demonstrate that Carskadon or anyone in the family tendered payment of the taxes to either the county or the Hanzlicks.

The Hanzlicks purchased the tax certificates for Tracts 1 and 2 from the Furnas County treasurer in October 2007. Hanzlick testified that he inspected the land and found no evidence that anyone was using the property at that time. Carskadon agreed [291 Neb. 4] that the cattle would not have been...

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