Barnes v. Milligan, 40384

• Decision Date: 28 April 1976
• Docket Number: No. 40384,40384
• Citation: 241 N.W.2d 508,196 Neb. 50
• Parties: Faye Tinnin BARNES, Appellee, v. Harland S. MILLIGAN, Appellant, Impleaded with Glaideth Frank et al., Appellees.
• Court: Nebraska Supreme Court

Page 508

241 N.W.2d 508

196 Neb. 50

Faye Tinnin BARNES, Appellee, v. Harland S. MILLIGAN, Appellant, Impleaded with Glaideth Frank et al., Appellees.

No. 40384.

Supreme Court of Nebraska.

April 28, 1976.

Syllabus by the Court

1. The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact and where under the facts he is entitled to judgment as a matter of law.

2. Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasonable doubt touching the existence of a material issue of fact must be resolved against the moving party.

3. Upon a motion for summary judgment the court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists.

Michael V. Smith, Smith & King, Gordon, for appellant.

Edmund Hollstein, Rushville, for appellee.

Heard before WHITE, C.J., and McCOWN, NEWTON and BRODKEY, JJ., and KORTUM, District Judge.

McCOWN, Justice.

This is an action involving title to and possession of certain ranch land lying between the boundary line described in conveyances, and a boundary fence erected and maintained for more than 10 years.

The plaintiff's original petition was an action for willful trespass and damages. The defendant Milligan's counterclaim asserted adverse possession of the disputed tract and prayed that title be quieted in him. Plaintiff's amended petition sought damages and delivery of possession. Both parties filed motions for summary judgment. The court overruled defendant's motion for summary judgment, granted plaintiff's motion, directed a survey to establish the legal boundary, ordered plaintiff to erect a fence along that boundary at her own expense, and dismissed defendant's counterclaim. The defendant Milligan has appealed.

The disputed land here, together with land to the east and west of it, had been a part of the Tinnin ranch in Sheridan County at one time. Another large ranch, known as the Modisett ranch, adjoined the Tinnin ranch on the east. The Modisett ranch was owned by Stansbie and Engel Company, a corporation formed by Chris and LeRoy Abbott. In 1944, Stansbie and Engel acquired a one-third interest in the Tinnin ranch. The plaintiff in this action, who owned a two-thirds interest in the Tinnin ranch then, filed a partition action in federal court. On June 5, 1951, that pertition action was settled by agreement approved by the court, and the Tinnin ranch was divided so that the plaintiff received the western part of the Tinnin ranch and Stansbie and Engel Company received the eastern part of the ranch, which adjoined the Modisett ranch. The agreement was confirmed by deeds executed by the former joint owners to each other.

Chris Abbott and the plaintiff could not agree on the fencing of the new common border, which was not surveyed or fenced. Sometime thereafter prior to his death in 1954, Chris Abbott arbitrarily installed a fence on the northerly portion of the west side of the disputed area. That fence connected to the north end of an existing fence which extended for some distance along the west boundary of Sections 15 and 22. At about the same time an employee of plaintiff installed a fence from the south end of the old fence in Section 22 and thence southeasterly to a point just east of the center of Section 27, where it tied into an existing east-west fence. The critical fence, including the portions erected by plaintiff and defendant's predecessors with the old fence in the middle, covered a distance of about 2 1/2 miles and has remained in that exact location ever since the middle 1950's. There was no fence along the actual boundary line, and the disputed area includes approximately 1,000 acres.

In sustaining plaintiff's motion for summary judgment the court relied upon documents, admissions, and answers to interrogatories, together with depositions of various witnesses. In its memorandum opinion the District Court specifically found that the defendant and his predecessors in title had been in exclusive continuous possession of the land since the mid-1950's, and during all that time had used the land for the purposes for which it was suited. However, the court found that the defendant had not proved that such exclusive possession and use was 'under a claim of ownership.' The court determined that the possession and use was not under a claim of ownership on the basis of a statement in one of the depositions that at the time Chris Abbott commenced construction of the northern portion of the fence he stated to the witness that he was going to build the fence over to the school section land and 'I can pay that old lady rent on this land just like anybody else.' The court accepted the witness' statement in the deposition as an established uncontradicted fact. There was, however, evidence in a deposition from another witness that the fence was a temporary fence, and that Mr. Abbott at no time said anything to him about leasing the land from the plaintiff. There is no...