Brandt v. Heil, No. A-05-1189 (Neb. App. 4/24/2007)
| Decision Date | 24 April 2007 |
| Docket Number | No. A-05-1189.,A-05-1189. |
| Parties | KATHLEEN LESLIE BRANDT AND MARILYN JOAN BORDERS, SUCCESSORS IN INTEREST TO THE REAL ESTATE OF MILDRED M. DOLSON, APPELLEES, CROSS-APPELLANTS, AND CROSS-APPELLEES, v. PAUL HEIL AND PAULINE HEIL, HUSBAND AND WIFE, APPELLANTS AND CROSS-APPELLEES, EDWARD HAACK AND LAURIE HAACK, HUSBAND AND WIFE, APPELLEES, CROSS-APPELLANTS, AND CROSS-APPELLEES, KENNY LOXTERKAMP, APPELLANT AND CROSS-APPELLEE, AND ALL PERSONS HAVING OR CLAIMING ANY INTEREST IN AND TO LOTS 2, 3, AND 4 IN THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 29,TOWNSHIP 19 NORTH, RANGE 48 WEST OF THE 6TH P.M., IN MORRILL COUNTY, NEBRASKA, APPELLEES. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Morrill County: BRIAN SILVERMAN, Judge. Affirmed in part, and in part reversed and remanded with directions.
Larry R. Baumann, of Kelley, Scritsmier & Byrne, P.C., and John P. Heil, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, L.L.P., for appellants.
John F. Simmons, of Simmons Olsen Law Firm, P.C., for appellees Kathleen Leslie Brandt and Marilyn Joan Borders.
Paul E. Hofmeister, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, P.C., L.L.O., for appellees Edward Haack and Laurie Haack.
This is an appeal from an order of the district court for Morrill County, quieting title to certain real property in Mildred M. Dolson. Other parties with possible interests in the property are Paul Heil and Pauline Heil, Edward Haack and Laurie Haack, Kenny Loxterkamp, and "all persons having or claiming any interest in" the property. The Heils and Loxterkamp appealed from the district court's order, and the Haacks and Dolson filed cross-appeals. Dolson died pending appeal, and her appeal has been revived in the names of Kathleen Leslie Brandt and Marilyn Joan Borders, the successors in interest to her real property (Dolson's successors). For the reasons set forth herein, we affirm in part, and in part reverse and remand the matter with directions.
At the time of trial, Dolson owned certain real property (the Dolson property) in Morrill County, lying south of the North Platte River. At that point, the river flows in both a north and south channel. Lying between the two channels is an island, a large portion of which forms the disputed property at issue in this case. The property to the east of the Dolson property is owned by the "Nolte" family, and it is undisputed that the eastern tip of the island is owned by the Noltes. Dolson and her late husband acquired title to the Dolson property in 1947. The Dolson property is bisected by a highway running east and west. The Dolson property lying south of the highway includes the Dolson residence and farmland. The Dolson property lying to the north of the highway is pasture ground. There is an east-west fence (the north fence) running along the north side of the island, that is, along the south bank of the north channel of the river. There is also a north-south fence (the east fence) running south from the north fence and continuing south across the south channel of the river and ending on the north side of the highway. The east fence divides the Nolte portion of the island from the disputed portion of the island and the Nolte property in general from Dolson's pasture ground. There is also a north-south fence (the west fence) on the western end of the island; the west fence runs south from the north fence, enclosing the western end of the island, and continues south until it reaches the north side of the highway. There is also an east-west fence (the south fence) running along the north side of the highway, making a complete enclosure where it connects with the east fence and the west fence.
Pauline Heil (hereinafter Pauline) owns land north of the river and immediately north of the island. Paul Heil is Pauline's husband (hereinafter Paul). Pauline's family has owned this property since 1927. The Heils do not live on the Heil property. Loxterkamp leased the Heil property from 1966 to 1999. Since 1999, the Heil property has been leased by Loxterkamp's son.
The Haacks also own land north of the island, and their property is located immediately to the west of the Heil property. The Haacks acquired their property in 1999. The Haack property was previously owned by the "Bennett" family, and much of the evidence at trial concerned things that occurred during the Bennetts' ownership of the property. Loxterkamp's son testified at trial that he had leased the Haack property since its purchase by the Haacks.
We observe that the Haack and Heil properties north of the river are separated by a north-south fence, but there is no corresponding north-south fence extending from their property line south across the north channel of the river and onto the island.
Dolson filed her initial complaint on September 10, 2003, followed by an amended complaint on October 24 and a second amended complaint on September 2, 2004. In her operative complaint, Dolson alleged that she was the owner of certain real property in Morrill County and that her ownership included a portion of the disputed island and extended up to the north fence, which runs along the south bank of the north channel of the North Platte River. A legal description of the fence line was included in an attachment to Dolson's complaint. Dolson alleged that she and her predecessors in interest had maintained the north fence and used it as a boundary line, that neighbors and lessees had considered the north fence the boundary line, and that the north fence had been the accepted and acquiesced boundary for more than 10 years prior to Dolson's complaint. Dolson alleged that she and her predecessors in title had been in continuous, notorious, and exclusive possession of real property lying south of the north fence line under a claim of title for more than 10 years.
Dolson alleged that the Haacks, the Heils, and Loxterkamp all claimed some interest in the disputed portion of the island, which interest was subordinate to Dolson's interest and was a cloud on the title to the property. Dolson asserted that a portion of her property, including the disputed portion of the island, was pending sale, but due to the cloud on the title, the buyer had refused to complete the sale.
Dolson set forth a claim for slander of title, alleging that on June 4, 2003, she entered into a contract for $925,000 to sell property including the disputed portion of the island and that the buyer was told by the Haacks, the Heils, and their agents that the Haacks and Heils owned a large portion of the property listed on the contract for sale. Dolson alleged that the buyer had refused to close the sale because of the claim by the Haacks and Heils to ownership of a portion of the property.
Dolson asked that title to the disputed property be quieted in her and that all boundaries referred to in her complaint be established and quieted in her. Dolson also sought attorney fees, special damages for the loss of sale, general damages as proved at trial, and such other relief as equity might require.
The Heils answered and set forth a counterclaim. The Heils alleged that Pauline was the owner of certain real estate in Morrill County, the southern boundary of which was the thread of the stream of the river channel south of the disputed island and that any interest Paul had in the property was through his marriage to Pauline. The Heils alleged a boundary dispute pursuant to Neb. Rev. Stat. § 34-301 (Reissue 2004) and asked the court to establish the boundary in the river channel south of the island. The Heils alleged that in the event the thread of the stream was not located in the south channel, they had been in continuous, notorious, and exclusive possession of the disputed portion of the island for more than 10 years and had established ownership by adverse possession.
In the Haacks' answer to Dolson's amended complaint, the Haacks affirmatively alleged that the main channel of the river was the south channel, running on the south side of the island, thus making the boundary between the Dolson property and the Haacks' property the thread of the south channel. The Haacks also alleged that they and their tenants had openly and continuously used the island for hunting and grazing purposes, as did their predecessors in title, for many decades. Although not contained in the record before us, the transcript does contain documentation showing that the Haacks also filed a counterclaim.
Loxterkamp answered, denying that he claimed an interest in the island, although admitting that he previously had an interest by virtue of leases with the landowners to the north of the island. Loxterkamp asked the court to find that the action filed by Dolson was not supported by the evidence and to enter a judgment establishing the boundary between the Haacks' and Heils' properties and the Dolson property as the south channel of the river, south of the island.
Trial was held before the district court on September 15 through 17, 2004. The record contains over 800 pages of testimony from more than 30 witnesses, as well as many exhibits. The testimony concerned the use of the disputed portion of the island to pasture cattle, the existence and maintenance of the fence on the island, the use of the island for hunting and recreation, and the flow of water in and depth of both the north and south channels of the river. We set forth such specific evidence as is necessary to our decision in the analysis section below.
The district court entered an order on September 6, 2005, ruling on the parties' disputes. The court found in favor of the Heils, the Haacks, and Loxterkamp on Dolson's claim for slander of title.
With regard to the other claims at issue, the district court found that...
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