Conkey v. Knudsen

• Decision Date: 29 May 1942
• Docket Number: 31217.
• Citation: 4 N.W.2d 290,141 Neb. 517
• Parties: CONKEY v. KNUDSEN et al. (GEORGE et al., Intervenors).
• Court: Nebraska Supreme Court

4 N.W.2d 290

141 Neb. 517

CONKEY v. KNUDSEN et al. (GEORGE et al., Intervenors).

No. 31217.

Supreme Court of Nebraska

May 29, 1942

Syllabus by the Court.

1. "Where a stream which is a boundary from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; the boundary remains as it was in the center of the old channel, although no water may be flowing therein. State of Nebraska v. State of Iowa 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186." Iowa Railroad Land Co. v. Coulthard, 96 Neb. 607, 148 N.W. 328.

2. "If the change in the stream is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel has formed, the original thread of the stream continues to mark the limits of the two estates. Gould, Waters (3d ed.) sec. 159." Iowa Railroad Land Co. v. Coulthard, 96 Neb. 607, 148 N.W. 328.

3. Evidence examined, and held to establish that the present situation and condition of the lands in suit were primarily occasioned by an "avulsion," and were not the result of "accretions" to the real estate of claimants herein, created or formed by the waters of the Missouri river.

George W. Leamer, of South Sioux City, for appellant Conkey.

M R. Smith, of Dakota City, and S.W. McKinley, Jr., of Sioux City, Iowa, for Hans Knudsen et al.

D Van Donselaar, of Sioux City, Iowa, for appellee Goodfellow.

John B. Pizey and Pizey, Sears & Pizey, all of Sioux City, Iowa W. P. Warner, of Dakota City, for cross-appellant McGonigle et al.

W. V. Steuteville, of Sioux City, Iowa, and P. F. Verzani, of Ponca, for appellee Ralph George et al.

Richard Twohig, of South Sioux City, and McCarthy & McCarthy, of Ponca, for cross-appellants Christensen et al.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

EBERLY Justice.

In this cause are presented appeals by parties in interest from certain judgments entered by the district court for Dakota county, Nebraska, on the 6th and 7th of January, 1941, determining certain lands in suit to be "an accretion area" and directing the division thereof on that basis.

This is the second appearance in this court of an action to quiet title to certain real estate against the following named defendants: Hans Knudsen, Jr., Clara Knudsen, Hans Knudsen, Jack L. Hamp, Lewis W. Newman (who is the same person as L. W. Newman), Maggie Leedom, Pearl M. Sanford, Sene Knudsen, Maude Harris, Harry J. Goodfellow, Martha E. Goodfellow, Otis Wood, "and all persons having or claiming any interest in and to all that part of the accretion land to the southwest quarter of northeast quarter and northwest quarter of southeast quarter of section 13, township 29, range 7 East of the 6th P. M. in Dakota county, Nebraska, more particularly described as follows: (here follows a description by metes and bounds of the land claimed.)" All parties defendant named in plaintiff's petition were duly summoned either by personal service of summons or duly notified as provided by our Civil Code. Plaintiff also duly filed a lis pendens in such proceeding. On February 10, 1938, default was entered against Hans Knudsen, Jr., Clara Knudsen, Lewis W. Newman, Pearl M. Sanford, Maude Harris, Harry J. Goodfellow, and Martha E. Goodfellow, and "all persons having or claiming any interest in and to (lands heretofore referred to), real names unknown." No appeal was ever taken from this judgment or decree determining that the parties last named were in default for pleading, and it has become final. It is also disclosed by the record that in due course of pleading the defendants Hans Knudsen, Sene Knudsen, Maggie Leedom, Otis Wood and Jack L. Hamp filed their respective answers to the petition of plaintiff, taking issue with the allegations thereof. On February 1, 1937, Will Brewer, as an intervener, filed his petition of intervention in this action. On December 31, 1937, Ralph George, as an intervener, filed his petition of intervention in said cause. Both interveners set up alleged rights in the premises in suit and challenged plaintiff's right to recover the premises claimed by him. Intervener Will Brewer, as his answer and cross-petition to the petition of plaintiff, in substance, (1) denies plaintiff's allegation as to plaintiff's actual, adverse possession of the lands described in plaintiff's petition; (2) sets forth his claim of title to a portion of the lands described in plaintiff's petition as an accretion to certain land owned by this intervener, of which he also alleges continuous, open, notorious, adverse possession of the lands described in his cross-petition for more than ten years last past, and prays that title thereto may be quieted in such cross-petitioner. Intervener Ralph George in his answer and cross-petition, in substance, (1) expressly denies that plaintiff or his grantors have ever had continuous, open, notorious, exclusive possession of the lands described in plaintiff's petition; (2) sets forth his claim of title to certain lands described in the cross-petition of said George as and by virtue of the same being a lawful accretion to the lands owned by him and described in his cross-petition, and further alleges adverse possession of such lands so described for more than ten years last past. Each of the aforesaid interveners pray for appropriate relief.

To the pleadings of defendants and cross-petitioners, plaintiff joined issue by filing his replies and answers thereto, all of which in substance contained general denials. After joinder of issues a trial was had in the district court for Dakota county, in which plaintiff, the defendants, and both interveners appeared and participated. Evidence and proof were introduced separately by and in behalf of each and all in support of the allegations set forth and contained in their respective pleadings. On March, 31, 1938, a judgment was entered in said cause, which recites:

"On this 31st day of March, 1938, it being a day of the regular February, 1938, term of this court, this cause came on for further hearing, the evidence having been submitted at a previous hearing, and the court being duly advised in the premises finds that as to the defendants Hans Knudsen, Sene Knudsen, Maggie Leedom, Otis Wood and Jack L. Hamp, they have no right to, interest in, or lien upon the property described in plaintiff's petition ***; that all the allegations of plaintiff's petition are true as to the above named or designated defendants, and the plaintiff is the owner of the premises described in his petition and he is entitled to the relief prayed. *** It is therefore ordered, adjudged and decreed by this court that the possession and title of said plaintiff in the following described real estate (specific description follows, which is identical with the lands described in plaintiff's petition) and that all and any part of the same be quieted and the same is hereby quieted and forever confirmed as against the above named and designated defendants and each of them and all persons claiming by, through or under them or any of them, and the plaintiff has the fee simple title in said permises (here follows provision of decree enjoining above named defendants from having or claiming any right to or interest in the above described property) ***." From the judgment thus entered Hans Knudsen, Sene Knudsen, Maggie Leedom and Otis Wood prosecuted an appeal to this court. To that appeal all other defendants, plaintiff, Ben F. Conkey, and interveners Will Brewer and Ralph George were made appellees. This appeal was filed in this court on June 30, 1938. The plaintiff and appellees, including both interveners, cooperated in securing the allowance of the bill of exceptions containing the evidence on which the case was tried and presented to the district court, and appeared in this court in this pending appeal by stipulation duly executed by them. The case was in due course thereupon determined in the supreme court in an opinion by Carter, J., duly adopted by this court on March 10, 1939, and now reported in 135 Neb. 890, 284 N.W. 737, as Conkey v. Knudsen (George et al., Interveners), and the judgment entered in the district court was in all respects affirmed.

It will be noted that the judgment thus entered is, as to parties thereto and their privies, final and conclusive, and the same as affirmed by this court was not subject to be reopened, modified or revised by the district court except as by law expressly provided. It was a judgment on the merits, and as such concluded the parties thereto, not only as to the things determined, but as to matters which might have been determined. Triska v. Miller, 86 Neb. 503, 125 N.W. 1070. Indeed, the rule adopted in this jurisdiction appears to be: "A person not a stranger to a judicial proceeding is bound thereby, and the record of such proceeding is admissible in evidence against him. 1 Greenl. Ev. [14th ed.] § 522." Dorsey v. McGee, 30 Neb. 657, 46 N.W. 1018, 1019.

It thus appears that the determination of the issue of Conkey's adverse possession of the lands in suit was in necessary effect the controlling issue of the litigation. This title based on statutory adverse possession for the requisite period, so established, was necessarily hostile and superior to any right or title to the premises in suit possessed or claimed by the other parties to the judgment, whether as resulting from title deeds or as "accretions" to the real estate owned by them. The title by "adverse possession" adjudicated in Conkey by necessary implication is superior to and wholly invalidates all previously existing claims and titles opposed thereto on which the other parties defendant to the suit relied, and operated to adjudicate a superior title in fee...