Dunnick v. Stockgrowers Bank of Marmouth, 39080

• Decision Date: 28 February 1974
• Docket Number: No. 39080,39080
• Citation: 215 N.W.2d 93,191 Neb. 370
• Parties: Willis D. DUNNICK and Alma M. Dunnick, Appellants, v. STOCKGROWERS BANK OF MARMOUTH, a corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 93

215 N.W.2d 93

191 Neb. 370

Willis D. DUNNICK and Alma M. Dunnick, Appellants, v. STOCKGROWERS BANK OF MARMOUTH, a corporation, et al., Appellees.

No. 39080.

Supreme Court of Nebraska.

Feb. 28, 1974.

Syllabus by the Court

1. To establish a road or highway by prescription there must be use by the general public under a claim of right, adverse to the owner of the land, of some particular or defined line of travel. The use must be uninterrupted and without substantial change for a period of time necessary to bar an action to recover the land.

2. Where the use of an easement has been adverse, notorious, and uninterrupted for the statutory period, it will be presumed to have been under a claim of right. The owner of the servient tenement is charged with knowledge of such use and acquiescence in it is implied.

3. Payment of taxes is not a necessary element of proof of adverse possession unless made so by express statutory requirement.

4. It is not necessary that a right to a road or highway obtained by prescription or use be equal in all respects to that which would have resulted from the formal establishment of a road by statutory proceedings.

5. The title and ownership of land acquired by adverse possession and prescriptive use by the public as a road or street is the same as it would have been if the land had been dedicated as a street or highway and accepted by the appropriate governmental entity.

Ryan & Scoville, Robert G. Scoville, South Sioux City, for appellants.

Smith, Smith & Boyd, South Sioux City, for appellees.

Heard before WHITE, C.J. and SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ., and ZEILINGER, District Judge.

McCOWN, Justice.

This is an action to quiet title to accretion land along the Missouri River and in the City of Dakota City, Nebraska. The District Court quieted title in the plaintiffs to all the accretion land, except the extension of an alley and a road along the river bank. Title to the river road was quieted in the City of Dakota City. This appeal by plaintiffs involves only that road.

The accretion land here was originally platted as a part of the Village of Dakota City, and lies between block 273 and the Missouri River. Plaintiffs' immediate predecessor in title acquired all of block 273 by deed dated May 11, 1952. Plaintiffs' interest in the land rests on possession since 1964 under a contract of purchase and a warranty deed to plaintiffs dated September 14, 1970. The deed conveyed all of block 273 and accretion thereto, but the warranty was limited to 'that part of said real estate which is not accretion land.' Plaintiffs commenced this quiet title action on November 5, 1970.

The accretion land here was east of the old high bank of the river. It was basically unenclosed and uncultivated land with timber, willows, and brush on most of it. The river road in question ran north and south along the river on the most easterly portion of the accretion land. The evidence was in some dispute as to the location of the road, the nature and extent of its use, and the period of time it had existed. There is evidence that before 1959 the road was used by hunters, fishermen, and sightseers. In 1959 some river stabilization work was done along the river bank. The road was used extensively by rock trucks during that time. There is ample evidence that from 1959 on, the road has been used continuously by the public and has been regularly maintained by the City of Dakota City. Aerial photographs in 1959 and on later dates confirm the existence of the road in the same location through the 10-year prescriptive period. The trial court found 'that said City and the public have maintained and used said road continuously and adversely for more than ten years' and quieted and confirmed the fee simple title to the road in the City of Dakota City.

Plaintiffs contend that the evidence is insufficient to establish any title in the city by adverse possession or prescriptive use. To establish a road or highway by prescription there must be use by the general public under a claim of right, adverse to the owner of the land, of some particular or defined line of travel. The use must be uninterrupted and without substantial change for a period of time necessary to bar an action to recover the land. Where the use of an easement has been adverse, notorious, and uninterrupted for the statutory period, it will be presumed to have been under a claim of right. The owner of the servient tenement is charged with knowledge of such use and acquiescence in it is implied. See State ex rel. Game, Forestation & Parks Commission v. Hull, 168 Neb. 805, 97 N.W.2d 535. The evidence is more than sufficient to support the factual findings as to adverse possession and prescriptive use for the statutory period of 10 years.

Plaintiffs also contend that a governmental subdivision which has the power of eminent domain is barred as a matter of law from obtaining adverse possession of real property because the Constitution prohibits the taking of property without just compensation. Adverse possession or use of real property, whether by the State or by an individual, does not diminish nor destroy the owner's rights at any time during the running of the statutory period of limitation. The statute of limitations, however, requires the owner to exercise his rights within the 10-year time period. See Commonwealth of Kentucky v. Stephens, 407 S.W.2d 711 (Ky., 1966). See, also, Annotation, 18 A.L.R.3d 678. It is also significant that 'the public' which used and acquired the right to this road is distinct from the city. The individual members of 'the public,' whose combined use created the right to this road, did not have the power of...