Durfee v. Keiffer

• Decision Date: 27 March 1959
• Docket Number: No. 34523,34523
• Citation: 95 N.W.2d 618,168 Neb. 272
• Parties: Gene DURFEE and Laura Durfee, Appellees, v. Ralph KEIFFER, Deana Keiffer, Russell Nauman, Carolyn Nauman and Julia E. Duke, Appellants.
• Court: Nebraska Supreme Court

Page 618

95 N.W.2d 618

168 Neb. 272

Gene DURFEE and Laura Durfee, Appellees, v. Ralph KEIFFER, Deana Keiffer, Russell Nauman, Carolyn Nauman and Julia E. Duke, Appellants.

No. 34523.

Supreme Court of Nebraska.

March 27, 1959.

Syllabus by the Court.

1. This court will dispose of a case on appeal on the theory on which it was presented to the trial court by the parties.

2. Trial courts should not permit a record to be made of testimony referring to exhibits without requiring counsel and witnesses to identify for the record that about which they testify.

3. The boundary between Missouri and Nebraska fluctuates with the changes of the channel of the Missouri River where that alteration is gradual and imperceptible; but when by a sudden variation the stream seeks and makes for itself an entirely new course and abandons the old channel, the boundary remains along the line which constituted the center of the old channel.

4. Land uncovered by a gradual subsidence of water is not an accretion, but a reliction. The same law applies to both these forms of addition to real estate which are held to be the property of the abutting landowner.

5. Accretion is the process of gradual and imperceptible addition of solid material, called alluvion, thus extending the shore line out by deposits made by contiguous water, or by reliction, the gradual withdrawal of the water from the land by the lowering of its surface level from any cause.

6. Where by the process of accretion and reliction, the water of a river gradually recedes, changing the channel of the stream and leaving the land dry that was theretofore covered by water, such land belongs to the riparian owner.

7. The fact that accretion is due, in whole or in part, to obstructions placed in the river by third parties does not prevent the riparian owner from acquiring title thereto.

8. Where the accretion commences with the shore of an island and afterward extends to the mainland, or any distance short thereof, all the accretion belongs to the owner of the island; but, where accretions to the island and to the mainland eventually meet, the owner of each owns the accretions to the line of contact.

9. Where a river changes its main channel, not by excavating, passing over, and then filling the intervening place between its old and its new main channel, but by flowing around intervening land which never becomes in the meantime its main channel, and the change from the old to the new main channel is wrought during many years by the gradual or occasional increase from year to year of the proportion of the waters of the river passing over the course which eventually becomes the new main channel, and the decrease from year to year of the proportion of its waters passing through the old main channel until the greater part of its waters flow through the new main channel, the boundary line between the estates remains in the old channel subject to such changes in that channel as are wrought by erosion or accretion while the water in it remains a running stream.

10. Plaintiff in an action to quiet title has the burden of proof and he must recover upon the strength of his title and not because of any weakness in the title of his adversary.

11. An occupant is one who occupies; an inhabitant; especially one in actual possession, as a tenant, who has actual possession, in distinction from the landlord who has legal or constructive possession.

12. It is to be presumed that the Legislature in using language in a statute gave to it the significance that had been previously accorded to it by the pronouncements of this court unless a different meaning has been provided by the context of the statute.

13. Actual possession or occupancy are synonymous and mean actual, open, visible possession or occupancy in fact, exactly that and nothing less, as distinguished from constructive possession.

14. Possession of land is notice to the world of the possessor's rights therein.

15. Where one is put upon inquiry, he is to be charged with notice of all such facts as he would have learned by reasonable inquiry.

16. By the provisions of section 25-321, R.R.S.1943, the proof of service of publication in accord with sections 25-517 and 25-518, R.R.S.1943, is conclusive against all persons except those in actual possession of the property and whose ownership of, interest in, right or title to, or lien upon such property does not appear of record.

17. The right of such persons to avoid the conclusive effect of such service is limited to strict compliance of proof of actual possession in the literal meaning of those words.

Pettijohn & Eiser, Oregon, Mo., Wiltse & Wiltse, Falls City, for appellants.

Ross & O'Connor, Alfred A. Fiedler, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an action to quiet title to land. As originally brought it involved a claim to land lying on both sides of an old chute in the Missouri River. At the area involved the Missouri River runs generally in an east and west direction. The land lying east and north of the chute appears to have been owned by defendant Nellie N. Duke, she having a life estate, with remainder in three children. The land lying south and west of the chute was claimed by the defendant, Julia E. Duke.

Issues were made and trial was had resulting in a decree that plaintiffs were the owners of the land involved lying south and west of the middle of the chute. Defendants appeal. There is no cross-appeal by plaintiffs. Hence the appeal here involves only the lands claimed by defendant Julia E. Duke. We, then, consider it as an appeal in an action brought against defendant Julia E. Duke, hereinafter called defendant, and her tenants.

Plaintiffs alleged in their petition the ownership of the land; that they were owners under and by virtue of a deed executed and delivered as the result of a tax foreclosure proceeding in Richardson County; that the land was situated wholly in the State of Nebraska; that it was west of the meander line of the middle of the channel of the Missouri River as established by a United States government survey in 1855-1856; that the Missouri River by avulsion in 1916 changed its course to its present channel west and south of the land involved; and that the boundary between the states remained as it existed at the time of the 1855-1856 survey.

Defendants answered and alleged that the lands were wholly in the State of Missouri and not within the jurisdiction of the court. They then denied generally, admitted possession, and claimed ownership. They prayed for a dismissal of the plaintiffs' petition.

At the trial defendant testified that she based her claim of title on a swamp land patent from the State of Missouri.

On appeal here defendant argues that she proved ownership by adverse possession. Plaintiffs contend that such a claim must be affirmatively pleaded and cannot now be raised. It does not appear that such a contention was advanced to the trial court. Defendant's testimony negatives it. Claim of ownership by adverse possession is advanced here for the first time.

The rule is: This court will dispose of a case on appeal on the theory on which it was presented to the trial court by the parties. See O'Dell v. Goodsell, 152 Neb. 290, 41 N.W.2d 123.

This cause is here for trial de novo subject to the rule that: In equity cases when the evidence on material questions of fact is in irreconcilable conflict this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite. See Rettinger v. Pierpont, 145 Neb. 161, 15 N.W.2d 393.

Both parties here introduced a large number of aerial photographs, maps, and charts of the area where the land in dispute is located. The record is replete with the testimony of witnesses who referred to locations of land, buildings, fences, dikes, streams, etc., by general statements of 'here' and 'there,' and 'indicated' to the trial court the reference to the location they were testifying about. In many instances we are unable to determine with any degree of certainty to what they refer, and in some instances even the exhibits mentioned cannot be identified. Trial courts should not permit a record to be made of testimony referring to exhibits without requiring counsel and witnesses to identify for the record that about which they testify. Where such a record is made we have nor ecourse but to apply the above equity rule, and do so here.

It is advisable at this point to state the rules of law that are to be considered here. The parties here are not in disagreement that the boundary between Missouri and Nebraksa at the time of the admission of the states to the Union was the center of the channel of the Missouri River. We have held: "That boundary may and does fluctuate with the changes of the channel of that stream where the alteration is gradual and imperceptible; but when, by a sudden variation, the stream seeks and marks for itself an entirely new course and abandons the old path, the boundary remains along the line which constituted the center of the old channel." Lienmann v. County of Sarpy, 145 Neb. 382, 16 N.W.2d 725, 729.

'Where the main channel of the river changes by accretion and decretion, the boundary between the two states follows the channel. * * * Where the main channel of the river changes by avulsion to a new course, the boundary does not change but becomes fixed along the line which constituted the center of the old channel. * * * Lands cut off from the mainland of a state by avulsion do not change their status but remain a part of the state from which they were cut off.' Lienmann v. County of Sarpy, supra.

'Land uncovered by a gradual subsidence of water is not an accretion, but a reliction. The same law applies to both...