Franz v. Nelson
| Decision Date | 26 April 1968 |
| Docket Number | No. 36882,36882 |
| Parties | George FRANZ and Mary Gertrude Franz, Appellants, v. Glen D. NELSON and Frieda G. Nelson, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. While it is true that a deed must described land so that it can be identified, yet that is certain which by evidence aliunde can be made certain.
2. If the description in a deed identifies, or furnishes the means of identifying, the property conveyed, it performs its function, it being sufficient when from it the property can be identified.
3. In order to maintain trespass to land the plaintiff must be the owner, or in possession thereof, when the acts complained of were committed.
4. The burden of proof in an action in trespass is upon the plaintiff to prove ownership or possession.
John A. Bottorf, David J. Maser, Sutton, for appellants.
Sullivan & Sullivan, Clay Center, for appellees.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
Plaintiffs and appellants are the owners of the south half of the southwest quarter of Section 10, Township 8 North, Range 6 West of the 6th P.M., in Clay County, Nebraska. Defendants and appellees are adjoining landowners.
In 1912, former owners of plaintiffs' property conveyed to Eldorado Township in said county a strip of ground to be used as a drainage ditch described as follows: '* * * a strip of land commencing 425 feet East of the middle of the public highway/ between (sic) section Nine (9) and Ten (10) Eldorado Township and 900 feet North of the Quarter line of the South west Quarter of section Number Ten (10), Eldorado Township, and running thence due South 2200 feet/ through the South West Quarter of sec. 10 Eldorado Twp. same to be a strip in width 10 feet during the whole of said course.' Immediately upon receipt of the deed, the township board made provision for the opening of a ditch through plaintiffs' 80-acre tract and it is not disputed that the ditch runs on the line described. The ditch serves to drain surface waters from the property of defendants and other adjoining landowners. The undisputed evidence indicates that this ditch has been maintained from 1919 to the present time. Defendants have owned the property adjoining plaintiffs' land since 1949. During the ensuing years, defendants made it a practice to keep the ditch open, cleaning it out at least every 2 years, and on occasion, twice in the same year. The ditch is at present 6 feet wide and well within the 10-foot strip claimed by Eldorado Township.
Plaintiffs seek to enjoin defendants from maintaining the ditch and from draining surface waters into and along the ditch. The trial court found generally for defendants and dismissed the action.
Plaintiffs contend that the conveyance to Eldorado Township is ineffective because the description is not sufficiently definite. It will be noted that the starting point is definitely fixed and that the line runs thence due south 2,200 feet through the southwest quarter of Section 10. It is specified that the strip shall be 10 feet wide and shall be used as a drainage ditch. Logically, the line described was intended as the center of the ditch....
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...the land when the acts complained of were committed. Flobert Industries v. Stuhr, 216 Neb. 389, 343 N.W.2d 917 (1984); Franz v. Nelson, 183 Neb. 137, 158 N.W.2d 606 (1968). See Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984) (holding that plaintiffs were not entitled to damages for tresp......
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Czarnick v. Loup River Public Power Dist., 38844
...Commission v. Hull, 168 Neb. 805, 97 N.W.2d 535; Dawson County Irrigation Co. v. Stuart, 142 Neb. 428, 6 N.W.2d 602; Franz v. Nelson, 183 Neb. 137, 158 N.W.2d 606; Hall v. City of Friend, 134 Neb. 652, 279 N.W. The State's motion to dismiss specifically alleges that the statute of limitatio......
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Haines v. Mensen
...232 Neb. 676, 442 N.W.2d 182 (1989); Hulinsky v. Parriott, 232 Neb. 670, 441 N.W.2d 883 (1989). We said in Franz v. Nelson, 183 Neb. 137, 138-39, 158 N.W.2d 606, 607 (1968): "While it is true that a deed must describe land so that it can be identified, yet that is certain which by evidence ......
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Flobert Industries, Inc. v. Stuhr, 82-780
...for trespass the plaintiff need only have title or possession of the land when the acts complained of were committed. Franz v. Nelson, 183 Neb. 137, 158 N.W.2d 606 (1968). Here, we point out that the trial court correctly noted the east property line of the western tract of land conveyed to......