Hallowell v. Borchers
| Decision Date | 05 November 1948 |
| Docket Number | 32436. |
| Parties | HALLOWELL et ux. v. BROCHERS et ux. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The plea of title to land by adverse possession, to be effective, must be proved by actual, open, exclusive, and continuous possession under claim of ownership for the full statutory period of ten years.
2. Where one by mistake enters upon and takes possession of the land of another, claiming it as his own to a definite and certain boundary, and continues in the open, notorious, and exclusive possession thereof under such claim, for ten years or more, he acquires title thereto by adverse possession although the land was not enclosed.
3. The purchase or attempted purchase of an outstanding title by one in adverse possession, after the expiration of the statutory period, is not alone sufficient to break the continuity of possession or divest it of its adverse character, although the occupany may believe that he is thereby acquiring the true title.
4. Willful trespass within the contemplation of section 25-2130 R.S. 1943, means that the act must be done knowingly or intentionally, and that the act was committed with knowledge and that the will consented to, designed and directed the act, as distinguished from a violation of the law where it appears to be in the honest and reasonable belief of the parties that they were acting within their legal rights and the conduct was rightful.
5. Within the contemplation of sections 25-1708 and 25-21,119 R.S. 1943, in a suit to quiet title in persons claiming adverse possession to specific real property, the costs follow the judgment.
Fischer, Fischer & Fischer, of Omaha, for appellants.
Swarr, May, Royce, Smith & Story and Robert K. Andersen, all of Omaha, for appellees.
Heard before SIMMONS, C.J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an action to quiet title in plaintiffs to certain strips of disputed land described in their amended petition, and to enjoin the defendants from entering upon such land and committing damage thereon.
For convenience appellants will be referred to under their original designation as defendants, and the appellees as plaintiffs.
On or about April 26, 1919, the plaintiffs purchased Lots 15 and 16 in Benson Acres, an addition to the city of Omaha, and immediately went into possession. Plaintiffs allege in their amended petition that for several years prior to April 1919, the exact time being unknown to them, the owners of Lots 15 and 16 above described had occupied and cultivated along with said lots, narrow strips of land on the north and west thereof, described as follows: 'Commencing at the northeast corner of Lot 14, thence southerly along the east line of Lot 14, 248.1 feet more or less to the southeast corner of Lot 14; thence westerly along the south line of Lot 14, 15 feet; thence northerly on a straight line intersecting the north line of Lot 14, 5 feet west of the northeast corner of Lot 14, 254.3 feet more or less to a point 6.8 feet beyond the north line of Lot 14; thence easterly 241.0 feet more or less to the east line of Lot 17 at a point 20 feet from the southeast corner of Lot 17; thence southerly along the east line of Lot 17, 20 feet to the southeast corner of Lot 17; thence westerly along the south line of Lot 17, 247.1 feet more or less to the point of beginning.' The total of the disputed strips of land is approximately one-tenth of an acre.
Plaintiffs further allege they believed and understood that they had purchased all of the land as herein described; that they and their predecessors in title before and since of April 1919 have been in the actual, open, notorious, exclusive, continuous, and adverse possession of the described land and by virtue thereof are the owners of the fee title.
The defendants purchase Lots 13, 14, and 17 in Benson Acres on September 30, 1946, and moved on the land in February 1947. Lot 14 adjoins the plaintiffs' property on the west, and Lot 17 on the north.
Defendants' answer denied adverse possession of the strips of land in dispute, in the plaintiffs, and alleged that plaintiffs only claimed land they purchased extended to the actual boundary lines. In October 1946, defendants had a survey made of Lots 13, 14, and 17. Subsequently the same surveyor made a survey for the plaintiffs, which included the disputed strips of land in question, designated as the 'claimed' boundaries of the plaintiffs. The plaintiff Maud Hallowell accompanied the surveyor and pointed out certain objects around what she considered to be the boundary lines. Exhibit 1, in evidence, is a plat drawn to scale, which shows the actual boundary lines, and the disputed strips of land as claimed which, according to the original survey, was considered an encroachment over the actual boundary lines.
When the plaintiffs first purchased their land it was in alfalfa and had a three-room stucco house on it. The land adjoining it on the north was a plot of land full of weeds, as was the land to the west of them. Plaintiffs' land was left in alfalfa for a year or so. Thereafter the plaintiffs made garden, planted fruit and other trees, and sowed grass seed. At that time and since, the plaintiffs have considered the boundary of their land to the north at the edge of the alfalfa which separated their land from other acreage. The alfalfa gradually died out and blue grass grew in place of it. To the north where this occurred, plaintiffs called this land the 'meadow', and that is where they planted the trees, most of which were Russian olives, which they refer to as the hedge.
The trees along the claimed boundary line are somewhat irregular, not being in an exact straight line. The plaintiffs located their boundary line on the west by the edge of the alfalfa on their place.
Plaintiffs at all times cultivated what they considered to be their own land within the boundary of the lines claimed. The land to the north and west of plaintiffs' land has been cultivated at different times throughout the years that the plaintiffs occupied their land. The persons cultivating the adjoining land stopped planting and plowing at the claimed boundary lines thereof, and on the west have always left a ditch, until the defendants' plowman plowed it up in the spring of 1947. This ditch was a distinct and straight line until it was filled in. On the north claimed boundary line they left a furrow which the plaintiffs kept dug out to keep the water from running over their meadow.
In 1931, the plaintiffs put a chicken-yard fence within a few inches of the north claimed boundary line enclosing a part of the disputed strip of land, and erected a chicken house in the northwest corner of the chicken yard. In 1933, maple trees were planted in the chicken yard. In 1935, plaintiffs planted Russian-olive trees along the claimed boundary line on the north, some of which were destroyed by draught in the following year, and some on occasion of a fire. Some of the trees remaining are of a height of five to six feet. Other trees and shrubs appear along the north and west claimed boundary lines.
The plaintiff Cecil Robert Hallowell testified that he planted most of the trees on their land, and kept the grass to the north claimed boundary line mowed at all times. He corroborated the foregoing facts.
A witness who cultivated the lots now owned by the defendants for a period of three years until 1932, and who is familiar with the plaintiffs' property as it appears at the present time, testified that the north part of the plaintiffs' property was in blue grass, and he cultivated close to what he supposed to be the boundary line, 18 to 20 inches north of the Russian-olive hedge. Along the west of the plaintiffs' property where he cultivated, there was a small ditch and he kept on the west side of this ditch. It looked to him that at the present time the ditch had been filled in. There were trees just east of where he cultivated. He located the boundary line from where it had been plowed out.
The plaintiff Maud Hallowell testified that the first time she knew that the plaintiffs had been using any ground outside of their own property was in the fall of 1946 when a survey was made by direction of the defendants. She was 'dumfounded' to learn these facts, and thereafter offered to purchase the disputed strips of land from the defendants for the amount of $200, because the plaintiffs did not want trouble with their neighbors.
Plaintiff Cecil Robert Hallowell further testified that when the plaintiffs entered upon their land they made no inquiry as to the boundary lines of the property, did not do so at any time subsequent thereto, and actually learned where the true boundary line was when the defendants' survey was made. He thought the boundary of his property was the claimed boundary lines on the north and west thereof. On occasions when friends visited, plaintiffs would show them the boundaries of their land, which were as shown on Exhibit 1 as the claimed boundary lines. Other witnesses corroborated the foregoing testimony.
The defendant George Borchers testified that when the defendants purchased their land it consisted mostly of weeds, and they were unable to determine where the boundary lines were so decided to have it surveyed. A short time after the survey the defendants went to see the plaintiffs at their residence. This witness informed plaintiffs that evidently, without their knowing it they were occupying some of the defendants' land, and suggested if they had any trees to save, the fall of the year would be the right time to transplant them; that they intended to put in a fence and have the whole thing plowed up and used. The plaintiff Cecil Robert Hallowell seemed...
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