Heider v. Kautz

• Decision Date: 20 December 1957
• Docket Number: No. 34261,34261
• Citation: 165 Neb. 649,87 N.W.2d 226
• Parties: Bonnie C. HEIDER and Charles F. Heider, wife and husband, Appellees, v. William H. KAUTZ and Vivian Thelma Kautz, husband and wife, Appellants.
• Court: Nebraska Supreme Court

Page 226

87 N.W.2d 226

165 Neb. 649

Bonnie C. HEIDER and Charles F. Heider, wife and husband, Appellees, v. William H. KAUTZ and Vivian Thelma Kautz, husband and wife, Appellants.

No. 34261.

Supreme Court of Nebraska.

Dec. 20, 1957.

Syllabus by the Court

1. In a case tried to the court in equity the presumption obtains that the trial court, in arriving at decision, considered only such evidence as was competent and relevant, and this court will not reverse a case so tried because other evidence was admitted, if, upon a trial de novo, we find that a preponderance of competent and relevant evidence appearing in the record sustains the judgment.

2. Where an island in a nonnavigable stream has been separately surveyed, platted, and deeded by government patent and the land so conveyed is bounded by the waters of such stream, the grantee's ownership carries with it the bed of the river to the center of the thread of each surrounding channel.

3. The thread or center of a channel, as the term is above employed, must be the line which would give the owners on either side access to the water, whatever its stage might be, and particularly at its lowest flow.

4. The right of title and possession of land formed by accretion follows the ownership of the riparian lands to which it is attached.

5. Generally, where title to an island bounded by the waters of a nonnavigable stream is in one owner and title to the land on the shores opposite to the island is in other owners, the same riparian rights appertain to the island as to the mainland.

Donald V. Lowe, Baskins & Baskins, North Platte, for appellants.

Edward E. Carr, Robert E. Roeder, North Platte, for appellees.

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

CHAPPELL, Justice.

Plaintiffs, Bonnie C. Heider and Charles F. Heider, wife and husband, brought this action in equity against defendants, William H. Kautz and Vivian Thelma Kautz, husband and wife, to determine title to certain alleged accretive land claimed by plaintiffs, which land is attached to and a part of Lot 3 owned by plaintiffs at the east end of Ware Island in the North Platte River. Plaintiffs sought a decree adjudging them to be the owners of the land, together with injunctive relief against trespass thereon by defendants, and an award of damages for removal of a fence placed on the land by plaintiffs. In their answer, defendants denied generally and claimed title to the land by adverse possession and by accretion to Lots 4 and 5 owned by them. They sought a decree adjudging them to be the owners of the accretive land, together with injunctive relief against trespass by plaintiffs. For reply, plaintiffs denied generally and alleged that they had been in open, notorious possession, claiming title to the land involved since 1942

Upon trial to the court, a decree was rendered, finding and adjudging the issues generally in favor of plaintiffs, enjoining defendants from trespass on the land, and awarding plaintiffs $100 as damages. Thereafter, defendants' motion for new trial was overruled, and they appealed, assigning in substance that: (1) The trial court erred in the admission of certain evidence; and (2) the judgment was not sustained by the evidence but was contrary thereto and contrary to law. We do not sustain the assignments.

Being a suit in equity, it is the duty of this court to try the issues de novo, in conformity with rules reaffirmed in Uptegrove v. Elsasser, 161 Neb. 527, 74 N.W.2d 61.

In regard to defendants' first contention, we are mindful of the controlling rule that: 'In a case tried to the court in equity the presumption obtains that the trial court, in arriving at decision, considered such evidence only as was competent and relevant, and this court will not reverse a case so tried because other evidence was admitted, if there is sufficient competent and relevant evidence in the record to sustain the judgment.' Rohn v. Kelley, 156 Neb. 463, 56 N.W.2d 711, 717. In the light thereof and the record before us, we conclude that defendants' first assignment has no merit. To discuss it further would serve no useful purpose.

Defendants admitted in their brief that there was no evidence in this record that would either establish adverse possession by plaintiffs or defendants in the land. On the other hand, as stated by plaintiffs in their brief: '* * * the plaintiffs did not make a claim to this land by adverse possession' but 'they did claim title to it' by accretion. In the light of such admissions, the issue of adverse possession requires no further discussion. The primary question here is whether the land involved was accretive land belonging to plaintiffs or to defendants. We conclude that it was accretive land belonging to plaintiffs.

In that connection, defendants offered the complete record and the opinion of this court in State v. Ecklund, 147 Neb. 508, 23 N.W.2d 782. They relied thereon, contending that such authority determined the case at bar. A mere reading of the opinion in that case discloses that it is factually distinguishable and not controlling. That case simply involved a controversy between two riparian landowners on opposite banks of the North Platte River and presented the question of who owned relicted rights to land in the old river bed. Ware Island was not directly involved. The holding therein simply was that the facts fell within an exception to the general rule as between such riparian owners, and that the property line remained where it originally was before the main channel shifted over, hence the land in dispute belonged to defendants. As a matter of fact, the opinion cited and quoted with approval, then distinguished Higgins v. Adelson, 131 Neb. 820, 270 N.W. 502, which, together with other comparable authorities as hereinafter observed, is controlling in the case at bar.

Defendants also relied upon the opinion in Haney v. Hewitt, 105 Neb. 746, 181 N.W. 861, which is entirely distinguishable. Plaintiffs therein claimed unplatted Haney Island in the Platte River, which had become a part of Hewitt Island owned by plaintiffs. Haney Island was a separate body located between the thread of the main channel and platted lots owned by plaintiffs, thus the court concluded that it belonged to plaintiffs as riparian proprietors before it ever became a part of Hewitt Island, and that plaintiffs owned it subsequently because they owned the unplatted land in the river south of the thread of the main channel of the river. No such situation is presented here.

Herein we have the following situation: It is admitted or without dispute that plaintiff, Bonnie C. Heider, was the owner of deeded Lots 1, 2, and 3 in Section 7, Township 14 North, Range 32 West of the 6th P. M., in Lincoln County, and that such land was a part of an island in the North Platte River, a nonnavigable stream, which island had been separately surveyed and platted by the United States, and was known as Ware Island. It was admitted that defendants were owners of deeded Lots 4 and 5 in Section 7, Township 14 North, Range 32 West of the 6th P. M., in Lincoln County, which land is located just south of the North Platte River and joins the south bank thereof, with a river channel between the land owned by defendants south of the river, and that owned by plaintiffs, on Ware Island, north of the river. It was established that Ware Island was completely surrounded by the river, with a channel on the north as well as the south. Whether or not the south channel was as large as the north channel is of no importance here.

The record discloses that Ware Island was originally surveyed and platted by the United States in 1870 and that it then consisted of Lot 1 in Section 11, Lots 1, 2, 3, and 4 in Section 12, and Lots 1, 2, and 3 in Section 7, all in Lincoln County. Lot 3 in Section 7 comprised the east end of Ware Island, the easterly point of which did not extend to the east line of Section 7 when the island was originally so surveyed and...