James v. McNair, 34014

• Decision Date: 08 March 1957
• Docket Number: No. 34014,34014
• Citation: 81 N.W.2d 813,164 Neb. 1
• Parties: John W. JAMES and Vantine A. James, Appellees, v. George H. McNAIR, Appellee. Impleaded with Paul E. Wirth, John R. Wirth, and Anton F. Wirth, Appellants.
• Court: Nebraska Supreme Court

Page 813

81 N.W.2d 813

164 Neb. 1

John W. JAMES and Vantine A. James, Appellees, v. George H. McNAIR, Appellee.

Impleaded with Paul E. Wirth, John R. Wirth, and Anton F. Wirth, Appellants.

No. 34014.

Supreme Court of Nebraska.

March 8, 1957.

Syllabus by the Court.

1. The title to land becomes complete in the occupant by adverse possession when he and his grantors have maintained an actual, exclusive, open, and continuous possession thereof, claiming title to the same against all persons, for 10 years.

2. The law does not require that possession shall be evidenced by a complete enclosure, nor by persons remaining continuously upon the land and constantly from day to day performing acts of ownership thereon. It is sufficient if the land is used continuously for the purposes to which it may be in its nature adapted.

3. Every man has a trust to whom a business is committed by another. Every man is a trustee whose office is to advise or to operate, not for himself, but for others.

4. The rules of equity which determine the consequences of acts performed by a fiduciary are not restricted to attorney and client, nor to similar conventional relations, but extend to all cases, where, on one hand, confidence is properly reposed, and, on the other, knowledge or authority or influence arises from any cause.

5. A person gratuitously or officiously assuming as agent or trustee to control or manage the property or interests of another is as firmly bound by the implied terms of his confidential relation as one who is regularly employed and paid.

6. The general rule is that in order to create an estoppel it is essential that the party against whom the estoppel is claimed acted with knowledge of the facts and asserted particular rights inconsistent with those subsequently claimed, and that the party claiming estoppel, being without knowledge or means of knowledge of the facts, was influenced by and relied upon the conduct of the person sought to be estopped, and changed his position in reliance thereon or acted upon it to his injury or prejudice.

7. It is the established rule in this state that when a fence is constructed as a boundary line fence between two properties, and where the parties claim ownership of the land up to the fence for the full statutory period and are not interrupted in their possession or control during that time, they will, by adverse possession, gain title to such land as may have been improperly enclosed with their own.

O'Sullivan & O'Sullivan, Omaha, Smith & Lebens, Plattsmouth, for appellants.

Edwin Moran, Nebraska City, Wellensiek & Morrissey, Syracuse, for appellees.

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

WENKE, Justice.

This is an appeal from a judgment of the district court for Otoe County quieting and confirming in John W. James and Vantine A. James, appellees here and plaintiffs below, the fee simple title to certain lands in that county as against Paul E. Wirth, John R. Wirth, and Anton F. Wirth, appellants here and defendants below, on the basis of adverse possession.

The lands involved are described by metes and bounds and are principally located in Section 5, Township 9, Range 14 East of the 6th P. M., in Otoe County, although it includes some land in Sections 4, 8, and 9 of [164 Neb. 3] the same township and range where they lie adjacent to or corner on Section 5.

After judgment had been rendered by the trial court in favor of the plaintiffs, the defendants above referred to filed a motion for new trial and took this appeal from the overruling thereof.

George H. NcNair was made a party defendant but no service was ever obtained on him; consequently, the appellees asked for and were granted leave to dismiss the action as to him, and did so. We shall not again refer to McNair in this opinion.

The judgment rendered by the trial court, which dismissed appellants' cross-petition for want of equity, denied appellants any right in and to that part of these lands which they claimed by adverse possession and also under certain quitclaim deeds.

The first question raised relates to the sufficiency of the evidence adduced by appellees to sustain the trial court's decree in their favor, which is based on adverse possession. Adverse possession is complete when, as stated in Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 330, 134 A.L.R. 458: "The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continued, notorious, and adverse possession thereof, claiming title to the same against all persons, for ten years.' Lantry v. Wolff, 49 Neb. 374, 68 N.W. 494.'

Since this is an equitable action it will be reviewed here de novo. However, in view of the record, which discloses that the trial court viewed the entire premises we think the following principles have particular application:

"While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court will, in determining the weight of the evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying.' Gentry v. Burge, 129 Neb. 493, 261 N.W. 854.' Higgins v. Adelson, 131 Neb. 820, 270 N.W. 502.

'This court has held that, when the court views the topography of a certain locality, its findings are entitled to great weight.' Independent Stock Farm v. Stevens, 128 Neb. 619, 259 N.W. 647, 649.

The evidence is in irreconcilable conflict on many material matters. We have come to the conclusion that appellees' version of what happened is correct, so will set forth the facts accordingly as it would serve no useful purpose to set out appellants' evidence that is in conflict therewith. We can only say we think appellants, and some of their witnesses, were either mistaken as to what they testified to in regard to certain material matters or otherwise misrepresented the facts as they relate thereto.

In 1856 the United States government surveyed Section 5, which became a part of Otoe County. At that time the Missouri River cut across the section from northeast to southwest, and this created many irregular tracts which were identified as Government Lots. The area left in what would have been the south half of the northeast quarter was identified as Government Lot 6, the area left in what would have been the north half of the southwest quarter was identified as Government Lot 7, and the area left in what would have been the south half of the southwest quarter was identified as Government Lot 8. Section 5 apparently remained in this condition until 1911. Then the river started cutting toward the west. It continued to do so until about 1920. At the time it had washed away all of Section 5 except a small tract in the extreme northwest corner thereof and possibly a small area on the western edge of Government Lot 7 or the north half of the southwest quarter.

Insofar as the record shows, and is here material, at the time this change in the course of the river took place George S. Upton owned Government Lot 7, Lot 4 in Government Lot 6, Lots 7, 8, and 10 in Government Lot 5, and Lot 6 in Government Lot 3; Charles Boardman apparently owned Government Lot 8; appellees' father owned a 20-acre tract in the northwest quarter, apparently being Lot 5 of Government Lot 3 or the north half of the northeast quarter of the northwest quarter; and Caleb Eaton's father owned land in the northeast quarter and, also, land in Cass County lying immediately adjacent thereto on the north. The latter was also washed away between 1911 and 1920.

Shortly after 1920 bars began to form in the river where this land had washed away. By 1928 the bars had formed considerable of an island, with the main channel of the river to the east thereof. However, a chute some 300 to 400 feet wide remained on the west side of the island or between it and the west bank. A considerable area had built back in between the west line of Section 5 and the west bank of this chute before the island formed.

In 1928 Caleb Eaton moved onto the north end of this island, occupying it as far south as the east-west center line of Section 5 if extended east across the chute to the river. He built a home on the island north of the section or county line. Medford James, no relation of the appellees, moved onto the island in 1929 and occupied land lying south of the east-west center line of Section 5 if extended east across the chute to the river. He built a cabin on the land he occupied in 1930 and moved his family into it in 1931, that being the first year he raised a crop. About 3 years later he built a 4-room tile house for his family. He occupied the island as far south as a division fence which he and Charles Boardman built about 1934. This is the present south line of the land claimed by appellees. Medford James cleared about 60 acres on the land he claimed, which extended east from the chute to the river and north from the division fence, which he and Boardman built, to the half section line. He stayed on the land until he sold it in 1938. Appellees went on the island in 1931 and cut some cottonwoods for use as lumber. They did so in both 1931 and 1932. They occupied an area south of the tract their parents had owned before it washed away. In 1933 they started a garden on it. Later about 40 acres were fenced. They have always continued to occupy and farm it, being land east of the chute, west of the land occupied by Raymond Kinnison and Riley Eaton, and continuous south as far as the land occupied by Medford James. Raymond Kinnison, a nephew of Caleb Eaton, moved onto the island in 1932 and occupied a strip some 37 rods wide just north of that occupied by Medford James. He did so pursuant to an agreement with Caleb Eaton. Kinnison moved...