Lienemann v. Sarpy Cnty., 31775.

• Decision Date: 15 December 1944
• Docket Number: No. 31775.,31775.
• Citation: 145 Neb. 382,16 N.W.2d 725
• Parties: LIENEMANN v. SARPY COUNTY.
• Court: Nebraska Supreme Court

145 Neb. 382

16 N.W.2d 725

LIENEMANN

v.SARPY COUNTY.

No. 31775.

Supreme Court of Nebraska.

Dec. 15, 1944.

Appeal from District Court, Sarpy County; W. W. Wilson, Judge.

Action by August B. Lienemann against County of Sarpy to enjoin the sale of plaintiff's land for taxes. From a decree dismissing the action, plaintiff appeals.

Decree reversed with directions.

Syllabus by the Court.

1. The boundary between the states of Iowa and Nebraska was fixed as the center of the channel of the Missouri river by the respective acts of Congress admitting said states to the Union.

2. Where the main channel of the river changes by accretion and decretion, the boundary between the two states follows the channel.

3. 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.

4. 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.

Kennedy, Holland, DeLacy & Svoboda and Edwin Cassem, all of Omaha, for appellant.

Guy E. Tate, of Papillion, and S. L. Winters, of Omaha, for appellee.

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

SIMMONS, Chief Justice.

In this action, plaintiff seeks to enjoin the sale of his land for taxes on the proposition that the land is not in Sarpy county, Nebraska, but is in the state of Iowa, and that taxes levied by Sarpy county are void for want of jurisdiction over the land. The trial court dismissed the action. Plaintiff appeals. We make findings of fact which require that the decree be reversed and the cause remanded for further proceedings.

The defendants named in the petition are the county of Sarpy, its sheriff, treasurer and commissioners.

Plaintiff in his petition alleges that he is the owner and has been in exclusive possession for more than ten years last past of certain lands, set out by subdivision and tax lot, in Sections 13 and 24, T. 13 N, R 13 E of the 6th P. M., as described ‘in the tax records of Sarpy County, Nebraska.’ He then alleges the land as ‘described in the United States Government Survey,’ setting out by subdivision land in Sections 13, 24 and 19, and finally describes the land by a third description, without source of the designations being alleged, but, by subdivisions, as land in Sections 13, 24 and 19. Plaintiff further alleges the official status of the defendants, and alleges that for many years the defendant county never undertook to assert jurisdiction over said lands by taxing the same; that sometime subsequent to the year 1901 the county assessed taxes against the land, and in 1938 issued and itself purchased tax certificates; that thereafter the county foreclosed the tax certificates and, pursuant to decree, advertised the property for sale; and that the action of the county is wholly void for the reason that the land is outside the boundaries of the county, and in fact is within the boundaries of the state of Iowa.

Plaintiff further alleges that in the United States District Court for the District of Nebraska, in an action to try the title to said land (wherein the plaintiff's father and predecessor in title was defendant), a judgment was rendered finding that said land was in Iowa; and that the county of Sarpy knew or was bound to know of the litigation and the status of the land and was estopped to assert jurisdiction.

Plaintiff prayed for a decree holding that the land be held to be outside the boundaries and jurisdiction of Sarpy county; that the taxes be held void; that title be quieted in him free and clear of the taxes; and that the county be enjoined from enforcing the taxes and from asserting or levying present or future taxes.

Defendants, for answer, admitted the official status of defendants, denied generally, and alleged that plaintiff had commenced an action in the district court for Sarpy county, wherein it was alleged, and the decree found, that the plaintiff was the owner of certain lands, described by government subdivision, in Sarpy county.

Trial was had, resulting in a general finding ‘in favor of the defendant’ and dismissing plaintiff's petition.

The only witnesses called were the plaintiff and a civil engineer. They were used as both plaintiff's and defendants' witnesses. The civil engineer's evidence was largely explanatory of exhibits offered by the parties. Basically, there is no disagreement as to the facts. There are some discrepancies in detail in the exhibits, largely centering around descriptive matter with reference to areas with which we are not here concerned. The dispute comes with reference to the conclusion to be reached from the evidence.

This case, as submitted here, involves the sole question of whether or not the land involved in this action is located in Sarpy county, Nebraska. That question turns on whether or not it is land that has attached to the state of Iowa by accretion resulting from the action of the Missouri river. The two actions referred to in the petition and the answer are argued here only in so far as they tend to establish the fact questions.

At the outset we were confronted with some preliminary difficulties: First, the allegations of plaintiff's petition in which three different, and irreconcilable, descriptions of the land were alleged. It was stipulated, however, at the beginning of the trial that plaintiff's Exhibit 1 described the land involved. Exhibit 1 is a map prepared by the civil engineer witness. Accordingly, the determination herein made applies to the land as set out in Exhibit 1. Second, the trial court in his decree did not indicate the basis of his decision, and the parties are not in agreement here upon that matter. Accordingly, we are denied the benefit of the reasoning of the trial court. Third, a large number of maps are in evidence. Counsel in some instances in examining witnesses did not refer to the exhibits by number or letter, and the witnesses in answering were not always required to identify exhibits or parts about which they were testifying. Also, some exhibits, reproduced in the bill of exceptions by photostatic copies, do not show markings to which reference is made by the witness. However, the story of this land can be reconstructed almost entirely from the exhibits themselves, and for clarity in discussion, we reproduce here pertinent parts of some of the exhibits, without an attempt being made as to exactness of detail. The exhibits reproduced all find support in other exhibits which are not shown.

In this opinion we will refer to the Nebraska bank of the Missouri river as the right bank and the Iowa bank as the left bank.

CHART 1.

IMAGE

This is the land involved in this action, as shown by Exhibit 1, and is reproduced for the purpose of showing the location of Clarke lake and Papillion creek, and the land claimed with reference to the area of the sections and the land and creek.

CHART 2.

IMAGE

This is a reproduction in outline of plaintiff's Exhibit 2, being a map of a United States government survey made in 1856. It has these points of value: (1) The location of the island with a distinct channel to the west; (2) in 1856 the right bank was at one place west of the east line of Sections 13 and 24, with the intersections of the east line about equidistant from the east and west section line; and (3) the location of Papillion creek. The left bank of the river is not shown with exactness on the exhibit. Defendants assert in their brief: ‘That the main channel of the river was East of said Island.’

CHART 3.

IMAGE

Chart 3 is a reproduction of defendants' Exhibit ‘G’, being a United States government survey made apparently in 1873. This is reproduced for the following reasons: (1) It shows the channel west of the island to be a narrow stream in comparison with the channel east of the island; (2) the island is shown to have been enlarged to the south and east, concededly by accretion; (3) on the exhibit, the main channel is shown to be in the part described as ‘St. Mary's Bend’ with sand bars on the inside of the bend; (4) Pacific Bend, to which reference will be made later, is shown; (5) it also appears that since 1856 the right bank of the river has moved approximately three-quarters of a mile west and into Sections 13 and 24, and that it has been followed by the left bank so that that bank is now well toward the center of the sections. On the exhibit sand bars are shown on the inside of the bend here also. (6) Papillion creek also is shown. It should be here stated that the civil engineer on the witness stand undertook to super-impose Sections 13 and 24 on Exhibit G, and in so doing had practically all of Section 24 south of Papillion creek. The location of plaintiff's land, north of Papillion creek as shown on Chart 1, anchors its location to all these maps and shows the error admittedly made by the engineer. The exhibit here shows the sections with accuratereference to Papillion creek and the other exhibits.

CHART 4.

IMAGE

Chart 4 is taken from plaintiff's Exhibit 3, being the Suter survey of July 14 to July 22, 1879. It is reproduced to show (1) the ‘Cut off 1879’ (shown on defendants' Exhibit B as ‘Cut off April 1879’), which follows generally the course of the smaller channel to the west of the island as shown on the map of 1873 (Chart 3) and the channel to the west of the island as shown on the map of 1856 (Chart 2). Defendants' Exhibit B, being a more detailed map of this survey, shows the main channel of the river to be flowing through the ‘Cut off 1879’ and not through St. Mary's Bend. (2) These two exhibits show a strip of untimbered land (or point of water) at the southeast part of St. Mary's Bend leading from St. Mary's Bend toward, but not reaching, Pacific Bend. In this connection, there is in evidence a copy of a United States engineer's report, dated January 15, 1878, in which it is stated: ...