Monument Farms, Inc. v. Daggett

• Decision Date: 02 August 1994
• Docket Number: No. A-93-063,A-93-063
• Parties: MONUMENT FARMS, INC., a Nebraska Corporation, Appellee, v. Ted DAGGETT, Trustee, et al., Appellants.
• Court: Nebraska Court of Appeals

Page 556

520 N.W.2d 556

2 Neb.App. 988

MONUMENT FARMS, INC., a Nebraska Corporation, Appellee, v. Ted DAGGETT, Trustee, et al., Appellants.

No. A-93-063.

Court of Appeals of Nebraska.

Aug. 2, 1994.

Syllabus by the Court

1. Quiet Title: Equity. An action to quiet title is equitable in nature. See Neb.Rev.Stat. § 25-21,120 (Reissue 1989).

2. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches conclusions independent of the findings of the trial court, provided, where credible evidence is in conflict on material issues of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

3. Quiet Title: Proof. A party who seeks to have title in real estate quieted in him on the ground that it is accretion land to which he has title has the burden of proving the accretion by a preponderance of the evidence.

4. Real Estate: Waters. An owner of land on shore, in the absence of restrictions on his grant, owns to the thread of the stream, and his riparian rights extend to existing and subsequently formed islands.

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

6. Real Estate: Waters. Where by process of accretion and reliction, or either, the water of a river gradually recedes, changing the channel of the stream and leaving the land dry that was theretofore covered by water, such land belongs to the riparian owner.

7. Real Estate: Waters: Words and Phrases. Accretion is the process of gradual and imperceptible addition of solid material, called alluvion, thus extending the shoreline out by deposits made by contiguous water; reliction is the gradual withdrawal of the water from the land by the lowering of its surface level from any cause.

8. Real Estate: Waters: Easements. Subject to the easement of navigation, riparian owners are entitled to the possession and ownership of an island formerly under waters of the stream as far as the thread of the stream.

9. Waters: Words and Phrases. The thread or center of a channel, as the term is 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. In other words, the thread of the stream is the deepest groove or trench in the bed of a river channel, the last part of the bed to run dry.

10. Real Estate: Waters: Boundaries. Where the thread of a stream is the boundary between estates and that stream has two channels, the thread of the main channel is the boundary between the estates.

11. Real Estate: Waters: Boundaries. Where the thread of the main channel of a river is the boundary line between two estates and it changes by the slow and natural processes of accretion and reliction, the boundary follows the channel.

12. Real Estate: Waters. The rule as to the ownership of accretion land remains the same, even though the processes of accretion are caused or accelerated by the construction work of third parties.

13. Real Estate: Waters: Title. The fact that accretion is due, in whole or in part, to obstructions placed in the river by third parties does not prevent the riparian owner from acquiring title thereto.

14. Real Estate: Waters: Words and Phrases. Avulsion is a sudden and perceptible loss of or addition to land by the action of water, or a sudden change in the bed or course of a stream.

15. Real Estate: Waters: Boundaries. Where a stream which is a boundary from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary, and the boundary remains as it was in the center of the old channel, although no water may be flowing therein.

16. Adverse Possession: Proof. The burden is on one who claims title by adverse possession to prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious, and adverse possession under claim of ownership for the statutory period of 10 years.

Robert M. Harris and Randall L. Lippstreu, of Harris & Lippstreu, P.C., Scottsbluff, for appellants.

Roy Hahn, of Hahn Law Office, P.C., Lincoln, for appellee.

Before SIEVERS, C.J., and CONNOLLY and HANNON, JJ.

CONNOLLY, Judge.

Ted Daggett, Elizabeth Stanko, and Bruce Scott (trustees) appeal individually and as trustees from the trial court's judgment in favor of Monument Farms, Inc. (Monument), in its suit to quiet title to a disputed portion of an island in the North Platte River. After the original platting of the pertinent section of the river in 1878, an island formed in the river at the location in question. One channel of the river flowed north of the island, and the other south. The trial court quieted title in favor of Monument because the disputed land was on Monument's side of the main channel of the river and, in the alternative, because Monument and its predecessors in title had claimed the disputed land by adverse possession. We affirm because the thread of the south channel is the dividing line between the land of the parties, and the disputed land is on Monument's side of the south channel.

I. FACTS

Based on our de novo review of the record, we make the following factual findings.

1. DISPUTED LAND

At issue is the eastern third of an island in the North Platte River. The island is approximately 3 miles east of Scottsbluff, Nebraska. Below is a sketch of the pertinent section of the river as it existed when this case was adjudicated:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The sketch is for illustrative purposes only and does not purport to be accurate or drawn to scale. See Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976). We focus our attention on three manmade structures depicted in the sketch: the dike, the headgate, and the dam. The dike, approximately 3 feet high, consists of steel pilings, granite, car bodies, wood, dirt, and sand. Such structures are commonly utilized to divert the flow of water from one side of a stream to the other. The record indicates that the dike was built for the Castle Rock Irrigation District by Harry F. Berggren & Sons, Inc., in 1953. Castle Rock also owned the headgate and the dam. The headgate is a concrete and steel structure with sliding gates that can be raised to allow river water to flow into Castle Rock's irrigation canal. The dam is a concrete structure that guarantees that the water level is high enough at the headgate to ensure that water will flow through the headgate into the irrigation canal.

Both parties claim their chains of title from original federal government patents to federal government lots in Scotts Bluff County, Nebraska, in Sections 3 and 4, Township 21 North, Range 54 West of the 6th P.M. As indicated above, the section line between Sections 3 and 4 cuts through the island. In this action to quiet title in its favor to the portion of the island east of the section line, Monument argued that the disputed land was part of the property described in Monument's title and that, in the alternative, Monument owned the land by adverse possession. The trustees answered that the land was part of their property and that, in the alternative, they, rather than Monument, owned the disputed land by adverse possession. The portion of the island west of the section line is owned by Nellie Mendenhall and is not at issue.

2. EVOLUTION OF THE ISLAND

The original township plat of 1878 does not show any islands in the section of the river where the island now exists. The field notes taken in connection with the original platting also do not mention any islands. A map prepared by Castle Rock in 1913 does not indicate any islands. A map prepared by a federal agency in 1921 shows no islands in the river at the location in question. Mendenhall, who was born in 1905 and grew up on a homestead in Section 4 bordering the river, testified that in her early years, as a little girl, "when you looked clear across [the river] you didn't see a tree or a thing." Although the trustees asserted in their answer that in 1889 Castle Rock built a diversion dike at the western tip of the island to force water from the main channel, on the north side of the island, to the secondary, south channel, the record definitively shows that there were no islands in the pertinent section of the river through 1921.

From 1909 to 1958, the State of Wyoming built four of five dams on the North Platte River. In Nebraska, the reduced flow of water and the increased control of seasonal flooding allowed the growth of brush and trees in the river and the formation of islands. Mendenhall recalled that trees began to appear in the river before she was married in the mid-1920's. Marjorie Barr, who was born in 1914 and lived near the river as a young girl, testified about riding horseback on the island at issue in the late 1920's. The island at issue appears in aerial photographs of the river from the late 1930's. Mendenhall and Barr, the only two witnesses who observed the river during the period when the island and the north and south channels were formed, testified that the south channel always had carried more water than the north.

At trial, the trustees did not contest the fact, verified by a host of witnesses, that the south channel is the main channel of the river where it flows between Monument's land and the land of the trustees. However, they argued that the thread of the south channel should not be recognized as the proper boundary because Castle Rock interfered with the natural flow of the river by shifting the main flow away from the north channel to the south.

The trustees contended that Castle Rock had initiated...