Ohm v. Clear Creek Drainage Dist.

• Decision Date: 15 December 1950
• Docket Number: No. 32849,32849
• Citation: 45 N.W.2d 117,153 Neb. 428
• Parties: OHM et al. v. CLEAR CREEK DRAINAGE DIST.
• Court: Nebraska Supreme Court

Page 117

45 N.W.2d 117

153 Neb. 428

OHM et al. v. CLEAR CREEK DRAINAGE DIST.

No. 32849.

Supreme Court of Nebraska.

Dec. 15, 1950.

Syllabus by the Court.

1. An estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that the estate shall automatically expire upon the occurrence of a stated event.

2. An estate in fee simple subject to a condition subsequent is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that upon the occurrence of a stated event the conveyor or his successor in interest shall have the power to terminate the estate so created.

3. The holder of a fee, defeasible upon condition subsequent, has all the rights in respect to it of a fee simple owner until the happening of the condition and divestment by re-entry of the grantor or his successor for breach of the condition.

4. An owner of land on the shore of an unnavigable river, in the absence of restrictions in his grant, owns to the thread of the stream and subsequent accretions formed by the gradual recession of the bank of the stream attach to and become a part of the grant.

5. A person claiming title by adverse possession must, to establish it, prove open, notorious, exclusive, continuous, and adverse possession of the real estate for the full period of ten years.

6. In order to create title by adverse possession, the possession, in addition to other elements, must be exclusive for the period of limitations.

7. One claiming ownership of real estate by adverse possession must recover upon the strength of his title and not because of a possible weakness in the title of his adversary.

Myrl D. Edstrom, Ralph D. Nelson, Wahoo, for appellant.

H. A. Bryant, Clyde R. Worrall, Wahoo, for appellee.

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

BOSLAUGH, Justice.

This is a suit to quiet title to land in appellees. They and Clear Creek Drainage District, appellant, are the contesting parties.

The real estate, consisting partly of accretion land, is an irregular tract in Sections 17, 18, and 20, Township 14 North, Range 10 East of the 6th P. M. in Saunders County, described in detail in the petition and decree, and the unusually long description of it need not be repeated herein. Appellees claim to have acquired title thereto by adverse possession of more than ten years and by chain of title from John Peters and Lena Peters, husband and wife, who were once the owners of it in fee. Appellant asserts it is the owner of the real estate by purchase and conveyance to it by general warranty deed for a valuable consideration. The district court found for appellees and by decree quieted the title to the premises in them. There is no irreconcilable conflict in the evidence. The appeal by appellant requires a determination of the case de novo without regard to the findings and decree of the district court.

The foundation of the claim of appellant that it is owner of the land affected by these proceedings is the warranty deed to it from John Peters and Lena Peters, husband and wife, who were the owners in fee simple of the land at the time of the execution and delivery of the deed. It contains the condition that the real estate conveyed is 'to be used for ditching, diking and drainage purposes, and if abondoned or not used for that purpose to revert to' the grantors, their heirs and assigns. The habendum clause is without restriction, the warranties are unlimited, and the grantors 'relinquish all right of homestead or other right, title or interest in and to the' premises. The position of appellees until after the trial and submission of the case in district court was that appellant claimed some title to and interest in the land, the facts concerning which were unknown to them. After the case was submitted in the district court, but before a decree was rendered, appellees obtained leave to amend and amended their petition and alleged that because of the 'conditions, reservations and description' contained in the deed the district 'acquired an easement only' to the real estate described in and conveyed by the deed. They have abandoned each of the positions taken by them in the district court as the character of the estate conveyed by the deed, and now make the contention for the first time that the deed of Peters to the district 'created a fee simple determinable.' The contention is without foundation.

Restatement, Property, § 44, p. 121, states: 'An estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, (a) creates an estate in fee simple; and (b) provides that the estate shall automatically expire upon the occurrence of a stated event.' The comment is: 'The existence of an estate in fee simple determinable requires the presence of a special limitation.' Section 23, p. 55, defines special limitation: 'The term 'special limitation' denotes that part of the language of a conveyance which causes the created interest automatically to expire upon the occurrence of a stated event, and thus provides for a terminability in addition to that normally characteristic of such interest.' This is followed by an illustration: 'A, owning Blackacre in fee simple absolute, transfers Blackacre 'to B and his heirs so long as the town of C remains unincorporated.' In the broad and usual meaning of the word 'limitation,' as used in this Restatement, the entire quoted phrase is a 'limitation.' The part of the quoted phrase beginning 'so long as' is a 'special limitation." See Univ. of Vt. and State Agri. College v. Ward, 104 Vt. 239, 158 A. 773.

Restatement, Property, § 45, p. 133, defines fee simple subject to a condition subsequent in this way: 'An estate in fee simple subject to a condition subsequent is created by any limitation which, in an otherwise effective conveyance of land, (a) creates an estate in fee simple; and (b) provides that upon the occurrence of a stated event the conveyor or his successor in interest shall have the power to terminate the estate so created.' Section 24, p. 59, defines condition subsequent: 'The term 'condition subsequent' denotes that part of the language of a conveyance, by virtue of which upon the occurrence of a stated event the conveyor, or his successor in interest, has the power to terminate the interest which has been created subject to the condition subsequent, but which will continue until this power is exercised.' The comment following this section states: 'Whenever an estate subject to a condition subsequent is created, some person has the power to terminate this estate upon the occurrence of the stipulated event. Thus such an estate does not end automatically and by expiration as does an estate subject to a special limitation. On the contrary, it is cut short, or divested, if, but only if, the person having the power chooses to exercise it.'

A deed which conveys an estate in fee simple, but provides the grantor or his successor has power to terminate this estate, upon the happening of some event or condition, creates an estate in fee simple subject to a condition subsequent. Brooks v. Kimball County, 127 Neb. 645, 256 N.W. 501; Dyer v. Siano, 298 Mass. 537, 11 N.E.2d 451; Halvorsen v. Pacific County, 22 Wash.2d 532, 156 P.2d 907, 158 A.L.R. 555; Northwestern University v. Wesley Memorial Hospital, 290 Ill. 205, 125 N.E. 13; Univ. of Vt. and State Agri. College v. Ward, supra; Dolby v. State Highway Commissioner, 283 Mich. 609, 278 N.W. 694, 117 A.L.R. 538; 26 C.J.S., Deeds, § 110, page 400. The deed to the district created and conveyed to it an estate in fee subject to a condition subsequent.

The deed vested in the district all the rights of a fee simple owner of real estate until it ceases to use the land for the purposes specified and divestment of its estate by re-entry. Until such termination it has the same rights and powers in connection with the estate conveyed by the deed as if the condition did not exist. Restatement, Property, § 45, p. 133, comment a, says: '* * * When a transferor, having an estate in fee simple absolute transfers an estate in fee simple subject to a condition subsequent, the transferee is regarded as having received the entire estate of the transferor, who, by virtue of his reserved power of termination has the power to regain his former estate, if and when there is a breach of the condition subsequent.' See, also, Halvorsen v. Pacific County, supra; Univ. of Vt. and State Agri. College v. Ward, supra; Union Colony Co. of Colorado v. Gallie, 104 Colo. 46, 88 P.2d 120; 26 C.J.S., Deeds, § 147, page 482. In any event, if appellees are to prevail in the litigation it must be upon the strength of their title to the land and not by any weakness in the title of appellant. Garner v. McCrea, 147 Neb. 541, 23 N.W.2d 731.

The description in the deed to appellant is by metes and bounds and contains the following: 'thence east on said line to the west bank of the Platte River, thance northwesterly along the west bank of said Platte River to a point where the west bank of the said Platte River intersects the north line of the Southeast Quarter of the Northeast Quarter of said Section Eighteen (18),' and 'being a strip of land along the west bank of said Platte River, thirteen (13), feet west and parallel to the center line of the top of the said levee or embankment, and...