Oppliger v. Vineyard
| Decision Date | 20 September 2011 |
| Docket Number | No. A–10–712.,A–10–712. |
| Citation | 803 N.W.2d 786,19 Neb.App. 172 |
| Parties | Donald Lee OPPLIGER and Joi Michele Oppliger, husband and wife, appellees,v.Brian J. VINEYARD and Janet K. Vineyard, husband and wife, appellants. |
| Court | Nebraska Court of Appeals |
1. Appeal and Error. An appellate court considers only those assignments of error which are both specifically assigned and specifically argued.
2. Equity: Boundaries: Appeal and Error. An action to ascertain and permanently establish corners and boundaries of land under Neb.Rev.Stat. § 34–301 (Reissue 2008) is an equity action.
3. Equity: Appeal and Error. In an equity action, an appellate court reviews the record de novo and reaches an independent conclusion without reference to the conclusion reached by the trial court, except that where credible evidence is in conflict, the appellate court will give weight to the fact that the trial court saw the witnesses and observed their demeanor while testifying.
4. Actions: Equity: Boundaries: Appeal and Error. When one or more owners of land, the corners and boundaries of which are in dispute, desire to have the same established, they may bring an action in the district court of the county where such land is situated, against the owners of the other tracts which will be affected by the determination or establishment thereof, to have such corners or boundaries ascertained and permanently established, which issue shall be tried before the district court under its equity jurisdiction without the intervention of a jury, and appeals from such proceedings shall be had and taken in conformity with the equity rules.
5. Waters: Boundaries: 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.
6. Real Estate: Waters: Boundaries: Words and Phrases. 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, and 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.
7. 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.
8. Waters: Words and Phrases. Avulsion is a change in a stream that is violent and visible and arises from a known cause, such as a freshet or a cut through which a new channel has formed.
9. 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.
10. Real Estate: Waters: Boundaries. The changes wrought by accretion versus avulsion involve markedly different processes, and each process has a different consequence for the boundary between the landowners on opposite banks of the river.
11. Boundaries: Time. Nebraska law provides that boundaries that have been mutually recognized and acquiesced in for a period of 10 years can be legal boundaries.
12. Boundaries. In order to claim a boundary line by acquiescence, both parties must have knowledge of the existence of a line as the boundary, and therefore, the mere establishing of a line by one party and the taking by that party of possession up to that line are insufficient.
13. Waters: Boundaries. The mean centerline of a river, determined by dividing the distance between meander lines of the river, is an arbitrary location of the center of the stream and is not a determination of the thread of the stream in this jurisdiction.
Allen L. Fugate, North Platte, for appellants.Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for appellees.INBODY, Chief Judge, and SIEVERS, Judge.SIEVERS, Judge.
This action is a boundary dispute concerning accretion land of the North Platte River in Lincoln County, Nebraska, which began with the filing of a complaint seeking to establish corners and boundaries of property in dispute pursuant to Neb.Rev.Stat. § 34–301 (Reissue 2008). While a number of other landowners were originally parties to the litigation, in this appeal, only Donald Lee Oppliger and Joi Michele Oppliger, who were among the plaintiffs, and Brian J. Vineyard and Janet K. Vineyard, who were among the defendants, are now involved. The Oppligers own land located on the north side of the North Platte River, “Section 9, with all accretions thereto, all in Township 14 North, Range 34 West of the 6th P.M.” in Lincoln County. The Vineyards, as of the time of trial, own only accretion land in section 16 located directly to the south of the Oppligers' land on the south side of the North Platte River. The litigation and appeal involve where the boundary between these two properties is located and, consequently, who owns what accretion land adjacent to the river.
The matter consumed over 5 days of trial to the court, producing a more than 1,200–page trial record and well over 100 exhibits. On April 23, 2010, the district court entered its decision, concluding that it was impossible at that point in time to determine the thread of the North Platte River other than to conclude that the geographic centerline thereof as depicted in the Government Land Office (GLO) survey filed May 24, 1870, establishes the boundary between the north-bank and south-bank land. Additionally, the trial court rejected the Vineyards' claims of adverse possession as well as the Vineyards' alternative claim that a fence line established the boundary. We find that the thread of the stream can be located and that it is in the north channel of the North Platte River. Thus, we reverse.
The original numerous parties to this lawsuit all owned land adjacent to the North Platte River, generally to the east of the lands owned by the Oppligers and the Vineyards. On the north side of the river, those parties were Joseph V. Herrod and Janice M. Herrod. On the south side of the river, those parties were Chester T. Binegar and Wanda L. Binegar, Harley C. Gries and Nona Jean Gries, and Steven W. Binegar. The north-bank land had previously been owned by Bar B Cattle Company, a Nebraska corporation. On March 8, 2007, Bar B Cattle Company was conveyed to Osborne Cattle Company, L.L.C., a Nebraska limited liability corporation. Thereafter, section 9 was conveyed by Osborne Cattle Company to the Oppligers.
As set forth by the district court, the Vineyards are the record owners of
[g]overnment Lots 2, 3, 4, and 5 and the South half of the South half of Section 16, Township 14 N[orth], Range 34 West of the 6th P.M. in Lincoln County, Nebraska and all accretions thereto except parts conveyed in two warranty deeds and one quitclaim deed shown in [the trial record].
(Emphasis omitted.) This south-bank land involves legal descriptions in extensive and complicated metes and bounds descriptions that we need not set forth. The Oppligers are the record owners of “[t]he North half of the North half of Section 16, and the North half of the North half of Section 17, with all accretions thereto,” and “the East half of the West half and the East half of Section 8, and all of Section 9, with all accretions thereto,” “all in Township 14 North, Range 34 West of the 6th P.M. in Lincoln County, Nebraska.” (Emphasis omitted.) The Oppligers claim ownership of all of the accretion ground to the thread of the south channel of the North Platte River—which they claim is the thread of the stream of the North Platte River.
Conversely, the Vineyards claim ownership of the accretion ground to the center of the north channel of the North Platte River—which they contend is the thread of the stream of the North Platte River. Additionally, the Vineyards assert, apparently as a “back-up position,” that the boundary is the “existing fence located along the south side of the north channel of the North Platte River.” This fence was surveyed, legally described by metes and bounds, and platted during the course of this litigation by a surveyor, Bonita Edwards.
As an aid to the reader, we have reproduced a portion of a 2006 aerial photograph of the land, received in evidence by the district court. The area involved is frequently called the project reach, and we shall use that term. The 2006 aerial photograph has superimposed on it the meander lines of the North Platte River from the 1870 GLO survey, indicated by dark blue lines. The land originally owned by the Vineyards is designated with their name and red-and-white borders, although by the time of trial, the Vineyards had conveyed away all of such land except what they might own of the accretion lands located north of the northern boundary of what is designated as “VINEYARD”
within certain of the red-and-white borders in the photograph. The Oppligers' land, as well as that of former parties to the litigation, is also outlined in the red-and-white borders. The various channels of the river are discernible. Shown as green dots is the fence line that was surveyed and platted by Edwards, as detailed hereafter, which we call the north fence.
In its decision of April 23, 2010, the district court for Lincoln County noted the Nebraska Supreme Court's decision in Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000), which the trial court described as a similar boundary line dispute located in Dawson County, Nebraska, and which happened to have been tried before the same trial judge as in this case. The trial judge noted that in Anderson, he found it was impossible to ascertain the location of the current thread of the Platte River because of the...
To continue reading
Request your trial
- State v. Glazebrook
- State v. Johnson
-
Curry v. Furby
...boundaries of land under § 34–301 is an equity action. Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000); Oppliger v. Vineyard, 19 Neb.App. 172, 803 N.W.2d 786 (2011). In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a co......
-
Small Populations in Jeopardy: A Delta Smelt Case Study
...earth; ‘morphe,’ meaning shape; and ‘ology,’ meaning study, and from the Latin word ‘luvial,’ meaning of rivers.” Oppliger v. Vineyard, 803 N.W.2d 786, 798 (Neb. Ct. App. 2011). Fluvial geomorphology thus describes “river dynamics and processes, i.e., how rivers move, change, and behave.” I......