Saunders v. Rebuck, S-90-527
| Decision Date | 05 March 1993 |
| Docket Number | No. S-90-527,S-90-527 |
| Citation | 242 Neb. 610,496 N.W.2d 472 |
| Parties | Edward F. SAUNDERS, Jr., and Gertrude A. Saunders Bredthauer, Appellees and Cross-Appellants, v. Mary L. REBUCK, a Single Person, et al., Appellees and Cross-Appellees, and Jack R. Wicker and Charles D. Hahn, Appellants and Cross-Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Quiet Title: Equity: Appeal and Error. A suit to quiet title is equitable in nature, and an appellate court reviews the record in such a case de novo and reaches an independent conclusion without reference to findings of the trial court. However, when credible evidence is in conflict, the appellate court may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.
2. Adverse Possession: Proof. The burden is on one who claims title by adverse possession to prove by a preponderance of the evidence that he or she has been in actual, continuous, exclusive, notorious, and adverse possession under claim of ownership for the statutory period of 10 years.
3. Adverse Possession: Intent. The claim of adverse possession is founded upon the intent of the occupant, such intent being determined by his acts.
4. Adverse Possession. Sufficiency of possession in adverse possession depends upon the character of the land and the use that can reasonably be made of it.
5. Adverse Possession. In determining the rights of an adverse owner, the entry and possession of his tenant, expressly authorized to act, is the entry and possession of such owner.
6. Adverse Possession: Taxes. Payment of real estate taxes is a circumstance which may be considered with all other circumstances in determining the question of adverse possession.
Charles D. Hahn, Auburn, for appellants.
William G. Blake, of Pierson, Fitchett, Hunzeker, Blake & Loftis, Lincoln, for appellees Saunders and Bredthauer.
This is a suit to quiet title to a tract of river bottom farmland situated on the east side of the Missouri River. The land involved in this case is adjacent to and west of the property involved in case No. S-90-458. See Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993). It is described in the petition as "[t]he W 1/2 of the NW 1/4 and the W 1/2 of the SW 1/4 of Section 33, Township 7 North, Range 15 East of the 6th P.M., Otoe County, Nebraska, and all accretions thereto."
The plaintiffs in this case are Edward F. Saunders, Jr., and Gertrude A. Saunders Bredthauer.
The plaintiff Edward F. Saunders, Jr., testified that his mother and father, Edward and Ann Saunders, purchased the property under a Missouri description from Robert and Bessie Case in 1945. The Saunderses themselves farmed the land for several years. Thereafter, tenants farmed the land on their behalf. Ann Saunders managed the property after her husband's death. In 1974, Edward, Jr., inherited a life estate in the property in question from his mother, with the remainder to his daughter, Gertrude Saunders Bredthauer. Since that time, Edward, Jr., has managed the property. Edward, Jr., first learned in 1988 that Nebraska claimed and taxed the property in question when he attempted to sell the property to Michael Binder. In 1989, Binder farmed the property as the Saunderses' tenant. Crops have been grown on the land in question since the time the land was purchased by the plaintiffs' parents, with the exception of 1984, when the land was flooded and was incapable of being farmed.
The plaintiffs also claim title by adverse possession.
The principal defendants are Jack R. Wicker and Charles D. Hahn, who filed an answer and cross-petition in which they claimed title under certificates of tax sale issued by Otoe County, Nebraska, and alleged that they have been in adverse possession of the property.
The trial court found generally in favor of the plaintiffs, finding that the plaintiffs had been in adverse possession of the property for more than 10 years prior to the filing of the petition and that the defendants had not been in adverse possession of the property. The trial court quieted title to the property in the plaintiffs and dismissed the cross-petition of the defendants. From that judgment, the defendants Wicker and Hahn have appealed.
The assignments of error in this case are identical to the assignments of error in case...
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...Neb.Rev.Stat. § 76-107 (Reissue 1990). III. STANDARD OF REVIEW An action to quiet title is equitable in nature. Saunders v. Rebuck, 242 Neb. 610, 496 N.W.2d 472 (1993); Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993). See, also, Monument Farms, Inc. v. Daggett, 2 Neb.App. 988, 520 ......
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