Sila v. Saunders

Decision Date11 January 2008
Docket NumberNo. S-06-1160.,S-06-1160.
Citation274 Neb. 809,743 N.W.2d 641
PartiesAaron SILA, Appellee v. Kirk SAUNDERS, Appellant.
CourtNebraska Supreme Court

Lance D. Ehmcke, Jeremy J. Cross, and Joel D. Vos, of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, IA, for appellant.

Paul W. Deck, of Deck & Deck, L.L.P., Sioux City, IA, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Aaron Sila brought this action under Neb.Rev.Stat. § 34-301 (Reissue 2004), to establish the east boundary line of his property adjoining the property of the defendant, Kirk Saunders. Sila sought to establish the boundary line in accordance with the original government survey. Kirk asserted that under theories of mutual acquiescence and adverse possession, the historically recognized boundary should instead be acknowledged.

BACKGROUND

The properties in issue were once part of a single 78-acre farm owned by Kirk's grandfather, Fred Saunders. Fred owned and fanned the land from the early 1940's until his death in 1961. After Fred's death, the land was divided into three parcels and given to his three sons: Vern Saunders, George Saunders, and Kirk's father, Eugene Saunders. George was given the smaller parcel of 18 acres immediately to the east of a county road. Vern and Eugene were each given adjacent 30-acre parcels to the east of George's 18 acres. A year later, Vern died, and his 30 acres were acquired by Eugene. Kirk eventually inherited a 20-acre segment of Eugene's 60 acres. That segment abuts the disputed 18-acre parcel originally given to George, and most recently acquired by Sila. It is the boundary between these two properties that is currently in dispute.

In 1962, George and Eugene set about establishing the shared boundary of their properties. Eugene's son and Kirk's brother, Elliotte Saunders, was a teenager at the time. He assisted in measuring the boundary and helped Eugene farm the land east of the 18-acre parcel until Eugene's death in 1989. Elliotte testified that their purpose in measuring and marking the boundary was "[t]o split the farm up to get a boundary line so [George] knew what he owned and what my dad owned."

George's 18 acres were legally described as: "The West Thirty-Six (36) rods of the North Half of the Northwest Quarter (N 1/2 NW 1/4) of Section Thirteen (13), Township Twenty-Nine (29) North, Range Seven (7) East of the Sixth Principal Meridian, Dakota County, Nebraska." George and Eugene decided not to hire a professional surveyor to mark the boundary. There was a barbed wire fence along the north and south borders of the properties, and George and Eugene mistakenly believed that the middle of the county road represented a section line marking the west boundary of George's 18 acres. Thus, George and Eugene, with Elliotte's assistance, took a 100-foot tape measure and some flags and measured 594 feet (36 rods) east from the middle of the county road. Elliotte testified that they crimped a penny over the barbed wire and tied red flags on the fence at the 594-foot line of both the north and the south ends of the properties.

After this, George's crops were fanned on the west side of the boundary and were planted in a north-south direction. Eugene planted his crops on the east side of the boundary in an east-west direction. An aerial photograph from 1966 shows a clear demarcation between the two parcels that appears to be parallel to the county road from which the boundary had been measured.

Elliotte testified that over time, the red flags wore away. Along the north barbed wire fence, a row of trees grew up. Eventually, a tree grew into the barbed wire fence where the penny was crimped. The fence and the penny remained visible, however, embedded in a knot in the tree. The trees were later cut down, but the stumps remained, including the stump containing a piece of the barbed wire with a crimped penny around it. It is unclear when exactly the tree grew into the fence or when it was cut down, but, in any event, there is no evidence that the basic location of the crimped penny changed.

In 1965, Kirk moved into a mobile home placed on the southeast corner of Eugene's 60 acres. As part of the improvements around the home, they removed the barbed wire fence on the south end of the property. Before removing the fence, however, Kirk testified that they placed a water well "right next to the property line" that was designated by the crimped penny in the south fence. Elliotte similarly testified that Kirk and George discussed the placement of the well and agreed to set it "kind of on the line" between the two properties. Although Kirk sought George's approval of the placement, there is no indication that Kirk asked George's permission to place the well on George's property. Rather, it appears that the discussion was to ensure that the well was placed on Eugene's property. Elliotte testified that after the removal of the fence in 1965, the well was understood by George and Eugene to be the south visual marker for the boundary between their properties.

Elliotte testified that George and Eugene farmed their respective lands in accordance with the well on the south end and the crimped penny on the north end for 21 years. When George died in 1986, his 18 acres passed to his wife, Anna Saunders, who put the land into a trust. Eugene and Elliotte continued to farm Eugene's 60-acre parcel, and they also farmed Anna's land for the trust, but they maintained the crop boundary line according to the well/stump boundary.

When Eugene died in 1989, Elliotte continued to farm Anna's land and the 20 abutting acres inherited at this time by Kirk. At this time, Elliotte decided, for the sake of efficiency, to farm Kirk's 20 acres and Anna's 18 acres together without planting the crops in differing directions. Elliotte stated that he still considered the well and the tree stump as boundary markers. The evidence was inconclusive as to whether Anna or her trustee specifically recognized the well/stump boundary markers. Elliotte gave Anna's trust her share of the profits from the crops and divided the proceeds from the 20 acres between himself and Kirk.

Sila purchased the 18 acres from Anna's trust in 2001. He did not notice any demarcation between Anna's and Kirk's parcels at that time. Neither did he have a survey of the property conducted prior to the purchase to mark the boundary in accordance with the legal description. Sila testified that the real estate agent referred to the property line's being near a "high line pole" on the east end of the field in reference to the division of the properties. The location of this pole is not reflected in the record.

In 2005, Sila employed Fred Franklin, a licensed land surveyor, to survey and create a plat of his land. Franklin discovered that the centerline of the county road along the west side of Sila's property did not, in fact, as George and Eugene had believed, correspond to the section line. Franklin explained that while the county tries to build its roads to correlate to the section lines, this was not always possible, and that, in any event the centerline of roads can shift slightly over the years. Franklin did not notice either a stump or a well as visual markers of a boundary line. Franklin's survey demonstrates that the platted boundary of Sila's property lies east of the boundary claimed by Kirk.

Douglas Mordhorst, a registered land surveyor, was then hired by Kirk to survey the 18 acres in accordance with the stump and the well as boundary markers. With Elliotte's assistance, Mordhorst was able to pinpoint the location of these markers. Elliotte testified that since the dispute with Sila began, someone had covered the well with dirt such that it was no longer visible. Also, someone had dug up the stump and thrown it some distance away from its original location. Elliotte was able to retrieve the stump itself as evidence. He was able to find the stump's prior location by excavating its remainder from underground in the midst of a row of above-ground stumps along the north border of the properties. Because Elliotte was familiar with the location of the well, they were also easily able to excavate it.

Mordhorst's survey used the stump as the northeast corner and used the west edge of the well to reference the southeast corner, such that the entirety of the well was within Kirk's property. The survey also set forth the boundary of the property in accordance with its legal description, measuring from the actual section line on the west side. Mordhorst's and Franklin's surveys agree as to the boundary that correlates to the legal description of the property.

Mordhorst's survey illustrates the disputed area as a trapezoid that is narrower on the south end, encroaching approximately 5 fewer feet into the legally described 18 acres on the south end than on the north. The boundary Elliotte testified was recognized by George and Eugene thus did not run exactly parallel to the west road. Mordhorst testified that the printed exhibit representing the survey was not completely proportionate. Although the survey was to scale in the east-west direction, it was compressed in the north-south direction to fit onto a legal-sized sheet of paper. Mordhorst's survey established that there was a total of .264 of an acre in issue between the parties.

The district court ruled in favor of Sila, finding that Sila was the owner of the property in accordance with the boundary described in the original plat. In its findings of fact, the court noted that while the aerial photograph showed the boundary as being parallel to the road, the exhibit representing Mordhorst's survey did not show a parallel line, and that thus, "it is not possible that the tract could be as Elliotte testified."

Furthermore, the court opined that as a matter of law, mutual acquiescence can only determine a boundary...

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    ...conveying a piece of land with a boundary other than that established in the government plat. Indeed, we note that in Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 (2008), the Nebraska Supreme Court approved the ability of private parties to acquiesce to a boundary line that differed from ......
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