Walker v. Bell

• Decision Date: 19 April 1951
• Docket Number: No. 32933,32933
• Citation: 47 N.W.2d 504,154 Neb. 221
• Parties: WALKER et al. v. BELL et al.
• Court: Nebraska Supreme Court

Page 504

47 N.W.2d 504

154 Neb. 221

WALKER et al. v. BELL et al.

No. 32933.

Supreme Court of Nebraska.

April 19, 1951.

Syllabus by the Court.

1. The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continued, notorious, and adverse possession thereof, claiming title to the same against all persons, for ten years.

2. If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor claiming title, and such occupant claims title from such prior possessor, then the possession of the occupant may be tacked to that of such prior possessor.

3. 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.

4. Payment of taxes by the occupant for a series of years is a strong circumstance, in connection with others, tending to show the adverse holding and the abandonment of the property by the holder of the title.

5. To determine the acts necessary to constitute adverse possession it is sometimes necessary to take into consideration the character of the property and the purposes for which it is suitable.

William P. Higgins, Norfolk, for appellant.

A. F. Alder, Taylor, for appellees.

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

WENKE, Justice.

Olive C. Walker, Frances Clark, and Margaret Walker brought this action in the district court for Loup County. The purpose of the action is to quiet in them the title to certain lands located in Loup County. The trial court found generally for the plaintiffs and quieted in them the title thereto. Certain of the defendants thereupon filed a motion for new trial and, from the overruling thereof, have appealed.

The question presented by the appeal is the sufficiency of the proof to establish appellees' ownership of the premises by adverse possession.

The action is properly maintainable by appellees under section 25-21,112, R.R.S.1943. It is equitable in its nature and therefore considered here de novo. See, Sittler v. Wittstruck, 122 Neb. 452, 240 N.W. 562; Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R. 458; Section 25-1925, R.R.S.1943. The burden of proof is on appellees. See Ferber v. Hines, 111 Neb. 85, 195 N.W. 889.

Before reviewing the facts we will set forth certain principles which are applicable thereto and controlling of the parties' rights.

'In Nebraska the law is settled that the operation of the statute of limitations is to vest absolute title in the occupant, when he has maintained an actual, continued, notorious, and adverse possession under claim of ownership for the statutory period. (Horbach v. Miller, 4 Neb., 31; Gatling v. Lane, 17 Neb. 77, 22 N.W. 227.)' Lantry v. Parker, 37 Neb. 353, 55 N.W. 962, 963.

'The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continued, notorious, and adverse possession thereof, claiming title to the same against all persons, for ten years.' Lantry v. Wolff, 49 Neb. 374, 68 N.W. 494.

See, only, Conkey v. Knudsen, 135 Neb. 890, 284 N.W. 737; Frank v. Smith, supra; Foltz v. Brakhage, 151 Neb. 216, 36 N.W.2d 768.

'If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor claiming title, and such occupant claims title from such prior possessor, then the possession of the occupant may be tacked to that of such prior possessor.' Lantry v. Wolff, supra.

'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.' Cassens v. Wisner, 122 Neb. 408, 240 N.W. 526.

'* * * Payment of taxes by the occupant for a series of years is a strong circumstance, in connection with others, tending to show the adverse holding and the abandonment of the property by the holder of the title.' Omaha & F. L. & T. Co. v. Barrett, 31 Neb. 803, 48 N.W. 967. See, also, Dredla v. Patz, 78 Neb. 506, 111 N.W. 136; Twohig v. Leamer, 48 Neb. 247, 67 N.W. 152.

'To determine the acts necessary to constitute adverse possession it is sometimes necessary to take into consideration the character of the property and the purposes for which it is suitable.' Ferber v. McQuillen, 99 Neb. 280, 156 N.W. 506, 507.

'* * * a continuous adverse possession does not require a continuous occupancy by someone living on the land all of the time; nor is the use and occupation requisite to the perfection of such title necessarily a constant use. Ordinarily the law does not undertake to specify the particular acts of occupation by which alone title by adverse possession may be acquired since the existence and establishment of the continuity must necessarily depend greatly on the circumstances of each case, and the use to which the property is adapted, the actual manner of its use, the circumstances of the occupant, and to some extent his intention must be considered. It is enough, however, that the land be devoted to the ordinary uses of the adverse claimant provided the uses are such as to put the true proprietor on notice.' 2 C.J.S., Adverse Possession, § 125, p. 681. See, also, Lantry v. Parker, supra; Cassens v. Wisner, supra; Twohig v. Leamer, supra.

The lands involved are described as follows: Northeast quarter of the northeast quarter, west half of northeast quarter, south half of northwest quarter, east half of southwest quarter, and northwest quarter of southeast quarter of Section 8, Township 21 North, Range 20 West of the 6th P.M. in Loup County, Nebraska.

The top soil on these lands, consisting of 320 acres, is of a sandy nature and best suited for pasture, although 30 acres thereof has been broken and put into crops. The improvements thereon consisted of a sod house, a little frame barn, a granary, a windmill, and a water tank. The land was fenced and cross-fenced.

The taxes assessed and levied against these lands for the years 1929 and 1930 became delinquent and remained unpaid. On November 2, 1931, Harry J. Coffin bought two tax sale certificates covering these taxes. As such certificate holder he also paid the taxes subsequently assessed and levied thereon for the years 1931, 1932, and 1933 when the same became delinquent. He began a foreclosure of these certificates and the taxes subsequently paid. However, he dismissed such action and proceeded to obtain a treasurer's deed. He made application therefor to the county treasurer of Loup County. There is evidence that on March 18, 1936, a deed thereto was issued and executed by said county treasurer and left with the county clerk for recording. Whether there is sufficient evidence upon which to base a finding that such instrument was actually executed and delivered to Coffin by the county treasurer and by him, or his attorney, left with the county clerk of Loup County for recording and lost before it was actually recorded we need not decide. Suffice it to say that Coffin's subsequent entering into possession of the premises by a tenant was made under the impression that he...