Weiss v. Meyer, 43186

• Decision Date: 27 March 1981
• Docket Number: No. 43186,43186
• Citation: 208 Neb. 429,303 N.W.2d 765
• Parties: Julia WEISS, Stanley K. Weiss, Wesley Weiss, and Larry Weiss, Appellants and Cross-Appellees, v. Hans MEYER, Personal Representative of the Estate of Friedrich Wilhelm Breder, Hans Meyer, individually, and Gwendolyn Meyer, individually, Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 765

303 N.W.2d 765

208 Neb. 429

Julia WEISS, Stanley K. Weiss, Wesley Weiss, and Larry Weiss, Appellants and Cross-Appellees, v. Hans MEYER, Personal Representative of the Estate of Friedrich Wilhelm Breder, Hans Meyer, individually, and Gwendolyn Meyer, individually, Appellees and Cross-Appellants.

No. 43186.

Supreme Court of Nebraska.

March 27, 1981.

Syllabus by the Court

1. Equity: Appeal and Error. In actions in equity, it is the duty of the Supreme Court to try the issues of fact de novo on the record and to reach an independent conclusion thereon without reference to the findings of the District Court.

2. Adverse Possession: Proof. One who claims title by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious, and adverse possession under a claim of ownership for a full period of 10 years.

3. Statute of Limitations: Adverse Possession. In Nebraska the law is settled that the operation of the statute of limitations is to vest absolute title in the occupant, when he was maintained an actual, continued, notorious, and adverse possession under claim of ownership for the statutory period.

4. 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.

5. Words and Phrases: Adverse Possession: Intent. "Claim of ownership" as used in the law of adverse possession means nothing more than the intention of the occupant to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual right or title.

6. Adverse Possession: Intent: Proof. Adverse Possession is founded upon the intent with which an occupant held possession, and can best be determined by his acts.

7. Adverse Possession: Intent. The intent, even though mistaken, is sufficient as where the claimant occupies to the wrong line believing it to be the true line and even though he does not intend to claim more than that described in the deed.

8. Adverse Possession: Notice. The real purpose of prescribing the manner in which an adverse holding will be manifested is to give notice to the real owner that his title or ownership is in danger so that he may, within the period of limitation, take action to protect his interest. It is the nature of the hostile possession that constitutes the warning, not the intent of the claimant when he takes possession.

9. Adverse Possession. The law does not require that possession shall be evidenced by a complete enclosure, nor by persons remaining continuously upon the land and constantly from day to day performing acts of ownership thereon. It is sufficient if the land is used continuously for the purposes to which it may be in its nature adapted. In this respect, 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.

10. Adverse Possession. Land may be generally adapted to more than one use, and if the land is used for one or more of the major purposes for which it may in its nature be adapted, then that use will be sufficient to establish continuity of possession, provided such use is sufficient to put the titleholder on notice.

Jacobsen, Orr & Nelson, Kearney, for appellants and cross-appellees.

Firmin Q. Feltz, Ogallala, for appellees and cross-appellants.

Heard before KRIVOSHA, C. J., McCOWN, BRODKEY, and HASTINGS, JJ., and HICKMAN, District Judge.

HICKMAN, District Judge.

This equitable action was brought pursuant to Neb.Rev.Stat. § 34-301 (Reissue 1978) by appellants, hereafter referred to as petitioners, to have the court establish their southern boundary line to the north half of the southeast quarter of Section 28, Township 12 North, Range 37 West of the 6th P.M. in Perkins County, Nebraska. Petitioners also own the entire northeast quarter of the same section, but that land is not involved in this appeal.

Petitioner Julia Weiss is the record titleholder, and petitioners Stanley K., Wesley, and Larry Weiss are her sons and the contract purchasers of the above-described property.

The original respondent, Friedrich Breder, hereafter referred to as Fred, was the record owner of the south half of the southeast quarter of Section 28, Township 12 North, Range 37 West of the 6th P.M. in the same county, which real estate adjoins petitioners' farm on the south. Fred died after entry of judgment by the court on May 23, 1979, and the action was revived in the names of the present appellees, who are the personal representatives of Fred's estate and the devisees of the real estate involved under his will.

The dispute between the parties arose when Fred, in his answer, claimed by adverse possession for the statutory period certain of the petitioners' property up to a certain farming line.

The trial court, after hearing the evidence, found that Fred had indeed acquired a part of the ground he claimed by adverse possession, but not all of it. Petitioners were not happy with losing their land and Fred was not happy with getting less than he claimed. This situation brought about petitioners' appeal and the cross-appeal by the appellees. In addition, the appellees have filed in this court a motion to dismiss petitioners' appeal.

Petitioners contend that the trial court erred (1) in failing to find that Fred's use of the disputed tract was an occasional trespass; (2) in finding that Fred acquired title to the disputed tract by adverse possession; (3) in finding that Fred's use of the disputed tract was that for which the land was adapted; and (4) in failing to find that the boundary line separating the properties of the parties was a straight line running east and west from the southwest corner of the north half of the southeast quarter to the southeast corner of the north half of the southeast quarter.

In actions in equity, it is the duty of the Supreme Court to try the issues of fact de novo on the record and to reach an independent conclusion thereon without reference to the findings of the District Court. Layher v. Dove, 207 Neb. 736, 301 N.W.2d 90 (1981).

"One who claims title by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious, and adverse possession under a claim of ownership for a full period of 10 years." Layher v. Dove, supra at 739, 301 N.W.2d at 92. The statutory period in Nebraska is 10 years. Neb.Rev.Stat. § 25-202 (Reissue 1979). " '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.' " Walker v. Bell, 154 Neb. 221, 222, 47 N.W.2d 504, 505 (1951). "Claim of ownership," as used in the law of adverse possession, means nothing more than the intention of the occupant to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual right or title Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978). "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 (1932) (syllabus of the court). Adverse possession is founded upon the intent with which an occupant held possession, and can best be determined by his acts. Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331 (1957). The intent, even though mistaken, is sufficient as where the claimant occupies to the wrong line believing it to be the true line and even though he does not intend to claim more land than that described in the deed. Barnes v. Milligan, supra. The real purpose of prescribing the manner in which an adverse holding will be manifested is to give notice to the real owner that his title or ownership is in danger so that he may, within the period of limitation, take action to protect his interest. It is the nature of the hostile possession that constitutes the warning, not the intent of the claimant when he takes possession. Purdum v. Sherman, supra. The law does not require that possession shall be evidenced by a complete enclosure, nor by persons remaining continuously upon the land and constantly from day to day performing acts of ownership thereon. It is sufficient if the land is used continuously for the purposes to which it may be in its nature adapted. James v. McNair, 164 Neb. 1, 81 N.W.2d 813 (1957); Lantry v. Parker, 37 Neb. 353, 55 N.W. 962 (1893). In this respect, "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 at 681 (1936), now 2 C.J.S. ...