Wemmer v. Young

• Decision Date: 26 December 1958
• Docket Number: No. 34365,34365
• Citation: 167 Neb. 495,93 N.W.2d 837
• Parties: Roy WEMMER, Appellant, v. Ralph I. YOUNG and Anna M. Young, husband and wife, et al., Appellees.
• Court: Nebraska Supreme Court

Page 837

93 N.W.2d 837

167 Neb. 495

Roy WEMMER, Appellant, v. Ralph I. YOUNG and Anna M. Young, husband and wife, et al., Appellees.

No. 34365.

Supreme Court of Nebraska.

Dec. 26, 1958.

Syllabus by the Court

1. If by gradual erosion a river becomes the boundary of land, the owner thereof is a riparian owner and is entitled to any accretion thereto.

2. If by process of accretion and reliction the water of a stream gradually recedes, changes the channel of the stream, and leaves the land dry that was previously submerged by water, the land is the property of the riparian owner.

3. The erosion of a river which cuts across riparian land and into the land of an adjoining owner destroys the title of him whose land was originally riparian and he may not reassert his title if the river reverses its movement and new land is formed within what were his original boundaries.

4. The use and enjoyment which will create title by prescription to an easement are substantially the same in quality and characteristics as the adverse possession which will give title to real estate. The use and enjoyment must be adverse under claim of right, continuous, open, and exclusive, with the knowledge and acquiescence of the owner of the servient tenement, must continue for the full prescriptive period, and must be substantially identical.

5. To establish a prescriptive right to an easement, all the elements of a prescriptive use and enjoyment must be established by clear, convincing, and satisfactory evidence.

6. If an easement is acquired by prescription, the extent of the right is fixed and determined by the user in which it originated. To establish an easement by prescription the evidence must show the extent of the user for a period of 10 years.

7. An alleged easement that is too indefinite for a determinate description cannot be establish and protected by a court of equity.

8. Accretion must be expressly excluded from a conveyance to avoid a transfer of it.

9. A judgment rendered in an action does not affect or bind a person who was not a party to the action.

10. Newly discovered evidence is not sufficient reason for a new trial of a cause if diligence before the trial would have produced notice or knowledge of the alleged recently discovered evidence.

11. The law will not intervene to assist a litigant who has not exercised due diligence to prevent the result of which he complains and which is attributable to his inattention.

12. This court may in an equity case give proper consideration to the fact that the trial court inspected the premises and physical matters involved in the cause and that its examination thereof constituted evidence because the relevant facts observed necessarily affected the mind of the court and tended to influence belief or unbelief on the matters at issue in the case, if there is other competent evidence in the record to sustain the findings.

Theodore L. Richling, Omaha, J. C. Hranac, David City, for appellant.

Cassem, Tierney, Adams, Kennedy & Henatsch, Omaha, Lloyd L. Pospishil, Schuyler, F. J. Coufal, David City, for appellees.

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

BOSLAUGH, Justice.

This litigation was instituted by appellant to quiet title to the land he claimed to own described as Lot 5 of Section 12, Township 17 North, Range 4 East of the 6th P. M., Butler County, and all accretions north thereof to the center of the channel of the Platte River as against appellees and to have an easement in favor of appellant established across the land of Ralph I. Young and Anna M. Young, appellees, from the highway west thereof along the north line of the Young land to the property claimed to be owned by appellant. The easement has existed, as he asserted, for as much as 40 years as a means of ingress and egress to and from the property of appellant. He asked to have Ralph I. Young and Anna M. Young enjoined from in any manner interfering with the easement or its use as a way to and from the property of appellant and to recover from Ralph I. Young and Anna M. Young $900 which appellant claimed they without authority or right, had collected and retained as rental from Harry A. Koch for the use by him of land which belonged to appellant.

Ralph I. Young and Anna M. Young, Albin Peltz and Ann Peltz, and Harry A. Koch, appellees, denied the claims made by appellant as a basis for the relief he demanded and they respectively by cross-petition alleged facts sufficient to entitle them to an adjudication quieting title in them respectively to the land they claimed to own as herein specified. Ralph I. Young and Anna M. Young will be hereafter designated as Young, Albin Peltz and Ann Peltz will be referred to as Peltz, and Harry A. Koch will be hereafter spoken of as Koch.

Young in his answer and cross-petition alleged that: He and his wife were the owners as joint tenants and in possession of Lots 1 and 2 and all accretions thereto, the south half of the northwest quarter and the north half of the northeast quarter including all accretions thereto, and the southwest quarter of the northeast quarter of Section 13, Township 17 North, Range 4 East of the 6th P. M. in Butler County, including all islands and the bed of the Platte River lying north of the accretions to Lots 1 and 2 and the north half of the northeast quarter of Section 13 to the thread of the stream of the river except the part thereof sold to Harry A. Koch which was the north half of the north half of the northeast quarter of the northeast quarter of said Section 13 and the accretions thereto. W. A. Malovec and wife purported to convey by quitclaim deed to Koch the land lying and being between the north line of Lots 1 and 2 and the north half of the northeast quarter of Section 13 and the Platte River, said lands being accreted to said Lots 1 and 2 and the north half of the northeast quarter of said Section 13. At the time of the execution of the deed W. A. Malovec had no right, title, or interest in the lands involved in this litigation but the deed and the record thereof are a cloud on the real estate owned by Young as above described. At the time of the government survey of said Section 13 there existed between the north boundary thereof and the Platte River an area described in the survey as Lot 5. It commenced at a point on the north boundary of Lot 1 and extended eastward therefrom to the east line of Section 13. After the survey but many years prior to 1930 the Platte River by slow and imperceptible erosion of its south bank washed the bank to the south until it was entirely south of the original northern boundary of Lots 1 and 2 and was south of virtually all of the northern boundary of the north half of the northeast quarter of Section 13. Lot 5 as it existed north of Lot 1 was entirely washed away by the river and the part of Lot 5 north of the northeast quarter of Section 13 was virtually all washed away. Subsequent to the southernmost erosion of the south bank of the Platte River along the north edge of Section 13 the river began slowly to wash particles of soil against the said south bank where they adhered and by process of accretion began to extend toward the north until said bank reached the location it now occupies. The district court for Butler County in an action therein brought and prosecuted by Frank W. Barcal, who was then the owner of the real estate now owned ty Young, against Milo Evans, in which it was alleged that Milo Evans was claiming a part of said property, found and adjudicated that the title to the property involved therein should be and was quieted in Frank W. Barcal and that all the land that had existed between Lots 1 and 2 and the north half of the northeast quarter of Section 13 and the Platte River at the time of the government survey had long since washed away and was no longer in existence and no part of the land now lying north of Lots 1 and 2 and the north half of the northeast quarter of Section 13 was land that had existed at the time of the government survey. Island No. 1 divides the Platte River into two channels, one to the north and one to the south of it. Lying to the south and west of island No. 1 is another island the eastern end of which lies immediately south of the west end of island No. 1. The second island mentioned above has been for convenience identified as island No. 2. The thread of the stream of the Platte River west of island No. 1 is and had been before island No. 2 was formed north of island No. 2. The thread of the channel of the Platte River south of island No. 1 is and had been since before the formation of island No. 2 north of it. Young is the owner of the mainland south of island No. 2 and by virtue of such ownership Young owns to the thread of the stream of the Platte River including island No. 2. Young and his predecessors in title have for more than 40 years last past been in the open, notorious, actual, hostile, exclusive, and adverse possession under color of title of the property owned by Young as above stated. Young asked the court to quiet title to the property owned by him and to bar the plaintiff and the codefendants from asserting any claim therein or right thereto; to cancel the deed from W. A. Malovec and wife to Harry A. Koch; and to enjoin the appellant from asserting any right-of-way or easement in, to, or over the property of Young.

The cross-petition of Peltz asserted he owned Lots 2 and 3 south of the Union Pacific right-of-way and the accretion to Lot 1 in Section 12, Township 17 North, Range 4 East of the 6th P. M., Colfax County. He asserted ownership of island No. 1 by patent and mesne conveyances and the ownership of islands described in the record as Nos. 2, 3, and 4. Island No. 2 was described as south of Lots 2, 3, and 4 of Section 12 and south and west of island No. 1. Islands Nos. 3 and 4 were described as immediately west of or on the Colfax-Dodge County line and...