Winkle v. Mitera

• Decision Date: 21 April 1976
• Docket Number: No. 40275,40275
• Citation: 195 Neb. 821,241 N.W.2d 329
• Parties: Lyle C. WINKLE, Appellee, v. James MITERA and Nina Mitera, Appellants, Impleaded with Edward V. Kudron and Barbara K. Kudron, Appellees.
• Court: Nebraska Supreme Court

Page 329

241 N.W.2d 329

195 Neb. 821

Lyle C. WINKLE, Appellee, v. James MITERA and Nina Mitera, Appellants Impleaded with Edward V. Kudron and Barbara K. Kudron, Appellees.

No. 40275.

Supreme Court of Nebraska.

April 21, 1976.

Syllabus by the Court

1. In equity cases where the trial court has made a personal examination of the physical facts, and where, in the same case, the oral evidence in respect of material issues is so conflicting that it cannot be reconciled, this court will consider the fact that such examination was made and that such court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.

2. It is the settled law of Nebraska that erosion of a river, which cuts entirely across riparian land and into the land of an adjoining owner, operates to obliterate the title of him whose land was originally riparian, and that he may not reassert his title if the river thereafter reverses its transverse wanderings and new land is formed within what were his original boundaries.

3. The ownership of an island carries with it the bed of the river to the center or thread of each surrounding channel.

4. Where title to an island, bounded by the waters of a nonnavigable stream is in one owner, and title to the land on the other shores opposite the island is in other owners, the same riparian rights appertain to the island as to the mainland.

5. A decree of foreclosure of a tax lien is of no effect as against the persons who were at the time in actual possession of and who were not made parties defendant in the action and had no notice or knowledge thereof.

6. The general rule in this state is that in order to claim title by adverse possession one must have been in open, notorious, exclusive, and adverse possession of the property for a period of 10 years.

Roback & Geshell, R. Steven Geshell, Columbus, for appellants.

Winkle, Allphin & Brock, Lyle C. Winkle, Columbus, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is an action to quiet title to part of an island in the Platte River, located near the City of Columbus, Nebraska. The District Court quieted title in favor of the plaintiff, Winkle, and the defendants Mitera appeal. We affirm the judgment of the District Court.

Due to the complexity of the facts of this case, an unscaled sketch is provided to aid the reader of this opinion.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The sketch is for illustrative purposes only, and does not purport to be accurate. The map shows the present location of the Platte River in relation to the areas which are of concern in this case. Lot 1 is the area which is enclosed in the broken lines and is partially covered by the Platte River. The disputed land in this case is darkened in with lines, and includes part of Lot 1. It should be noted that in the past 100 years, the Platte River has moved considerably to the north. At some time prior to 1900, the north bank of the Platte River was south of Lot 1. By 1914, the Platte River had completely submerged all of Lot 1. As can be seen on the map, at present the Platte River has moved even farther north so that much of Lot 1 is once again above water.

In about 1914, Walt Giger and some of his friends started using an island in the Platte River for hunting purposes, and they constructed a cabin on the island. This island became known and is still known as Giger's Island, and is labeled as such on the map. Although the testimony is conflicting, the weight of the evidence indicates that by 1914, there were no islands between Giger's Island and the north bank of the Platte River.

At some point in time, probably around 1930, land began to appear between Giger's Island and the north bank of the Platte River.

In 1932, Platte County foreclosed a tax lien against Lot 1. The defendants bought Lot 1 for $2, and in 1935, they received a sheriff's deed to Lot 1. At the time of the tax foreclosure proceedings, Walt Giger was in possession of Giger's Island, and he was not served with notice in the foreclosure action.

In 1958, Giger conveyed Giger's Island to the Hanners, who conveyed the island to the plaintiff, Winkle, in 1970. The plaintiff brought this action to quiet title to Lot 1 and the land which has accreted to it. The District Court quieted title in favor of the plaintiff, finding that the plaintiff is the owner of Giger's Island and therefore owned all the land north of Giger's Island to the middle of the channel of the Platte River. The District Court also held that the sheriff's deed which was received by the defendants was void because the plaintiff's remote grantor, Walter Giger, was not given notice of the tax foreclosure action.

The defendants Mitera appeal to this court, asking that title to the disputed land be quieted in them.

Since this is an action in equity, this court must try the issues de novo. See § 25--1925, R.R.S.1943. However, we have stated that in equity cases where "'* * * the trial court has made a personal examination of the physical facts, and where, in the same case, the oral evidence in respect of material issues is so conflicting that it cannot be reconciled, this court will consider the fact that such examination was made and that such court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite."' Thomas v. Flynn, 169 Neb. 458, 100 N.W.2d 37. In this case, in which there is much conflicting evidence, we have kept in mind the fact that the District Court personally viewed the disputed area and its surroundings, and observed the testimony of the witnesses.

The evidence shows that Walt Giger, the plaintiff's predecessor in title, first took possession of Giger's Island in about 1914. Giger used the island and cabin extensively. It is clear that by 1924 or 1925, Giger had been in actual, continuous, notorious, and adverse possession of Giger's Island for at least 10 years. Under section 25--202, R.R.S.1943, Giger became the owner of Giger's Island after the 10-year period. See, Beebe v. Reichert, 172 Neb. 172, 108 N.W.2d 804; Jones v. Schmidt, 170 Neb. 351, 102 N.W.2d 640.

It is uncertain precisely when land began reappearing north of Giger's Island. There probably was an island or two north of Giger's Island by 1930 or 1931. The first question is: Who initially had title to the land when it started reappearing as small islands? Did the prior owner, a man by the name of John Wilcynski, still have title? In Worm v. Crowell, 165 Neb. 713, 87 N.W.2d 384, this court stated: "It is the settled law of Nebraska that erosion of a river, which cuts entirely across riparian land and into the land of an adjoining owner, operates to obliterate the title of him whose land was originally riparian, and that he may not reassert his title if the river thereafter reverses its transverse wanderings and new land is formed within what were his original boundaries." Thus, the previous owner of the land, Wilcynski, lost his title when the Platte River completely submerged his land. When the land reappeared, Wilcynski had no claim to it.

Who then had title? In this state, the owner of an island has title to any land between his island and the center of each surrounding channel. In Heider v. Kautz, 165 Neb. 649, 87 N.W.2d 226, where the court found that the owner of an island was entitled to accretion land, the court said that the ownership of an island "* * * carries with it the bed of the river to the center or thread of each surrounding channel.' * * * 'Where...