Worm v. Crowell

• Citation: 165 Neb. 713,87 N.W.2d 384
• Decision Date: 03 January 1958
• Docket Number: No. 34267,34267
• Parties: Louis J. WORM, Appellee, v. Johanna C. CROWELL et al., Appellees, Impleaded with Blanche E. Jones, et al., Appellants, Wallace E. Jones et al., Appellees.
• Court: Nebraska Supreme Court

Page 384

87 N.W.2d 384

165 Neb. 713

Louis J. WORM, Appellee, v. Johanna C. CROWELL et al., Appellees Impleaded with Blanche E. Jones, et al., Appellants Wallace E. Jones et al., Appellees.

No. 34267.

Supreme Court of Nebraska.

Jan. 3, 1958.

Syllabus by the Court

1. The aggregate time allowed for the performance of any of the statutory steps in securing an allowance of a bill of exceptions will not be shortened, or advanced, by completing any of the steps enumerated in advance of the time limited by the statute.

2. Where, by the process of accretion and reliction, the water of a river gradually recedes, changing the channel of the stream and leaving the land dry that was theretofore covered by water, such land belongs to the riparian owner.

3. When, by gradual erosion, a river becomes the boundary of land the owner thereof then becomes a riparian owner and is entitled to all accretions thereto.

4. The claim of title to land by adverse possession must be proved by actual, open, exclusive, and continuous possession under a claim of ownership for the statutory period of 10 years.

5. The possession is sufficient if the land is used continuously for the purpose to which it may be in its nature adapted.

6. It is the established rule in this state that when a fence is constructed as a boundary line fence between two properties, and where the parties claim ownership of the land up to the fence for the full statutory period and are not interrupted in their possession or control during that time they will, by adverse possession, gain title to such land as may have been improperly enclosed with their own.

7. The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continuous, notorious, and adverse possession thereof, claiming title to the same against all persons, for 40 years.

8. 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.

9. An exception to the general rule which requires maps, surveys, and the like, to be authenticated by the testimony of the party making the same exists where the documents are ancient. Maps, surveys, etc., purporting to be 30 years old or more are said to prove themselves and are admissible in evidence without the ordinary requirements as to proof of execution or handwriting if relevant to the inquiry, when produced from proper custody, on their face free from suspicion, and authorized or recognized as official documents.

10. An ancient map made under the direction of a private person, or one for which no official authorization or recognition appears, is inadmissible in evidence.

11. An ancient survey made by competent authority, recorded or accepted as a public document, and produced from proper custody, is admissible in evidence to prove the location of boundary lines.

12. An ancient survey which appears to have been made for a private purpose, and not officially authorized or recognized, is inadmissible as an ancient document.

O'Hanlon & O'Hanlon, Blair, for appellants.

Walter G. Huber, Blair, Nebraska for Louis J. Worm, appellee.

Cranny & Moore, Omaha, for Wallace E. Jones, appellee.

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

WENKE, Justice.

This is an appeal from the district court for Washington County. It involves an action brought by Louis J. Worm whereby he seeks to have quieted and confirmed in himself his title in and to 'The Northeast Quarter of the Southwest Quarter (NE 1/4 SW 1/4) and the Southeast Quarter of the Northwest Quarter (SE 1/4 NW 1/4) and Government Lots One (1) and Two (2) in Section Twenty-five (25) in Township Eighteen (18) North, Range Twelve (12) East of the 6th P.M. in Washington County, Nebraska, and the accretions thereto directly East of these Government Lots to the West bank of the Missouri River' on the basis that he is the record title owner of the described lands in fee and therefore entitled to all accretions thereto, and that he and his predecessors in title have been in the adverse possession of all of the lands for more than 10 years.

Defendants Frederick Pace Woods, Olive Black Woods, Marilyn Woods Kilbourne, Mark William Woods, and Marjorie William Woods, who are the owners of the west half of the northwest quarter of said Section 25, filed an answer and cross-petition alleging themselves to be the owners of the 'Southeast Quarter of the Northwest Quarter and Government Lots One and Two in Section 25, Township 18 North, Range 12, East of the Sixth Principal Meridian in Washington County, Nebraska, and the accretions thereto directly East of said Government Lots to the West bank of the Missouri River.' Their claim of ownership thereto is based on the contention that it belongs to them as accretions to the land they own and also by reason of adverse possession. They ask that the title thereto be quieted and confirmed in them. We shall herein refer to these defendants as the Woods and to the west half of the northwest quarter of Section 25 as the Woods 80.

Defendant Blanche E. Jones, owner of the northwest quarter of the southwest quarter of said Section 25, filed an answer and cross-petition alleging she is the owner of 'The North 600 feet of the Northeast Quarter of the Southwest Quarter of Section 25, Township 18 North, Range 12, East of the Sixth Principal Meridian in Washington County, Nebraska, and all accretions thereto, directly East of said above described real estate to the West bank of the Missouri River, * * *.' She claims the same by accretion to her land and by adverse possession. We shall herein refer to the northwest quarter of the southwest quarter of Section 25 as the Jones 40.

Plaintiff, by his replies, generally denied the claims made by the foregoing defendants.

The trial court rendered a default judgment in favor of the plaintiff and against all the defendants who had been properly served and had failed to answer or appear, including certain cotenants of the plaintiff. That such can be properly done if the facts so justify see Severson v. McKenzie, 122 Neb. 827, 241 N.W. 774.

At the trial it was 'stipulated by and between the parties that for the purpose of this lawsuit that accretion lands be considered as being directly east of the riparian land instead of being measured by a proportional basis to eliminate extensive measurement of the original 1856 survey line and the subsequent lines of the river and the present boundary of the Missouri River.'

The cause was tried on the issues raised. During the course of the trial the judge personally viewed the premises. The trial court found generally for the plaintiff and against the answering defendants and rendered a decree accordingly, quieting and confirming in the plaintiff title to the lands he claimed to own and dismissing the cross-petitions of the Woods and Blanche E. Jones. From this decree the Woods and Blanche E. Jones have perfected this appeal.

Appellee contends there is no proper bill of exceptions for this court to consider and that consequently he is entitled to have the judgment rendered by the trial court affirmed because his pleadings are sufficient to support it, citing Wabel v. Ross, 153 Neb. 236, 44 N.W.2d 312, and Jones v. City of Chadron, 156 Neb. 150, 55 N.W.2d 495, 496, to that effect. As stated in Jones v. City of Chadron, supra: 'In the absence of a bill of exceptions, it is presumed that an issue of fact presented by the pleadings was established by the evidence, that it was correctly decided, and the only issue that will be considered on appeal is the sufficiency of the pleadings to support the judgment.' This claim of appellee is based on the theory that since the bill of exceptions was not presented to and settled by the trial judge until 11 days after it was returned by appellee's attorney to the attorney for appellants it did not meet the requirements of section 25-1140.05, R.R.S.1943. This statute provides in this respect that: 'The bill and proposed amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who heard or tried the case, * * * at which time the judge shall settle the bill of exceptions.'

Section 25-1140 to 25-1140.07, R.R.S.1943, provide the statutory steps for the allowance and settlement of a bill of exceptions in case of an appeal. Section 25-1140, R.R.S.1943, provides for an initial 40-day period from the date of appeal, here May 17, 1957, for the preparation of the bill of exceptions. Section 25-1140.07, R.R.S.1943, provides the trial judge may, upon a showing of due diligence, extend the time for this purpose up to a maximum of 40 days. That was done and the time for preparing the bill of exceptions was thus extended to August 5, 1957. The bill was prepared by the reporter within that time and delivered to the attorney for the appellants on that day. Section 25-1140.03 R.R.S.1943, provides 10 days thereafter, or in this case to August 15, 1957, for serving the bill of exceptions on the adverse party or his attorney of record. That was done here on August 13, 1957, or within time. Section 25-1140.04, R.R.S.1943, provides 10 days within which the adverse party shall return the bill of exceptions. That would here be August 25, 1957. It was returned on August 23, 1957, or within time. Section 25-1140.05, R.R.S.1943, then provides as hereinbefore set forth. In this case that was September 4, 1957. The bill of exceptions was allowed and settled by the trial judge on September 3, 1957, or within time.

It is apparently appellee's thought that by returning the bill of exceptions to appellants' attorney on August 23, 1957, he could thereby accelerate the date for its allowance and settlement. But such is not the fact. As we...