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Schellhorn v. Schmieding

Supreme Court of Nebraska

July 25, 2014

ARLAN D. SCHELLHORN AND DAWN L. SCHELLHORN, APPELLEES AND CROSS-APPELLANTS,
v.
JOSEPH L. SCHMIEDING AND CAROL L. SCHMIEDING, APPELLANTS AND CROSS-APPELLEES

Page 68

Appeal from the District Court for Seward County: KAREN B. FLOWERS, Judge.

AFFIRMED.

Kent E. Rauert and Matthew R. Watson, of Svehla, Thomas, Rauert & Grafton, P.C., for appellants.

Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 69

[288 Neb. 648] Wright, J.

NATURE OF CASE

Arlan D. Schellhorn (Schellhorn) and Dawn L. Schellhorn sought to quiet title in their favor to a disputed parcel of land of which Joseph L. Schmieding (Schmieding) and Carol L. Schmieding were the record owners. The Schmiedings filed a cross-claim seeking a prescriptive easement in the event that title was quieted in the Schellhorns. The district court for Seward County quieted title in favor of the Schellhorns. The Schmiedings appeal, claiming the district court erred in quieting title in the Schellhorns and in not granting the Schmiedings a prescriptive easement. The Schellhorns cross-appeal, claiming that in the event that title should have been quieted in the Schmiedings, the Schellhorns should be granted a prescriptive easement. We affirm, and dismiss the cross-appeal as moot.

SCOPE OF REVIEW

A quiet title action sounds in equity. Ottaco Acceptance, Inc. v. Larkin , 273 Neb. 765, 733 N.W.2d 539 (2007). On appeal from an equity action, an appellate court resolves questions of law and fact independently of the trial court's determinations. Koch v. Cedar Cty. Freeholder Bd. , 276 Neb. 1009, 759 N.W.2d 464 (2009).

FACTS

The Schellhorns and the Schmiedings are each record owners of parcels of agricultural property in Seward County. The Schellhorns own the east half of the northwest quarter of " Section Five (5), Township Eleven (11), North, Range Two (2), East of the 6th P.M.," and the Schmiedings own the northwest quarter of the northwest quarter of the same section. The disputed parcel is a 17-foot strip of land on the east edge of the northwest quarter of the northwest quarter. The disputed parcel includes a driveway and a strip of land along the east side of the driveway. On the west side of the driveway is a waterway or ditch that runs north and south, somewhat parallel to the driveway.

Page 70

[288 Neb. 649] On July 2, 2012, the Schellhorns filed their operative petition to quiet title to the disputed parcel. The Schellhorns alleged that since at least the 1940's, the west boundary of the disputed parcel, and not the boundary of record, had been observed as the boundary between the Schellhorn and Schmieding properties. The Schmiedings denied the Schellhorns' claim and counterclaimed for a prescriptive easement over the disputed parcel in the event that the district court quieted title in the Schellhorns.

Trial was held on October 23, 2012. Evidence showed that the Schellhorns had farmed their property and used the disputed parcel since 1989 and had purchased their property at auction in 2001. Prior to the Schellhorns' purchase, three successive generations of the Luethke family had owned the Schellhorn property. In 2001, Ralph Luethke (Schellhorn's stepfather) and two ...


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