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Brown v. Jacobsen Land and Cattle Co.

Supreme Court of Nebraska

March 15, 2019

Terry P. Brown and Linda S. Brown, husband and wife. appellees,
v.
jacobsen land and cattle company, a Nebraska corporation, et al., appellees, and State of Nebraska ex rel. Game and Parks Commission, intervenor-appellant.

         1. Equity: Quiet Title. A quiet title action sounds in equity.

         2. Equity: Appeal and Error. On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the trial court's determination.

         3. Adverse Possession: Proof: Time. A party claiming title through adverse possession must prove by a preponderance of the evidence that the adverse possessor has been in (1) actual, (2) continuous, (3) exclusive, (4) notorious, and (5) adverse possession under a claim of ownership for the statutory period of 10 years.

         4. Adverse Possession: Words and Phrases. A possession that is adverse is under a claim of ownership. Claim of ownership or claim of right means "hostile," and these terms describe the same element of adverse possession. The word "hostile," when applied to the possession of an occupant of real estate holding adversely, is not to be construed as showing ill will, or that the occupant is an enemy of the person holding the legal title, but means an occupant who holds and is in possession as owner and therefore against all other claimants of the land.

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

         [302 Neb. 539] 6. Adverse Possession: Title. Possession of property by permission can never ripen into title by adverse possession unless there is a change in the nature of possession which is brought to the attention of the owner in some plain and unequivocal manner that the person in possession is claiming adversely thereby.

         7. Adverse Possession: Leases: Intent. Entering real property as part of a lease agreement is entering it with permission and with acknowledgment of the owner's superior title and is not entering the land with hostile or adverse intent.

         8. Adverse Possession: Landlord and Tenant: Notice: Intent. A tenant cannot assert ownership by adverse possession unless he or she first surrenders possession or, by some unequivocal act, notifies the landlord he or she no longer holds under the lease agreement.

         9. Adverse Possession. A permissive use remains permissive where an original owner permitted the use and devised the land to another who simply continued to permit the use.

         10. Adverse Possession: Presumptions. As between parties sustaining parental and filial relations, the possession of land of the one by the other is presumed to be permissive.

         11. Landlord and Tenant: Words and Phrases. In the common law, a tenant or other lawful occupant who holds over without right is a tenant at sufferance.

         12. Landlord and Tenant: Contracts. A tenancy at sufferance does not require privity of contract or estate between the holdover occupant and the property's record owner.

         13. Adverse Possession: Landlord and Tenant. A tenancy at sufferance is a permissive interest; it is not an adverse possession and cannot be the basis for adverse possession.

          Appeal from the District Court for Banner County: Derek C. Weimer, Judge. Reversed.

          Douglas J. Peterson, Attorney General, and Charles E. ...


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