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Siedlik v. Nissen

Supreme Court of Nebraska

July 26, 2019

Ray Siedlik and Terri Siedlik, appellants,
v.
Daniel Nissen and Deb Nissen, appellees.

         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. Equity: Evidence: Appeal and Error. In an appeal of an equity action, where credible evidence is in conflict on a material question of fact, an appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and their manner of testifying, and accepted one version of the facts rather than another.

         4. Adverse Possession: Appeal and Error. In an action to establish title by adverse possession, an appellate court may give consideration to the fact that the trial court personally viewed the premises involved therein.

         5. 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 a statutory period of 10 years.

         6. Adverse Possession: Notice. The acts of dominion over land allegedly adversely possessed must, to be effective against the true owner, be so open, notorious, and hostile as to put an ordinarily prudent person on notice of the fact that the lands are in the adverse possession of another.

         7. __:__. 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.

         [303 Neb. 785] 8.__:__. Something more than a neighbor's watering and mowing over the property line is needed to alert a reasonable owner that his or her title is in danger and he or she must take steps to protect his or her interest.

         9. Adverse Possession: Boundaries. Proof of the adverse nature of the possession of land is not sufficient to quiet title in the adverse possessor; the land itself must also be described with enough particularity to enable the court to exact the extent of the land adversely possessed and to enter a judgment upon the description.

         10. Adverse Possession: Proof. A claimant of title by adverse possession must show the extent of his or her possession, the exact property which was the subject of the claim of ownership, that his or her entry covered the land up to the line of his or her claim, and that he or she occupied adversely a definite area sufficiently described to found a verdict upon the description.

         11. Appeal and Error. An appellate court will not consider an issue on appeal that was not passed upon by the trial court.

          Appeal from the District Court for Cass County: Michael A. Smith, Judge.

          Douglas W. Ruge for appellants.

          Joel M. Carney and William J. Hale, of Goosmann Law Firm, P.L.C., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FUNKE, J.

         This is an action brought by Ray Siedlik and Terri Siedlik to quiet title to a tract of land located in Cass County, Nebraska. The Siedliks claimed title by adverse possession to a 6-foot tract owned by abutting landowners Daniel Nissen and Deb Nissen. The district court found in favor of the Nissens, and the Siedliks appealed. We affirm.

         I. BACKGROUND

         In December 2004, the Siedliks moved into a newly constructed home located on "Lot 3, Block 7, Buccaneer Bay" (Lot 3), in Cass County, Nebraska. Lot 3 is bordered on the [303 Neb. 786] west by "Lot 4, Block 7, Buccaneer Bay" (Lot 4). Lot 4 is a vacant lot owned by the Nissens, who have occupied a residence on the lot directly west of Lot 4 since 2001. Daniel testified that after the Siedliks moved in, Ray offered to purchase Lot 4 or a portion thereof, but Daniel had no plans to sell.

         In April 2005, the Siedliks installed improvements over the property line, which included two sprinkler heads, a sprinkler control box, landscaping, and a wooden fence. The front sprinkler head was placed 5 Vi feet into Lot 4, which marked the furthest encroachment. The sprinkler heads were intended to line up with a stake located in the rear west corner of the Siedliks' property, but were mistakenly placed beyond the boundary line due to the curvature of Buccaneer Boulevard. The Siedliks placed the front sprinkler head in their front yard about 5 feet south of Buccaneer Boulevard, which they thought was the northwest corner of their property. The second sprinkler head was placed about halfway down the yard, 3 feet into Lot 4. The Siedliks graded and laid sod and erected a wooden fence down the same line, known as the sprinkler line. The disputed area is pie shaped with the widest point at the front of the lot and the end point located at the rear stake traveling along the sprinkler line.

         The Nissens took photographs while the Siedliks installed these improvements, were aware of the grading and laying of sod, and witnessed the sprinklers water the sodded area. Daniel testified that when Terri was working in the yard in 2006 or 2007, she represented that the Siedliks would never encroach. Both the Siedliks and the Nissens believed that the improvements were built on the Siedliks' property, but a 2016 survey conducted by the Nissens revealed the true property line and the Siedliks' encroachments. Around this same time, the Siedliks voluntarily moved their fence and sprinkler heads closer to their house.

         The parties began negotiating an agreement to extend the Siedliks' land 2 feet into Lot 4 for nearly the full length of the property line. The potential land sale was for a total of 230 [303 Neb. 787] square feet. The Siedliks conducted a survey which confirmed the true property line and included the following legal description for the proposed property acquisition:

PART OF LOT 4, BLOCK 7, BUCCANEER BAY. CASS COUNTY, NEBRASKA[, ] BEGINNING AT THE NORTHEAST CORNER OF LOT 4, BLOCK 7, BUCCANEERBAY; THENCEN 89°53'35"E (ASSUMED BEARING), 2.00 FEET ALONG THE NORTH LINE OF SAID LOT 4, BLOCK 7, BUCCANEER BAY; THENCE S 00°06'25" E, 80.00 FEET; THENCE S OT44'36" E, 70.03 FEET TO THE SOUTHEAST CORNER OF SAID LOT 4, BLOCK 7, BUCCANEER BAY; THENCE N 00°06'25" W, 150.00 FEET TO THE POINT OF BEGINNING. DESCRIBED TRACT CONTAINS 230 SQUARE FEET.

         On December 29, 2016, the Siedliks filed an amended complaint seeking to quiet title in a 6-foot tract of land in Lot 4. The Siedliks alleged that for a period of approximately 12 years, their fence, retaining wall, and rock area encroached onto the Nissens' property. The Siedliks alleged that during this time period, they continuously and exclusively maintained, mowed, and utilized an area of land 6 feet beyond the boundary line. The Siedliks attached to the amended complaint "Exhibit 'A, '" which contained the same survey property depiction as exhibit 12, shown on page 788.

         In their prayer for relief, they requested an "[o]rder quieting legal title in the 230 square feet of property referenced in 'Exhibit A.'" In addition, the Siedliks requested that the court quiet title in "an area up to six feet into the [Nissens'] property''

         The Nissens filed an answer denying the allegations and affirmatively alleging that the Siedliks' possession of the property was not under a claim of ownership. The Siedliks moved for summary judgment, which the court overruled. The court inspected the property in the presence of the parties' attorneys and held a trial on July 25, 2018.

         [303 Neb. 788] (Image Omitted.)

         At trial, Ray testified that he exclusively used and maintained the land inside the sprinkler line. He testified that he mowed and replaced sod in this area and that the opposite side of the sprinkler line was overgrown with longer grass and tall weeds, which meant that the sprinkler line was also referred to as the "weed line." The Siedliks ...


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