Equity: Quiet Title. A quiet title action
sounds in equity.
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.
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
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.
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.
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
__:__. 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.
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.
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.
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.
Appeal and Error. An appellate court will
not consider an issue on appeal that was not passed upon by
the trial court.
from the District Court for Cass County: Michael A. Smith,
Douglas W. Ruge for appellants.
M. Carney and William J. Hale, of Goosmann Law Firm, P.L.C.,
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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.
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.
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.
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.
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
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.
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
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']
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.
Neb. 788] (Image Omitted.)
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