Bill Baumbach et al., appellees, v. Bryan Hauxwell et al., appellants, and John Doe, appellee.

Bill Baumbach, Patrick Bolte, and Cecily Bolte (collectively the Appellees) filed a quiet title action in the district court for Red Willow County, Nebraska, against Bryan Hauxwell, Doug Hauxwell, Ami Hauxwell (collectively the Appellants), and John Doe. The Appellees alleged that they had acquired title to certain real property by adverse possession and sought damages for the destruction of a fence they allegedly owned. The Appellants' answer included a counterclaim, seeking to have title to the disputed property quieted in them. The district court found that the Appellees had proved their adverse possession claim but had failed to present sufficient evidence to prove their damages claim for the removal of the fence. The court quieted title in the Boltes. For the reasons stated herein, we reverse, and remand with directions.

BACKGROUND

This action arises out of a dispute between adjoining landowners, the Boltes and Bryan Hauxwell, regarding a property line separating their respective tracts of land. The Boltes are the record owners of the southern portion of Lot 1 located in Section 23, Township 3 North, Range 28 West, in Red Willow County (the Bolte property). Bryan Hauxwell is the record owner of Lots 2, 5, 6, 7, and 8, also located in Section 23, Township 3 North, Range 28 West, in Red Willow County (the Hauxwell property). For purposes of this appeal, it is relevant to know that Lot 7 is located immediately to the south of Lot 1, that Lot 2 adjoins Lot 1 to the west (with Lot 6 lying immediately south of Lot 2), and that Lot 8 lies directly south of the eastern portion of Lot 7. A gap lies in between Lots 6 and 8, which tract of land is identified with the label "SW1/4-NE1/4." The location of Lot 5 is not identified. At the time of the original government survey, the Republican River ran in an upward arc across Section 23 and separated Lot 2 from Lot 6 and Lot 1 from Lot 7. The river at that time also impinged on the northeastern corner of Lot 8. In 1935, a flood occurred that caused the river to change its course. The Republican River now runs in a generally straight east-west line across Section 23, separating the upper portion of Lot 1 from the lower portion of Lot 1 and doing the same with regard to Lot 2. In other words, after 1935, the Republican River no longer formed the boundary between Lots 1 and 2 and Lots 6, 7, and 8.

Before proceeding further, it will be helpful to first understand some basic principles relevant to riparian land, such as that at issue in this appeal. To be riparian, land must have water flowing over it or along its border. Krimlofski v. Matters, 174 Neb. 774, 119 N.W.2d 501 (1963); Saunders Cty. v. Metropolitan Utilities Dist.-A, 11 Neb. App. 138, 645 N.W.2d 805 (2002). Under Nebraska law, title to riparian lands runs to the thread of the contiguous stream. Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000). The thread, or center, of a channel is the line which would give the landowners on either side access to the water, whatever its stage might be and particularly at its lowest flow. Id. Accretion is the process of gradual and imperceptible addition of solid material, called alluvion, thus extending the shoreline out by deposits made by contiguous water; reliction is the gradual withdrawal of the water from the land by the lowering of its surface level from any cause. Monument Farms, Inc. v. Daggett, 2 Neb. App. 988, 520 N.W.2d 556 (1994). See Krumwiede v. Rose, 177 Neb. 570, 129 N.W.2d 491 (1964). Where the thread of the main channel of a river is the boundary line between two estates and it changes by the slow and natural processes of accretion and reliction, the boundary follows the channel. Anderson v. Cumpston, supra.

Avulsion is a sudden and perceptible loss of or addition to land by the action of water, or a sudden change in the bed or course of a stream. Anderson v. Cumpston, supra; Monument Farms, Inc. v. Daggett, supra. When a stream which forms the boundary between two parties suddenly abandons its old bed and seeks a new one, such a change of channel works no change of boundary; the boundary remains as it was in the center of the old channel, although no water may be flowing therein. Anderson v. Cumpston, supra. The applicability of the law of avulsion is not dependent upon the navigability of the waterway. Id.

Thus, at the time of the original government survey, the thread of the Republican River would have formed the boundary line between Lots 1 and 7 and between Lots 2 and 6 and would have defined the northeastern boundary of Lot 8. When the river changed course in 1935, an avulsive event, the boundary between these lots would have remained as it was in the center of the old channel (plus or minus any property gained or lost by the processes of accretion and reliction), rather than shifting to the centerline or thread of the new channel. The Boltes gained title to the southern portion of Lot 1 in January 2000. The deed granting title to the Boltes describes the property deeded as, "That part of Lot One (1) lying south of the existing Republican River in Section Twenty-three (23) [in Red Willow County] Township Three (3) North, Range Twenty-eight (28) West of the 6th P.M." As deeded, the Boltes own record title of that portion of Lot 1 lying south of the thread of the existing Republican River and extending south to the thread of the old Republican River as it existed just prior to the avulsive event in 1935.

At some point, a fence was erected running generally east-west across Lot 7 and located south of the thread of the old river channel. At its western end, the fence extends into Lot 6 and then runs north for a short distance, extending into Lot 2 and stopping short of the centerline of the new river channel. At its eastern end, the fence curves down across Lot 7 to the southeast until it reaches the section line, thus impinging on the northeastern corner of Lot 8. From this point on the section line, the fence runs south to the "East ¼ corner" of Section 23, where it apparently ends.

In their operative petition, the Appellees claimed title to that portion of Lot 1 lying south of the existing Republican River and extending south to the fence. In other words, the Appellees claim, although not so well described in their petition, to have gained title by adverse possession to those portions of Lots 2, 6, 7, and 8 lying within the area enclosed by the thread of the old river channel and the fence. Describing their claim yet another way, the Appellees claim that the fence, rather than the thread of the old river channel, is the boundary between the Bolte property and Lots 2, 6, 7, and 8. The disputed property thus is the land lying generally south of the thread of the stream of the old Republican River and north of the fence.

Trial was held before the court on March 10, 2003. With regard to the parties' respective chains of title, the record shows that Kenneth and Louise Luther deeded Lot 1 to Walter and Mary Lynn Marsh in March 1971. The Marshes deeded "That part of Lot One (1) lying south of the existing Republican River" to Bill and Lynda Baumbach in February 1997. The Baumbachs conveyed the southern portion of Lot 1 to the Boltes in January 2000.

Ronald and Lorraine Stevens sold Lots 5, 6, 7, and 8 to George Rainbolt (Rainbolt) and his partner Kenneth Foster in March 1976. We note that Lot 2 is not included in the purchase agreement related to this transaction and was apparently omitted from the legal description of the property transferred. At some point, Rainbolt and Foster dissolved their partnership, and Rainbolt bought out Foster's interest in the property. Foster transferred his interest in Lots 5, 6, 7, and 8 to Rainbolt in April 1981. Also in April 1981, Rainbolt and Doris Rainbolt conveyed their interest in Lots 5, 6, 7, and 8 to Doug and Carol Hauxwell. The Rainbolts and the Hauxwells signed a subsequent addendum to the purchase agreement in December 1987, indicating that Lot 2 had been omitted from the legal description of the property transferred. The Hauxwells created the Willow Valley Trust and placed the Hauxwell property in the trust. In February 1997, the trust transferred the Hauxwell property to their children, Bryan Hauxwell (hereinafter Bryan) and Kathy Emrich. Upon Emrich's death in 1998, her interest in the Hauxwell property passed to her husband by a deed of distribution. He, in turn, transferred his interest in the Hauxwell property to Bryan in May 1998. At the time of trial, it was not disputed that Bryan was the record owner of Lots 2, 5, 6, 7, and 8.

Bill Baumbach (hereinafter Baumbach) hired Gerhard Dicenta, a licensed land surveyor, to survey the existing fence line bordering the disputed property, which survey was completed on April 5, 2002. A plat map of this survey was admitted into evidence as exhibit 1. The survey shows Lots 1, 2, 6, 7, and 8; the existing fence line; the centerline of the Republican River as of 1999; and the meander lines, or river banks, of the old Republican River as computed from the original government survey. Dicenta testified that he would not be able to establish the exact centerline of the river as of 1890 but that he would be able to survey a midpoint between the old meander lines. We note, however, that the mean line establishing the center of a river as shown by the original survey is not evidence of the location of the thread of a river or stream. Hartwig v. Berggren, 179 Neb. 718, 140 N.W.2d 22 (1966). The survey also shows a line that was surveyed for the Hauxwells in 1998. The purpose or significance of the Hauxwell survey line was not explained further in the record.

Dicenta described the fence noted in this survey as an old barbed wire fence with wooden posts, some of which were in "pretty good shape," other portions of which were not. Dicenta did not notice any other fence lines in the general area. Dicenta testified that at the time of the 2002 survey, Baumbach had begun the process of rebuilding the portion of the fence allegedly destroyed by the Appellants. At the time Dicenta performed the Hauxwell survey in 1998, he observed the western portion of the fence. Dicenta did not recall that portion of the fence as being in good condition in 1998 and described it as "an old, old fence."

Walter Marsh (hereinafter Marsh), who, along with Mary Lynn Marsh, owned Lot 1 from 1971 to 1997, was familiar with Lot 1 prior to 1971 because his uncle owned other property in the area. Marsh's uncle apparently owned Lots 6, 7, and 8 (as well as property to the south of the Hauxwell property) between 1953 and 1958. Marsh spent time at his uncle's property each of those summers and became familiar with the fence line as it existed at that time. Marsh testified that the fence line depicted on exhibit 1 was the same fence line that was in existence when he spent time on his uncle's property. Marsh testified that his uncle used Lots 6, 7, and 8 up to the existing fence line and did not use any property on the north side of the fence line because the Luthers owned that property. Marsh testified that the Stevenses purchased Lots 6, 7, and 8 from Marsh's uncle in approximately 1958 and had milk cows on these lots until the Stevenses sold the Hauxwell property to Rainbolt and Foster. Marsh testified that Ronald Stevens used the fence to contain his dairy cattle.

Marsh did not have any cattle on Lot 1 during the time he owned it but testified that "[a]s far as [he] was concerned[,] the fence was the [southern] boundary line." Marsh testified, however, that his cousin, Baumbach, ran cattle on Lot 1 "whenever there were stalks in there." Marsh testified that there was no fence besides the surveyed fence in existence during his ownership of Lot 1, or prior to 1971 to his knowledge, that could have kept cattle from getting from Lot 1 to any parts of Lots 6, 7, and 8. Marsh testified that during his ownership of the property, he utilized the entire property claimed by the Appellees in this case. Marsh testified that during the years the Stevenses owned the Hauxwell property, the fence was "usually up" and in good shape due to Ronald Stevens' use of the fence. Marsh testified that during the Rainbolts' ownership of the Hauxwell property, Rainbolt used the Hauxwell property for hunting ground, leaving the fence "basically, abandoned," requiring Marsh and Baumbach to repair the fence when Baumbach needed to use it for his cattle. Marsh described the fence during this period as "pretty dilapidated." According to Marsh, there were always fenceposts and some wire up, but on occasion, he and Baumbach had to bring in some new fenceposts and splice wire around various trees. Marsh testified that after Baumbach quit running cattle on the Bolte property, the fence became dilapidated.

Marsh hunted deer on the Bolte property, including the disputed property, every year from about 1975 to 2000 and was still able to see the fence when he hunted in the later years. Marsh testified that he received permission to hunt on the Hauxwell property, so he hunted on both sides of the fence. When Marsh hunted, he observed other hunters on the disputed property and was not aware of whether they all had permission to hunt. Marsh indicated there were approximately 50 to 75 deerstands on the Bolte property, including the disputed area, and he did not know who placed all of the stands. Marsh also hunted other game in the area between about 1955 and 1975, although he did not specify whether this was on the Bolte or the Hauxwell property. During this early period, Marsh also observed other hunters in the area.

Darwin Neuhaus received permission to hunt on the Hauxwell property when Rainbolt owned it. Neuhaus testified that Rainbolt informed him he could hunt "to the fence line" and that he understood this to mean that he had permission to hunt to the existing fence as depicted on exhibit 1. Neuhaus testified that he hunted there for a couple of years around 1979, but he did not hunt there after Rainbolt sold the property. Neuhaus testified that when he hunted on the Hauxwell property, the fence was definitely visible and in neither the best nor the worst shape. Neuhaus testified that approximately 10 years prior to trial, he obtained permission from Baumbach to hunt on the north side of the fence and still had permission from Baumbach to hunt there at the time of trial. When hunting on the Bolte property, Neuhaus testified that the fence line was still there with wire always on the posts. Neuhaus did not recall seeing any cattle when he hunted on either property, and he did not observe any "no hunting" or "no trespassing" signs posted along the fence line. Neuhaus did not recall seeing other hunters when he hunted on either property. Neuhaus testified that during the entire time he hunted in the area, he never noticed the appearance of the fence to change. Neuhaus testified that it had always been the same fence and had never been moved to his knowledge.

The Boltes, the current record owners of the southern portion of Lot 1, live in Alaska and were not present at trial. The court overruled Patrick Bolte's motion to testify by telephone. Baumbach, who owned the southern portion of Lot 1 from 1997 to 2000, testified that he had been familiar with both the Bolte and Hauxwell properties "all [his] life," that he had known that the fence line was the property line, and that the fence as it existed at trial had always been in existence from the 1960's to the present. Baumbach's father purchased abutting property in 1951, which Baumbach purchased from his father in 1972. Baumbach testified that during the approximate 40-year period of his familiarity with the fence, it was always visible with posts always standing, but that occasionally, there were areas broken out by trees. With regard to the fence line being the property line, Baumbach testified further that "[i]t's always been that way. We've just known that." Baumbach described the fence as it existed at the time of trial as a three-wire, barbed wire fence with mainly steel posts, that was standing except for one section that had been cut out. In 2001, Baumbach made certain repairs to the fence, putting in some steel posts and splicing and stretching the wire as necessary. Baumbach was aware that wire and posts composing a segment of the fence subsequently "came up missing."

Baumbach had cattle on the Bolte property at various times while Marsh owned it. Baumbach owned cattle between approximately 1972 and 1985, but he did not have cattle on the Bolte property each of those years. Baumbach testified that it "depend[ed] on if we had corn stalks or whatever we planted down in there." Baumbach regularly repaired the fence when he had cattle on the Bolte property. Baumbach testified that besides the existing fence marked on exhibit 1, no other fence had ever existed that would have held cattle on the Bolte property. Baumbach testified further that he always used the fence when he had cattle on the Bolte property as the southernmost and westernmost boundary for his cattle. Baumbach testified that there were cattle on the Hauxwell property the summer of 2002 and occasionally in previous years. Baumbach testified that when there were cattle on the Hauxwell property, the fence contained them. Baumbach sold his cattle in 1985 and ran no cattle on the Bolte property between 1985 and 2000. Baumbach performed some maintenance on the fence between 1985 and 2000, but he testified that it was in no condition to hold cattle then. Baumbach testified that prior to 2001, no one cut the fence, tried to take it down, or objected that the fence was not on the property line. When the fence was cut in 2001, Baumbach contacted the Hauxwells and law enforcement. Baumbach also took various photographs of the fence to show areas where trees had grown into and around the wire of the fence. Baumbach hunted on the disputed property between the early 1960's and 2000. Between 1985 and 2000, Baumbach observed other hunters on the disputed property, some of whom he did not know. Baumbach agreed that the disputed property was "overrun" by hunters over those years.

The Appellees also called Doug Hauxwell (hereinafter Doug), who owned the Hauxwell property from 1981 to 1997, as a witness. With regard to the existing fence shown on exhibit 1, Doug testified that he took an older fence down in 1981 when he purchased the property. Doug testified further that this older fence had fallen down, that some old posts and "stuff" remained, but that there was essentially no fence along the northern and eastern portions of the Hauxwell property until Baumbach built a new fence in approximately 2001. Doug referred to the fence as "a field fence" and stated that it was not where the property line was. Doug testified that Marsh's and Neuhaus' recollections of the fence line being up as long as they could remember were incorrect. Doug testified that the fence shown on exhibit 1 was the fence that Baumbach "fixed up." Doug testified that his employee removed a portion of the fence after it was "built" in 2001 because the fence did not belong there. Doug testified that Baumbach took the posts that had been removed from the older fence and used them when he rebuilt the fence in 2001. Doug admitted he had cut the fence a few times in the 2 years prior to trial. Doug testified that he cut the fence to open up a driveway and to take pictures. Doug testified that he did not need permission to do this because it was his land. Doug testified that he had cattle on the Hauxwell property in the mid-1990's. Doug testified that he built an electric fence to keep the cattle in because there was no other fence on the property to hold them. Doug testified that he had never seen cattle on the Bolte property.

The Appellees rested their case following Doug's testimony, whereon the Appellants moved for a directed verdict, which motion was overruled by the court. Thereafter, the Appellants called Rainbolt as a witness, who, together with Foster, held an interest in the Hauxwell property from 1976 to 1981. Rainbolt testified that when he and Foster purchased the property from the Stevenses, they were informed that the property extended to the river (presumably the existing river), except for a small plot of land owned by Marsh. Rainbolt testified that they planted alfalfa on the land. Rainbolt viewed the property as "a place to get away." Rainbolt hunted on the property from the time of his purchase and continued to hunt there with Doug's permission until about 3 or 4 years after selling the property. Rainbolt testified that he hunted "the whole thing," including the Bolte property (without permission). Rainbolt testified that Marsh also hunted on the Hauxwell property. With regard to the fence line, Rainbolt testified that there was "the crude remains of some sort of a fence line." Rainbolt further described the fence as having remnants of posts and wires, stating that he "made no conscious effort to follow the thing" and that "it was of no value." Rainbolt had a deerstand north of the fence line, near the river. Rainbolt testified that there were not any "no hunting" or "no trespassing" signs posted on the Bolte property. Rainbolt did not observe any cattle on the Bolte property during the time that he owned the Hauxwell property or during the time he continued to hunt after selling the Hauxwell property to Doug. Rainbolt did not observe others hunting without permission on either piece of property. With regard to Neuhaus' testimony that Rainbolt informed Neuhaus he could hunt "to the fence line," Rainbolt testified that "it's a matter of terminology." Rainbolt did not recall using the phrase "to the fence line" in telling Neuhaus where he could hunt and indicated that he told Neuhaus he could hunt up to the beginning of Marsh's property. Rainbolt testified that he told hunters who sought permission to hunt, including Neuhaus, that they could hunt "up to the edge of [Marsh's] alfalfa field" to the east and to the river on the north.

Foster testified similarly to Rainbolt as to the condition of the fence between 1976 and 1981. Foster testified that the fence was in no condition to contain cattle and that he and Rainbolt made no improvements to it. Foster never observed any cattle, any posted signs, or other hunters on the Bolte property. Foster hunted with Rainbolt on approximately two occasions, but he did not specify on which property. Foster testified that he assumed he owned the property to the river and described the disputed property as "a wasteland" and "highly timbered."

Bryan recalled helping his father, Doug, irrigate and put up hay on the Hauxwell property in the early 1980's. Bryan began hunting deer and turkeys on the Hauxwell property in the late 1980's. Bryan actively hunted on the Hauxwell property throughout the late 1980's and early 1990's with his friends and "off and on" throughout the rest of the 1990's. Bryan never saw any cattle north of the fence line as depicted on exhibit 1, but he did see hunters. Bryan indicated that there "wasn't much of a fence, just remnants of a fence, fallen down fence, a few posts." Bryan testified that the Hauxwells erected an electric fence "through the trees" on occasion in the early 1990's to contain cattle, as the other fence was not adequate. Bryan was not certain whether the electric fence fell to the north or the south of the fence line shown on exhibit 1. Bryan never saw any "no trespassing" signs posted prior to 2001. Bryan testified that the Hauxwells occasionally harvested some grass hay north of the fence line shown on exhibit 1. Bryan recalled helping Doug and Bryan's uncle remove some fence "along the north side of the hayfield" where they "piled the bales." Bryan testified that he never really knew what the boundaries were of Lot 1. Bryan testified that he knew "[Marsh] had that little chunk up there and we owned the rest. It was never a problem until this fence showed up down there."

Doug testified again during the Appellants' case. Doug testified that when he purchased the property, he and Rainbolt "walked the corners." Doug never saw any cattle or posted signs. Doug stated that neither Marsh nor Baumbach talked to him about the property or made any claim that they owned the property up to the fence line. When Doug gave hunters permission to hunt, he told them they could hunt "[j]ust over to [Marsh's] hayfield, down north to the river." Doug described the condition of the fence when he purchased the property as "just a few posts and few broken wires." Doug testified that he took out some fenceposts on the north side of the Hauxwell property in 1981 or 1982 and that other posts in the area had already been "knocked down." Doug testified that Baumbach rebuilt the fence in 2001 and had not repaired or rebuilt it previously. Doug testified further that "there's never been any cattle down there." According to Doug, the old fence line was a "pasture fence" at the time the Stevenses owned the Hauxwell property rather than "a line fence."

Myron Guthrie hunted on the Bolte and Hauxwell properties from 1981 or 1982 to about 1999. Guthrie had permission "from both owners to hunt both sides." Guthrie described the fence as of 1981 as dilapidated with the wire being down for the most part, so that it was unable to hold cattle. Guthrie stated that the condition of the fence did not change during the years he hunted both properties. Guthrie indicated, however, that he had been on the properties within the year prior to trial and noted significant changes. At that time, Guthrie observed the fence shown as the existing fence on exhibit 1 and stated that this fence was a much better fence than the fence he had previously observed. Guthrie observed a few other hunters in the area when he hunted on the properties in the early 1980's and more hunters in later years. Guthrie never observed any cattle north of the fence line, nor did he see any posted signs. Guthrie agreed that during the years he hunted on the properties, there was a fence that generally followed the existing fence shown on exhibit 1. Guthrie testified that there were enough posts up that a wire could be attached to them and that "it could have been a boundary fence or something."

The court entered an order on April 14, 2003, finding that the fence, although not adequately maintained at all times by the Appellees, was treated as the boundary line by the parties and their predecessors in title. The court found that the fence line had been in existence since at least 1958 and established the Appellees' open, notorious claim to the disputed property. The court further found that the disputed property was best suited for pasture, hunting, and recreation along the river and that the Appellees and their predecessors used the disputed property for some or all of these purposes for at least part of each year for more than the required 10-year period, if not continuously each year for each activity. The court concluded that the fact that the Appellees never posted "no trespassing" signs and the fact that hunters unknown to the Appellees or their predecessors in title sometimes were found hunting on the disputed property were not alone sufficient to defeat the continuous possession by the Appellees. The court determined that this possession, by the Appellees and their predecessors, was open, notorious, and continuous for more than a 10-year period. The court found that Neuhaus' testimony that the Hauxwells' predecessors in title informed him he could hunt on the land south of the fence line clearly showed that the Appellants knew that the Appellees and their predecessors in title claimed the disputed property. The court further found the fact that the Appellees were the only individuals who used the land north of the fence line for pasture also clearly showed the Appellees' claim of right and the exclusive nature of their claim. The court found that the Boltes were the owners of the real property lying north of the fence line and proceeded to give a legal description of the property owned by the Boltes, finding that the Appellees had sufficiently described in their petition the real estate that they claimed. The court quieted title to the disputed property in the Boltes, but found that the Appellees failed to present sufficient evidence for monetary damages for their claim concerning the removal of the fence. The court dismissed the Appellants' counter claims. The Appellants subsequently perfected their appeal.

ASSIGNMENT OF ERROR

The Appellants assert, consolidated and restated, that the district court erred in quieting title to the disputed property in the Boltes rather than in Bryan.

STANDARD OF REVIEW

A quiet title action sounds in equity. Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003). In an appeal of an equitable action, an appellate court tries factual questions de novo on the record, provided that where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Id.

ANALYSIS

The Appellants assert that the district court erred in quieting title to the disputed property in the Boltes rather than in Bryan. In other words, they assert that the court erred in finding that the Boltes and their predecessors in title acquired title to the disputed property by adverse possession. 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. Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003).

The evidence established that the fence was used to contain cattle on the Hauxwell property at least as early as 1958 and up until approximately 1976. Cattle were apparently contained on the Hauxwell property in the early 1990's by an electric fence other than the fence at issue. The fence depicted on exhibit 1 was repaired and used to contain cattle at various times on the Bolte property between 1972 and 1985, but the record does not show exactly what years and for what lengths of time this occurred. There were no cattle on the Bolte property between 1986 and 2000 and minimal maintenance of the fence by the Boltes' predecessors in title. There is nothing in the record to show what, if any, use the Boltes made of the property, but there were clearly repairs if not extensive rebuilding of the fence in 2001, after which the Bolte property may have been rented out for livestock grazing. There is some testimony showing that grass hay was harvested on occasion north of the fence and that cattle have been placed on the Bolte property to graze after other crops have been harvested. A certain portion of the Bolte property is also heavily wooded. The record does not show whether the Luthers considered the fence to be the property line, but both Marsh and Baumbach considered it as the property line. There is nothing in the record as to the Boltes' views on where the boundary lies. Testimony from Doug suggests, however, that the fence was used by Ronald Stevens as a pasture fence on the Hauxwell property and not as a boundary between the Bolte and Hauxwell properties. Hunting apparently has occurred on both the Bolte and Hauxwell properties, including the disputed property, on a regular basis since the early 1960's by the current record title owners and/or their predecessors in title. Others have also regularly hunted on the Bolte and Hauxwell properties, some with and some without permission and some after obtaining permission from both owners.

Title cannot be acquired by adverse possession without the simultaneous and continuous existence of each element of adverse possession for the required 10-year period. Nye v. Fire Group Partnership, supra. The term "continuous" means uninterrupted and stretching on without break or interruption. Id. The law of adverse possession does not require the possession to be evidenced by persons remaining continuously upon the land and constantly from day to day performing acts of ownership, and it is sufficient if the land is used continuously for the purposes to which it may be naturally adapted. Id.

In Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984), one of the plaintiffs hunted on a tract of land and the plaintiffs eventually leased hunting rights to others, who built duckblinds on the property. The plaintiffs also grazed cattle intermittently on the property. The Nebraska Supreme Court determined that the property was suitable for hunting, fishing, and livestock pasture year round. The court further determined that because hunting was seasonal, the recreational use of the property was, at best, occasional and limited to a few weeks or months each year. Accordingly, the court concluded that the plaintiffs' actions were not continuous and could not support a claim for adverse possession.

Similar to the property at issue in Hardt v. Eskam, supra, the disputed property in the present case would be suitable for livestock pasture, hunting, and similar recreational uses on a year-round basis. The hunting activities that were testified to in the record occurred, presumably, during various hunting seasons and the time was not specified more clearly in the record. However, because these hunting activities were most likely seasonal, we conclude that the recreational use of the disputed property is at best occasional. The livestock grazing activities testified to in the record occurred only on the Bolte property for various periods between 1972 and 1985 and perhaps again after 2001. Because this activity did not occur on the disputed property every year, we cannot say that the disputed property was used for livestock grazing over the full 10-year statutory period. Again, the disputed property's use for livestock grazing was at best occasional. Based upon our review of the record, we conclude that because of the seasonal and intermittent use of the disputed property for livestock grazing and hunting and the indefinite nature of the evidence concerning any farming activities on the disputed property, the Appellees have not shown that their use of the disputed property was continuous for the requisite 10-year period.

The Appellees claim that the use of the fence by themselves and their predecessors in title and the Appellants and their predecessors in title as a boundary between the Bolte and Hauxwell properties for more than the statutory period is sufficient proof that they gained title to the disputed property by adverse possession. This is not an action pursuant to Neb. Rev. Stat. § 34-301 (Reissue 1998) regarding acquiescence in a disputed boundary; however, where a fence is constructed as a boundary line, even though it is not the actual boundary, and a party claims ownership of land up to that fence for the statutory period, that party gains title to such land by adverse possession. Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993).

In Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998), the parties owned abutting residential properties. When Donald and Lee Wanha purchased their lot, they seeded it and also built a sidewalk on their lot as well as up to a line extending across the adjoining lot owned by Robert Long and Jolane Olander Long at the time of trial. The Wanhas believed that this portion of the adjoining lot was actually part of their own lot. Prior to the Wanhas' work to build a sidewalk along and seed the disputed property, the sod and sidewalk on the adjoining lot only extended up to this ultimately disputed line. One of the Longs' predecessors in title built a fence along this ultimately disputed property line. The Wanhas believed the fence had been installed on the property line. The subsequent owners of the adjoining lot neither discussed the fence with the Wanhas nor objected to its location. The fence was not modified in any way until it was removed by the Longs approximately 22 or 23 years after its construction. There was evidence at trial showing that the Wanhas maintained the property up to the disputed property line even before the installation of the fence and that no one else used the disputed property. The trial court concluded that the Wanhas had proved their adverse possession claim and noted that until the Longs removed the fence, the parties recognized the fence as the true boundary line.

On appeal, the Nebraska Supreme Court affirmed. The court went through each element of adverse possession and found that the Wanhas had actually, continuously, exclusively, notoriously, and adversely possessed the disputed property under a claim of ownership for the statutory period. The Longs argued that the trial court erred in relying on evidence concerning the fence in finding that the Wanhas had adversely possessed the property. The court noted that where neither party considers a fence a boundary, it does not constitute evidence of adverse possession. Id. Both parties need not consider the fence a boundary; rather, it is the adverse possessor's intent that is relevant. Id. The placement of a fence within one's boundary line does not lead to the relinquishment of ownership of lands outside the fence through adverse possession without an additional showing that those lands outside the fence have been used by the neighboring landowner under a claim of ownership for the requisite period of time. Id. The court then determined that the Wanhas clearly considered the fence to be a boundary line and thus concluded that the trial court did not err in relying on evidence concerning the fence. Compare Thornburg v. Haecker, supra (where neither party considered misplaced fence to be boundary). Because the Wanhas had proved by a preponderance of the evidence each of the elements of adverse possession, the court concluded that the trial court did not err in finding that the Wanhas had adversely possessed the disputed property.

In the present case, there is testimony from both Marsh and Baumbach that they considered the fence line to be the true boundary line between the Bolte and Hauxwell properties. As such, the trial court was entitled to consider the evidence concerning the fence as evidence of adverse possession. However, the location of the fence alone is not sufficient to prove the Appellees' claim. There must be an additional showing that the disputed property has been used by the Appellees and/or their predecessors in title under a claim of ownership for the requisite period. See Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998). The Appellees have not made such a showing.

A possession that is adverse is under a claim of ownership. Id. Claim of ownership or claim of right means "hostile," and these terms describe the same element of adverse possession. Id. 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. Id. The purpose of prescribing the manner in which an adverse holding will be manifested is to give notice to the real owner that his title or ownership is in danger so that he may, within the period of limitations, take action to protect his interest. Id. It is the nature of the hostile possession that constitutes the warning, not the intent of the claimant when he takes possession. Id.

As we concluded above, the Appellees have not shown continuous use of the property for the requisite period. Further, the evidence suggests that their use was not necessarily exclusive. The record shows that the Appellants and their predecessors in title have used the disputed property for hunting and harvesting hay on occasion. Further, the Appellees and their predecessors in title saw hunters on the disputed property over the years who may not have had permission from them to hunt. There is no evidence as to who constructed the fence or as to when it was first constructed, although the record suggests that it has been in existence since at least the late 1950's or early 1960's. There is nothing in the record to suggest it was constructed as a boundary fence, and in fact, some evidence indicated that it was simply a pasture fence, as opposed to a boundary fence. There is considerable testimony that no signs were posted on the fence prior to 2001 warning against hunting or trespassing. In general, in considering whether the Appellees and their predecessors in title have used the disputed property under a claim of ownership for the requisite period, the record is not particularly useful in distinguishing their use of the actual Bolte property from their use of the disputed property. Certainly, whatever acts the Appellees and their predecessors have performed under a claim of ownership to the disputed property have not been shown to be continuous for the requisite period. The district court erred in finding that the Appellees had proved their claim of adverse possession and in granting title to the disputed property to the Boltes. We reverse the decision of the district court and remand the cause with directions to quiet title to the disputed property in Bryan. Because of our resolution of this appeal, we need not address the Appellants' points concerning the description of the property claimed by the Appellees.

CONCLUSION

The district court erred in quieting title to the disputed property in the Boltes and in failing to quiet title in Bryan Hauxwell.

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Click the case caption above for the full text
of the Court's opinion.

Reversed and remanded with directions in favor of Plaintiffs.

Darwin Neuhaus.

Gerhard Dicenta, a licensed land surveyor.

Doug Hauxwell.

Reported by L. Hargraves