Opinion
No. A-12-262
12-31-2012
JAMES NEFF KRAMPER FAMILY FARM PARTNERSHIP, APPELLANT, v. DOUGLAS R. GARWOOD AND BETTY J. GARWOOD, HUSBAND AND WIFE, ET AL., APPELLEES.
Gregory N. Lohr for appellant. Brian C. Buescher and Kathryn E. Jones, of Kutak Rock, L.L.P., for appellees Douglas R. Garwood and Betty J. Garwood et al. Bonnie J. Hostetler, of Nebraska Public Power District, and Kile W. Johnson and Cameron E. Guenzel, of Johnson, Flodman, Guenzel & Widger, for appellee Nebraska Public Power District. Wayne E. Boyd, of Boyd Law Office, P.C., for appellee City of South Sioux City.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Dakota County: PAUL J. VAUGHAN, Judge. Affirmed.
Gregory N. Lohr for appellant.
Brian C. Buescher and Kathryn E. Jones, of Kutak Rock, L.L.P., for appellees Douglas R. Garwood and Betty J. Garwood et al.
Bonnie J. Hostetler, of Nebraska Public Power District, and Kile W. Johnson and Cameron E. Guenzel, of Johnson, Flodman, Guenzel & Widger, for appellee Nebraska Public Power District.
Wayne E. Boyd, of Boyd Law Office, P.C., for appellee City of South Sioux City.
IRWIN, PIRTLE, and RIEDMANN, Judges.
PIRTLE, Judge.
I. INTRODUCTION
The James Neff Kramper Family Farm Partnership (the Partnership) appeals from the order granting the appellees' motion for summary judgment, issued by the district court for Dakota County on March 2, 2012. For the reasons that follow, we affirm.
II. BACKGROUND
Originally, Pius Neff owned a tract of land in Dakota County, Nebraska. Neff was the grantor to the Partnership. In 1884, a portion of the land owned by Neff was sold to Ralph Goodwin. Betty J. Garwood and Mary Therrien are sisters, and they received ownership interests in Goodwin's property upon the deaths of their aunts Eva Graham in 1977 and Ruth G. Zimmerman in 1992. The Garwoods and all predecessors in interest were descendants of Goodwin.
The Partnership formed in 1979 to manage the property owned at that time by James N. Kramper, which property had been passed through the Neff and Kramper families from Neff.
At issue in this case is a 40-foot-wide strip of land running the length of the border between the property of the Partnership and the property conveyed to Goodwin in 1884, which is the property received by the Garwoods and the Therriens. According to the Garwoods and the Therriens, this strip of land was intended to be sold with the tract to Goodwin, but was not included in the legal description.
Taxes on the strip of land have been paid by the Partnership or its predecessors in interest. However, the Garwoods, the Therriens, and their ancestors (collectively known hereafter as the Garwoods) have treated the land as their own. The Garwoods claim to have adversely possessed this land.
Betty's affidavit states that she personally had knowledge that the family occupied and farmed the property, treating the land transferred in the 1884 conveyance and the strip of land in question as one contiguous parcel. Betty's father began farming the land in 1922, and continued until Betty and her husband, Douglas R. Garwood (Doug), took over the farming operations in or around 1970. Betty and Doug, along with their son, have farmed the land for more than four decades. They planted corn, soybeans, and alfalfa, and sometimes other crops, based on a systematic crop rotation.
The Garwoods began farming the land in 1884, and at some point, they enclosed the entirety of the land purchased with a boundary fence. The fenced area also included the additional 40 feet of land at issue in this case. Betty states her information and belief, which indicate the boundary fence was constructed and in its current location beginning in or about 1900, and she states personal knowledge that the fence was present from at least 1950. Doug's affidavit states that he personally had knowledge of the fence from 1962, when he and Betty were married. The current fence is made from steel rods dug into the ground and barbed wire strung between those rods.
Betty and Doug own and maintain buildings, storage bins, and houses on the land immediately adjacent to the tract in question. Their son currently lives on a portion of the land acquired via the 1884 conveyance and shares responsibilities farming the tract.
On August 2, 1990, Betty filed affidavits of possession with the register of deeds indicating the Garwoods owned the property under adverse possession. These affidavits were for the purpose of making a record that the Garwoods had adversely possessed the land by 1990 and planned to continue doing so after that date. There is nothing in the record to indicate the Partnership or any predecessors in interest interfered with or objected to the farming of the 40-foot-wide strip of land, or the location of the fence.
Although the Garwoods claimed ownership in the entirety of the strip of land, they conveyed portions of it in recent years. On February 16, 2008, the Garwoods conveyed a permanent easement over the strip of land for installation of a sanitary sewer line to the city of South Sioux City, Nebraska. On November 18, 2009, the Garwoods conveyed a permanent easement over the strip of land to Beef Products, Inc., for the installation of a water discharge line. On July 21, 2009, the Garwoods sold a portion of the property to the Nebraska Public Power District (NPPD). NPPD purchased knowing that the Garwoods adversely possessed part of the property being conveyed, and relied partially on the affidavits filed by the Garwoods with the register of deeds in 1990.
On July 29, 2009, Betty sent a letter to Julie Dyra, one of the partners in the Partnership, asking for Dyra and the necessary partners to sign a quitclaim deed to clear the title on the disputed property. The Partnership filed an action to quiet title to the land and to bar the Garwoods from claiming any right or title in the strip of land.
The Garwoods, NPPD, Beef Products, and South Sioux City filed motions for summary judgment. The Garwoods' motion requested the court to quiet title in the parties as described in their motion. A hearing was held in the district court for Dakota County on November 30, 2011. The motions were granted by the district court, and the order was entered March 2, 2012. The court found that based on the pleadings and evidence admitted, there was no genuine issue that existed based upon those facts. The district court concluded that the Garwoods had obtained title to the disputed land by adverse possession and had validly transferred title to NPPD, Beef Products, and South Sioux City. The Partnership timely filed this appeal.
III. ASSIGNMENTS OF ERROR
The Partnership asserts the district court erred in its decision to grant the Garwoods' motion for summary judgment, specifically by (1) finding the Garwoods' claim for quiet title met the requirements of adverse possession, (2) considering affidavits of possession, and (3) failing to consider the payment of real estate taxes by the Partnership.
IV. STANDARD OF REVIEW
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).
In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 17 (2010).
A quiet title action sounds in equity. 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).
V. ANALYSIS
1. 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. Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
(a) Actual
"'To determine the acts necessary to constitute adverse possession it is sometimes necessary to take into consideration the character of the property and the purposes for which it is suitable.'" Dinnel v. Weir, No. A-07-885, 2008 WL 5061626 (Neb. App. Sept. 23, 2008) (selected for posting to court Web site), quoting Ferber v. McQuillen, 99 Neb. 280, 156 N.W.2d 506 (1916). "[T]he acts required depend upon the character of the land and the use that can reasonably be made of it." Wanha v. Long, 255 Neb. at 857, 587 N.W.2d at 539. See Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993).
The disputed parcel here consists of cultivated farmland. Evidence presented by the Garwoods shows that Betty and her predecessors in interest have farmed the land continuously since the 1884 conveyance from Neff. The evidence suggests the land actually conveyed in 1884 and the strip of land at issue here were treated as one contiguous parcel. Betty's father began farming the land in 1922, and Betty and Doug took over the farming operations in 1970. The Garwoods have planted a rotation of crops, including corn, soybeans, and alfalfa. These activities are clearly adapted to the disputed parcel, and there is no question that the use was actual for more than 40 years, let alone the 10 years that are required.
(b) Continuous
The term "continuous" in the context of adverse possession means a possession for the 10-year period which is uninterrupted or stretches on without break or interruption. Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984).
The land in dispute has been used by generations of the Garwoods; however, to tack the years of possession of the property together, we must determine whether privity existed. Nebraska case law has taken privity to mean privity of possession. Bryan v. Reifschneider, 181 Neb. 787, 150 N.W.2d 900 (1967). In order to tack the possession of predecessors in title to support a claim of adverse possession, each predecessor occupant must show derivative title from his predecessor. Id.
Successive occupancies alone do not establish privity, but show only a succession of independent trespasses. It is the generally accepted rule, as well as the rule in this jurisdiction, that the taking of possession of contiguous lands, some of which are not within the calls of the deed, which have been used by the grantor as a unit and is apparent by reason of the location of fences, buildings, roads, or other evidence, and the transfer of possession pursuant to a deed or contract has evidentiary value as to the existence of privity. Id. The ultimate fact to be established is the intended and actual transfer and delivery of possession of such area to the grantee as successor in ownership, possession, and claim. Id.
In this case, the Garwoods demonstrated the privity of title of the land conveyed by Neff through the family of Goodwin. The Garwoods can also demonstrate privity of possession in the disputed land. The evidence shows the Garwoods have farmed the disputed land continuously since the 1884 conveyance and treated the fence as the boundary line, though it was not the actual boundary according to the deed. There is sufficient evidence to demonstrate the grantors each took possession of contiguous lands, some of which were not within the calls of the deed and intended the grantees to continue farming operations on the disputed property. The Garwoods have shown an intended and actual transfer of possession to each successor in ownership, possession, and claim. Therefore, they have established privity of possession and may tack the successive years of possession. These years may be counted toward the required statutory period for adverse possession.
There is no dispute in this case that the land was used continuously by the Garwoods. The evidence shows the Garwoods used a systematic crop rotation scheme. Betty stated the farming of the disputed land originated with Goodwin. She has personal knowledge of her father's farming operations on the property and has participated in the farming operations since at least 1970, when she and Doug took over farming operations from her father. There is clearly evidence of continuous use beyond the statutory period of 10 years.
The law does not require the possession shall be evidenced by a complete enclosure, nor by persons remaining continuously on the land and constantly performing acts of ownership thereon. Lantry v. Parker, 37 Neb. 353, 55 N.W.2d 962 (1894). Though the law does not require the possession to be evidenced by complete enclosure, the land in question is enclosed by a boundary fence which has been in place for many years, showing further evidence of the Garwoods' continued presence on the land.
(c) Exclusive
The possession must be exclusive, and if the occupier shared the possession with the title owner, the occupier may not obtain title by adverse possession. Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994). There is no evidence that anyone other than the Garwoods used the property. Betty and Doug used the property exclusively since at least 1970, and there is no evidence that the predecessors in interest, including Betty's father, shared possession with any other party.
Further, the land from the 1884 conveyance and the strip of land at issue in this case were treated as one contiguous property, and this land was fenced. Though it is unclear exactly how long the fence has been in existence, Betty's affidavit states she had knowledge of the fence on the property, in the same location, from at least 1950. Further, her husband, Doug, attested to the fence's existence as far back as when they married in 1962. It is possible the fence was erected as far back as 1900, effectively enclosing all of the land in question for the sole use of the Garwoods, and the exclusion of others. The boundary fence is now made of steel rods dug into the ground with barbed wire strung between the rods, and the fence has been in the same location since at least 1950.
It is the established law of this state that when a fence is constructed as a boundary line between two properties, and parties claim ownership up to the fence for the full statutory period and are not interrupted in their possession or control during that time, they will, by adverse possession, gain title to such land as may have been improperly enclosed with their own. McCain v. Cook, 184 Neb. 147, 165 N.W.2d 734 (1969).
(d) Notorious
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. Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
Betty presented evidence that her family continuously planted and harvested crops in the disputed land. This type of use for farming operations is obvious to any reasonably prudent person; therefore, we conclude this land use is visible and conspicuous evidence of possession and use of the land.
The use of the boundary fence, as noted above, is further evidence of the notorious use of the land and the exclusion of others.
(e) Adverse
Adverse possession must be under a claim of right. A claim of right in this context means that the adverse possessor has the intention to "'"appropriate and use the land as his own to the exclusion of all other, irrespective of any semblance or shadow of actual title or right. . . Barnes v. Milligan, 200 Neb. 450, 454, 264 N.W.2d 186, 189 (1978). This intent can be actual, presumed, or inferred from the circumstances. Id.
The claim of adverse possession is founded upon the intent with which the occupant has held possession, and this intent is ordinarily determined by what he has done in respect thereto. Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331 (1957).
When a claimant occupies the land of another by actual, open, exclusive, and continuous possession, the owner is placed on notice that his ownership is endangered and unless he takes proper action within 10 years to protect himself, he is barred from action thereafter and the title of the claimant is complete. Id.
In this case, there is considerable evidence of acts by the Garwoods, and their predecessors in interest, demonstrating a claim of ownership of this property, and no evidence that the Partnership or its predecessors in interest took proper action to protect their interest in the disputed land. The Garwoods farmed the enclosed property, planting and harvesting crops beginning after the 1884 conveyance, and they continue to do so today. Intent to possess the disputed land can be inferred from those actions, and having found the Garwoods' possession was actual, continuous, open, notorious, and adverse, we find the requirements for adverse possession could conceivably have been met within 10 years of the 1884 conveyance, and were certainly met within 10 years of Betty and Doug's taking over the Garwood family farming operations on the land in 1970.
The Partnership references Betty's letter to Julie Dyra in 2009 and argues that the Garwoods knew they did not have ownership and took no action to establish title. This court has previously considered a similar situation and concluded that admitting a lack of clear title is not the same as admitting that one does not own the property. Dinnel v. Weir, No. A-07-885, 2008 WL 5061626 (Neb. App. Sept. 23, 2008) (selected for posting to court Web site).
It is well settled that recognition of title in the former owner by one claiming adversely, after he has acquired a perfect title by adverse possession, will not divest him of title. Martin v. Martin, 76 Neb. 335, 107 N.W.2d 580 (1906).
The letter states, in part:
I am faced with a long-time dilemma. When my Great Grandfather . . . Goodwin bought the north 80 acres of his farm from your Grandfather . . . Neff, they established the fence line which has been in place ever since that sale. Every 26 miles there is an 80 foot correction due to the curvature of the earth. They split the correction giving 40 feet to
Neff and 40 feet to Goodwin and then apparently stepped off 40 feet (as it is not a perfect rectangle) establishing the fence line. Unfortunately whoever drew up the deed for them neglected to include or missed that 40 feet which was part of the sale. The fence line is not on the half section line but is approximately 40 feet north and that original deed did not reflect those 40 feet. It remains to be cleaned up today.
This letter shows that Betty and the Garwoods operated under the belief that the current fence line is the boundary of their property and that they believed they owned the property in dispute. The letter also shows Betty recognized the potential defect in title and intended to resolve it. However, Betty's recognition that the Partnership is the record owner of the disputed tract does not change the fact that the Garwoods acquired title by adverse possession years before, nor does it divest the Garwoods of the title acquired by adverse possession.
2. AFFIDAVITS OF POSSESSION
The Partnership asserts it was an error for the court to consider the affidavits of possession, filed by the Garwoods in 1990, in determining whether to grant summary judgment in this case. The affidavits of possession Betty filed with the register of deeds on August 2, 1990, indicated the Garwoods owned the property under adverse possession. These affidavits were for the purpose of making a record that the Garwoods had adversely possessed the land by 1990 and planned to continue doing so after that date.
At the hearing, exhibit 1 was submitted by the Garwoods. It contained Betty's October 2011 affidavit and the 1990 affidavits of possession, as well as the easements and deeds affecting the disputed property.
The Partnership argues on appeal that based on the case law of Iowa, affidavits of possession are to be used to explain or correct a defect, not to fill a gap in the chain of title, such as a title by adverse possession. The Garwoods argue the affidavits of possession were properly filed under Neb. Rev. Stat. § 76-271 (Reissue 2009), which provides that "[a]ffidavits explaining or correcting any apparent defect in the chain of title to any real estate, may be recorded as instruments affecting real estate, and such record shall be prima facie evidence of the facts therein recited." This statute is an exception to the general rule that an affidavit cannot be used to establish facts material to the issue being tried. See Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991). Nebraska law does not specifically preclude a party from submitting affidavits of possession to correct a defect in title related to adverse possession of a property.
The Partnership's only objection at the hearing to the affidavits of possession was that the Garwoods incorrectly asserted that the filing of such affidavits put the Partnership and all others on notice. The Partnership's other objections to exhibit 1 addressed the information, contained in the 2011 affidavit, that was not based on Betty's personal knowledge. It does not appear from the record that the Partnership otherwise objected to the offer of the exhibit containing the affidavits of possession at the time of the hearing, and the exhibit was received for consideration by the court.
To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about the evidence admitted or excluded. Dowd Grain Co. v. County of Sarpy, 19 Neb. App. 550, 810 N.W.2d 182 (2012).
The extent to which the judge relied on the affidavits of possession is not evident from the court's order or the record before us. However, as discussed above, the Garwoods met the requirements for adverse possession of the property in dispute at least 10 years before the affidavits were filed. Once the 10-year period runs, an adverse possessor has title which is only divestible by his conveyance or subsequent adverse possession by another party for the statutory period. Converse v. Kenyon, 178 Neb. 151, 132 N.W.2d 334 (1965).
The district court did not need to rely on the affidavits of possession to determine there was no genuine issue of material fact. Therefore, we find that the affidavits of possession did not prejudice the Partnership. As a result, any consideration of the affidavits of possession, even if improper, would amount to harmless error.
3. PAYMENT OF TAXES
The Partnership contends that because it paid the taxes on the disputed property, the Garwoods could not have obtained adverse possession. Though the Garwoods have not paid the taxes on that portion of the property, Nebraska case law provides that this is not a requirement. The Nebraska Supreme Court has determined that payment of taxes is a circumstance to be considered in adverse possession cases, but that fact alone is not determinative. Converse v. Kenyon, supra.
While the Partnership can show that it paid the taxes for the disputed parcel during the entire time that the Garwoods were farming the land, this, in and of itself, cannot show that the Garwoods were not adversely possessing the property. In Converse v. Kenyon, supra, the court found that the evidence established the defendant had been in actual, open, notorious, continuous, exclusive, and hostile possession of the land at issue, and found that the defendant acquired title by adverse possession, regardless of the fact the defendant had not paid taxes on the property.
The Partnership asserts the Garwoods cannot meet the requirements of adverse possession by showing intent to assert ownership because they have not paid the real estate taxes on the property. However, as discussed above, intention to appropriate and use the land as his own to the exclusion of all others can be inferred from the circumstances. Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978). See Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983). Further, this court has held that the failure to pay real estate taxes on disputed land will not preclude the court from finding that possession has been hostile and adverse. Whitney v. Doak, No. A-10-1104, 2011 WL 4635130 (Neb. App. Sept. 27, 2011) (selected for posting to court Web site). In addition, this court granted summary judgment in Dinnel v. Weir, No. A-07-855, 2008 WL 5061626 (Neb. App. Sept. 23, 2008) (selected for posting to court Web site), finding the plaintiff had been in actual, continuous, exclusive, notorious, and adverse possession of a disputed property for more than 10 years notwithstanding the fact that the record titleholder, not the plaintiff, paid the real estate taxes on the disputed property.
A review of the evidence in this case indicates that the Garwoods have fulfilled the requirements to claim ownership of the property through adverse possession and that the court correctly granted summary judgment in favor of the Garwoods and the subsequent owners of the property in dispute. The Garwoods have actually possessed and farmed the land--they claimed ownership of the property and were the exclusive users and farmers of the land until the recent conveyances in 2008 and 2009, which occurred long after the 10-year statutory period had run. Their use was actual, continuous, exclusive, notorious, and adverse for a period significantly longer than the required 10-year statutory period. The partnership did not provide evidence to create a material question of fact on this issue.
VI. CONCLUSION
A review of the evidence shows there is no genuine issue of material fact. There is sufficient evidence to prove that the Garwoods obtained possession of the land via adverse possession prior to the conveyances to NPPD, Beef Products, and South Sioux City and that title was transferred validly. The decision of the district court is affirmed.
AFFIRMED.