Siedlik v. Nissen

303 Neb. 784

931 N.W.2d 439

Ray SIEDLIK and Terri Siedlik, appellants,

v.Daniel NISSEN and Deb Nissen, appellees.

No. S-18-899.

Supreme Court of Nebraska.

Filed July 26, 2019

Douglas W. Ruge, for appellants.

Joel M. Carney and William J. Hale, Omaha, 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 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 5½ 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 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, BUCCANEER BAY; THENCE N 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 01°44’36" 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.

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 offered overhead photographs taken in August 2005 and October 2006 which demonstrated the weed line.

Daniel testified that the Siedliks' use of the disputed area within the relevant time period was not always exclusive. He testified that he also mowed the area, up to about 6 inches from the fence, until 2008 when the parties had a dispute. Thereafter, the parties recognized an "imaginary line" and Daniel then mowed up to the sprinkler line. Ray disputed this testimony by stating that Daniel mowed up to the sprinkler line until 2008 and let the weeds grow thereafter. He stated that he and Daniel mowed at different heights and that when Daniel mowed he mowed the grass down to the dirt.

Ray testified at length about his desire to maintain control over the disputed area in order to prevent flooding issues to his home. In 2012 or 2013, the Siedliks experienced flooding in their basement because Lot 3 sat lower than Lot 4. As a result, the Siedliks installed in the disputed area portions of a lower retaining wall and a drainage system.

In 2016, around the time of the Nissens' survey, the Siedliks replaced their wooden fence with a vinyl fence that did not encroach. There was conflicting evidence as to whether one or both of the sprinkler heads still encroached after they were moved back. The sprinkler control box, grading and sod, and lower retaining wall remained over the property line.

At the close of the evidence, the Siedliks moved to conform the pleadings to the evidence adduced at trial. Their counsel stated that the motion was intended to address a potential discrepancy between the amount of land claimed in paragraphs 6 and 7 in the amended complaint and the evidence at trial. Counsel for the Siedliks specifically asked that the court reform paragraph 7 to be consistent with paragraph 6. Both paragraphs claimed a 6-foot tract of land, but paragraph 7 also claimed the "land depicted in ‘Exhibit A,’ " which claimed only a 2-foot tract, and the most that Ray claimed in his testimony was a 5½-foot tract. The court granted the motion and amended the pleading "to comply with the proof as received."

Following trial, the court entered an order of dismissal. The court relied on Poullos v. Pine Crest Homes¹ for the rule that mere maintenance of land, such as mowing or landscaping, does not constitute sufficiently hostile possession to put a landowner on notice of adverse possession. The court found the evidence showed that the Siedliks had not used the land in a manner different from general maintenance. The court found that the fence and at least one of the sprinkler heads no longer encroached and that the remaining items which had been in place for longer than 10 years, such as the sprinkler control box and landscaping, encroached by less than 2 feet. The court found these intrusions were not sufficiently notorious to sustain a claim to quiet title by adverse possession. We moved the appeal to our docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this State.²

II. ASSIGNMENTS OF ERROR

The Siedliks assign that the district court erred in finding (1) insufficient notorious use of the disputed land to sustain a claim for adverse possession and (2) insufficient notorious use of the disputed land to sustain a claim for the boundary line by acquiescence.

III. STANDARD OF REVIEW

A quiet title action sounds in equity.³ 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.⁴

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.⁵ We may also give consideration to the fact the trial court personally viewed the premises involved therein.⁶

IV. ANALYSIS

1. ADVERSE POSSESSION

The Siedliks sought to quiet title under the theory of 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 a statutory period of 10 years.⁷ The Siedliks argue on appeal that the district court erred in finding their encroachments were not sufficiently notorious. Upon de novo review, we conclude that regardless of the errors assigned by the Siedliks, the district court correctly dismissed the Siedliks' amended complaint due to the Siedliks' failure to prove all of the elements of adverse...