Home/Nebraska Supreme Court/Frank v. Smith

Frank v. Smith

293 N.W. 329, 138 Neb. 382, 134 A.L.R. 458, 1940 Neb. LEXIS 151
CourtNebraska Supreme Court
DecidedJuly 5, 1940
DocketNo. 30871
StatusPublished
Cited by27 cases

This text of 293 N.W. 329 (Frank v. Smith) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank v. Smith, 293 N.W. 329, 138 Neb. 382, 134 A.L.R. 458, 1940 Neb. LEXIS 151 (Neb. 1940).

Opinion

Messmoee, J.

Plaintiffs William E. Frank and George J. Carpenter brought this action against Sam Smith and Anna Smith, his wife, et al, defendants, and Terry Carpenter and Hazel-dean Carpenter, his wife, defendants. The purpose of the action is to quiet title to certain lands, described in plaintiffs’ petition, in which they claim to own the fee by adverse possession. The plaintiffs prevailed in the district court, with the exception that defendants Smith prevailed as against the plaintiffs. No controversy was presented as between defendants Smith and defendants Carpenter. The plaintiffs cross-appeal from the judgment in favor of defendants Smith, and defendants Carpenter appeal from the judgment against them and in favor of the plaintiffs.

In addition to the foregoing statement with reference to plaintiffs’ action, the petition alleges that defendants Sam and Anna Smith are the owners of lot 2, as designated on the map, exhibit 1, but claim to own certain real estate, shown on the map, east of highway No. 29, between Gering and Scottsbluff, Nebraska, and north, in the northeast part of lot 2. Defendants Smith in their answer admit the ownership of plaintiffs in lot 1, except the strip of land, as shown by the map, in lot 2 in which they claim ownership by adverse possession, and admit their ownership of lot 2; and pray that plaintiffs’ cause of action be dismissed as to them. Defendant Terry Carpenter admits the ownership of certain land described in plaintiffs’ petition, further alleges [384]*384that said land extends south of the center of the main channel of the North Platte river as said channel existed prior to the construction of the present cement bridge, denies his ownership casts any cloud on any land that plaintiffs may own, prays the dismissal of plaintiffs’ petition with prejudice, and for such other relief as may be just and equitable. In addition to the adverse possession claimed by plaintiffs, the case was tried upon the theory of whether or not there was accretion to the lands of the plaintiffs; this apparently with the consent of the defendants Carpenter, no objection appearing in the record as to the taking of testimony on this issue. Likewise, such issue was argued to this court and appears in the briefs of the parties plaintiff and defendants Carpenter.

Exhibit No. 1 is a map, drawn to- scale of 200 feet to the inch, which is here reproduced, and the scale thereon is in exact proportion to the size of the original exhibit.

The map covers all of section 26 and the north 40 rods of section 35. Forty-acre tracts are indicated in each quarter of section 26. The North Platte river is shown by solid black ink and constitutes the part of the river having water in it at the time of the survey, made in the forepart of 1938. The white spaces inside of the solid black portion are islands. The crisscross lines at the bottom, or to the south, of the exhibit comprise lot 1 in section 35, owned by the plaintiffs, consisting of seven acres of deeded land. The diagonal lines north of lot 1, appearing principally in section 26 and slanting from a heavier black line to the point of the present river, and the same lines appearing east of highway No. 29, as designated, and on a part of lot 2 constitute the land claimed by the plaintiffs.

The cement bridge, as designated, running north and south, is the present bridge across the North Platte river between Scottsbluff and Gering, and was constructed in 1920 or 1921. From the cement bridge the angular line, designated “State and Federal Highway No. 29,” is the present paved highway constructed at the same time. West of the highway, the direction designated on the map, are [386]*386two shaded lines running west and southwest, designating an earthen dike, raised on the west and north in some places with concrete blocks. This dike connects with two narrower shaded lines, the latter running from the extreme west line of the map in a southeasterly direction through lots 1 and 2 to the extreme east side of the map, and designated as the “Central Irrigation District Canal.” On each side of the river the map discloses block lines, running across the map (“Original Survey Meander Line”), taken from original field notes of the government survey. Close to such lines are solid lines, running across the map, marked “Old River-Bank.” On the south side of the river is another line, running across the map, which designates the river bank at the time the concrete bridge (the present bridge) was built. The north and south sides of the river are designated as such and denote the outside boundaries of that part of the river having water in it at the time the survey was made. The east line of the map is the section line of sections 26 and 35.

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Bluebook (online)
293 N.W. 329, 138 Neb. 382, 134 A.L.R. 458, 1940 Neb. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-smith-neb-1940.