RUSH CREEK LAND AND LIVE STOCK v. Chain

586 N.W.2d 284, 255 Neb. 347
CourtNebraska Supreme Court
DecidedSeptember 25, 1998
DocketS-97-551
StatusPublished

This text of 586 N.W.2d 284 (RUSH CREEK LAND AND LIVE STOCK v. Chain) 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
RUSH CREEK LAND AND LIVE STOCK v. Chain, 586 N.W.2d 284, 255 Neb. 347 (Neb. 1998).

Opinion

586 N.W.2d 284 (1998)
255 Neb. 347

The RUSH CREEK LAND AND LIVE STOCK COMPANY, Appellant,
v.
Jack CHAIN, Trustee of the Beth Hudson Chain Revocable Trust dated January 22, 1982, et al., Appellees.

No. S-97-551.

Supreme Court of Nebraska.

September 25, 1998.

*286 Robert S. Harvoy and Robert B. Reynolds, of McGinley, Lane, O'Donnell, Reynolds & Edwards, P.C., Ogallala, for appellant.

Robert G. Simmons, Jr., of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., for appellees.

CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ., and HANNON, Judge.

CONNOLLY, Justice.

The Rush Creek Land and Live Stock Company, hereinafter Rush Creek, brought this action against Jack Chain, trustee of the Beth Hudson Chain Revocable Trust dated January 22, 1982, and Beth Hudson and other trustees and successor trustees of the trust, collectively denoted as "the trust," to quiet title to a certain island. The island at issue lies generally in the North Platte River between Rush Creek's property and the trust's property. Rush Creek asserted that its title to the island had been determined in a prior action and that res judicata applied. The trust denied Rush Creek's assertions and contended that the trust has adversely possessed the island. We conclude that the trust has adversely possessed the island, and thus we affirm.

I. BACKGROUND

1. TRIAL COURT'S 1979 JUDGMENT

In 1977, Melvin T. Hutson and Lou Hutson (Hutsons) brought an action against Rush Creek, The Federal Land Bank of Omaha, and John H. Chain (Chain) to quiet title to certain real property. The Hutsons owned real property described as Sections 7 and 8, Township 18 North, Range 47 West of the 6th P.M., which lies along the south bank of the North Platte River. See Hutson v. The Rush Creek Land and Livestock Co., 206 Neb. 658, 294 N.W.2d 374 (1980). Rush Creek owned and still owns real property described as Sections 5 and 6, Township 18 North, Range 47 West of the 6th P.M., which is along the north bank of the river, directly opposite what was the Hutsons' property. Chain was a contract purchaser of the Hutsons' property. The disputed property lay along the North Platte River, which separated the Hutsons' property and Rush Creek's property.

The Hutsons' action to quiet title to the disputed property was based upon adverse possession. In its answer, Rush Creek generally denied the Hutsons' adverse possession and brought a counterclaim to quiet title to all of Sections 5 and 6, Township 18 North, Range 47 West of the 6th P.M. "together with all accretions thereto located north of the thread of the North Platte River as it flows through the aforesaid sections of land."

In its judgment, rendered in 1979, the trial court found the Hutsons had failed to prove they had adversely possessed the disputed property. The trial court found in Rush Creek's favor on the counterclaim as well, quieting title in Rush Creek to "Section [sic] 5 and 6, Township 18 North, Range 47 West of the 6th P.M. located in Morrill County, Nebraska, together with all accretions thereto located north of the thread of the stream of the North Platte River as it flows through aforesaid sections of land."

Chain appealed the 1979 judgment to this court, asserting that the trial court had erred in determining that the Hutsons had not adversely possessed the disputed property, and this court affirmed. Hutson v. The Rush Creek Land and Livestock Co., supra. This court did not address the trial court's findings concerning the counterclaim. Id.

2. TRIAL COURT'S 1997 JUDGMENT

The instant case was brought by Rush Creek in 1995 to quiet title to a certain island in the North Platte River, designated as "island X" on exhibit 53, and to permanently enjoin the trust from the use of island X. The trust's answer generally denied Rush Creek's petition and asserted that it had adversely possessed island X.

The dispute concerning possession of island X arose during the hunting season. Rush Creek had leased its property to certain individuals for hunting, and the trust had done likewise. The lessees of both parties believed that they had the right to hunt *287 on island X. This conflict led to verbal disputes between the lessees and eventually resulted in this lawsuit.

(a) Geography of Island X and Surrounding Channels

Following is a sketch of the pertinent section of the North Platte River depicting the island at issue, which is labeled "X," and other features relevant to this appeal. The sketch is for illustrative purposes only and does not purport to be drawn to scale.

Island X lies in the North Platte River, a nonnavigable stream which flows generally west to east at the island's location. Island X is bounded by channels on the north and the south; the channel to the north separates the island from Rush Creek's property, and the channel to the south separates it from the trust's property. Island X lies east of the section line running north and south dividing Sections 5 and 6 and Sections 7 and 8, such that it lies generally between Sections 5 and 8. Another island, designated as "island Y," lies generally to the northwest of island X. The channel separating island Y from the northern shore (Rush Creek's property) flows into the channel north of island X near island X's midpoint.

The record does not indicate that the government ever issued a patent to the island, and thus, we assume that the island formed at some point after the original government survey. The Hutsons did not claim adverse possession of island X in the 1979 judgment; rather, island Y was at issue.

(b) Adverse Possession of Island X

Gary L. McGuire testified that he hunted Rush Creek's property from 1980 to 1983 with his father, who held a lease at that time, and that he had personally held a hunting lease to Rush Creek's property since 1983. McGuire's blind was on the north bank of the channel north of island X, and he had never had a blind on island X. McGuire had likewise never used any decoys on island X. However, McGuire did testify that he had hunted island X on foot. He also testified that he knew Mark T. Wieser had a blind on island X, with whom McGuire had arguments concerning hunting rights. Wieser had told McGuire that he had no right to be on island X.

William Eckstrom, another hunter, testified that he had leased Rush Creek's property for hunting purposes since 1990. He testified that he had a hunting blind on island X in 1991 which was moved by the ice in the river and that he had also hunted island X on foot. Eckstrom had a confrontation with Wieser concerning hunting rights on the island in 1992. Eckstrom had set up a blind *288 closer to Wieser's than in the past, which led to some disputes over the shooting of birds. When Eckstrom attempted to speak to Wieser about the problem, Wieser told him that he had been there forever and that if Eckstrom did not like it, he could move.

Thomas H. Olson, Rush Creek's vice president, testified that Rush Creek had not used island X for pasturing cattle at any time since 1978. After the 1979 judgment, Rush Creek built a fence on island Y, but did not fence island X. Olson testified that it was too difficult to build and maintain a fence across the channels and onto island X.

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Rush Creek Land & Live Stock Co. v. Chain
586 N.W.2d 284 (Nebraska Supreme Court, 1998)

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