IODENCE v. HARRISNo. A-09-061.

THOMAS IODENCE AND GAIL IODENCE, APPELLANTS,
v.
BARRY HARRIS AND SHARON HARRIS, APPELLEES.

Court of Appeals of Nebraska.
Filed November 3, 2009.
Jon P. Worthman for appellants.
Erin R. Harris, of McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O., for appellees.
INBODY, Chief Judge, and IRWIN and MOORE, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Thomas Iodence and Gail Iodence appeal from an order of the district court which order quieted title to a disputed strip of property in Barry Harris and Sharon Harris. On appeal, the Iodences allege that the district court erred in finding that they did not meet their burden to establish that they acquired the disputed property through adverse possession. Because the Iodences failed to prove that the elements of adverse possession had been met for the statutory period of 10 years and because they failed to sufficiently describe the land in question, we affirm the order of the district court.

II. BACKGROUND

This case involves a property dispute between two adjacent landowners. The crux of the dispute involves a strip of concrete which lies between the two properties. The Harris property is on the north side of this concrete strip, and the Iodence property is on the south side of this concrete strip. The disputed area is described as being between a row of bushes on the Harris property and a driveway and garage on the Iodence property.

The Iodences purchased their home in 2004. At the time of the purchase, they assumed that their property included the entire concrete strip. They believed that the row of bushes planted to the north of the strip on the Harris property represented the boundary line between the two properties. After the Iodences moved into their home, they began to use the concrete strip to park their boat and vehicles.

The Iodences' use of the strip hindered the Harrises' ability to enter and exit their driveway. Believing that the Harris property encompassed at least a portion of the concrete strip, Barry Harris hired a surveyor to complete a survey of the two properties to determine the exact boundary line. The survey revealed that the boundary line between the two properties lies somewhere in the middle of the concrete strip. As such, the Iodences had been parking their boat and vehicles on a portion of the Harris property.

After the survey was completed, Barry Harris began to tear out that part of the concrete strip that was located on Harrises' side of the boundary line. Thomas Iodence filed a complaint for injunction, alleging that he and his wife owned the entire concrete strip by virtue of adverse possession and requesting that Barry Harris be enjoined from any further demolition of the concrete. Thereafter, Barry Harris filed an answer and counterclaim, alleging that the Iodences' use of the concrete strip was not exclusive and that no previous owner of the Iodence property had used the concrete strip in any manner. Barry Harris requested that the court quiet title to the disputed property pursuant to the survey.

At trial, Thomas Iodence testified that the Iodences moved into their home sometime during 2004. He testified that the Iodences had used the concrete strip since they moved into their residence to park their boat and vehicles. Thomas Iodence testified that he did not know if the previous owners of the residence had used the concrete strip.

Barry Harris testified that the Harrises had owned their home for "a little over 21 years." The previous owners of the home were his wife's parents. Barry Harris testified that he had always understood the boundary line between the Harris property and the Iodence property to be a seam in the concrete in the disputed area, rather than the row of bushes to the north of the disputed area. Specifically, he stated, "I've always been under the impression that that was our property or a good portion of where [the Iodences were] parking [their] vehicle."

Barry Harris testified that when the Harrises purchased their home in 1987, Bill Furman lived on the Iodence property. Furman owned the property until his death. The Iodences purchased the property from Furman's estate. Barry Harris testified that Furman never parked his vehicles on the cemented area in dispute and never used that portion of the property in any manner.

Robert Minnick also testified. He testified that the Harris property was built in 1975 and that he was the first owner after the house was built. At the time that he moved in, there were no neighboring homes. He planted a row of bushes on the south side of his property well within the property line, because he was worried that when the lot to the south of his lot was developed, the bushes would get in the way. As such, he was aware that he owned a portion of the land to the south of these bushes.

In 1977 or 1978, Tay Tollefson purchased and moved into what is now the Iodence property. At that time, there was a grassy area between the row of bushes on the Harris property and Tollefson's garage. Minnick approached Tollefson about cementing the whole area between the bushes and Tollefson's garage so that it would be easier to maintain. Minnick paid to have the cement laid, and he and Tollefson agreed that they would each be able to use the concrete area. Minnick testified that from the time that the cement was laid to the time he sold the property to the Harrises in 1987, none of the owners of what is now the Iodence property used the disputed area for any continuous purpose.

At the close of the evidence, the court found that the Iodences failed to prove that they had acquired the disputed area through adverse possession. The court quieted title to the land pursuant to the survey. The Iodences appeal from the court's decision.

III. ASSIGNMENTS OF ERROR

On appeal, the Iodences allege that the trial court erred in finding that they did not meet their burden to establish that they had acquired the disputed property through adverse possession and in failing to quiet title in them.

IV. 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.

V. ANALYSIS

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. Inserra v. Violi, 267 Neb. 991, 679 N.W.2d 230 (2004). Proof of the adverse nature of the possession of the land is not sufficient to quiet title in the adverse possessor; the land itself must also be described with enough particularity to enable the court to exact the extent of the land adversely possessed and to enter a judgment upon the description. Id.

The Iodences did not prove that the elements of adverse possession had been met for the statutory period of 10 years. Thomas Iodence testified that the Iodences moved onto the property sometime in 2004. Thomas Iodence filed the complaint in May 2008. As such, at the time of filing the complaint, the Iodences had lived on the property for approximately 4 years. Even if we were to find that the Iodences proved the elements of adverse possession during this 4-year period, we would need evidence that the prior owner's use of the disputed property also met the elements of adverse possession. Such evidence was not presented. Thomas Iodence testified that he did not know whether the prior owner of the Iodence property used the disputed area. Barry Harris testified that the previous owner of the Iodence property did not use the disputed area for any purpose, and Minnick testified that no previous owner of the Iodence property had used the disputed area for any continuous purpose. Accordingly, the Iodences failed to meet their burden to prove that the elements of adverse possession existed for the 10-year statutory period and their claim fails.

Moreover, the Iodences failed to sufficiently describe and define the land that they claimed to have occupied adversely. The Iodences argue that they had occupied all of the concrete area up to the bushes on the Harris property. However, the Iodences failed to provide proof of the exact location of the bushes.

The Nebraska Supreme Court addressed a similar issue in Inserra v. Violi, supra. There, the claimants argued that they had sufficiently defined the disputed property where one side of the property was described as running from a telephone box to a utility pole. The Supreme Court rejected this argument, concluding:

Their testimony relating the eastern boundary of the disputed tract to existing structural landmarks provides at best an approximate location of the claimed boundary in relation to the known lot line. No specific boundary was proved because . . . "[a]ny attempt to describe the area claimed in terms of metes and bounds would rest on speculation and conjecture."

Id. at 996, 679 N.W.2d at 235 (quoting Steinfeldt v. Klusmire, 218 Neb. 736, 359 N.W.2d 81 (1984)). The Supreme Court went on to hold:

The issue is not, as the [claimants] argue, whether a surveyor could at some future date establish a boundary and legal description using the landmarks identified in their testimony. Rather, their adverse possession claim must fail because they did not produce such evidence at trial, as our case law requires.

Id.

Here, the location of the bushes is not depicted on the survey admitted into evidence. The surveyor testified at trial that he did not remember exactly where the bushes were located in relation to the concrete strip in dispute. Neither Thomas Iodence nor Barry Harris provided an exact location of the bushes or any reference to how far the bushes were from the known lot line. As such, the Iodences failed to sufficiently describe and define the land that they claimed to have occupied adversely.

VI. CONCLUSION

Upon our de novo review of the record, we conclude that the Iodences failed to meet their burden to establish that they acquired the disputed property through adverse possession. There was insufficient evidence to prove that the elements of adverse possession had been met for the statutory period of 10 years, and the disputed property was not described with sufficient clarity. Accordingly, we affirm the order of the district court quieting title to the disputed property in the Harrises.

AFFIRMED.


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