34-301 Disputed corners and boundaries; court action to settle; procedure. - Nebraska Statutes

34-301. Disputed cornersand boundaries; court action to settle; procedure.Whenone or more owners of land, the corners and boundaries of which are lost,destroyed, or indispute, desire to have the same established, they may bring an action inthe district court of the county where such lost, destroyed, or disputed corners or boundaries, or partthereof, are situated, against the owners of the other tracts which will beaffected by the determination or establishment thereof, to have such cornersor boundaries ascertained and permanently established. If any public roadis likely to be affected thereby, the proper county shall be made defendant.Notice of such action shall be given as in other cases, and if the defendantsor any of them are nonresidents of the state, or unknown, they may be servedby publication as is provided by law. The action shall be a special one, andthe only necessary pleading therein shall be the complaint of the plaintiff describing theland involved, and, so far as may be, the interest of the respective partiesand asking that certain corners and boundaries therein described, as accuratelyas may be, shall be established. Either the plaintiff or defendant may, byproper plea, put in issue the fact that certain alleged boundaries or cornersare the true ones, or that such have been recognized and acquiesced in bythe parties or their grantors for a period of ten consecutive years, whichissue shall be tried before the district court under its equity jurisdictionwithout the intervention of a jury, and appeals from such proceedings shallbe had and taken in conformity with the equity rules. SourceLaws 1923, c. 103, § 1, p. 258; C.S.1929, § 34-301; R.S.1943, § 34-301; Laws 2009, LB35, § 26.Annotations1. Adverse possession2. Equity action3. Recognition and acquiescence4. Miscellaneous1. Adverse possessionWhere an exact metes and bounds description is impossible to ascertain from the record, the failure to adequately describe the proposed boundary is fatal to a claim of adverse possession. Matzke v. Hackbart, 224 Neb. 535, 399 N.W.2d 786 (1987).Adverse possession is recognized as a defense in a proceeding under this section. Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983).When properly pleaded, the theory of adverse possession, as well as the theory of mutual recognition and acquiescence, may be raised under this section. Layher v. Dove, 207 Neb. 736, 301 N.W.2d 90 (1981).Evidence was insufficient to show acquisition of title by adverse possession. Randall v. Liakos, 181 Neb. 326, 148 N.W.2d 204 (1967).Adverse possession is recognized as a defense in a proceeding under this section. Converse v. Kenyon, 178 Neb. 151, 132 N.W.2d 334 (1965).Adverse possession or acquiescence must be put in issue by proper plea. Hehnke v. Starr, 158 Neb. 575, 64 N.W.2d 68 (1954).Acquiescence in boundary is separate and distinct from claim of title by adverse possession. Hakanson v. Manders, 158 Neb. 392, 63 N.W.2d 436 (1954).In determining whether an adverse possessor had exclusive use of the disputed property, it is irrelevant whether the titleholders communicated their use of the disputed property to the adverse possessor or his or her predecessor in interest. Madson v. TBT Ltd. Liability Co., 12 Neb. App. 773, 686 N.W.2d 85 (2004).2. Equity actionThis statute provides that whenever one or more owners of land, the corners and boundaries of which are lost, destroyed, or in dispute, desire to have the same established, they may bring an action in the district court to have them ascertained and permanently established. The case is tried as an equity case and is reviewable in the Supreme Court de novo on the record. State v. Jarchow, 219 Neb. 88, 362 N.W.2d 19 (1985).An action to establish boundaries under this section is an equity action and triable de novo on appeal to the Supreme Court. Cofer v. Kuhlmann, 214 Neb. 341, 333 N.W.2d 905 (1983).This section authorizes actions in equity to determine boundaries of real estate, the ownership of which is in whole or in part in dispute. Shirk v. Schmunk, 192 Neb. 25, 218 N.W.2d 433 (1974).This section is broad enough to authorize action in equity to determine boundaries of real estate. Elsasser v. Szymanski, 163 Neb. 65, 77 N.W.2d 815 (1956).Where defendant in his answer and cross-petition asked for determination of boundary lines, he was precluded from objecting to jurisdiction of equity to fully determine issues joined. Hardt v. Orr, 142 Neb. 460, 6 N.W.2d 589 (1942).Equity action is available to determine corners and boundaries to real estate to which the right or title is in dispute, irrespective of whether or not there is an adequate remedy at law. McGowan v. Neimann, 139 Neb. 639, 298 N.W. 411 (1941).3. Recognition and acquiescenceEven though the neighboring landowners recognized their boundary line by markers which were an approximation of the real boundary, a boundary by mutual recognition and acquiescence may be established if the approximation was recognized by the acquiescing parties as their actual boundary and the location of this boundary can be proved by the parties. Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 (2008).The filial relationship rule has no bearing on a mutual recognition and acquiescence analysis. Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 (2008).When neighboring landowners recognized for 10 years a boundary which they believed corresponded to the metes and bounds legal descriptions of their properties, the doctrine of mutual recognition and acquiescence will apply even though an accurate survey, had they obtained one, could have accurately established a division line corresponding to the legal description. Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 (2008).Rule of recognition and acquiescence embodied in this section is separate and distinct from the theory of adverse possession. Such rule requires more than the mere establishment of a line but requires the other party to have knowledge of the line and the possession taken as well as assent thereto. Spilinek v. Spilinek, 215 Neb. 35, 337 N.W.2d 122 (1983).A boundary line may be established by mutuality of recognition and acquiescence for a period of ten consecutive years. Swanson v. Dalton, 178 Neb. 55, 131 N.W.2d 704 (1964).Issue of recognition of and acquiescence in boundary line must be raised by proper pleading. McDermott v. Boman, 165 Neb. 429, 86 N.W.2d 62 (1957).4. MiscellaneousBoundary disputes cannot be determined in a quiet title action. Rather, boundary disputes are properly brought as an action in ejectment or pursuant to this section. Rush Creek Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998).This statute provides that whenever one or more owners of land, the corners and boundaries of which are lost, destroyed, or in dispute, desire to have the same established, they may bring an action in the district court to have them ascertained and permanently established. The case is tried as an equity case and is reviewable in the Supreme Court de novo on the record. State v. Jarchow, 219 Neb. 88, 362 N.W.2d 19 (1985).This section provides for court action to settle disputed corners and boundary line questions. McGowan v. Neimann, 144 Neb. 652, 14 N.W.2d 326 (1944).In a proceeding to establish lost corners and boundary lines, where the evidence is conflicting, trial court's finding will not be disturbed when sustained by competent evidence. Kennedy v. Gottschalk, 138 Neb. 842, 295 N.W. 813 (1941).This section authorizes the district court to ascertain and permanently establish the corners or boundaries to lands which have been lost, destroyed, or are in dispute in a suit in equity. State v. Cheyenne County, 123 Neb. 1, 241 N.W. 747 (1932).