SIEVERS, Judge.
JONWL, L.L.C., appeals from the decision of the district court for Merrick County (1) finding that Kathleen K. Starostka (Starostka) and her predecessors acquired title to land north of the thread of the stream of the Platte River up to the geographic centerline of the Platte River by adverse possession and (2) fixing the geographic centerline of the Platte River as the south boundary of JONWL's land and the north boundary of Starostka's land. We address the doctrine of adverse possession in the instance of purely recreational use of the disputed land. In the end, we find that the use of duckblinds on an island in the river and some fishing in the river does not satisfy the proof requirements for acquiring land by adverse possession, and therefore, we reverse.
JONWL and Starostka each own property along the Platte River in Merrick County, Nebraska. JONWL owns property along the north bank of the Platte River, and Starostka owns property along the south bank of the Platte River. The parties disagree as to where within the river the boundary between their respective property lies. JONWL claims it owns the land south of the north bank to the thread of the stream. The thread of the stream is south of the geographical center of the river. Starostka claims she owns the land north of the south bank to the geographical center of the stream because she has gained such by adverse possession. The disputed river property contains at least two islands.
JONWL filed its petition on August 20, 2008, alleging that certain corners and the south boundary of JONWL's property are in dispute between JONWL and Starostka. JONWL asked the court to ascertain and permanently establish the southwest corner, south boundary, and southeast corner of its property.
In her answer and counterclaim, Starostka alleged that for a period of over 10 years, she or her predecessors (1) have been assessed and paid taxes on accretion ground to the geographic centerline of the Platte River and (2) adversely possessed the accretion ground. Starostka asked the district court to set her boundary to include the accretion ground to the geographic centerline of the Platte River between the parties' deeded land on opposite sides of the river.
The district court filed its memorandum opinion and order on December 4, 2009. The district court found that exhibit 1, the survey of Thomas Tremel, referred to as the "Tremel Survey," meets all of the foundational requirements of Neb. Rev. Stat. § 81-8,122.01 (Reissue 2008) and thus is presumptive evidence as to the location of the thread of the stream. The district court further found that the evidence adduced by Starostka was not sufficient to overcome the presumption established by the statute as to the location of the thread of the stream. Accordingly, the district court accepted Tremel's conclusion as to the location of the thread of the stream.
The district court then found that Starostka proved by the greater weight of the evidence that she and her predecessors have adversely possessed the accretion land north of their deeded property to the geographic centerline for a period in excess of 10 years. The district court further found that the survey of Kelly Stevens, referred to as the "Katt Survey" by the parties and received in evidence as exhibit 37, constitutes the north boundary line of Starostka's accretion land and the south boundary of JONWL's accretion land. The district court ultimately used the metes and bounds legal description found in exhibit 37 to establish the boundary between the parties' land and to award Starostka the land she claimed by adverse possession. However, for expediency, we omit the full description contained in the district court's order which was taken from exhibit 37. JONWL now appeals.
JONWL alleges that the district court erred in finding and determining that Starostka and her predecessors used and possessed the accretion land between their properties up to the geographic centerline of the Platte River.
Starostka has filed a cross-appeal solely to preserve issues dealing with the Tremel Survey should this court find that Starostka has not met her burden to prove adverse possession. In her cross-appeal, Starostka alleges that the district court erred in (1) accepting as presumptive evidence the location of the thread of the stream shown on exhibit 1, the Tremel Survey, and (2) not further establishing the boundary between the JONWL and Starostka properties at the geographic centerline based on "general equity principles."
An action to ascertain and permanently establish corners and boundaries of land under Neb. Rev. Stat. § 34-301 (Cum. Supp. 2010) is an equity action. Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000). In an appeal from an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, 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.
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). The absence of any of these elements will prevent the acquisition of title by adverse possession. See 16 Thompson on Real Property § 87.05 (David A. Thomas 2d ed. 1998). See, also, Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993) (title cannot be acquired without simultaneous and continuous existence of each element of adverse possession for required period). Starostka's claim fails on the elements of continuous and notorious possession.
The law does not require the possession to be evidenced by persons remaining continuously upon the land and constantly from day to day performing acts of ownership thereon. Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984). It is sufficient if the land is used continuously for the purposes to which it may be naturally adapted. Id. See, also, Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003). The acts of dominion over land allegedly adversely possessed must, to be effective against the true owner, be so open, notorious, and hostile as to put an ordinarily prudent person on notice of the fact that the lands are in adverse possession of another. Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998). If an occupier's physical actions on the land constitute visible and conspicuous evidence of possession and use of the land, that will generally be sufficient to establish that possession was notorious. Id.
In the present case, witnesses testified that the disputed property was suitable for recreational use, hunting, and fishing. The witnesses further testified that the disputed property could not be used for farming or grazing. "Generally, seasonal and recreational use and, therefore, occasional use, even if occurring annually, cannot ripen into title for the real estate on which such recreation takes place." Hardt v. Eskam, 218 Neb. at 84, 352 N.W.2d at 585-86. See, also, 2 C.J.S. Adverse Possession § 43 at 705, 706 (1972) ("[a]ctual possession is essential to the adverse possession of an island"). In Hardt v. Eskam, supra, the appellees filed suit to quiet title to river land and also sought damages for trespass by the appellants on the disputed tract. The disputed property, referred to as "Blackacre," contained 14.99 acres of alluvion in the North Platte River and was suitable for hunting, fishing, and livestock pasture year round. Donald Hardt, one of the appellees, hunted on the tract from 1940 until the early 1970's and eventually leased hunting rights on the tract to hunters, who built duckblinds on Blackacre. However, Hardt made no use of Blackacre for livestock purposes from 1949 until 1965, when Hardt's cattle grazed on the tract. Hardt admitted that grazing was intermittent until 1978. The Nebraska Supreme Court found that Hardt's alleged possession of Blackacre through his livestock operations did not fulfill the requirement of continuous use for the statutory period of 10 years. Thus, the court looked to the hunting use of Blackacre to determine the appellees' adverse possession claim. After noting that the evidence showed the primary hunting activity related to waterfowl, although there was some hunting of upland birds and deer on the tract, the Nebraska Supreme Court held, "Hunting being seasonal, the recreational use of Blackacre was, at best, occasional and limited to a few weeks or months of each year." Hardt v. Eskam, 218 Neb. at 83, 352 N.W.2d at 585.
The Supreme Court more recently summarized the Hardt decision in Nye v. Fire Group Partnership, 265 Neb. 438, 444, 657 N.W.2d 220, 226 (2003), as follows:
In Hardt v. Eskam, 218 Neb. 81, 84, 352 N.W.2d 583, 586 (1984), the court also held that
The instant case differs from Hardt v. Eskam, supra, in that the disputed property in the instant case is only suitable for hunting, fishing, and recreation and does not have an additional use such as pasture for cattle. Because the Hardt court ultimately analyzed the adverse possession claim solely on recreational use, we think that such decision informs our decision in the present case.
Charles Starostka (Charles) testified that the Starostka family allowed Jack Merrill to hunt ducks and geese on the disputed property and that "the halfway point [of the river] was kind of a boundary respected." Merrill testified that he has hunted on the disputed property since 1970 with the permission of the Starostka family or their predecessors. Merrill testified that he has had a duckblind on an island in the disputed property since 1970. He hunts in the fall from October to mid-January, "mainly on the weekends . . . vacation or holidays." During the summer, Merrill went into the river land to fish, shoot "blue rocks," and prepare the duckblind. Merrill testified that he fished "maybe once, twice a summer." Thus, while Merrill's use of the disputed property during the October-to-January hunting season could be described as frequent, it was only on limited and certain days during only a 4-month hunting season, and therefore, like in Hardt v. Eskam, supra, such use does not qualify as continuous, but, rather, is occasional. The evidence of Merrill's summer use likewise fails to qualify as continuous use. The fishing was only once or twice a summer, and no details were provided on how often he used the island for blue rock shooting or to work on the duckblind. Furthermore, his testimony with regard to shooting blue rocks and preparation of the duckblind lacks specificity as to the timeframe during which such activities occurred.
Clearly, it is predominantly through Merrill's actions that Starostka rests her adverse possession claim. While use of land by a licensee or invitee can form the basis for an adverse possession claim, when the use is only seasonal hunting or fishing, Hardt v. Eskam, supra, points out a fundamental weakness of such a claim—which goes to the requirement that the possession be notorious. We quote again from Hardt v. Eskam, 218 Neb. 81, 83-84, 352 N.W.2d 583, 585 (1984):
The same situation exists here in that Merrill's extremely limited activity hardly gives notice that title to the real estate is being claimed. The notion that hunting is not sufficiently continuous and notorious to sustain an adverse possession claim as held in Hardt can be seen as flowing from the reasoning found in Knight v. Denman, 64 Neb. 814, 90 N.W. 863 (1902):
Hardt v. Eskam, 218 Neb. at 83, 352 N.W.2d at 585, quoting Knight v. Denman, supra. Moreover, in Hardt, the court's factual recitations suggest that the hunting activity was much more involved than present here, and perhaps even commercialized, given the court's recitation in Hardt that the alleged adverse possessor "eventually leased hunting rights on the tract to hunters, who built duckblinds." 218 Neb. at 82, 352 N.W.2d at 585. Yet, even such hunting activities in Hardt were insufficient to support Hardt's claim to the land. In the present case, only one person, Merrill, used the island with any hint of regularity. If the hunting activity in Hardt was insufficient to prove the "continuous element" of adverse possession, the lesser hunting activity in the case before us is likewise insufficient to support a claim of adverse possession.
That said, we do note that Charles testified that "coon hunters" were "allowed to go through the [disputed] area" explaining that they were allowed to "go following the dogs, wherever the dogs took them along the river banks and then to the river at times." Charles further testified that the "towhead" island north of the island where Merrill's duckblind is located has been "traversed by Starostka invitees." This testimony is of little value because Charles did not specify the timeframe or frequency of use of the disputed property by "coon hunters" or "other invitees." Charles also testified that he used the disputed property for fishing. Charles testified that he normally fished in the spring and that he "always" fished "off the south bank." When asked how many years his fishing activity occurred, Charles responded "on and off for over —ever since we've owned the property." Charles' testimony is contrary to the "continuous possession" element of adverse possession, because he clearly testified that he did not fish on the disputed property every year. Additionally, fishing off of the south bank would not put him physically on the disputed land to which Starostka lays claim.
Richard Kropatsch has farmed the Starostka farmland south of the Platte River since 1975. Kropatsch testified that he takes his grandchildren to play in the disputed area and that they were last there the weekend prior to the trial. Kropatsch's testimony is of little value because he did not specify the timeframe during which he used the disputed property for recreational purposes, nor did he specify the frequency with which he used the property.
The property in dispute was suitable for recreational use, hunting, and fishing for a majority of each year. Merrill's use of the land from October to mid-January each year was merely occasional, and not continuous. See Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984) (generally, seasonal and recreational use and, therefore, occasional use, even if occurring annually, cannot ripen into title for real estate on which such recreation takes place). Nor can it be said that this use was of such nature as to put others on notice of an ownership claim, and thus the notorious element of an adverse possession was likewise not proven.
Merrill, Kropatsch, and Charles testified to fishing and recreational activities that occurred during the summer but did not further specify the timeframe during which such activities occurred, and the evidence was that such use was sporadic and infrequent. Therefore, we conclude that the recreational and fishing use of this property was at best occasional rather than continuous. Because Starostka has not shown that she and/or her predecessors have been in continuous and notorious possession of the disputed land, her adverse possession claim necessarily fails. Therefore, we need not discuss the other elements for adverse possession. Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792 (2005) (appellate court is not obligated to engage in analysis which is not needed to adjudicate case and controversy before it).
We note that Starostka presented evidence that she paid taxes on 9 acres of undeeded accretion land. However, no part of the 9 acres is located within the boundaries of the property that she claims to have acquired by adverse possession as against JONWL's deeded title. Based on our review of the record, we conclude that Starostka and her predecessors have not adversely possessed the accretion land north of their deeded property to the geographic centerline for a period in excess of 10 years so as to acquire ownership thereof from JONWL. Accordingly, we reverse the district court's finding that Starostka adversely possessed such land.
Under Nebraska law, title to riparian lands runs to the thread of the contiguous stream. Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000). The thread, or center, of a channel is the line which would give the landowners on either side access to the water, whatever its state might be and particularly at its lowest flow. Id. JONWL commissioned Tremel to survey the disputed property and determine the location of the thread of the stream. Tremel is a professional land surveyor. He is the Platte County surveyor and also does private land surveying work. The Tremel Survey was received into evidence as exhibits 1 and 31. Starostka contests the accuracy of the Tremel Survey for a number of reasons, including the fact that Tremel's location of the thread of the stream was based upon him visiting the location in question on only two separate days in 2004 and 2005.
The Tremel Survey presents presumptive evidence as to the location of the thread of the stream. According to § 81-8,122.01:
(Emphasis supplied.)
The Tremel Survey meets all of the foundational requirements set forth in § 81-8,122.01. Therefore, the Tremel Survey is presumptive evidence of the facts stated therein, including the location of the thread of the stream. The evidence adduced by Starostka—i.e., general witness testimony that the thread of the stream is somewhere north of the thread as identified by Tremel—is plainly insufficient to overcome the presumption established by the statute. Accordingly, we accept Tremel's conclusion as to the location of the thread of the stream and affirm the district court's finding in this regard.
For the reasons stated above, we find that Starostka did not prove that she and/or her predecessors have adversely possessed the accretion land north of their deeded property to the geographic centerline of the Platte River for a period in excess of 10 years. We reverse the district court's finding to the contrary.
We further find that the thread of the stream, as depicted in the Tremel Survey, exhibit 1, is the proper boundary line between the JONWL and Starostka properties. Therefore, we remand the cause to the district court to enter judgment in accordance with our opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.
