                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          PASEKA V. HALL


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                   DONALD F. PASEKA AND JANIS M. PASEKA, TRUSTEES OF THE
                      PASEKA FAMILY REVOCABLE TRUST, APPELLANTS,
                                                  V.

                                    BRUCE K. HALL, APPELLEE.


                                Filed June 2, 2020.    No. A-19-521.


       Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Reversed
and remanded for further proceedings.
       David C. Mitchell and Spencer B. Wilson, of Yost, Schafersman, Lamme, Hillis, Mitchell,
Schulz & Hartmann, P.C., L.L.O., for appellants.
       Bradley D. Holtorf and Linsey Moran Bryant, of Sidner Law, for appellee.


       PIRTLE, BISHOP, and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                         INTRODUCTION
        Donald F. Paseka and Janis M. Paseka, as trustees of the Paseka Family Revocable Trust
(the Trust), filed suit in the district court for Dodge County, Nebraska, seeking to quiet the title to
a .73-acre parcel (the claimed tract), alleging they are the owners of the parcel by adverse
possession. The court found in favor of Bruce K. Hall and dismissed the Pasekas’ complaint with
prejudice. The Pasekas appeal, and we reverse the order of the district court and remand the matter
for further proceedings consistent with this opinion.




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                                          BACKGROUND
         Paseka Farms, Inc. and Hall both own large parcels of land in Dodge County which are
divided by an earthen berm. Immediately west of the earthen berm is the claimed tract, which is
the subject of this dispute. Prior to trial the parties entered into a stipulation of facts which was
received into evidence. Restated and summarized, the parties stipulated that the following facts
were true:
         (1) That the Pasekas, as trustees of the Trust, are owners of Paseka Farms.
         (2) Paseka Farms has farmed all the tillable ground on the claimed tract from March 1,
2004, through February 28, 2015, in an open, obvious, continuous, notorious, exclusive, and
adverse manner pursuant to three agricultural land leases comprising the entire period.
         (3) From at least 1978 to the present day, neither Hall nor any of his predecessors in title,
farmed any portion of the claimed tract.
         (4) During the same period from 1978 to 2015, the Pasekas’ predecessors in title, the
O’Connors, either farmed all the tillable ground on the claimed tract or they leased all the tillable
ground to third parties including the Pasekas.
         (5) The use and occupation of the claimed tract for farming by the O’Connors and their
tenants from 1978 through 2015 was open, obvious, continuous, notorious, exclusive, and adverse
to the interests of Hall and his predecessors in title.
         During trial additional facts were established. Hall inherited his parcel from his
predecessors in title in 1999. Hall operates a business in Omaha, and he has always leased his acres
to a tenant, Taylor Farms. The ground Hall inherited actually includes the claimed tract in dispute
which is described in a survey Hall commissioned in June 2014. Neither Hall nor his tenant have
ever farmed the claimed tract. Hall commissioned the survey of his property in 2014 because he
was eager to dig an irrigation well for a center pivot system and he wanted to be sure to place the
well in the proper spot. Hall acknowledged he did not pay much attention to the farm ground until
he started spending “a lot of money” on the irrigation project. Hall said he paid Taylor (his tenant)
to pay attention to the property because he was “spending 99 percent of [his] time doing other
things.”
         On June 27, 2014, during the pendency of the Pasekas’ third lease with the O’Connors, the
O’Connors put their farms up for auction, which included all the ground described in the lease
with the Pasekas who thought to include the claimed tract. The Pasekas continued to farm the
claimed tract because the O’Connors had been farming that parcel since at least 1978 and the
Pasekas believed they were responsible for everything the O’Connors had farmed. Donald Paseka
testified that he never had reason to believe that any of the land west of the berm was not owned
by the O’Connors. He noted that the berm was 3 to 4 feet tall and that there was no access to the
claimed tract from the Hall tract on the other side. However, as was determined subsequently, the
property line included in the legal description did not track completely with the berm. Therefore,
although the Pasekas’ knowledge and years of experience farming the leased property had led them
to believe that the legal description tracked with the berm, the legal description on the sale bill did
not in actuality include the claimed tract.




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        The day before the auction the auctioneer was contacted by Hall and advised that Hall’s
June 2014 survey established the claimed tract was actually part of his inherited parcel. The day
of the auction Hall brought a copy of the survey to the auction and the auctioneer announced to
those gathered that a copy of the survey was available for review because there may be a question
as to the exact location of the boundary line. The auctioneer told the bidders the property would
be sold “subject to the survey.”
        Donald was the successful bidder on two of the three parcels of farm ground sold on June
27, 2014, including the parcel to which the claimed tract is attached. Donald acknowledged being
made aware of the description and boundary issues as to the claimed tract but the surveyor was not
present at the auction so there was nobody to talk to about it. “You either bid and buy the property
or you don’t.”
        In August 2014, while Donald was spraying weeds on his newly purchased parcel which
included the claimed tract, he noticed an aluminum stake in his bean field. Donald pulled it out
and put it on the berm which divides his parcel from Hall’s. Donald had a conversation with Hall
about the stake and learned Hall was making a claim for the claimed tract. After the 2014 harvest
three more large steel “T” posts appeared in what Donald believed to be his ground. In the spring
of 2015, Donald applied fertilizer and pre-emergent herbicide in preparation for corn planting
because he “assumed that all the farm ground that had been farmed [for 30 years]” was the ground
he purchased at auction. Donald noticed a large dirt moving machine in the area of the claimed
tract and discovered Hall was digging a drainage trench. The trench was very steep and came right
up to the surveyed boundary between the parcels so it now appeared impossible to turn a tractor
around between the trench and the berm. Donald estimated he lost 3 feet of tillable ground on his
side of the trench due to the possibility of the ground next to the trench giving way if driven over.
Donald did not expect any of the boundary to be in the tillable ground but thought it might have
been in the berm nearby. Donald testified Hall could not access the claimed tract without
trespassing on the Pasekas’ parcel.
                                   ASSIGNMENTS OF ERROR
        The Pasekas assign as error the district court’s finding that they were not in actual,
continuous, exclusive, notorious, and adverse possession of the claimed tract under a claim of
ownership for the required statutory period of 10 years. We do not address the assignments related
to trespass, ejectment, and temporary and permanent injunction but instead leave those matters for
the district court on remand.
                                    STANDARD OF REVIEW
         A quiet title action sounds in equity. In an appeal of an equitable 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, 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. Wanha v. Long, 255 Neb.
849, 587 N.W.2d 531 (1998).




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                                             ANALYSIS
         It is well settled in Nebraska that a party claiming title to real property through adverse
possession must prove by a preponderance of the evidence that the possession of the property has
been actual, continuous, exclusive, notorious, and adverse to the rights of the actual owner for a
period of 10 years. Id. Possession is the key element in a claim of adverse possession. Nennemann
v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993). And the evidence in this case clearly establishes
the O’Connors and the Pasekas had farmed the disputed tract from 1978 through 2015. See Rush
Creek Land & Livestock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998) (tenant may
adversely possess real property in name of his landlord). Hall did not realize the tract was part of
his inherited parcel until 2014.
         The district court concluded that the “record [was] absent of any evidence that the
O’Connor family intended to possess the disputed tract through adverse possession” and the
evidence received was “contrary to the premise that the O’Connors intended to pass on a claim of
adverse possession to the [Pasekas].” The district court noted that the “disputed tract was not
contained in any deed or lease agreement between the O’Connor family and the [Pasekas].” The
district court also referred to the announcement at the auction that the 40-acre parcel being sold
was subject to the boundary survey and the “.73 acre disputed tract [was] not contained within the
description of the land that was sold at auction.” The district court also emphasized that the June
27, 2014, purchase agreement for the 40 acres did “not include the disputed tract.” The court added
that “[t]he affidavit and the title certificate documents do not mention the disputed tract, nor do
they indicate that the disputed tract was meant to be part of any of the land conveyed at the auction
sale,” and Hall “did not acknowledge nor was he put on notice that there was a claim of adverse
possession against the disputed tract until he received the Trustee’s Quitclaim Deed in 2015.”
Based on these reasons, the district court determined that the Pasekas failed to meet their burden
“that the O’Connor’s [sic] possession of the disputed tract was adverse under a claim of ownership
and as such it cannot be tacked on by the [Pasekas] to establish the requisite [s]tatutory ten-year
period necessary to perfect title under a claim of adverse possession.”
         We find the stipulation entered into by the parties to be especially persuasive in establishing
the elements of an adverse possession claim. We also find the stipulation overcomes the district
court’s rationale for declining to find the O’Connors transferred and delivered possession of the
claimed tract to the Pasekas by virtue of the language contained first in the leases and then in the
deed following the auction. The ultimate fact to be established is the intent of the transfer and
delivery of the possession of ground so the possession of the true owner does not intervene. Bryan
v. Reifschneider, 181 Neb. 787, 150 N.W.2d 900 (1967). We believe the stipulation and the
evidence produced at trial, including the leases and the sale bills, establishes that the O’Connors
clearly intended to transfer the disputed tract to the Pasekas, which the O’Connors had adversely
possessed since 1978. The fact that the sale bill and the deed following the auction did not include
the legal description of the disputed tract “does not preclude such occupancy from being adverse.
The occupancy does not refer to the deed, but to the fact itself and its hostile character.” Id. at 791,
150 N.W.2d at 904.




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         The district court relied on Bryan v. Reifschneider, supra, to come to the opposite
conclusion. As noted above, the district court found there was insufficient evidence that the
O’Connors intended to transfer possession of the disputed tract to the Pasekas as their successor
in ownership and possession because the tract was not described in the lease agreements or the
deed prepared after the auction and that the auctioneer noted that the sale was proceeding subject
to the potential issue raised by the survey. The district court said this failure prevents the Pasekas
from “tacking” their “adverse possession” of the tract on to the O’Connors’ “adverse possession”
sufficient to permit the court to quiet the title to the tract in the Pasekas.
         We read Bryan v. Reifschneider, supra, to instruct that if there are circumstances showing
an intent to transfer possession, even though the land is not described in a lease or deed, there is
sufficient privity to permit “tacking” for the purpose of establishing title by adverse possession.
Id. at 791, 150 N.W.2d at 904. Among the factors to be considered as to whether the taking of
lands contiguous to the “calls of the deed” are whether those lands have been used by the grantor
and are apparent by reason of the location of fences, buildings, roads, or other evidence. Id. When
the O’Connors leased their parcel to the Pasekas it was the Pasekas’ expectation that they would
continue to farm the claimed tract since the O’Connors “had always farmed” the tract. The
photographs received into evidence demonstrate that a well-defined berm existed between the land
farmed by Hall’s tenants and his predecessors and the land farmed by the Pasekas and the
O’Connors. This berm was the de facto boundary going back to at least 1978. The leases between
the O’Connors and the Pasekas were executed to facilitate the O’Connors’ retirement. We note
that a tenant may adversely possess real property in the name of his landlord. See Bryan v.
Reifschneider, supra. See, also, Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993).
After purchasing the property, the Pasekas carried on as always.
         We believe the Pasekas have established the necessary privity with the O’Connors to
permit tacking. Bryan v. Reifschneider, supra, explains that “privity” means “privity of possession.
It is the transfer of possession, not title, which is the essential element. The privity required is that
there must be a continuous possession by mutual consent, so that the possession of the true owner
shall not constructively intervene.” Id. at 792, 150 N.W.2d at 904. Having established the
O’Connors’ intent to transfer possession of the claimed tract and the Pasekas’ privity to the
O’Connors, we believe the Pasekas are able to sustain their claim of ownership of the claimed tract
by adverse possession.
         In this case, as in Bryan v. Reifschneider, 181 Neb. 787, 150 N.W.2d 900 (1967), the
evidence establishes that the O’Connors, and the Pasekas after them, “possessed” the claimed tract
openly, notoriously, exclusively, adverse to the interest of the true owner, and continuously for the
full statutory period. The O’Connors farmed the parcel which included the claimed tract since
1978 and the Pasekas took over from 2004 through 2015. Hall never claimed title to the claimed
tract, nor has he ever used it for the purpose for which it was generally adapted. See Bryan v.
Reifschneider, supra. Hall testified he inherited the land in 1999 and he left the farming to his
tenant because he spent 99 percent of his time doing other things. Hall had no reason to make any
claim on the disputed tract until he commissioned a survey in conjunction with his irrigation
project in 2014. We find that the auctioneer’s announcement that the land was being sold subject
to Hall’s survey was insufficient to overcome the rightful ownership of the claimed tract. By then



                                                  -5-
the elements of adverse possession and the time of possession had been satisfied by the O’Connors
and the Pasekas. The parties stipulated that the elements of adverse possession existed for 37 years
leading up to 2015, of which the last 11 years directly involved the Pasekas. The Pasekas were
therefore entitled to possess the entirety of the tract of land they and the O’Connors had farmed.
        After reviewing the evidence de novo as we are required to do, we find the district court
erred in finding the Pasekas had failed to meet their burden of proof to establish by a preponderance
of the evidence that they were entitled to tack on adverse possession of the disputed tract through
their predecessors in title. Accordingly, we reverse the findings of the district court and remand
the cause for further proceedings on the remaining claims.
                                          CONCLUSION
        The order of the district court is reversed, and the cause is remanded for a decision of the
district court on the remaining claims of trespass, ejectment, and temporary and permanent
injunction.
                                                                     REVERSED AND REMANDED FOR
                                                                     FURTHER PROCEEDINGS.




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