Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/26/2019 09:06 AM CDT




                                                      - 784 -
                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                               SIEDLIK v. NISSEN
                                               Cite as 303 Neb. 784




                              R ay Siedlik and Terri Siedlik, appellants, v.
                                Daniel Nissen and Deb Nissen, appellees.
                                                  ___ N.W.2d ___

                                        Filed July 26, 2019.    No. S-18-899.

                 1. Equity: Quiet Title. A quiet title action sounds in equity.
                 2. Equity: Appeal and Error. On appeal from an equity action, an appel-
                    late court decides factual questions de novo on the record and, as to
                    questions of both fact and law, is obligated to reach a conclusion inde-
                    pendent of the trial court’s determination.
                 3. Equity: Evidence: Appeal and Error. In an appeal of an equity action,
                    where credible evidence is in conflict on a material question of fact, an
                    appellate court considers and may give weight to the fact that the trial
                    court heard and observed the witnesses and their manner of testifying,
                    and accepted one version of the facts rather than another.
                 4. Adverse Possession: Appeal and Error. In an action to establish title
                    by adverse possession, an appellate court may give consideration to the
                    fact that the trial court personally viewed the premises involved therein.
                 5. Adverse Possession: Proof: Time. 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) exclu-
                    sive, (4) notorious, and (5) adverse possession under a claim of owner-
                    ship for a statutory period of 10 years.
                 6. Adverse Possession: Notice. 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 the adverse possession of another.
                 7. ____: ____. The purpose of prescribing the manner in which an adverse
                    holding will be manifested is to give notice to the real owner that his
                    or her title or ownership is in danger so that he or she may, within the
                    period of limitations, take action to protect his or her interest. It is the
                    nature of the hostile possession that constitutes the warning, not the
                    intent of the claimant when he or she takes possession.
                                     - 785 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                              SIEDLIK v. NISSEN
                              Cite as 303 Neb. 784

 8. ____: ____. Something more than a neighbor’s watering and mowing
    over the property line is needed to alert a reasonable owner that his
    or her title is in danger and he or she must take steps to protect his or
    her interest.
 9. Adverse Possession: Boundaries. Proof of the adverse nature of the
    possession of 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.
10. Adverse Possession: Proof. A claimant of title by adverse possession
    must show the extent of his or her possession, the exact property which
    was the subject of the claim of ownership, that his or her entry covered
    the land up to the line of his or her claim, and that he or she occupied
    adversely a definite area sufficiently described to found a verdict upon
    the description.
11. Appeal and Error. An appellate court will not consider an issue on
    appeal that was not passed upon by the trial court.

  Appeal from the District Court for Cass County: Michael A.
Smith, Judge. Affirmed.
   Douglas W. Ruge for appellants.
   Joel M. Carney and William J. Hale, of Goosmann Law
Firm, P.L.C., for appellees.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Funke, J.
   This is an action brought by Ray Siedlik and Terri Siedlik to
quiet title to a tract of land located in Cass County, Nebraska.
The Siedliks claimed title by adverse possession to a 6-foot
tract owned by abutting landowners Daniel Nissen and Deb
Nissen. The district court found in favor of the Nissens, and the
Siedliks appealed. We affirm.
                    I. BACKGROUND
   In December 2004, the Siedliks moved into a newly con-
structed home located on “Lot 3, Block 7, Buccaneer Bay”
(Lot 3), in Cass County, Nebraska. Lot 3 is bordered on the
                              - 786 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        SIEDLIK v. NISSEN
                        Cite as 303 Neb. 784

west by “Lot 4, Block 7, Buccaneer Bay” (Lot 4). Lot 4 is a
vacant lot owned by the Nissens, who have occupied a resi-
dence on the lot directly west of Lot 4 since 2001. Daniel testi-
fied that after the Siedliks moved in, Ray offered to purchase
Lot 4 or a portion thereof, but Daniel had no plans to sell.
   In April 2005, the Siedliks installed improvements over the
property line, which included two sprinkler heads, a sprinkler
control box, landscaping, and a wooden fence. The front sprin-
kler head was placed 51⁄2 feet into Lot 4, which marked the fur-
thest encroachment. The sprinkler heads were intended to line
up with a stake located in the rear west corner of the Siedliks’
property, but were mistakenly placed beyond the boundary line
due to the curvature of Buccaneer Boulevard. The Siedliks
placed the front sprinkler head in their front yard about 5 feet
south of Buccaneer Boulevard, which they thought was the
northwest corner of their property. The second sprinkler head
was placed about halfway down the yard, 3 feet into Lot 4.
The Siedliks graded and laid sod and erected a wooden fence
down the same line, known as the sprinkler line. The disputed
area is pie shaped with the widest point at the front of the lot
and the end point located at the rear stake traveling along the
sprinkler line.
   The Nissens took photographs while the Siedliks installed
these improvements, were aware of the grading and laying
of sod, and witnessed the sprinklers water the sodded area.
Daniel testified that when Terri was working in the yard in
2006 or 2007, she represented that the Siedliks would never
encroach. Both the Siedliks and the Nissens believed that the
improvements were built on the Siedliks’ property, but a 2016
survey conducted by the Nissens revealed the true property
line and the Siedliks’ encroachments. Around this same time,
the Siedliks voluntarily moved their fence and sprinkler heads
closer to their house.
   The parties began negotiating an agreement to extend the
Siedliks’ land 2 feet into Lot 4 for nearly the full length of the
property line. The potential land sale was for a total of 230
                              - 787 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        SIEDLIK v. NISSEN
                        Cite as 303 Neb. 784

square feet. The Siedliks conducted a survey which confirmed
the true property line and included the following legal descrip-
tion for the proposed property acquisition:
      PART OF LOT 4, BLOCK 7, BUCCANEER BAY,
      CASS COUNTY, NEBRASKA[,] BEGINNING AT
      THE NORTHEAST CORNER OF LOT 4, BLOCK 7,
      BUCCANEER BAY; THENCE N 89°53′35ʺ E (ASSUMED
      BEARING), 2.00 FEET ALONG THE NORTH LINE OF
      SAID LOT 4, BLOCK 7, BUCCANEER BAY; THENCE
      S 00°06ʹ25ʺ E, 80.00 FEET; THENCE S 01°44ʹ36ʺ
      E, 70.03 FEET TO THE SOUTHEAST CORNER OF
      SAID LOT 4, BLOCK 7, BUCCANEER BAY; THENCE
      N 00°06ʹ25ʺ W, 150.00 FEET TO THE POINT OF
      BEGINNING. DESCRIBED TRACT CONTAINS 230
      SQUARE FEET.
   On December 29, 2016, the Siedliks filed an amended com-
plaint seeking to quiet title in a 6-foot tract of land in Lot 4.
The Siedliks alleged that for a period of approximately 12 years,
their fence, retaining wall, and rock area encroached onto the
Nissens’ property. The Siedliks alleged that during this time
period, they continuously and exclusively maintained, mowed,
and utilized an area of land 6 feet beyond the boundary line.
The Siedliks attached to the amended complaint “Exhibit ‘A,’”
which contained the same survey property depiction as exhibit
12, shown on page 788.
   In their prayer for relief, they requested an “[o]rder quiet-
ing legal title in the 230 square feet of property referenced
in ‘Exhibit A.’” In addition, the Siedliks requested that the
court quiet title in “an area up to six feet into the [Nissens’]
property.”
   The Nissens filed an answer denying the allegations and
affirmatively alleging that the Siedliks’ possession of the prop-
erty was not under a claim of ownership. The Siedliks moved
for summary judgment, which the court overruled. The court
inspected the property in the presence of the parties’ attorneys
and held a trial on July 25, 2018.
                             - 788 -
          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
                       SIEDLIK v. NISSEN
                       Cite as 303 Neb. 784




   At trial, Ray testified that he exclusively used and main-
tained the land inside the sprinkler line. He testified that he
mowed and replaced sod in this area and that the opposite side
of the sprinkler line was overgrown with longer grass and tall
weeds, which meant that the sprinkler line was also referred to
as the “weed line.” The Siedliks offered overhead photographs
taken in August 2005 and October 2006 which demonstrated
the weed line.
   Daniel testified that the Siedliks’ use of the disputed area
within the relevant time period was not always exclusive. He
                                  - 789 -
             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                            SIEDLIK v. NISSEN
                            Cite as 303 Neb. 784

testified that he also mowed the area, up to about 6 inches from
the fence, until 2008 when the parties had a dispute. Thereafter,
the parties recognized an “imaginary line” and Daniel then
mowed up to the sprinkler line. Ray disputed this testimony by
stating that Daniel mowed up to the sprinkler line until 2008
and let the weeds grow thereafter. He stated that he and Daniel
mowed at different heights and that when Daniel mowed he
mowed the grass down to the dirt.
    Ray testified at length about his desire to maintain control
over the disputed area in order to prevent flooding issues to
his home. In 2012 or 2013, the Siedliks experienced flooding
in their basement because Lot 3 sat lower than Lot 4. As a
result, the Siedliks installed in the disputed area portions of a
lower retaining wall and a drainage system.
    In 2016, around the time of the Nissens’ survey, the Siedliks
replaced their wooden fence with a vinyl fence that did not
encroach. There was conflicting evidence as to whether one
or both of the sprinkler heads still encroached after they were
moved back. The sprinkler control box, grading and sod, and
lower retaining wall remained over the property line.
    At the close of the evidence, the Siedliks moved to conform
the pleadings to the evidence adduced at trial. Their counsel
stated that the motion was intended to address a potential dis-
crepancy between the amount of land claimed in paragraphs
6 and 7 in the amended complaint and the evidence at trial.
Counsel for the Siedliks specifically asked that the court reform
paragraph 7 to be consistent with paragraph 6. Both paragraphs
claimed a 6-foot tract of land, but paragraph 7 also claimed the
“land depicted in ‘Exhibit A,’” which claimed only a 2-foot
tract, and the most that Ray claimed in his testimony was a
51⁄2-foot tract. The court granted the motion and amended the
pleading “to comply with the proof as received.”
    Following trial, the court entered an order of dismissal.
The court relied on Poullos v. Pine Crest Homes1 for the rule

1
    Poullos v. Pine Crest Homes, 293 Neb. 115, 876 N.W.2d 356 (2016).
                                  - 790 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                            SIEDLIK v. NISSEN
                            Cite as 303 Neb. 784

that mere maintenance of land, such as mowing or landscap-
ing, does not constitute sufficiently hostile possession to put
a landowner on notice of adverse possession. The court found
the evidence showed that the Siedliks had not used the land
in a manner different from general maintenance. The court
found that the fence and at least one of the sprinkler heads
no longer encroached and that the remaining items which had
been in place for longer than 10 years, such as the sprinkler
control box and landscaping, encroached by less than 2 feet.
The court found these intrusions were not sufficiently notori-
ous to sustain a claim to quiet title by adverse possession.
We moved the appeal to our docket pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this State.2
                II. ASSIGNMENTS OF ERROR
   The Siedliks assign that the district court erred in finding
(1) insufficient notorious use of the disputed land to sustain a
claim for adverse possession and (2) insufficient notorious use
of the disputed land to sustain a claim for the boundary line
by acquiescence.
                 III. STANDARD OF REVIEW
   [1,2] A quiet title action sounds in equity.3 On appeal from
an equity action, an appellate court decides factual questions
de novo on the record and, as to questions of both fact and
law, is obligated to reach a conclusion independent of the trial
court’s determination.4
   [3,4] In an appeal of an equity action, where credible evi-
dence is in conflict on a material question of fact, an appellate
court considers and may give weight to the fact that the trial

2
    See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
3
    Brown v. Jacobsen Land & Cattle Co., 302 Neb. 538, 924 N.W.2d 65
    (2019); Poullos, supra note 1; Wanha v. Long, 255 Neb. 849, 587 N.W.2d
    531 (1998).
4
    Id.
                                  - 791 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                            SIEDLIK v. NISSEN
                            Cite as 303 Neb. 784

court heard and observed the witnesses and their manner of
testifying, and accepted one version of the facts rather than
another.5 We may also give consideration to the fact the trial
court personally viewed the premises involved therein.6

                          IV. ANALYSIS
                      1. A dverse Possession
   [5] The Siedliks sought to quiet title under the theory of
adverse possession. A party claiming title through adverse pos-
session 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 a statutory period of 10 years.7 The
Siedliks argue on appeal that the district court erred in find-
ing their encroachments were not sufficiently notorious. Upon
de novo review, we conclude that regardless of the errors
assigned by the Siedliks, the district court correctly dismissed
the Siedliks’ amended complaint due to the Siedliks’ failure to
prove all of the elements of adverse possession.
   [6] The acts of dominion over land allegedly adversely pos-
sessed 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 the adverse possession of
another.8 If an occupier’s physical actions on the land consti-
tute visible and conspicuous evidence of possession and use of
the land, that will generally be sufficient to establish that pos-
session was notorious.9 Although the enclosure of land renders

5
    See, Steinfeldt v. Klusmire, 218 Neb. 736, 359 N.W.2d 81 (1984); Shirk
    v. Schmunk, 192 Neb. 25, 218 N.W.2d 433 (1974). See, also, Fredericks
    Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).
6
    Shirk, supra note 5. See, Grint v. Hart, 216 Neb. 406, 343 N.W.2d 921
    (1984); Barry v. Wittmersehouse, 212 Neb. 909, 327 N.W.2d 33 (1982).
7
    Poullos, supra note 1.
8
    Id.
9
    Id.
                                    - 792 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              SIEDLIK v. NISSEN
                              Cite as 303 Neb. 784

the possession of land open and notorious, and tends to show
that it is exclusive, it is not the only way by which possession
may be rendered open and notorious.10 Nonenclosing improve-
ments to land, such as erecting buildings or planting groves or
trees, which show an intention to appropriate the land to some
useful purpose, are sufficient.11
   In this matter, the evidence showed that the amount of land
claimed by the Siedliks varied at different places along the
boundary line. The angling of the disputed area meant that
the amount of land claimed decreased when moving from the
front yard toward the backyard.
                           (a) Front Yard
   In the front yard, which runs from the street to the approxi-
mate front of the house, the Siedliks claimed 51⁄2 feet of land
due to the placement of the front sprinkler head and the main-
taining of the grass in the area. The evidence does support the
Siedliks’ contention that they maintained the lawn in this area.
However, the evidence also indicates that other than the sprin-
kler head, no structures or improvements were located within
this 51⁄2 feet.
   [7] It is the Siedliks’ burden to establish all of the elements
of adverse possession by a preponderance of the evidence.
With respect to the front lawn, there was a failure of proof
regarding the element of adverse possession under a claim
of ownership. Claim of ownership means a possession that is
hostile, meaning that an occupant holds and is in possession
of land as the owner and against all other claimants.12 The
purpose of prescribing the manner in which an adverse hold-
ing will be manifested is to give notice to the real owner that
his or her title or ownership is in danger so that he or she may,
within the period of limitations, take action to protect his or

10
     Id.
11
     Id.
12
     See, Brown, supra note 3; Wanha, supra note 3.
                                   - 793 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             SIEDLIK v. NISSEN
                             Cite as 303 Neb. 784

her interest. It is the nature of the hostile possession that con-
stitutes the warning, not the intent of the claimant when he or
she takes possession.13
   [8] With respect to the Siedliks’ maintenance of the yard, the
evidence does not suggest that their possession was hostile in
nature, or something more than maintaining the aesthetics of
the area. In considering the nature of the possession, we note
that Terri announced that the Siedliks would not encroach. The
Siedliks did not erect any structures in the area or appropriate
the land for some useful purpose. We have previously held that
acts of routine yard maintenance, without more, are insufficient
to warn the titleholder that another is claiming or using the
land for his own purpose.14 Something more than a neighbor’s
watering and mowing over the property line is needed to alert
a reasonable owner that his or her title is in danger and he or
she must take steps to protect his interest.15 Additionally, courts
from other jurisdictions have held that mere maintenance of
land, such as mowing the grass, cutting the weeds, planting
flowers, and minor landscaping, does not constitute a hostile
character of possession sufficient to give notice of an exclusive
adverse possession.16
   Upon de novo review, we find the Siedliks have failed to
prove, by a preponderance of the evidence, the necessary ele-
ments to support a claim of adverse possession of the land
located adjacent to the front yard.

                       (b) Middle Yard
   Near the middle of the yard, which runs from approximately
the front of the house to the back of the house, the Siedliks

13
     Id.
14
     Poullos, supra note 1.
15
     Id.
16
     See, Shibley v. Hayes, 214 Ark. 199, 215 S.W.2d 141 (1948); Bailey v.
     Moten, 289 Ga. 897, 717 S.E.2d 205 (2011); Crown Credit Co., Ltd. v.
     Bushman, 170 Ohio App. 3d 807, 869 N.E.2d 83 (2007); Montieth v.
     Church, 68 Ohio App. 2d 219, 428 N.E.2d 870 (1980).
                                    - 794 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              SIEDLIK v. NISSEN
                              Cite as 303 Neb. 784

claimed 3 feet of land due to the placement of a second sprin-
kler head, a sprinkler control box, a lower retaining wall, and
landscaping. In light of the district court’s findings, as well as
our review of the evidence, we find the record indicates that
these improvements encroached by less than 1 foot into the
disputed area.
   Of importance, the evidence concerning a tract of land 2 feet
in width referred only to a term used in negotiations and not as
a measure of the land under a claim of ownership. The parties
included a legal description for the proposed 2-foot tract in a
draft purchase agreement, which the Siedliks signed but the
Nissens declined to sign. The record does not contain a legal
description for the property which the Siedliks claimed to have
adversely possessed.
   [9,10] We have long recognized that proof of the adverse
nature of the possession of 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.17 A claimant of title by adverse possession
must show the extent of his or her possession, the exact prop-
erty which was the subject of the claim of ownership, that his
or her entry covered the land up to the line of his or her claim,
and that he or she occupied adversely a definite area suffi-
ciently described to found a verdict upon the description.18 This
standard requires that the claimant provide to the trial court a
precise legal description rather than general descriptions based
on landmarks.19

17
     Schellhorn v. Schmieding, 288 Neb. 647, 851 N.W.2d 67 (2014); Inserra
     v. Violi, 267 Neb. 991, 679 N.W.2d 230 (2004); Matzke v. Hackbart, 224
     Neb. 535, 399 N.W.2d 786 (1987).
18
     Inserra, supra note 17; Pokorski v. McAdams, 204 Neb. 725, 285 N.W.2d
     824 (1979).
19
     See, Inserra, supra note 17; Petsch v. Widger, 214 Neb. 390, 335 N.W.2d
     254 (1983). See, also, Royal v. McKee, 298 Neb. 560, 905 N.W.2d 51
     (2017); Sawtell v. Bel Fury Investments Group, 19 Neb. App. 574, 810
     N.W.2d 320 (2012).
                                    - 795 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              SIEDLIK v. NISSEN
                              Cite as 303 Neb. 784

    The Siedliks failed to describe the land with enough par-
ticularity, because they did not provide a legal description for
the land over which they claimed ownership. It is clear based
on the evidence adduced at trial and the Siedliks’ motion to
amend the pleadings that the Siedliks sought to quiet title in
a 51⁄2-foot strip of land and that the only legal description in
evidence pertained to a proposed acquisition of a tract of land
2 feet in width.
    We have consistently rejected adverse possession claims
when the burden to provide a specific land description is not
met. In Inserra v. Violi,20 we concluded that the claimants
did not meet their burden of proving “an exact and definite
description of [the] portion of [the lot] to which they claim[ed]
title by adverse possession.” In Matzke v. Hackbart,21 we
rejected a claim where the description provided was “an admit-
ted estimation, with no factual basis expressed in the record.”
In Steinfeldt v. Klusmire,22 we noted that the claimant’s evi-
dence “failed to establish any specific boundaries.” The lack
of a precise land description for a court to enter a judgment
upon can create problems for future transactions involving
the land.23
    As noted, the evidence of encroachments varied along the
boundary line. After personally inspecting the land at issue,
the district court found that the fence and at least one of the
sprinkler heads no longer encroached and that the Siedliks’
encroachments were “less than two feet over the property line.”
(Emphasis supplied.) This finding is consistent with Ray’s tes-
timony that the sprinkler control box encroached by 6 inches,
as well as with photographs in evidence which showed that the
lower retaining wall rested directly on the property line. This
evidence suggests that the legal description of the 2-foot tract

20
     Inserra, supra note 17, 267 Neb. at 996, 679 N.W.2d at 235.
21
     Matzke, supra note 17, 224 Neb. at 541, 399 N.W.2d at 791.
22
     Steinfeldt, supra note 5, 218 Neb. at 739, 359 N.W.2d at 83.
23
     See Sawtell, supra note 19.
                                    - 796 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              SIEDLIK v. NISSEN
                              Cite as 303 Neb. 784

cannot be used to support the Siedliks’ quiet title claim. The
varied length of the encroachments along the boundary line
only reinforces the fact that the Siedliks’ possession of the area
was not hostile in nature. Moreover, the lower retaining wall
and drainage system were located in the disputed area for less
than the required 10-year period.
   Upon de novo review, and according deference to the district
court’s findings based on its inspection of the premises, we
determine that the Siedliks have failed to prove, by a prepon-
derance of the evidence, the necessary elements to support a
claim of adverse possession of the land located adjacent to the
middle yard. We conclude that the Siedliks did not meet their
burden to provide a specific description for the land which they
sought to claim by adverse possession.

                          (c) Backyard
   Toward the back of the yard, which runs from the back
portion of the house to the rear of the lot, the Siedliks
claimed the disputed land due to the placement of a wooden
fence. Where a fence has been constructed as a boundary
line between the property of two landowners, one of whom
claimed ownership to such fence line for the full statutory
period of 10 years, and is not interrupted in his possession
or control during that time, he or she will, by adverse pos-
session, gain title to such land as may have been improperly
enclosed within his or her own land.24 However, the evidence
is undisputed that the fence was not constructed as a boundary
line. This court has held that where neither party considered
a fence a boundary, the fence does not constitute evidence of
adverse possession.25
   The evidence indicates that a fence was erected in 2005 com-
mencing at the back of the house and running to the southern

24
     McGowan v. Neimann, 144 Neb. 652, 14 N.W.2d 326 (1944).
25
     See Wanha, supra note 3, citing Thornburg v. Haecker, 243 Neb. 693, 502
     N.W.2d 434 (1993).
                                  - 797 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                            SIEDLIK v. NISSEN
                            Cite as 303 Neb. 784

end of the property line. There was testimony that the corner
of the fence nearest to the house encroached about 3 feet into
the Nissens’ land. However, there was no evidence to establish
how much the remaining portions of fence encroached upon
the disputed area. Further, the evidence shows that prior to fil-
ing suit, the Siedliks removed the wooden fence and replaced
it with a vinyl fence located inside their property line. As a
result, the only survey received into evidence does not depict
the location of the old fence, and no legal description was pro-
vided to indicate the amount of encroachment.
    Additionally, the Siedliks claimed possession of the land
beyond the fence up to the sprinkler line. There was evidence
that until 2008, Daniel mowed beyond the sprinkler line and
into the disputed area about every other week. Possession must
be exclusive, and if the occupier shared possession with the
title owner, the occupier may not obtain title by adverse pos-
session.26 Where the record establishes that both parties have
used the property in dispute, there can be no exclusive posses-
sion on the part of one party for the purpose of establishing
adverse possession.27
    Upon de novo review, we find the Siedliks have failed to
prove, by a preponderance of the evidence, the necessary ele-
ments to support a claim of adverse possession of the land
located adjacent to the backyard.

                    2. Boundary Acquiescence
   [11] With respect to the Siedliks’ second assignment of
error, the record shows that the district court did not pass
upon a claim for quiet title based on the theory of boundary
acquiescence and that the Siedliks are advancing this theory
for the first time on appeal. Because an appellate court will not
consider an issue on appeal that was not passed upon by the

26
     Wanha, supra note 3.
27
     Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003);
     Wanha, supra note 3.
                                 - 798 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                           SIEDLIK v. NISSEN
                           Cite as 303 Neb. 784

trial court,28 we do not address the Siedliks’ contention that the
court erred in failing to sustain a claim for the boundary line
by acquiescence.
                    V. CONCLUSION
   Based upon the foregoing, we affirm the judgment of the
district court.
                                               A ffirmed.

28
     Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774
     (2018).
