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05/28/2019 12:06 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     27 Nebraska A ppellate R eports
                           CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                                           Cite as 27 Neb. App. 276




                                  Charity Field Farms, Inc., appellant, v.
                                    Board of Educational Lands and
                                         Funds et al., appellees.
                                                  ___ N.W.2d ___

                                        Filed May 21, 2019.     No. A-18-044.

                 1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
                    question does not involve a factual dispute, determination of a jurisdic-
                    tional issue is a matter of law which requires an appellate court to reach
                    a conclusion independent from the trial court’s.
                 2. Jurisdiction: Appeal and Error. When a lower court lacks the author-
                    ity to exercise its subject matter jurisdiction to adjudicate the merits of
                    the claim, issue, or question, an appellate court also lacks the power to
                    determine the merits of the claim, issue, or question presented to the
                    lower court.
                 3. Administrative Law: Final Orders: Appeal and Error. Under the
                    Administrative Procedure Act, any person aggrieved by a final decision
                    in a contested case, whether such decision is affirmative or negative in
                    form, shall be entitled to judicial review.
                 4. Administrative Law: Words and Phrases. For purposes of the
                    Administrative Procedure Act, a contested case is defined as a proceed-
                    ing before an agency in which the legal rights, duties, or privileges of
                    specific parties are required by law or constitutional right to be deter-
                    mined after an agency hearing.

                 Appeal from the District Court for Lancaster County: K evin
               R. McM anaman, Judge. Appeal dismissed.
                  David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
               P.C., for appellant.
                 Douglas J. Peterson, Attorney General, and James D. Smith,
               Solicitor General, for appellees.
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      CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                      Cite as 27 Neb. App. 276

  Pirtle, A rterburn, and Welch, Judges.
  A rterburn, Judge.
                      INTRODUCTION
   Charity Field Farms, Inc. (Charity Field), requested that the
Board of Educational Lands and Funds refer a dispute over
a land survey which had arisen between Charity Field and a
neighboring land owner, Trampe Bros., L.L.C., to Nebraska’s
State Surveyor for an evidentiary hearing and settlement. At
the time of Charity Field’s request, it was involved in litiga-
tion with Trampe Bros. regarding a property line dispute and
an associated land survey. After a regular meeting of the
board, it declined to refer the dispute to the State Surveyor.
Charity Field sought judicial review of the board’s decision.
The Lancaster County District Court concluded it lacked sub-
ject matter jurisdiction because the board’s decision “was
not a final order in a contested case.” See Neb. Rev. Stat.
§ 84-917(1) (Reissue 2014). The court dismissed Charity
Field’s purported appeal from the board’s decision, and now
Charity Field appeals to this court. Upon our review, we
determine that the district court did not have jurisdiction and
that as such, we also lack jurisdiction. Therefore, the appeal
is dismissed.
                       BACKGROUND
   Before we recite the factual circumstances surrounding this
appeal, we note some concerns regarding the record before
us. In particular, we note that our “record” of the proceedings
held before the board was created by Charity Field, and not
the board, which was the agency presiding over the proceed-
ings. This “record” is found in the transcript as an attachment
to the “Appeal” that was filed in the Lancaster County District
Court. Charity Field has provided some indication that the
board refused to make or provide an official record regarding
what transpired at the pertinent board meeting. Ultimately,
we need not decide whether the record before us is proper,
because even if we consider the record created and provided
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               27 Nebraska A ppellate R eports
       CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                       Cite as 27 Neb. App. 276

by Charity Field, we conclude that we do not have juris-
diction to consider the merits of Charity Field’s assertions.
Accordingly, we simply note that our recitation of the factual
circumstances underlying this appeal are taken from an “unof-
ficial” record created by Charity Field.
   On January 5, 2017, counsel for Charity Field sent two let-
ters to the office of the State Surveyor. In one of the letters,
counsel describes the ongoing litigation between Charity Field
and Trampe Bros. and indicates that Charity Field is request-
ing that the State Surveyor resolve a dispute regarding a land
survey that was conducted as a part of the litigation. That let-
ter reads as follows:
         [Trampe Bros. and Charity Field] are involved in lit-
      igation filed in the District Court of Phelps County,
      Nebraska. This litigation involves accretion land. As a
      result of the litigation a survey of the accretion land and
      surrounding land, together with designation of bounda­
      ries was prepared by Mitch Humphrey, dated December
      7, 2016, and concerns land in Sections 10 & 15 in
      Township 8 North, Range 17 West. This survey designat-
      ing boundaries has created a dispute between the parties.
      As attorneys for . . . Charity [Field], pursuant to §84-410
      Neb. R.R.S., it is requested that this dispute be referred
      to the State Surveyor for settlement and hearing be held
      on the matter.
         To make it clear, Charity Field[’s] dispute is limited to
      the surveyor’s designation and placement of the boundary
      line between Buffalo and Phelps County, Nebraska and
      the surveyor’s opinion, set forth in the survey, that a cer-
      tain location on the survey is the “thread of the stream”.
   In the second January 5, 2017, letter to the office of the
State Surveyor, Charity Field’s counsel writes that Charity
Field “respectfully objects to the filing” of the December 2016
land survey authored by Mitch Humphrey. Counsel explains:
         Because, according to statute, the information con-
      tained within a filed survey is given the status of “prima
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      CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                      Cite as 27 Neb. App. 276

      facie evidence of correctness”, it is important that a sur-
      veyor’s mere opinion [regarding the location of the thread
      of the stream] appearing on a survey is not given the sta-
      tus of “prima facie evidence of correctness.”
   Counsel for Charity Field wrote a third letter to the office
of the State Surveyor on January 25, 2017. In this letter, coun-
sel notes that after the January 5 letters were forwarded to the
office, Humphrey’s December 2016 land survey was, in fact,
filed over Charity Field’s objection. The January 25 letter
renews the objections to the now filed survey and requests that
the land survey “be stricken from [the] repository.”
   On February 2, 2017, the board responded to Charity Field’s
previous correspondence. In a written letter, the chief execu-
tive officer of the board wrote:
         The Nebraska Board of Educational Lands and Funds
      has received your correspondence addressed to the State
      Surveyor, dated January 5, 2017 wherein, essentially, you
      request that an inquiry or dispute regarding a survey be
      referred to the State Surveyor for his opinion, in refer-
      ence to Section 84-410, Neb. R.R.S.
         This letter is to inform you that this matter has been
      placed on the agenda to be discussed at the Board of
      Educational Lands and Funds’ next regularly scheduled
      meeting on Friday, February 17th at 8:15 a.m. at our
      offices in Lincoln, Nebraska. A total of 1⁄2 hour has
      been allocated to this issue, which time shall be divided
      proportionately among any members of the public who
      appear to provide comment.
         Should you wish to be heard on this matter, please be
      present on the above date at the aforementioned time,
      which meeting will be held in our Board room.
   Counsel for Charity Field continued corresponding with the
board in a letter dated February 7, 2017. In the letter, counsel
for Charity Field expresses some confusion with what was
to transpire at the board’s meeting on February 17. Counsel
expressed concern that the board meeting would not be “an
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      CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                      Cite as 27 Neb. App. 276

evidentiary hearing as contemplated by the statute and as we
requested.” Charity Field requested that it be provided with an
opportunity to present evidence and argument on its position
at a hearing without such a limited timeframe. Charity Field
also indicated its desire to have a court reporter present at
the evidentiary hearing in order to make a record. The board
responded to Charity Field’s inquiry the next day. In a letter
dated February 8, 2017, the board explained that “the item
placed upon the agenda of the Board of Educational Lands
and Funds is to allow the Board of Educational Lands and
Funds to take formal action as to whether to refer this mat-
ter to the State Surveyor,” and that “[p]ursuant to statute, that
step needs to be accomplished prior to the Surveyor rendering
any opinion.”
   Counsel for Charity Field and for Trampe Bros. appeared at
the board meeting on February 17, 2017. Counsel for Charity
Field brought a court reporter to the meeting to make a record.
Counsel then described to the board the underlying litiga-
tion between Charity Field and Trampe Bros. and discussed,
in detail, Charity Field’s objections to the December 2016
land survey authored by Humphrey. In support of Charity
Field’s position, it provided “exhibits” to the board mem-
bers. Such exhibits included copies of the pleadings filed in
the case before the Phelps County District Court; copies of
the correspondence between counsel and the board; portions
of deposition testimony from a designated representative of
Charity Field; and copies of the survey at issue. Ultimately,
Charity Field expressed to the board its belief that because
there was a “legitimate dispute” regarding the land survey, the
board was statutorily required to submit the issue to the State
Surveyor for his review. Counsel for Trampe Bros. also made
a brief statement to the board. First, counsel indicated his
belief that the board meeting was not “an evidentiary hear-
ing” and that, as a result, Trampe Bros. would not be offering
any exhibits. Counsel also argued that the board did not have
jurisdiction to consider the dispute regarding the land survey,
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               27 Nebraska A ppellate R eports
       CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                       Cite as 27 Neb. App. 276

because of the pending litigation in the district court. Finally,
counsel provided case law to the board to demonstrate that
there was no statutory right to review by the State Surveyor
under these circumstances. The board took the “matter under
advisement” and indicated it would render a decision at some
point in the future.
   On March 20, 2017, the board authored a letter addressed
to counsel for Charity Field and to counsel for Trampe Bros.
In the letter, the board indicated that at its regularly scheduled
March board meeting, it had taken a vote regarding whether
to refer the parties’ survey dispute to the State Surveyor. The
letter stated, “It was the determination of the Board, following
a motion, second and unanimous vote, to defer to the jurisdic-
tion of the Phelps County District Court, and thereby deny
Charity Field [its] request to refer this matter to the State
Surveyor’s Office.”
   On April 18, 2017, Charity Field filed a document it enti-
tled “Appeal” in the Lancaster County District Court. The
case caption listed the board, the chief executive officer of
the board, and the State Surveyor as “Appellees.” In the docu-
ment, Charity Field indicated that it was appealing from the
board’s decision to deny its request to submit the dispute over
the December 2016 land survey authored by Humphrey to the
State Surveyor. Charity Field requested that the district court
order the board to submit the dispute to the State Surveyor
for review. The named appellees, including the board, filed
a motion to dismiss Charity Field’s purported appeal. In the
motion, the appellees argued, among other things, that the
district court did not have subject matter jurisdiction to decide
the issue raised in Charity Field’s appeal.
   A hearing was held on the motion to dismiss. After the
hearing, the district court entered a detailed order granting the
motion to dismiss. Specifically, the court found that it lacked
jurisdiction over the matter because it “does not involve an
[Administrative Procedure Act] appeal, a necessary party is
missing, and to entertain the matter would lead to piecemeal
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               27 Nebraska A ppellate R eports
       CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                       Cite as 27 Neb. App. 276

litigation and appeals.” We will further discuss the district
court’s specific findings as necessary in our analysis below.
    Charity Field appeals from the district court’s finding that
it lacked jurisdiction over Charity Field’s appeal from the
board’s decision to deny the request to submit the survey dis-
pute to the State Surveyor.

                  ASSIGNMENTS OF ERROR
   Charity Field’s assignments of error can be summarized to
allege that the district court erred in failing to find that it had
jurisdiction of the matter and in dismissing the case.

                   STANDARD OF REVIEW
   [1] When a jurisdictional question does not involve a fac-
tual dispute, determination of a jurisdictional issue is a matter
of law which requires an appellate court to reach a conclusion
independent from the trial court’s. Kaplan v. McClurg, 271
Neb. 101, 710 N.W.2d 96 (2006).
   [2] When a lower court lacks the authority to exercise its
subject matter jurisdiction to adjudicate the merits of the claim,
issue, or question, an appellate court also lacks the power to
determine the merits of the claim, issue, or question presented
to the lower court. Id.

                           ANALYSIS
   In the district court’s order granting the board’s motion to
dismiss, it indicated that Charity Field’s “Appeal,” purported
to be an appeal pursuant to the Administrative Procedure Act
(APA). See Neb. Rev. Stat. § 84-901 et seq. (Reissue 2014
& Cum. Supp. 2018). However, the court indicated that the
“Appeal” may also be read as an action for declaratory judg-
ment which was asking the district court to direct the board
“to refer a survey dispute between landowners to the State
Surveyor for arbitration.” Ultimately, the district court con-
cluded that under either theory, it did not have jurisdiction to
consider the merits of Charity Field’s claims.
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       CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                       Cite as 27 Neb. App. 276

   The district court found that if the action was to be con-
strued as asking for a declaratory judgment, then the court
did not have jurisdiction because (1) Charity Field did not
join Trampe Bros., which was a necessary party to the action,
and (2) there was already a pending action with regard
to the disputed land in the Phelps County District Court.
The court explained, “Entertaining a declaratory judgment
action in this circumstance would result in the precise judicial
inefficiency, complete with piecemeal litigation and appeals,
that [the Nebraska Supreme Court has previously] strongly
discourage[d].” We note that, on appeal, Charity Field does
not assert that its “Appeal” filed in the district court contained
an action for declaratory judgment. Rather, Charity Field has
proceeded as though the only action raised by the pleading
was an appeal from an agency decision under the APA. As
a result, we need not address whether the district court was
correct in determining that it did not have jurisdiction over a
declaratory judgment action.
   In the district court’s order, it found that it lacked jurisdic-
tion over Charity Field’s purported appeal from the decision
of the board, which is a state agency. The district court con-
cluded that “this matter does not constitute a contested case or
controversy under the APA.” Specifically, the court found that
there was not a contested hearing held before the board and
that the board was not required to refer the dispute over the
December 2016 land survey to the State Surveyor for review.
Upon our review of the record provided to us, we agree with
the findings of the district court.
   [3,4] Under the APA, “Any person aggrieved by a final
decision in a contested case, whether such decision is affirma-
tive or negative in form, shall be entitled to judicial review
under the [APA].” § 84-917(1). For purposes of the APA, a
contested case is defined as a proceeding before an agency in
which the legal rights, duties, or privileges of specific parties
are required by law or constitutional right to be determined
after an agency hearing. See § 84-901(3). See, also, Kaplan v.
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              27 Nebraska A ppellate R eports
      CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                      Cite as 27 Neb. App. 276

McClurg, 271 Neb. 101, 710 N.W.2d 96 (2006). A proceeding
becomes a contested case when a hearing is required. Id.
   Here, there was no hearing held before the board. Rather,
Charity Field attended a regularly scheduled monthly meet-
ing of the board and argued that the board should refer the
dispute over the land survey to the State Surveyor. Arguably,
Charity Field proceeded as though the board meeting were an
evidentiary hearing. Charity Field brought a court reporter to
the meeting to make a record of what occurred. It also offered
“exhibits” to the board as evidence of its position. However,
Charity Field’s actions did not transform the monthly board
meeting into an evidentiary hearing. In fact, in its February
8, 2017, letter to Charity Field, the board made it quite clear
that the monthly board meeting was not an evidentiary hear-
ing. Instead, the issue of whether to refer the dispute over the
land survey to the State Surveyor was merely one item on the
board’s meeting agenda.
   Moreover, the board was not required by law or consti-
tutional right to provide any specific relief to Charity Field.
Contrary to Charity Field’s assertion at the board meeting,
in the district court, and now, in this appeal, the statutorily
defined powers of the board did not require it to refer the
dispute over the land survey to the State Surveyor. Neb. Rev.
Stat. § 84-408 (Reissue 2014) provides, in relevant part: “The
[b]oard . . . shall refer to the State Surveyor all questions or
inquiries relating to surveys, grievances or disputes growing
out of conflicting surveys of lands or lots. The surveyor shall
issue and prepare the advice, instruction and opinion, and issue
the same under the approval of the board.” In addition, Neb.
Rev. Stat. § 84-410 (Reissue 2014) provides as follows:
         In case of any dispute among owners of and arising for
      or by reason of any survey of boundaries of lands within
      this state, or in case of dispute or disagreement between
      surveyors as to said surveys or boundaries, the same
      shall be referred to the State Surveyor for settlement. He
      is hereby appointed as arbitrator to settle and determine
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      such disputes or disagreements as to said surveys and
      boundaries and his decision shall be prima facie evidence
      of the correctness thereof. In making such surveys, the
      State Surveyor and deputies shall each have power in
      any county of the State of Nebraska to summon and
      compel the attendance of witnesses before them to testify
      as to material facts relating to their knowledge of lost or
      obliterated corners. The State Surveyor and deputies are
      authorized and empowered to administer oaths and affir-
      mations to their assistants and to witnesses.
   Although each of these statutory sections is worded such
that the board “shall refer” disputes to the State Surveyor, the
Supreme Court has held that this language is permissive, and
not mandatory. Reed v. Wellman, 110 Neb. 166, 193 N.W. 261
(1923). In Reed v. Wellman, 110 Neb. at 171, 193 N.W. at 263,
the court held:
         With these principles in view, it seems that the word
      “shall” should be construed as permissive rather than
      mandatory, which will effectuate the intention of the
      [L]egislature to provide by agreement of the parties a
      prompt and inexpensive method of determining disputed
      boundaries, without interference with the common law
      and constitutional right of the citizen to appeal to the
      courts.
The court further explained that if the language was read to
be mandatory, it would “provide a condition precedent to the
presentation of the dispute to the courts of the state” and such
a condition precedent would be unconstitutional. Id. at 170,
193 N.W. at 262. To the extent that Charity Field suggests that
Reed v. Wellman, supra, is no longer good law or that it should
be overruled due to further developments in our statutory
laws, we note that neither Charity Field nor our own research
has produced any specific statute or case which has expressly
overruled the Supreme Court’s holding in Reed v. Wellman,
supra. As such, the case remains good law and continues to be
precedent which this court is obligated to follow.
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       CHARITY FIELD FARMS v. BOARD OF ED. LANDS & FUNDS
                       Cite as 27 Neb. App. 276

   The APA does not provide for judicial review of the board’s
decision in this matter. There has not been a final decision in
a contested case. There was no evidentiary hearing held by the
board, and the board was not required to provide Charity Field
with the relief it sought. As such, the district court was correct
in deciding that, pursuant to the APA, it did not have subject
matter jurisdiction over Charity Field’s purported appeal.
                        CONCLUSION
   Our record reveals that the board’s decision to deny Charity
Field’s request to refer the dispute over the December 2016
land survey to the State Surveyor did not create a contested
case over which the district court had jurisdiction, and the
court correctly determined that it lacked jurisdiction over this
matter. When a lower court lacks the authority to exercise
its subject matter jurisdiction to adjudicate the merits of the
claim, issue, or question, an appellate court also lacks the
power to determine the merits of the claim, issue, or question
presented to the lower court. Kaplan v. McClurg, 271 Neb.
101, 710 N.W.2d 96 (2006). The district court did not have
jurisdiction, and this court also lacks jurisdiction. Therefore,
the appeal is dismissed.
                                             A ppeal dismissed.
