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03/22/2019 01:05 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                        BROWN v. JACOBSEN LAND & CATTLE CO.
                                                  Cite as 302 Neb. 538




                    Terry P. Brown and Linda S. Brown, husband and wife,
                       appellees, v. Jacobsen Land and Cattle Company,
                        a Nebraska corporation, et al., appellees, and
                          State of Nebraska ex rel. Game and Parks
                               Commission, intervenor-appellant.
                                                     ___ N.W.2d ___

                                           Filed March 15, 2019.    No. S-18-803.

                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.	 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 the statutory period of 10 years.
                4.	 Adverse Possession: Words and Phrases. A possession that is adverse
                    is under a claim of ownership. Claim of ownership or claim of right
                    means “hostile,” and these terms describe the same element of adverse
                    possession. The word “hostile,” when applied to the possession of an
                    occupant of real estate holding adversely, is not to be construed as
                    showing ill will, or that the occupant is an enemy of the person holding
                    the legal title, but means an occupant who holds and is in possession as
                    owner and therefore against all other claimants of the land.
                5.	 Adverse Possession: Notice. 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 con-
                    stitutes the warning, not the intent of the claimant when he or she
                    takes possession.
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                BROWN v. JACOBSEN LAND & CATTLE CO.
                          Cite as 302 Neb. 538

 6.	 Adverse Possession: Title. Possession of property by permission can
     never ripen into title by adverse possession unless there is a change in
     the nature of possession which is brought to the attention of the owner
     in some plain and unequivocal manner that the person in possession is
     claiming adversely thereby.
 7.	 Adverse Possession: Leases: Intent. Entering real property as part of a
     lease agreement is entering it with permission and with acknowledgment
     of the owner’s superior title and is not entering the land with hostile or
     adverse intent.
 8.	 Adverse Possession: Landlord and Tenant: Notice: Intent. A tenant
     cannot assert ownership by adverse possession unless he or she first sur-
     renders possession or, by some unequivocal act, notifies the landlord he
     or she no longer holds under the lease agreement.
 9.	 Adverse Possession. A permissive use remains permissive where an
     original owner permitted the use and devised the land to another who
     simply continued to permit the use.
10.	 Adverse Possession: Presumptions. As between parties sustaining
     parental and filial relations, the possession of land of the one by the
     other is presumed to be permissive.
11.	 Landlord and Tenant: Words and Phrases. In the common law, a
     tenant or other lawful occupant who holds over without right is a tenant
     at sufferance.
12.	 Landlord and Tenant: Contracts. A tenancy at sufferance does not
     require privity of contract or estate between the holdover occupant and
     the property’s record owner.
13.	 Adverse Possession: Landlord and Tenant. A tenancy at sufferance is
     a permissive interest; it is not an adverse possession and cannot be the
     basis for adverse possession.

 Appeal from the District Court for Banner County: Derek C.
Weimer, Judge. Reversed.
  Douglas J. Peterson, Attorney General, and Charles E.
Chamberlin for intervenor-appellant.
  Andrew W. Snyder, of Chaloupka, Holyoke, Snyder,
Chaloupka & Longoria, P.C., L.L.O., for appellees Terry P.
Brown and Linda S. Brown.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg JJ.
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
              BROWN v. JACOBSEN LAND & CATTLE CO.
                        Cite as 302 Neb. 538

  Miller-Lerman, J.
                        NATURE OF CASE
   Terry P. Brown (Brown) and Linda S. Brown, husband
and wife (collectively the Browns), filed an adverse posses-
sion action in the district court for Banner County against the
adjacent record property owner, Jacobsen Land and Cattle
Company (Jacobsen), to quiet title in disputed agricultural land
to the north of the Browns’ property. The Nebraska Game and
Parks Commission (the State) intervened due to a purported
purchase agreement with Jacobsen by which the State was to
acquire the disputed land and other land. The State was permit-
ted to present evidence. See Brown v. Jacobsen Land & Cattle
Co., 297 Neb. 541, 900 N.W.2d 765 (2017). The State opposed
the Browns’ claim and also asserted that it was entitled to
relief under various equitable doctrines, because the State
alleged that it had relied on Brown’s purported misrepresenta-
tions regarding the Browns’ interest in the disputed land. After
trial, the district court quieted title to the disputed land in the
Browns, and the State appealed. Because the Browns’ interest
in the disputed land began with permission and did not ripen
into adverse possession, we reverse.

                   STATEMENT OF FACTS
   Jacobsen is the record owner of agricultural land in Banner
County, Nebraska. Brown is a longtime farmer and rancher
in Banner County and owns land adjacent to and south of
Jacobsen’s property. The disputed land claimed by the Browns
consists of approximately 77 acres and is located in an area
within Jacobsen’s recorded land. For many years, the disputed
land has been fenced in and, as a practical matter, enclosed
with the Browns’ land used for grazing cattle to the south. This
fence essentially forms the perimeter of the disputed land. The
disputed land has been adequately described as follows:
      Beginning at the west corner of the boundary line between
      the Jessup/Jacobson and Bud Jessup/Brown properties,
      the fence is on the true boundary line until it encounters
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
              BROWN v. JACOBSEN LAND & CATTLE CO.
                        Cite as 302 Neb. 538

      hardpan. . . . The fence then turns north following a ridge-
      line that eventually turns east and then south back to the
      true property boundary encompassing approximately 77
      acres of the Jessup/Jacobson property.
Brief for appellant at 10.
   The evidence indicates, and the district court found, that
Stanley Jessup, Sr., who owned the land to the south, built
the fence and used the land to the north, which was owned by
his brother, Frank Jessup, and under principles recited in our
analysis, Stanley’s use was permissive. After transfers within
Frank’s family, John Jessup and Alan Jessup sold the land,
including the disputed land, to Jacobsen in 2014.
   The Browns’ property was formerly owned by Stanley and,
later, by Stanley “Bud” Jessup, Jr. (Bud). Brown helped Bud
with his ranching operation on the land, including the disputed
land, prior to the 1980’s. In the 1980’s, Brown began to lease
property, including the disputed property, from Bud. Brown
testified that it was at this point, with permission from Bud,
that he began grazing cattle on the disputed property. The
oral lease continued until 1992, when Brown purchased the
Browns’ property and other real property from Bud. The 1992
sale did not include the disputed land, but Brown continued to
use the disputed land as he had under the lease. Records admit-
ted at trial show that the Browns have neither been taxed nor
paid taxes on the disputed land.
   The evidence showed that a barbed wire and post fence
existed in its current location for many years before the 1980’s.
As noted, the disputed land is fenced in with the Browns’ ranch
and Jacobsen and its predecessors in interest have raised cattle
on the other side of the fence. Brown walks or rides the fence
line at least annually and has hired a worker to assist him in
maintaining the fence. The fence follows the topography of the
land and is attached to trees along the ridge line, and trees have
grown into the fence in some places.
   In approximately 2013, John and Alan decided to sell the
Jacobsen property, including the disputed land. They offered
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
             BROWN v. JACOBSEN LAND & CATTLE CO.
                       Cite as 302 Neb. 538

Brown an opportunity to buy the entire Jacobsen property, but
he declined. Brown made an offer to purchase a portion of the
Jacobsen property that included the disputed land, but John
and Alan refused the offer. John and Alan sold the property,
including the disputed land, to Jacobsen in a warranty deed
filed on May 6, 2014.
   Jacobsen soon decided to resell the property, including the
disputed land. Brown contacted Jacobsen and inquired about
the sale. In 2014, the State began the process of purchas-
ing the land. Prior to October 2, 2014, the State published
notice and held a public hearing in Banner County regard-
ing the proposed purchase of Jacobsen’s property, including
the disputed land. Brown attended several public hearings.
Although Brown did not express an ownership interest in the
disputed land, he wrote a letter to a commissioner for the
State in which he generally opposed the sale. On October 3,
Jacobsen and the State entered into a purchase agreement for
the sale of a portion of Jacobsen’s land that included the dis-
puted land.
   After Jacobsen and the State entered into their purchase
agreement, but before they closed and recorded a deed, the
Browns filed this action against Jacobsen to quiet title in
the disputed land through adverse possession and recorded
a lis pendens on the disputed land. The State intervened due
to its purchase agreement with Jacobsen, the record owner
of the disputed land. The State asserted various affirmative
defenses. Jacobsen filed an answer which denied the claim of
adverse possession and set forth several affirmative defenses,
but declined to participate throughout most of the litigation,
did not present evidence, and did not appeal.
   The original trial took place in May 2016, and the dis-
trict court found generally in favor of the Browns. The State
appealed. We determined that the State, as intervenor, was
denied its right to participate in the trial, including offering
evidence and questioning witnesses. See Brown v. Jacobsen
Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 (2017). We
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
             BROWN v. JACOBSEN LAND & CATTLE CO.
                       Cite as 302 Neb. 538

reversed the decision of the district court and remanded the
matter for a new trial. See id.
   The district court held a second trial on April 12 and 13,
2018. Brown and the State offered evidence, and the district
court took the matter under advisement. In an initial order, and
in a subsequent amended order, the district court found gener-
ally in favor of the Browns and against the State.
   In summary, the district court reviewed the elements of an
adverse possession claim, found that the Browns’ evidence
satisfied each element, and found that the State’s evidence was
insufficient to overcome the Browns’ proof or otherwise suc-
ceed. The district court granted the relief sought by the Browns
and quieted title to the disputed land described particularly in
an attached document which was incorporated in its order. The
State appeals.
                  ASSIGNMENTS OF ERROR
   The State primarily claims, consolidated and restated, that
the district court erred when it found that the Browns’ evidence
satisfied their burden of proof and established their entitlement
to the disputed land by adverse possession. Because the State’s
foregoing argument is meritorious and dispositive, we do not
reach the State’s other assignments of error.
                    STANDARD OF REVIEW
   [1,2] A quiet title action sounds in equity. Brown v. Jacobsen
Land & Cattle Co., supra. 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 determi-
nation. Id.
                         ANALYSIS
   [3] The Browns sought to quiet title to the disputed land
under the theory of adverse possession. A party claiming title
through adverse possession must prove by a preponderance of
the evidence that the adverse possessor has been in (1) actual,
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
              BROWN v. JACOBSEN LAND & CATTLE CO.
                        Cite as 302 Neb. 538

(2) continuous, (3) exclusive, (4) notorious, and (5) adverse
possession under a claim of ownership for the statutory period
of 10 years. Poullos v. Pine Crest Homes, 293 Neb. 115, 876
N.W.2d 356 (2016). The statutory period in Nebraska is 10
years. Neb. Rev. Stat. § 25-202 (Reissue 2016). Although the
district court found that the Browns’ possession of the disputed
land satisfied all of these elements, upon our de novo review,
we believe there was a failure of proof regarding the last ele-
ment, i.e., adverse possession under a claim of ownership.
Because of the Browns’ failure to prove that their possession
of the disputed land was under a claim of ownership, we need
not consider other elements of their adverse possession claim
or the equitable defenses raised by the State.
   [4,5] Certain principles of law apply to our analysis. We
have described the element of adverse possession under a claim
of ownership as follows:
         A possession that is adverse is under a claim of own-
      ership. . . . Claim of ownership or claim of right means
      “hostile,” and these terms describe the same element of
      adverse possession. . . . The word “hostile,” when applied
      to the possession of an occupant of real estate holding
      adversely, is not to be construed as showing ill will, or
      that the occupant is an enemy of the person holding the
      legal title, but means an occupant who holds and is in
      possession as owner and therefore against all other claim-
      ants of the land. . . . The purpose of prescribing the man-
      ner in which an adverse holding will be manifested is to
      give notice to the real owner that his title or ownership is
      in danger so that he may, within the period of limitations,
      take action to protect his interest. It is the nature of the
      hostile possession that constitutes the warning, not the
      intent of the claimant when he takes possession.
Wanha v. Long, 255 Neb. 849, 859, 587 N.W.2d 531, 540
(1998).
   [6-10] Possession by “permission” is also critical to our anal-
ysis, because possession of property by permission can never
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
              BROWN v. JACOBSEN LAND & CATTLE CO.
                        Cite as 302 Neb. 538

ripen into title by adverse possession unless there is a change in
the nature of possession which is brought to the attention of the
owner in some plain and unequivocal manner that the person in
possession is claiming adversely thereby. See Wanha v. Long,
supra. See, also, Young v. Lacy, 221 Neb. 511, 378 N.W.2d 192
(1985); Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983).
With respect to permissive use, it is well settled that entering
real property as part of a lease agreement is entering it with
permission and with acknowledgment of the owner’s superior
title and is not entering the land with hostile or adverse intent.
See, Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979);
Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331 (1957). A
tenant cannot assert ownership by adverse possession unless he
or she first surrenders possession or, by some unequivocal act,
notifies the landlord he or she no longer holds under the lease
agreement. See Jackson v. Eichenberger, 189 Neb. 777, 205
N.W.2d 349 (1973). The use remains permissive where an origi-
nal owner permitted the use and devised the land to another who
simply continued to permit the use. Petsch v. Widger, supra. We
have noted that “‘[a]s between parties sustaining parental and
filial relations, the possession of the land of the one by the other
is presumed to be permissive . . . .’” Chase v. Lavelle, 105 Neb.
796, 807, 181 N.W. 936, 940 (1921).
    [11-13] In the common law, a tenant or other lawful occu-
pant who holds over without right is a tenant at sufferance.
Watkins v. Dodson, 159 Neb. 745, 68 N.W.2d 508 (1955);
State v. Cooley, 156 Neb. 330, 56 N.W.2d 129 (1952). It is
not necessary that the original occupancy should have been
as tenant of the record landowner, because a tenancy at suf-
ferance does not require privity of contract or estate between
the holdover occupant and the property’s record owner. See,
Pillans & Smith Co., Inc. v. Lowe, et al., 117 Fla. 249, 157 So.
649 (1934); 52 C.J.S. Landlord & Tenant § 292 (2012). A ten-
ancy at sufferance is a permissive interest; it is not an adverse
possession and cannot be the basis for adverse possession. 52
C.J.S., supra.
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
             BROWN v. JACOBSEN LAND & CATTLE CO.
                       Cite as 302 Neb. 538

    In this case, the State contends that the Browns’ possession
of the disputed land was permissive and, thus, not hostile. It
asserts that the district court erred when it determined that
“[t]here is no evidence that the [Browns] were given . . . per-
mission.” We agree with the State that this finding is at odds
with the record.
    The district court acknowledged in its findings of fact that
“[t]he area making up the ‘disputed ground’ was included in
the lease agreement . . . .” And Brown testified that he received
permission from Bud to graze his cattle on the disputed land
as part of his lease agreement. Although Brown points out
that he did not receive permission by a record owner, such
fact would not be dipositive. A review of our adverse pos-
session and other jurisprudence recited above shows that
Brown’s occupancy of the disputed land was not hostile where
he began his lease—including use of the disputed land—with
permission, even if such permission flowed from Bud and
not a record owner. A change in ownership in the disputed
land did not affect Brown’s intent, which was at no point
expressed as adverse under a claim of ownership. See Petsch
v. Widger, supra.
    Because the genesis of Brown’s use and possession of the
disputed land was a lease agreement and by lawful permission,
when he began to hold over, he became a tenant at sufferance.
And, as noted, a tenant at sufferance has a permissive interest.
Brown admitted that neither his use of the disputed land nor his
conduct toward the record owners, their successors in interest
and individuals granted or granting permission, changed after
he bought the Browns’ property. Upon our de novo review,
we determine that the Browns have not presented evidence of
an act which manifested notice or warning to the real owner
of the disputed land that his title or ownership was in danger.
Brown came to the disputed land by permission, and because
there was no change in the nature of his possession’s being
brought home to the true owner, his use did not ripen into
title by adverse possession. Young v. Lacy, 221 Neb. 511, 378
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
             BROWN v. JACOBSEN LAND & CATTLE CO.
                       Cite as 302 Neb. 538

N.W.2d 192 (1985). Because the Browns failed to prove the
element of a claim of ownership, their claim of adverse pos-
session must fail.
                        CONCLUSION
   Brown’s use and possession of the disputed land began with
permission under a lease, and the Browns failed to prove that
the nature of their possession changed and that such change
was brought to the attention of the real owners. The Browns
failed to establish that their possession of the disputed land
was under a claim of ownership, and therefore, their posses-
sion did not ripen into title by adverse possession. The district
court erred when it concluded to the contrary. Accordingly, we
reverse the judgment of the district court.
                                                     R eversed.
