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BUSH ISLAND v. KORTUM

Cite as 30 Neb. App. 79

Bush Island, Inc., appellant, v. Ronald H. 

and Gloria Kortum et al., appellees.

___ N.W.2d ___

Filed August 3, 2021. No. A-20-391.

1. Equity: Actions: Boundaries. An action to ascertain and permanently 

establish corners and boundaries of land under Neb. Rev. Stat. § 34-301 

(Reissue 2016) is an equity action.

2. Equity: Appeal and Error. In an equity action, an appellate court 

reviews the record de novo and reaches an independent conclusion 

without reference to the conclusion reached by the trial court, except 

that where credible evidence is in conflict, the appellate court will give 

weight to the fact that the trial court saw the witnesses and observed 

their demeanor while testifying.

3. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in 

receiving or excluding an expert’s testimony which is otherwise relevant 

will be reversed only when there has been an abuse of discretion.

4. Property: Waters: Boundaries. The ownership of an island carries 

with it the bed of the river to the center or thread of each surrounding channel.

5. ____: ____: ____. Where title to an island, bounded by the waters of a 

nonnavigable stream is in one owner, and title to the land on the other 

shores opposite the island is in other owners, the same riparian rights 

appertain to the island as to the mainland.

6. Waters: Boundaries: Words and Phrases. The thread, or center, of 

a channel is the line which would give the landowners on either side 

access to the water, whatever its stage might be and particularly at its 

lowest flow.

7. Waters: Quiet Title: Proof. A party who seeks to have title in real 

estate quieted in him or her on the ground that it is accretion to land to 

which that party has title has the burden of proving the accretion by a 

preponderance of the evidence.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/10/2021 01:09 AM CDT
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8. Waters: Words and Phrases. Accretion is the process of gradual and 

imperceptible addition of solid material, called alluvion, thus extending 

the shoreline out by deposits made by contiguous water.

9. Boundaries: Waters: Title. Where title to an island in a nonnavigable 

stream is conveyed by grantee by government patent, and the land so 

conveyed is bounded by the waters of such stream, the grantee’s ownership carries with it the bed of the river to the center of the thread of each 

surrounding channel.

10. Boundaries: Time. Under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey, 

when a different boundary is shown to have existed between the parties 

for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey.

11. Boundaries. To claim a boundary line by acquiescence, both parties 

must have knowledge of the existence of a line as the boundary. It is 

insufficient for one party to merely establish a line and take possession 

up to that line.

12. ____. For acquiescence to operate, the other party must assent, by 

words, conduct, or silence, to a line as the boundary.

13. ____. In order to establish a boundary by acquiescence, it is not 

necessary that the acquiescence should be manifested by a conventional agreement, but recognition and acquiescence must be mutual, 

and both parties must have knowledge of the existence of a line as a 

boundary line.

14. Pleadings: Appeal and Error. Permission to amend a pleading is 

addressed to the discretion of the trial court, and an appellate court will 

not disturb the trial court’s decision absent an abuse of discretion.

Appeal from the District Court for Merrick County: James 

C. Stecker, Judge. Affirmed.

Stephen D. Mossman and Jacob C. Garbison, of Mattson 

Ricketts Law Firm, for appellant.

David A. Jarecke and Ellen C. Kreifels, of Blankenau, 

Wilmoth & Jarecke, L.L.P., and Charles W. Campbell, of 

Angle, Murphy & Campbell, P.C., L.L.O., for appellees.

Riedmann, Bishop, and Welch, Judges.
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BUSH ISLAND v. KORTUM

Cite as 30 Neb. App. 79

Riedmann, Judge.

INTRODUCTION

Bush Island, Inc., commenced this action to establish boundary lines and to quiet title to certain property in its favor 

and against Ronald H. Kortum, Gloria Kortum, Jacqueline 

Drummond, Duane Drummond, Kathleen Fowles, Bradley 

Lockenvitz, Sarah Lockenvitz, John Lockenvitz, Norman 

Krug, and Sue Ellen Krug (collectively the defendants). The 

defendants joined John Allen, Tamara Allen, Kenneth L. Vettel, 

the Larry L. Sands Revocable Trust, the Nancy J. Sands 

Revocable Trust, and Bruce W. Rodabaugh (collectively the 

cross-defendants) in the action as adjacent landowners. After 

trial, the district court for Merrick County dismissed Bush 

Island’s claims and found in favor of the defendants and crossdefendants as to their claims. Bush Island appeals.

BACKGROUND

This case involves disputes over land located on an approximately 4-mile stretch of the Platte River. The parcels of land at 

issue here are generally located throughout Sections 10, 11, 14 

through 17, 20, and 21, Township 12 North, Range 7 West of 

the 6th P.M., primarily in Merrick County, Nebraska, but partially extending into Hamilton County, Nebraska. Bush Island 

owns two surveyed islands within the Platte River, known as 

Islands 5 and 6, and all accretions thereto. The defendants own 

various parcels of land located to the north and west of Islands 

5 and 6, and the cross-defendants own parcels of land located 

to the south and west of Islands 5 and 6.

In 2014, Bush Island applied for and received approval to 

participate in a federal restoration program with the Natural 

Resources Conservation Service (NRCS). The application raised 

questions of property boundaries, but ultimately, the defendants 

did not challenge Bush Island’s application. Subsequently, 

Bush Island expanded its application and applied for a second federal project for additional compensation. The defendants and cross-defendants objected to the expanded property 
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boundaries that Bush Island proposed in this application. Thus, 

thereafter, Bush Island filed a petition in equity, pursuant to 

Neb. Rev. Stat. § 34-301 (Reissue 2016), to establish the corners and boundaries of its property, quiet title to said property 

in Bush Island, and enjoin the defendants and cross-defendants 

from asserting any claim of interest in its property. It asserted 

that it acquired ownership to additional lands through the process of accretion.

The defendants initially filed an answer and “crossclaim,” 

joining the cross-defendants into the action as adjacent property owners. Prior to trial, the defendants filed an amended 

answer and cross-claim, which raised the issue of mutual 

recognition and acquiescence of a boundary. Specifically, they 

alleged that the defendants and Bush Island, or their respective predecessors in interest, mutually agreed upon a fence as 

a boundary between their properties. Although the defendants’ 

pleading was titled as an amended answer and “crossclaim,” it 

requested that the court establish the boundary line as to “all 

indispensable parties.” During trial, the defendants sought and 

received leave to file a second amended answer and “counterclaim,” raising the issues of boundary by acquiescence as well 

as an adverse possession claim.

Trial was held over the course of 8 days in October and 

November 2019. The record from trial is voluminous, consisting of more than 1,600 pages of testimony and over 180 

exhibits. According to the evidence presented at trial, the U.S. 

General Land Office (GLO) was established by the “Land 

Ordinance of 1785” and tasked with identifying, surveying, 

and platting public lands. The GLO surveyed the portion of 

the Platte River at issue in this case in the 1860’s, mapping 

its meander corners and locating certain island masses within 

the river. At that time, the GLO had a policy of surveying 

only islands with an above-water surface area of at least 5 

acres, so when it surveyed this stretch of the river in 1866, the 

GLO identified only three islands within the river, which were 

known as Islands 5, 6, and 7.
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After completion of the GLO surveys, Islands 5 and 6 

merged into a larger island landmass, to which Bush Island 

acquired the deed in 1961. Island 7 has merged into the south 

bank and is no longer a separately identifiable landmass. In 

addition, the channel banks have substantially changed since 

the original GLO survey, resulting in significantly more landmass located between the banks than that which existed in 

1866. As a result, given the hydrologic and geomorphologic 

conditions of this reach of the Platte River, the physical land 

claimed by all of the parties has gradually changed since their 

original conveyances.

There are three primary river channels in this area that have 

been identified. They are the north channel, which separates at 

a certain point in Section 16 into a north branch and a south 

branch before they rejoin downstream; the middle channel; and 

the south channel. Bush Island sought to quiet title to all property from the north branch of the north channel to the south 

channel, and beginning at the “Chapman Bridge” in Section 20 

on the west extending to a fence on the east, as depicted in a 

survey received into evidence as exhibit 202.

Dr. Robert Mussetter is a hydraulic engineer with more than 

40 years’ experience in river engineering and fluvial geomorphology. His work involves analyzing the quantities, timing, 

and behavior of riverflow; the hydraulic conditions thereof; the 

riverflow water’s interaction with boundary materials, erosion, 

and sedimentation processes; and other things that affect the 

behavior of rivers. For this case, the cross-defendants hired 

Mussetter to determine the extent of any accretion ground 

that could be attributed to them and to Bush Island, as well 

as to locate the main thread of the river in this stretch of the 

Platte River.

Mussetter defined several terms that he used throughout 

his testimony and report. He explained that according to the 

“Federal Manual of Survey Instructions,” an island is defined 

as a body of land that is completely surrounded by water when 

the water is at the ordinary high water mark. Upland is the 
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area above the ordinary high water mark or, in other words, the 

solid ground above the water’s surface. Ordinary high water 

mark is a term used to identify the boundary between the bed 

of the channel and the upland, and the channel is the portion of 

the river below the ordinary high water mark. Accretion is the 

gradual buildup of lands, either in or along a river, primarily 

through the deposit of sediment.

In order to determine the extent of the accretion ground 

that Bush Island could properly claim, Mussetter examined the 

original GLO survey and aerial photographs of this stretch of 

the river dating back to 1938 and overlaid the historical photographs with current photographs of the area. He observed 

how the original islands evolved over time and identified the 

location of the channels and ordinary high water mark around 

the boundaries of the ground. Mussetter explained that the bed 

of the middle channel is and has historically been below the 

ordinary high water mark, which defines it as a channel. Thus, 

he concluded that the middle channel is and has been an active 

channel and that it has been in approximately the same location since 1938. In his report, he added that the middle channel 

most likely also persisted during the period between the GLO 

survey in 1866 and the 1938 aerial photograph. Therefore, he 

opined that the middle channel forms the northern boundary of 

Bush Island’s accretion claim.

Mussetter additionally identified the south channel as the 

south boundary of Bush Island’s accretion ground. He further 

determined that the west boundary of Bush Island’s accretion 

ground was the junction of the middle and south channels. In 

sum, Mussetter opined that Bush Island’s accretion claim was 

limited to the north by the middle channel, to the south by the 

south channel, and to the west by the junction of the middle 

and south channels.

With regard to the thread of the river, Mussetter defined the 

thread of a river as the part of the river that is the last to dry 

up. He was asked whether there is a difference between the 

thread of a river and a river channel, and he explained that 
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the thread of the river is one specific part of the river channel, 

but that there can be multiple channels in the river, as in this 

case. Mussetter determined that the primary thread of the river 

here was in the north channel and that the secondary thread 

was in the south channel.

Thomas Riley, a civil engineer whose work focuses on 

hydrology, streamflow, and watershed runoff, was hired by 

the defendants to review the hydrology and hydraulics of this 

stretch of the Platte River. He followed a process similar to 

Mussetter’s by overlaying historical photographs with current photographs and observed that the primary channels have 

remained virtually unchanged since 1938. Riley opined that 

the middle channel was an active channel from 1938 through 

the present.

There was also evidence presented at trial relating to a fence 

that runs along the eastern edge of Bush Island’s property, 

turns west and runs along the south branch of the north channel, and then curves south in Section 16. In their amended 

answer and cross-claim, the defendants asserted that this fence 

forms a mutually agreed-upon boundary between their land and 

that of Bush Island, despite some of the land’s being located 

north of the middle channel.

The construction of the fence began with a 1938 survey by 

Oscar Parsons, the Merrick County surveyor at the time. The 

field notes to the survey provide that Uriah Bush, the owner of 

Bush Island at that time, and Henry Kortum, the neighboring 

landowner, requested that Parsons “run accretion lines,” and 

he did so in Sections 15, 16, and 21. Ultimately, the fence was 

built to be consistent with Parsons’ survey.

In 1940, Parsons completed a survey to run accretion lines 

for the part of Island 5 lying in Section 12 at that time. 

Pursuant to that survey, a fence was built between Bush Island 

and its neighbor to the east. There is no dispute that this fence 

forms the eastern boundary of Bush Island.

In late 2013 or early 2014, at the direction of John Cates, 

a Bush Island shareholder at the time, licensed land surveyor 
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Kelly Stevens resurveyed the fence. Stevens explained that 

Cates drove him around the area and that wherever there was 

a transition, turn, angle, or change in the fence, he took GPS 

coordinates. Once he completed the fieldwork, Stevens compiled the information into an aerial map, which was received 

into evidence as exhibit 186. Stevens also incorporated this 

information into exhibit 241, a survey that was created for 

Bush Island’s 2014 NRCS application using the fence line as 

its north and west boundary lines.

Around that same time, the Merrick County assessor’s office 

began evaluating its taxation assessment boundary lines. In 

early 2014, Merrick County property owners were given the 

option of providing information to the assessor’s office to assist 

in redrawing the assessment lines. Jennifer Myers is the current 

Merrick County assessor, but she worked as a clerk in the 

assessor’s office in 2014. Myers testified that Cates approached 

her in 2014 on behalf of Bush Island and told her that although 

the west fence had been recognized by the surrounding property owners as the boundary line, Cates wanted the boundary 

line to be relocated as a result of a survey that had been completed in 2012. Ronald Kortum informed her that the fence line 

had been an established boundary line between the property 

owners dating back to 1965, and Bradley Lockenvitz provided 

similar information that the north fence was the boundary line. 

As a result of the information the assessor’s office received, 

the assessment boundary lines were redrawn using the north 

and west fence lines as boundary lines.

Following trial, the district court entered a written order. 

The court found that Bush Island’s accretion claim was limited to the channels that surround Islands 5 and 6. It noted 

that the original Islands 5 and 6 were located between the 

middle channel and the south channel and determined that 

the middle channel was an active channel below the ordinary 

high water mark; thus, the ground north of the middle channel could not be included as part of accretion ground that may 

be claimed by Bush Island. According to the district court, it 
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was clear that accretion had added to the area of Islands 5 and 

6; however, the legal description that Bush Island provided 

to the court was greater than the accretion the court deemed 

properly includable, because Bush Island sought accretion land 

north to the north channel. As a result, the court held that 

Bush Island failed to prove the boundaries of the accretion that 

it alleged in its complaint, and therefore, it dismissed Bush 

Island’s claims.

With regard to the defendants’ claims, the district court held 

that the parties recognized the fence as a mutually recognized 

boundary for a period greater than 10 years. The court noted 

that in 1938, Parsons was commissioned to run accretion lines 

and that there was no evidence or claim that Uriah Bush lacked 

notice or knowledge of the survey. Subsequent to the survey, 

the fence was constructed and maintained for more than 75 

years, and it not only separated cattle, but also served as an 

undisputed boundary fence until Bush Island filed this lawsuit. Thus, the court found that the north and west fence was 

a boundary fence between Bush Island’s and the defendants’ 

properties and that as a result, Bush Island’s accretion claim 

was limited to the south and east of the fence as depicted in 

exhibit 186. Accordingly, the district court established the 

boundary line between Bush Island, the defendants, and the 

cross-defendants as consistent with exhibit 241.

Finally, the court awarded certain island property, referred to 

as “Islands 1 through 8,” to the Kortums and awarded certain 

accretion land located to the south and west of Islands 5 and 6 

to the Allens and to the Larry L. Sands Revocable Trust and the 

Nancy J. Sands Revocable Trust (collectively Sands).

Bush Island filed a motion to alter or amend, which the district court denied. Bush Island timely appeals.

ASSIGNMENTS OF ERROR

Bush Island assigns, restated and renumbered, that the district court erred in (1) allowing Mussetter to testify as an 

expert as to matters of law; (2) holding that Bush Island was 
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required to determine the ordinary high water mark of the 

channels surrounding its property in order to prevail on its 

accretion claim; (3) holding that the middle channel has persisted through time; (4) holding that the middle channel forms 

the northern boundary of Bush Island’s accretion claim; (5) 

holding that Bush Island failed to prove its accretion claim; (6) 

holding that Bush Island recognized the existence of a boundary fence for a period greater than 10 years; (7) finding that 

Bush Island’s accretion claim is limited to the south and east 

of the fence as depicted in exhibit 186; (8) considering exhibit 

211 as evidence of an agreement as to the disposition of real 

property; (9) holding that the defendants and cross-defendants 

met their burdens to prove their boundaries; (10) finding that 

Islands 1 through 8 separately existed and have been recognized as separate islands for over 100 years; (11) finding that 

the Kortums acquired title to Islands 1 through 8; (12) considering exhibit 205; (13) admitting exhibit 215; (14) allowing a 

witness to testify that certain ovals depicted on exhibits 34, 

391, and 392 were “the same”; (15) admitting page 4 of exhibit 

244; (16) holding that “the Act of August 3, 1846, as amended 

by the Isolated Tract Act of February 26, 1895[,] provided for 

the sale of unsurveyed islands”; (17) permitting the defendants to amend their counterclaim at trial; (18) finding that the 

Allens and Sands acquired land by adverse possession; (19) 

finding that the Allens and Sands are entitled to the accretion 

north of the south channel; and (20) granting the Allens accretion to land not at issue at trial.

STANDARD OF REVIEW

[1,2] An action to ascertain and permanently establish corners and boundaries of land under § 34-301 is an equity action. 

Babel v. Schmidt, 17 Neb. App. 400, 765 N.W.2d 227 (2009). 

In an equity action, an appellate court reviews the record de 

novo and reaches an independent conclusion without reference to the conclusion reached by the trial court, except that 

where credible evidence is in conflict, the appellate court will 
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give weight to the fact that the trial court saw the witnesses and 

observed their demeanor while testifying. Id.

ANALYSIS

Mussetter’s Testimony.

Bush Island first assigns that the district court erred in allowing Mussetter to testify as an expert as to matters of law. More 

specifically, Bush Island claims that Mussetter was permitted 

to provide his legal opinion as to the extent of Bush Island’s 

accretion claim, which the district court then relied upon to 

limit Bush Island’s accretion claim north to the middle channel, 

rather than the north channel as Bush Island suggested.

[3] Generally, a trial court’s ruling in receiving or excluding an expert’s testimony which is otherwise relevant will 

be reversed only when there has been an abuse of discretion. 

Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb. 43, 

907 N.W.2d 1 (2018). We find no abuse of discretion in the 

admission of Mussetter’s testimony here.

To support its position, Bush Island directs our attention to 

Sasich v. City of Omaha, 216 Neb. 864, 347 N.W.2d 93 (1984). 

There, in dicta, the Nebraska Supreme Court criticized the trial 

court for admitting expert testimony from a legal scholar on 

the status of zoning laws. The Supreme Court observed that 

while our rules of evidence allow for expert testimony, that 

testimony must be such as to assist the trier of fact to understand the evidence or to determine a fact issue, and generally, 

expert testimony concerning the status of the law accomplishes 

neither of these goals. See id. Thus, such evidence is irrelevant 

and inadmissible. See id.

The common thread in Sasich v. City of Omaha, supra, 

and its progeny is that the proferred testimony was offered 

by a legal scholar or the contents of the challenged testimony 

related to the interpretation of the law. See, also, Woodmen of 

the World v. Nebraska Dept. of Rev., supra (upholding exclusion of testimony of tax law professor regarding statutory 

construction and his research and study of law in Nebraska); 
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State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013) 

(reversing and remanding for new trial due to erroneous admission of expert testimony interpreting statute and opining that 

defendant’s actions violated statute); Sports Courts of Omaha 

v. Brower, 248 Neb. 272, 534 N.W.2d 317 (1995) (finding trial 

court erred in receiving opinion testimony of law professor 

concerning status of law); Kaiser v. Western R/C Flyers, 239 

Neb. 624, 477 N.W.2d 557 (1991) (declining to consider expert 

testimony as to interpretation of zoning ordinance).

In the present case, however, Mussetter’s testimony did not 

put forth his interpretation of the law for the court’s consideration. Instead, he acknowledged reviewing relevant case law 

in Nebraska in order to apply his scientific knowledge to concepts such as accretion and the thread of the stream, which are 

defined under Nebraska law. Thus, contrary to the cases Bush 

Island relies upon, Mussetter did not provide expert testimony 

as to his interpretation of the law or the status of the law; 

rather, he provided his scientific expertise within his understanding of the confines of Nebraska law.

To this end, at trial, Mussetter testified that in performing 

his work for this case, he considered the principles and definitions from published court cases and explained that doing so 

was important because it provided the source of authority and 

definitions that he then tied to his technical understanding of 

the river to help identify the features in the river that are pertinent. Mussetter set forth in his report that he was asked to perform three specific tasks related to identification of the accretion boundaries of Bush Island’s property. His report notes 

that the question of whether Bush Island’s accretion claim 

was valid hinges on whether all of the claimed upland beyond 

the boundaries of the originally surveyed islands was formed 

through accretion to the original islands or whether portions of 

this land are actually separate islands that formed subsequently 

to the original survey.

Mussetter was aware that the defendants claimed ownership 

of certain property north of Bush Island, and he confirmed 
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that he was not expressing any opinion of ownership regarding 

any disputed grounds; rather, he was simply defining the extent 

of the accretion claim that may legitimately be claimed. His 

report additionally cautions that there may be other reasons to 

limit the upstream extent of Bush Island’s property and notes 

that he did not make any legal determinations regarding ownership of any property that may be affected by any instruments of 

title or other documents that are subject to question or dispute 

by the parties.

In its amended complaint, Bush Island asked the district 

court to establish the boundaries of its property and quiet title 

to said property in Bush Island. Mussetter did not opine as to 

Bush Island’s ownership of any portion of property. Rather, 

he explained whether the land Bush Island sought met the 

scientific definition of accretion and outlined the limits of 

Bush Island’s accretion claim due to the surrounding channels 

according to Nebraska law. In other words, Mussetter detailed 

the extent of land that Bush Island could claim as accretion 

ground, but did not opine as to whether Bush Island proved 

that it was entitled to ownership of that land. The testimony he 

provided assisted the district court in determining the ultimate 

fact issue of whether the lands Bush Island claimed were properly defined as accretion land. See Burket v. Krimlofski, 167 

Neb. 45, 91 N.W.2d 57 (1958) (question of fact as to whether 

accretion land belonged to defendants or plaintiffs).

Furthermore, even though the district court agreed with 

Mussetter’s conclusions as to the extent of land that Bush 

Island could claim as accretion land, that was not the end of 

the court’s inquiry into the issue of ownership boundaries, 

because the defendants and cross-defendants raised claims of 

adverse possession, mutual recognition and acquiescence, and 

ownership by deed. Thus, because Mussetter did not opine on 

the status or interpretation of the law and his testimony assisted 

in determining a fact issue, we disagree that Mussetter’s testimony constituted an impermissible legal opinion. Therefore, 
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the district court did not abuse its discretion in allowing 

Mussetter’s testimony.

Bush Island’s Accretion Claim.

Next, Bush Island generally argues that the district court 

erred in holding that it failed to prove its accretion claim. 

Specifically, Bush Island asserts that the court erred in finding 

that Bush Island was required to determine the ordinary high 

water mark of the channels surrounding its property, that the 

middle channel has persisted through time, and that the middle 

channel forms the northern boundary of its accretion claim. We 

reject these arguments.

[4-6] There is no dispute that Bush Island is the title owner 

of Islands 5 and 6. In this state, the owner of an island has 

title to any land between that island and the center of each 

surrounding channel. See Winkle v. Mitera, 195 Neb. 821, 241 

N.W.2d 329 (1976). The ownership of an island carries with it 

the bed of the river to the center or thread of each surrounding 

channel. Id. Where title to an island, bounded by the waters 

of a nonnavigable stream is in one owner, and title to the land 

on the other shores opposite the island is in other owners, the 

same riparian rights appertain to the island as to the mainland. Id. The thread, or center, of a channel is the line which 

would give the landowners on either side access to the water, 

whatever its stage might be and particularly at its lowest flow. 

Babel v. Schmidt, 17 Neb. App. 400, 765 N.W.2d 227 (2009). 

In other words, the thread of the stream is the deepest groove 

or trench in the bed of a river channel, the last part of the bed 

to run dry. Id.

[7,8] A party who seeks to have title in real estate quieted in 

him or her on the ground that it is accretion to land to which 

that party has title has the burden of proving the accretion 

by a preponderance of the evidence. Curry v. Furby, 20 Neb. 

App. 736, 832 N.W.2d 880 (2013). Accretion is the process 

of gradual and imperceptible addition of solid material, called 

alluvion, thus extending the shoreline out by deposits made by 

contiguous water. See id.
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In the present case, Mussetter and Riley each explained that 

there are three main channels of the Platte River in the area 

where Islands 5 and 6 are located: the north channel, the middle channel, and the south channel. Bush Island alleged that 

the north channel formed the northern boundary of its accretion 

land because the thread of the river was located in the north 

channel. The district court, however, determined that the northern boundary of Bush Island’s accretion claim was the middle 

channel and that the middle channel was an active channel that 

had persisted over time.

Bush Island asserts that the district court erred in holding 

that Bush Island was required to determine the ordinary high 

water mark of the channels surrounding its property in order to 

establish the boundaries of its accretion claim. The point of the 

ordinary high water mark is relevant and important because, as 

Mussetter explained, an island is defined as a body of land that 

is completely surrounded by water at the ordinary high water 

mark. He further explained that a river channel is the portion 

of the river located below the ordinary high water mark and 

that upland is land that exists above the ordinary high water 

mark. Thus, because the owner of an island has title to any 

land between the island and the center of each surrounding 

channel, it is necessary to identify the ordinary high water 

mark in order to define and locate the channels that surround 

the island.

As depicted on historical aerial photographs, the original 

location of Islands 5 and 6 was bounded by the middle channel to the north and the south channel to the south. The district court relied upon the opinions of Mussetter and Riley 

to determine that the middle channel has persisted over time. 

Mussetter and Riley each examined aerial photographs dating 

back to 1938 and overlaid the historical photographs with current photographs of the area; in doing so, they each concluded 

that the middle channel is and has been an active channel that 

has been in approximately the same location throughout that 

time period. Mussetter additionally concluded that the middle 
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channel most likely persisted during the period between the 

GLO survey in 1866 and the 1938 aerial photograph.

In our de novo review of the record, we give weight to the 

fact that the district court credited Mussetter’s and Riley’s conclusions, and we observe that a review of the historical aerial 

photographs confirms the conclusions reached by Mussetter 

and Riley. Bush Island argues, however, that whether the middle channel persisted over time is irrelevant to determine the 

boundaries of Bush Island’s accretion claim, asserting that the 

northern boundary should lie in the north channel rather than 

the middle channel. Although we agree that the evidence supports a finding that the primary thread of the stream is located 

in the north channel, and that conclusion is not challenged on 

appeal, we disagree that this mandates a finding that the north 

channel establishes the northern boundary of Bush Island’s 

accretion land.

[9] Where title to an island in a nonnavigable stream is conveyed by grantee by government patent, and the land so conveyed is bounded by the waters of such stream, the grantee’s 

ownership carries with it the bed of the river to the center or 

thread of each surrounding channel. Heider v. Kautz, 165 Neb. 

649, 87 N.W.2d 226 (1957) (emphasis supplied). The thread or 

center of a channel must be the line which would give the owners on either side access to the water, whatever its stage might 

be, and particularly at its lowest flow. Id.

We do not read this definition as requiring that the owners 

on each side of a nonnavigable stream have access to water at 

the lowest point in the entire surrounding area, when the area 

consists of multiple channels. Rather, as explained in Heider 

v. Kautz, supra, ownership extends to the center, or thread, 

of each channel surrounding an island property, not necessarily to the primary thread of the stream in the area. Mussetter 

explained that the thread of the river is one specific part of 

the river channel, the part that would be last to go dry, and 

that there can be multiple channels in the river, as in this case. 

Here, the channels that surround Islands 5 and 6, historically 
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and currently, are the middle channel and the south channel. 

Thus, the focus is on ensuring that owners on either side of 

these two channels have access to the water, even at its lowest 

flow, because they are the channels that border the island.

Furthermore, by definition, accretion extends the shoreline 

of land out by deposits made by contiguous water. See Curry 

v. Furby, 20 Neb. App. 736, 832 N.W.2d 880 (2013). Black’s 

Law Dictionary defines “contiguous” as “[t]ouching at a point 

or along a boundary.” Black’s Law Dictionary 386 (10th ed. 

2014). The waters contiguous to Islands 5 and 6 are the middle 

channel and south channel. These are the channels that therefore define the boundaries of Bush Island’s accretion claim. 

Accordingly, the district court properly held that Bush Island’s 

accretion land is limited to the north by the middle channel and 

to the south by the south channel.

Bush Island relies on Winkle v. Mitera, 195 Neb. 821, 241 

N.W.2d 329 (1976), to argue that land does not have to be 

attached to be properly held to be accretive land for the owner 

of an island. In that case, however, the plaintiff’s predecessor in 

interest owned Giger Island and there was initially nothing but 

water between the island and the surrounding channel. Thus, 

when a new island arose in the channel waters, the plaintiff 

was the rightful owner of it, even though it was not physically 

attached to Giger Island, because it was located in an area in 

which the plaintiff had an ownership interest: the area between 

Giger Island and the thread of the surrounding channel.

The present case is distinguishable because, although Bush 

Island’s ownership interest extends north from Islands 5 and 

6 to the middle channel, it does not go beyond that point, 

because the middle channel also formed the northern boundary of Islands 5 and 6 at the time Bush Island acquired its 

ownership interest. Bush Island seeks title to land north of the 

middle channel which is not attached to Islands 5 and 6 and is 

not located in an area in which Bush Island has an ownership 

interest. Thus, any land located beyond the middle channel 

to the north or the south channel to the south is not properly 
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classified as accretion to Islands 5 and 6. The district court 

therefore did not err in declining to quiet title in Bush Island to 

all of the land it sought in the amended complaint under a theory of accretion. And because Bush Island failed to prove the 

boundaries of the accretion that it alleged, the court correctly 

denied Bush Island’s claims and dismissed its complaint.

Issues Related to Defendants.

Bush Island raises several issues with regard to the district 

court’s findings as to the defendants. Bush Island generally 

argues that the court erred in concluding that the defendants 

met their burden of proving the existence of a boundary fence 

by mutual recognition and acquiescence and in awarding title 

to Islands 1 through 8 to the Kortums. Bush Island also challenges the district court’s decision granting leave to the defendants to amend their answer and counterclaim during trial. We 

first address issues related to the fence.

As explained above, the fence runs along the eastern edge 

of Bush Island’s property, turns west and runs along the south 

branch of the north channel, and then turns south in Section 

16, running in a curved manner until approximately the south 

channel, where it turns and begins to run northeast again. 

The district court utilized the north and west portions of the 

fence to establish the boundary between the defendants and 

Bush Island.

[10] Under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with 

a survey, when a different boundary is shown to have existed 

between the parties for the 10-year statutory period, it is that 

boundary line which is determinative and not that of the original survey. Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 

(2008). See, also, § 34-301. The rule long established in this 

jurisdiction is that where a boundary, supposed to be the true 

line established by the government survey, is acquiesced in by 

the adjoining owners for more than 10 years, it is conclusive of 

the location. Sila v. Saunders, supra.
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[11-13] To claim a boundary line by acquiescence, both 

parties must have knowledge of the existence of a line as the 

boundary. Madson v. TBT Ltd. Liability Co., 12 Neb. App. 773, 

686 N.W.2d 85 (2004). It is insufficient for one party to merely 

establish a line and take possession up to that line. Id. For 

acquiescence to operate, the other party must assent, by words, 

conduct, or silence, to a line as the boundary. See id. In order 

to establish a boundary by acquiescence, it is not necessary 

that the acquiescence should be manifested by a conventional 

agreement, but recognition and acquiescence must be mutual, 

and both parties must have knowledge of the existence of a line 

as a boundary line. Id.

In the present case, the fence was constructed pursuant to 

the 1938 and 1940 surveys by Parsons. Bush Island admits 

that the east portion of the fence forms its eastern boundary, 

despite the fact that the east fence is a continuous fence that 

was constructed in the same timeframe as the north fence and 

surveyed by the same surveyor. The fact that Parsons completed these surveys and that fences were constructed according to the surveys is uncontroverted. What is disputed, however, is whether Bush Island acquiesced to the north and west 

fences as the boundary separating its property from that of the 

defendants.

The evidence is clear that the defendants considered the 

fence to be the boundary between their properties and Bush 

Island’s. Ronald Kortum, Bradley Lockenvitz, Samuel Krug, 

and Norma Krug each testified as to their understanding, 

dating back decades, that the fence was the boundary line. 

Ronald Kortum explained that as far back as 1984, he always 

recognized the fence as the boundary of his land. Bradley 

Lockenvitz, who was born in 1951, explained that he “would 

say that the neighborhood has lived by [the 1938] survey 

[boundaries] all of [his] life.” He recalled his grandfather 

told him that the other side of the fence was Bush Island’s 

property. Likewise, Norman Krug testified that his father told 
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him not to cross the fence because the property on the other 

side belonged to Bush Island.

The defendants additionally described utilizing their land 

as far south as the fence in various manners such as grazing 

cattle, hunting, fishing, and camping and asserted that no one 

from Bush Island ever objected to their doing so. Norman Krug 

testified that he was not aware of any claims by Bush Island 

that it owned any land north of the fence line and that between 

1955 and 2010, he never encountered anyone from Bush Island 

on his portion of the land. Norman Krug also recalled, dating 

back to 1965, that his father grazed cattle north of the fence 

and that Bush Island had cattle south of the fence. Similarly, 

Bradley Lockenvitz detailed his use of his family’s land as a 

teenager and young adult, venturing as far south as the fence. 

He recalled walking west along the north fence and that at 

some point, the fence crosses the south branch of the north 

channel, so he could walk up the channel because it was then 

located north of the fence on what he considered to be his family’s property.

There was also evidence presented that would support a 

finding that Bush Island knew of and acquiesced to the fence 

as its northern and western boundary. Cates’ son, a current 

Bush Island shareholder, testified that he went with his father 

to locate and identify the north fence during the pendency 

of these proceedings. He and his father knew of and had no 

dispute about the location of the fence. Cates explained in 

his deposition that he helped maintain the west fence in the 

1960’s and 1970’s. He admitted that the fence helped keep his 

cattle in and that he “ran cattle” until 1977 everywhere east 

of the west fence. Over the last 50 years, Bush Island erected 

numerous deer huts or hunting huts on its property, but did 

not locate any huts north of the north fence. In addition, Bush 

Island used the fence line as its north and west boundary lines 

in its 2014 NRCS application. Around that same time, relying on information provided by Cates and the defendants, 

the Merrick County assessor’s office redrew the assessment 
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boundary lines between Bush Island and the defendants based 

on the north and west fence lines.

Bush Island admits that the east fence constitutes a boundary 

line between it and its eastern neighbor and that this portion of 

the fence was constructed around the same time as the north 

and west portions and is contiguous to the remainder of the 

fence. The current president of Bush Island acknowledged his 

awareness of the east, north, and west fences and the fact that 

there are surveys that correspond to the location of the entire 

fence. Moreover, the defendants have utilized their parcels of 

land as far south as the fence line for decades without objection 

from Bush Island. We conclude that the foregoing evidence 

establishes that Bush Island recognized and acquiesced to the 

fence as a boundary line for more than 10 years.

We recognize, as Bush Island highlights, that there is evidence in the record that would support a finding that Bush 

Island did not consider the fence to be a boundary line. The 

district court also recognized this controversy, finding some 

of Bush Island’s evidence and arguments to be “remarkable,” 

inconsistent, and not credible. Because the credible evidence 

is in conflict, we give weight to the fact that the district court 

saw the witnesses and observed their demeanor while testifying and found the defendants’ evidence to be more credible 

and persuasive. See Babel v. Schmidt, 17 Neb. App. 400, 765 

N.W.2d 227 (2009). We therefore find that the district court 

did not err in establishing the fence as the boundary line 

between Bush Island and the defendants by mutual recognition 

and acquiescence.

Bush Island additionally asserts that it was the defendants’ 

burden to prove that the 1938 survey and accompanying field 

notes represented a boundary agreement or mutual acquiescence. In our view of the evidence, it is not the survey itself 

that constitutes a boundary agreement. Rather, Uriah Bush and 

Henry Kortum requested the survey, Parsons completed it, and 

then a fence was built pursuant to the boundaries established 

by the survey. The 1940 survey followed a similar procedure. 
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Thereafter, the parties were aware of the existence and location 

of the fence. For acquiescence to operate, the other party must 

assent, by words, conduct, or silence, to a line as the boundary. See Madson v. TBT Ltd. Liability Co., 12 Neb. App. 773, 

686 N.W.2d 85 (2004). Bush Island’s words in 2014 leading 

the Merrick County assessor’s office to use the fence as its 

assessment boundary line, conduct of remaining to the east and 

south of the fence, and use of the fence as a boundary line in 

its NRCS application, as well as its silence in not objecting 

to the defendants’ utilizing land as far south as the fence line, 

support a finding that Bush Island acquiesced to the fence as a 

boundary line. Thus, the defendants need not establish that the 

survey itself constituted a boundary agreement.

Finally, with regard to the fence, Bush Island contends that 

the defendants failed to meet their burden to establish the 

boundary line. Specifically, Bush Island argues that exhibit 

241, the survey the defendants presented and upon which the 

court relied to establish the boundary, is not consistent with 

the 1938 survey and does not accurately depict the fence. We 

disagree.

Although it was the 1938 survey that originally led to construction of the fence, Stevens resurveyed the fence in late 

2013 or early 2014 at the direction of Cates, including the 

north and west portions, and depicted those survey lines on 

exhibit 186. Stevens testified that in addition to the information 

he gathered in the field, he utilized the 1938 survey to create 

exhibit 186 and depicted the fence line with a pink line. With 

regard to any differences between exhibit 186 and the 1938 

survey, Stevens explained that the 1938 survey helped him 

locate the corners of the fence and that he retraced some of the 

lines from the 1938 survey to identify the fence line.

Stevens also incorporated this information into exhibit 241, 

a survey that was created for Bush Island’s 2014 NRCS application. Bush Island claims that exhibit 241 does not depict 

the fence line, because Stevens testified that he followed 

“part of the fence” for his work for the NRCS application and 
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testified that exhibit 241 does not incorporate the western area 

depicted on exhibit 186 between the pink line and a light blue 

line, which displays the Merrick County assessment boundary lines.

We note that parts of the record are difficult to follow, 

including portions of Stevens’ testimony, because although it 

is apparent that the witness is indicating locations on exhibits, 

the witness does not sufficiently describe his or her indications 

with testimony. In this instance, Stevens was asked whether 

the light blue lines on exhibit 186 were also the shape of the 

lines depicted on exhibit 241. According to the record, Stevens 

replied, “In here, from about right there to about right there it 

is (indicating).” We cannot discern from his testimony where 

on the exhibit he is indicating. Stevens was then asked whether 

exhibit 241 incorporated “that area between the pink fence and 

the light blue” shown on exhibit 186, and he replied, “No.”

Our review of exhibit 186 reveals two locations where the 

pink and light blue lines diverge. Neither of these locations 

affects the boundary fence at issue in this case. One location 

is on the northeast portion of the north fence before the fence 

turns south and forms Bush Island’s eastern boundary. This 

portion of the fence is east of the Lockenvitzes’ property, and 

thus, it separates Bush Island from a northern neighbor who 

is not a party to this case. Accordingly, any evidence regarding that portion of the fence does not affect the outcome of 

the case.

The other location is at the west fence. Despite Bush 

Island’s argument, it is not clear from the record before us 

that this is the area to which Stevens referred in his testimony. And we note that the pink line depicting the west fence 

is curved, whereas the light blue line depicting the county 

assessment boundary is straight. The similarly located line 

on exhibit 241 is also curved and appears to be in the same 

location as the pink line on exhibit 186. Where credible evidence is in conflict, the appellate court will give weight to the 

fact that the trial court saw the witnesses and observed their 
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demeanor while testifying. Babel v. Schmidt, 17 Neb. App. 

400, 765 N.W.2d 227 (2009). Because the district court was 

able to observe Stevens’ testimony and view his indications on 

exhibit 186, we give weight to its determination that exhibit 

241 accurately depicted the fence between Bush Island and 

the defendants.

We additionally reject Bush Island’s contention that the 

language of the district court’s order establishing the boundary line as “consistent with” exhibit 241 leaves Bush Island 

unclear as to where the boundary lies. Bush Island representatives are familiar with the fence and its location, and pursuant 

to a request from Bush Island, Stevens resurveyed the fence 

and incorporated information from his fieldwork into exhibit 

241, which Bush Island utilized for its 2014 NRCS application. The district court’s order is clear that it established the 

boundary at the fence line based on its finding that the parties 

agreed to such a boundary line. We therefore conclude that 

the defendants met their burden of establishing the boundary line.

In addition to raising issues regarding the fence, Bush Island 

assigns numerous errors related to the district court’s decision to award title to Islands 1 through 8 to the Kortums. The 

district court determined that Bush Island failed to prove by 

a preponderance of the evidence that land west of the west 

fence which encompasses Islands 1 through 8 is accretion 

to Islands 5 and 6. The court also observed that Bush Island 

did not make a claim of adverse possession related to those 

islands, but, regardless, that Bush Island would not have been 

able to prove a claim of adverse possession because it did not 

exercise exclusive possession of Islands 1 through 8 at any 

time since 1965. The court therefore identified the remaining 

question as whether these islands were owned by the Kortums, 

the Allens, or Sands. None of these parties cross-appealed the 

decision to award title to these islands to the Kortums, and 

Bush Island does not challenge the court’s factual finding that 

Islands 1 through 8 are located west of the west fence. Because 
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we affirmed the district court’s determination that the west 

fence forms the western boundary between Bush Island and the 

defendants, Bush Island cannot claim ownership of Islands 1 

through 8. Thus, we need not further address any issues related 

to these islands.

Bush Island’s final assigned error relating to the defendants 

alleges that the district court erred in allowing the defendants 

to amend their counterclaim during trial. After several days of 

trial, the defendants filed a motion for leave to file a second 

amended answer and amended counterclaim. The amended 

pleading sought to add a specific claim of “Boundary Fence by 

Adverse Possession and Acquiescence” related to land north of 

the north fence and west of the west fence and asked the court 

to establish the boundary line consistent with exhibit 241. The 

court granted the motion and allowed the defendants to file 

their amended pleading.

[14] Permission to amend a pleading is addressed to the 

discretion of the trial court, and an appellate court will not 

disturb the trial court’s decision absent an abuse of discretion. 

InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 

(2012). We find no abuse of discretion in the decision to grant 

leave to amend.

At the hearing on the motion, the defendants clarified that 

their motion was filed under Neb. Ct. R. Pldg. § 6-1115(b), 

which allows amendment of pleadings to conform to evidence 

presented at trial and provides in relevant part

When issues not raised by the pleadings are tried by 

express or implied consent of the parties, they shall be 

treated in all respects as if they had been raised in the 

pleadings. Such amendment of the pleadings as may be 

necessary to cause them to conform to the evidence and to 

raise these issues may be made upon motion of any party 

at any time, even after judgment; but failure so to amend 

does not affect the result of the trial of these issues.

On appeal, Bush Island argues that it was prejudiced by the 

court’s allowing the defendants to amend their counterclaim 
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during trial. At the hearing on the motion to amend, however, 

Bush Island acknowledged that the defendants had raised the 

issue of the boundary fence in their previous pleading and 

admitted that it had notice that the boundary fence had been 

at issue. We agree that the defendants’ previous answer and 

cross-claim raised the issue of boundary by acquiescence when 

it alleged that the Kortums have title to the lands described 

therein “based upon an accretion survey and mutually agreed 

upon boundary of the same property, which was agreed upon 

by [the Kortums] and [Bush Island], or their respective predecessors in interest” and made identical claims with respect 

to the Lockenvitzes and Krugs. Although the defendants’ previous pleading was titled as an answer and “crossclaim,” it 

also requested that the court establish the boundary line as to 

“all indispensable parties.” Further, the district court’s order 

granting the defendants leave to amend determined that the 

defendants’ “original allegations relate to the fence as being 

a boundary fence between the properties,” a conclusion that 

Bush Island does not challenge. Thus, because the issue of the 

boundary fence was raised in the defendants’ previous pleading, no amendment as to that issue was necessary.

Instead, the focus of the request for leave to amend was on 

the addition of an adverse possession claim. At the hearing on 

the motion to amend, Bush Island’s opposition was concentrated on the adverse possession claim, arguing that an adverse 

possession claim “is a completely different claim than acquiescence to a boundary fence.” The district court’s posttrial 

order, however, did not grant relief to the defendants on their 

adverse possession claim, because it found in the defendants’ 

favor on their boundary by acquiescence claim. Therefore, 

because the addition of an adverse possession claim did not 

affect the outcome of trial, we reject Bush Island’s argument 

that it was prejudiced by the court’s granting the defendants 

leave to amend.

Bush Island also argues that the district court erred in considering the defendants’ amended pleading, because although 
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the court granted leave to amend, the defendants failed to file 

the pleading. However, because this issue was not specifically 

assigned as error, we do not address it. See Chafin v. Wisconsin 

Province of Society of Jesus, 301 Neb. 94, 917 N.W.2d 821 

(2018) (to be considered by appellate court, alleged error must 

be both specifically assigned and specifically argued in brief of 

party asserting error). In any event, we have concluded that no 

amendment was necessary, because the claim upon which the 

district court granted relief to the defendants was raised in their 

previous pleading.

Issues Related to Cross-Defendants.

In its final assignments of error, Bush Island raises several 

claims regarding the cross-defendants, the Allens and Sands. 

Bush Island asserts the district court erred in finding that the 

Allens and Sands acquired certain land by adverse possession, 

finding that they are entitled to accretion land north of the 

south channel, granting the Allens accretion to land not at issue 

at trial, and finding that the Allens and Sands met their burden 

of establishing the boundaries for their claims.

As discussed above, we find no error in the district court’s 

determination that Bush Island’s accretion claim is limited to 

the north by the middle channel and to the south by the south 

channel, as outlined by Mussetter. Mussetter further explained 

that based on this conclusion, the upstream, or western, limit of 

the lands that Bush Island could claim as accretion is formed 

at the junction of the middle channel and the south channel. 

This junction is depicted on exhibit 366, a larger version of 

which was received into evidence as exhibit 396. The district 

court relied on these two exhibits when determining the extent 

of the accretion land attributed to the Allens and Sands. These 

exhibits also depict the upstream tip of Bush Island’s accretion 

claim, which lies to the east of the Allens’ and Sands’ accretion 

land. Because the land the district court awarded to the Allens 

and Sands lies west of the western limit of Bush Island’s 

accretion claim, Bush Island would not be entitled to any of 
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the accretion land the district court awarded to the Allens and 

Sands. As such, we need not further address Bush Island’s 

claims regarding the cross-defendants.

CONCLUSION

For the foregoing reasons, we find no error in the district 

court’s decisions as outlined above. The district court’s order is 

therefore affirmed.

Affirmed.

Welch, Judge, concurring and dissenting.

I concur with all portions of the majority’s opinion except 

as it relates to Bush Island’s claim to quiet title to the property surrounding the island itself. As to that claim, the district 

court dismissed Bush Island’s claim in its entirety. As I read 

the court’s order, it dismissed Bush Island’s claim primarily 

because Bush Island attempted to claim an ownership interest 

to a property line extending north of the middle channel and 

west of the boundary fence constructed on or around 1938.

As to Bush Island’s claim of ownership to a property line 

north of the middle channel, the district court and the majority 

conclude that Bush Island’s claim of ownership was limited 

to the center of the thread of the middle channel of the Platte 

River at that location. They derive support for this finding 

from the proposition in Heider v. Kautz, 165 Neb. 649, 654, 87 

N.W.2d 226, 230 (1957), quoting Higgins v. Adelson, 131 Neb. 

820, 270 N.W. 502 (1936):

“Where title to an island in a nonnavigable stream is conveyed to a grantee by government patent, and the land so 

conveyed is bounded by the waters of such stream, the 

grantee’s ownership carries with it the bed of the river to 

the center or thread of each surrounding channel.”

Because the evidence established that Bush Island was bordered by the south channel of the Platte River on the south 

and the middle channel on the north, the majority concludes 

that Bush Island’s ownership extends to the bed of the center 

or thread of each such surrounding channel. But, in Monument 
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Farms, Inc. v. Daggett, 2 Neb. App. 988, 995, 520 N.W.2d 556, 

562 (1994), this court also held:

The thread or center of a channel, as the term is employed, 

must be the line which would give the owners on either 

side access to the water, whatever its stage might be, and 

particularly at its lowest flow. State v. Ecklund, 147 Neb. 

508, 23 N.W.2d 782 (1946). In other words, the thread of 

the stream is the deepest groove or trench in the bed of a 

river channel, the last part of the bed to run dry. Where 

the thread of a stream is the boundary between estates and 

that stream has two channels, the thread of the main channel is the boundary between the estates. See Hardt v. Orr, 

142 Neb. 460, 6 N.W.2d 589 (1942).

It is the latter proposition of law which applies here. Bush 

Island and the estates on the north claim ownership interest in 

property between them. As to those estates, the nonnavigable 

stream, in this case the Platte River, has two channels between 

those two estates—the middle channel and the north channel. 

As between those two channels, the evidence unequivocally 

established that the north channel was the main channel, or 

the last to go dry. Under these circumstances, the thread of 

the north channel becomes the boundary between the estates. 

To hold otherwise would, in my opinion, contradict our prior 

authority on the subject. Even though there may have been 

some existing land between the middle channel and the north 

channel when the GLO first surveyed this stretch of river in 

the 1860’s, that land apparently was not separately identified 

as an island, because it did not qualify with the GLO’s policy 

of surveying only those islands with above water surface areas 

of at least 5 acres, while what would become Bush Island’s 

property did so qualify. Because that property qualified as 

an island followed by a conveyance by government patent, 

the owner of Bush Island was then entitled to ownership to 

the bed of the main channel north of that island if more than 

one channel existed. As such, Bush Island, from the time of 

the original grant, was entitled to a claim of ownership to the 
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thread of the north channel—the channel that would be the last 

to go dry.

That said, the evidence also established that in or about 

1938, the then owners of the surrounding properties agreed to 

the erection of a boundary fence as erected in accordance with 

an accretion survey performed contemporaneously. As the district court found, the parties have since accepted that fence as 

a boundary fence for nearly 70 years. Because I agree that the 

parties have long since adopted the fence line on the north, east, 

and west as the boundary of Bush Island’s ownership interest 

under the doctrine of mutual recognition and acquiescence, I 

would find that Bush Island was entitled to relief in the form 

of quieting title to its property bounded to the west, east, and 

north by the fence as depicted on exhibit 241 and by the thread 

of the south channel on the south. Stated differently, although 

Bush Island had the right to claim property north of the middle 

channel at one time, it agreed to limit that claim of ownership 

up to the fence line by mutual recognition and acquiescence. 

As to that portion of Bush Island’s claim, I would reverse the 

trial court’s judgment and quiet title as indicated above.