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SIEDLIK v. NISSEN

Cite as 303 Neb. 784

Ray Siedlik and Terri Siedlik, appellants, v. 

Daniel Nissen and Deb Nissen, appellees.

___ N.W.2d ___

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

1. Equity: Quiet Title. A quiet title action sounds in equity.

2. Equity: Appeal and Error. On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to 

questions of both fact and law, is obligated to reach a conclusion independent of the trial court’s determination.

3. Equity: Evidence: Appeal and Error. In an appeal of an equity action, 

where credible evidence is in conflict on a material question of fact, an 

appellate court considers and may give weight to the fact that the trial 

court heard and observed the witnesses and their manner of testifying, 

and accepted one version of the facts rather than another.

4. Adverse Possession: Appeal and Error. In an action to establish title 

by adverse possession, an appellate court may give consideration to the 

fact that the trial court personally viewed the premises involved therein.

5. Adverse Possession: Proof: Time. A party claiming title through 

adverse possession must prove by a preponderance of the evidence that 

the adverse possessor has been in (1) actual, (2) continuous, (3) exclusive, (4) notorious, and (5) adverse possession under a claim of ownership for a statutory period of 10 years.

6. Adverse Possession: Notice. The acts of dominion over land allegedly 

adversely possessed must, to be effective against the true owner, be so 

open, notorious, and hostile as to put an ordinarily prudent person on 

notice of the fact that the lands are in the adverse possession of another.

7. ____: ____. The purpose of prescribing the manner in which an adverse 

holding will be manifested is to give notice to the real owner that his 

or her title or ownership is in danger so that he or she may, within the 

period of limitations, take action to protect his or her interest. It is the 

nature of the hostile possession that constitutes the warning, not the 

intent of the claimant when he or she takes possession.

Nebraska Supreme Court Online Library

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

10/11/2019 09:06 AM CDT
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8. ____: ____. Something more than a neighbor’s watering and mowing 

over the property line is needed to alert a reasonable owner that his 

or her title is in danger and he or she must take steps to protect his or 

her interest.

9. Adverse Possession: Boundaries. Proof of the adverse nature of the 

possession of land is not sufficient to quiet title in the adverse possessor; 

the land itself must also be described with enough particularity to enable 

the court to exact the extent of the land adversely possessed and to enter 

a judgment upon the description.

10. Adverse Possession: Proof. A claimant of title by adverse possession 

must show the extent of his or her possession, the exact property which 

was the subject of the claim of ownership, that his or her entry covered 

the land up to the line of his or her claim, and that he or she occupied 

adversely a definite area sufficiently described to found a verdict upon 

the description.

11. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not passed upon by the trial court.

Appeal from the District Court for Cass County: Michael A. 

Smith, Judge. Affirmed.

Douglas W. Ruge for appellants.

Joel M. Carney and William J. Hale, of Goosmann Law 

Firm, P.L.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

This is an action brought by Ray Siedlik and Terri Siedlik to 

quiet title to a tract of land located in Cass County, Nebraska. 

The Siedliks claimed title by adverse possession to a 6-foot 

tract owned by abutting landowners Daniel Nissen and Deb 

Nissen. The district court found in favor of the Nissens, and the 

Siedliks appealed. We affirm.

I. BACKGROUND

In December 2004, the Siedliks moved into a newly constructed home located on “Lot 3, Block 7, Buccaneer Bay” 

(Lot 3), in Cass County, Nebraska. Lot 3 is bordered on the 
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west by “Lot 4, Block 7, Buccaneer Bay” (Lot 4). Lot 4 is a 

vacant lot owned by the Nissens, who have occupied a residence on the lot directly west of Lot 4 since 2001. Daniel testified that after the Siedliks moved in, Ray offered to purchase 

Lot 4 or a portion thereof, but Daniel had no plans to sell.

In April 2005, the Siedliks installed improvements over the 

property line, which included two sprinkler heads, a sprinkler 

control box, landscaping, and a wooden fence. The front sprinkler head was placed 51

⁄2 feet into Lot 4, which marked the furthest encroachment. The sprinkler heads were intended to line 

up with a stake located in the rear west corner of the Siedliks’ 

property, but were mistakenly placed beyond the boundary line 

due to the curvature of Buccaneer Boulevard. The Siedliks 

placed the front sprinkler head in their front yard about 5 feet 

south of Buccaneer Boulevard, which they thought was the 

northwest corner of their property. The second sprinkler head 

was placed about halfway down the yard, 3 feet into Lot 4. 

The Siedliks graded and laid sod and erected a wooden fence 

down the same line, known as the sprinkler line. The disputed 

area is pie shaped with the widest point at the front of the lot 

and the end point located at the rear stake traveling along the 

sprinkler line.

The Nissens took photographs while the Siedliks installed 

these improvements, were aware of the grading and laying 

of sod, and witnessed the sprinklers water the sodded area. 

Daniel testified that when Terri was working in the yard in 

2006 or 2007, she represented that the Siedliks would never 

encroach. Both the Siedliks and the Nissens believed that the 

improvements were built on the Siedliks’ property, but a 2016 

survey conducted by the Nissens revealed the true property 

line and the Siedliks’ encroachments. Around this same time, 

the Siedliks voluntarily moved their fence and sprinkler heads 

closer to their house.

The parties began negotiating an agreement to extend the 

Siedliks’ land 2 feet into Lot 4 for nearly the full length of the 

property line. The potential land sale was for a total of 230 
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square feet. The Siedliks conducted a survey which confirmed 

the true property line and included the following legal description for the proposed property acquisition:

PART OF LOT 4, BLOCK 7, BUCCANEER BAY, 

CASS COUNTY, NEBRASKA[,] BEGINNING AT 

THE NORTHEAST CORNER OF LOT 4, BLOCK 7, 

BUCCANEER BAY; THENCE N 89°53′35ʺ E (ASSUMED 

BEARING), 2.00 FEET ALONG THE NORTH LINE OF 

SAID LOT 4, BLOCK 7, BUCCANEER BAY; THENCE 

S 00°06ʹ25ʺ E, 80.00 FEET; THENCE S 01°44ʹ36ʺ 

E, 70.03 FEET TO THE SOUTHEAST CORNER OF 

SAID LOT 4, BLOCK 7, BUCCANEER BAY; THENCE 

N 00°06ʹ25ʺ W, 150.00 FEET TO THE POINT OF 

BEGINNING. DESCRIBED TRACT CONTAINS 230 

SQUARE FEET.

On December 29, 2016, the Siedliks filed an amended complaint seeking to quiet title in a 6-foot tract of land in Lot 4. 

The Siedliks alleged that for a period of approximately 12 years, 

their fence, retaining wall, and rock area encroached onto the 

Nissens’ property. The Siedliks alleged that during this time 

period, they continuously and exclusively maintained, mowed, 

and utilized an area of land 6 feet beyond the boundary line. 

The Siedliks attached to the amended complaint “Exhibit ‘A,’” 

which contained the same survey property depiction as exhibit 

12, shown on page 788.

In their prayer for relief, they requested an “[o]rder quieting legal title in the 230 square feet of property referenced 

in ‘Exhibit A.’” In addition, the Siedliks requested that the 

court quiet title in “an area up to six feet into the [Nissens’] 

property.”

The Nissens filed an answer denying the allegations and 

affirmatively alleging that the Siedliks’ possession of the property was not under a claim of ownership. The Siedliks moved 

for summary judgment, which the court overruled. The court 

inspected the property in the presence of the parties’ attorneys 

and held a trial on July 25, 2018.
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At trial, Ray testified that he exclusively used and maintained the land inside the sprinkler line. He testified that he 

mowed and replaced sod in this area and that the opposite side 

of the sprinkler line was overgrown with longer grass and tall 

weeds, which meant that the sprinkler line was also referred to 

as the “weed line.” The Siedliks offered overhead photographs 

taken in August 2005 and October 2006 which demonstrated 

the weed line.

Daniel testified that the Siedliks’ use of the disputed area 

within the relevant time period was not always exclusive. He 
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testified that he also mowed the area, up to about 6 inches from 

the fence, until 2008 when the parties had a dispute. Thereafter, 

the parties recognized an “imaginary line” and Daniel then 

mowed up to the sprinkler line. Ray disputed this testimony by 

stating that Daniel mowed up to the sprinkler line until 2008 

and let the weeds grow thereafter. He stated that he and Daniel 

mowed at different heights and that when Daniel mowed he 

mowed the grass down to the dirt.

Ray testified at length about his desire to maintain control 

over the disputed area in order to prevent flooding issues to 

his home. In 2012 or 2013, the Siedliks experienced flooding 

in their basement because Lot 3 sat lower than Lot 4. As a 

result, the Siedliks installed in the disputed area portions of a 

lower retaining wall and a drainage system.

In 2016, around the time of the Nissens’ survey, the Siedliks 

replaced their wooden fence with a vinyl fence that did not 

encroach. There was conflicting evidence as to whether one 

or both of the sprinkler heads still encroached after they were 

moved back. The sprinkler control box, grading and sod, and 

lower retaining wall remained over the property line.

At the close of the evidence, the Siedliks moved to conform 

the pleadings to the evidence adduced at trial. Their counsel 

stated that the motion was intended to address a potential discrepancy between the amount of land claimed in paragraphs 

6 and 7 in the amended complaint and the evidence at trial. 

Counsel for the Siedliks specifically asked that the court reform 

paragraph 7 to be consistent with paragraph 6. Both paragraphs 

claimed a 6-foot tract of land, but paragraph 7 also claimed the 

“land depicted in ‘Exhibit A,’” which claimed only a 2-foot 

tract, and the most that Ray claimed in his testimony was a 

51⁄2-foot tract. The court granted the motion and amended the 

pleading “to comply with the proof as received.”

Following trial, the court entered an order of dismissal. 

The court relied on Poullos v. Pine Crest Homes1 for the rule 

1 Poullos v. Pine Crest Homes, 293 Neb. 115, 876 N.W.2d 356 (2016).
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that mere maintenance of land, such as mowing or landscaping, does not constitute sufficiently hostile possession to put 

a landowner on notice of adverse possession. The court found 

the evidence showed that the Siedliks had not used the land 

in a manner different from general maintenance. The court 

found that the fence and at least one of the sprinkler heads 

no longer encroached and that the remaining items which had 

been in place for longer than 10 years, such as the sprinkler 

control box and landscaping, encroached by less than 2 feet. 

The court found these intrusions were not sufficiently notorious to sustain a claim to quiet title by adverse possession. 

We moved the appeal to our docket pursuant to our statutory 

authority to regulate the caseloads of the appellate courts of 

this State.2

II. ASSIGNMENTS OF ERROR

The Siedliks assign that the district court erred in finding 

(1) insufficient notorious use of the disputed land to sustain a 

claim for adverse possession and (2) insufficient notorious use 

of the disputed land to sustain a claim for the boundary line 

by acquiescence.

III. STANDARD OF REVIEW

[1,2] A quiet title action sounds in equity.3 On appeal from 

an equity action, an appellate court decides factual questions 

de novo on the record and, as to questions of both fact and 

law, is obligated to reach a conclusion independent of the trial 

court’s determination.4

[3,4] In an appeal of an equity action, where credible evidence is in conflict on a material question of fact, an appellate 

court considers and may give weight to the fact that the trial 

2 See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).

3 Brown v. Jacobsen Land & Cattle Co., 302 Neb. 538, 924 N.W.2d 65 

(2019); Poullos, supra note 1; Wanha v. Long, 255 Neb. 849, 587 N.W.2d 

531 (1998).

4 Id.
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court heard and observed the witnesses and their manner of 

testifying, and accepted one version of the facts rather than 

another.5 We may also give consideration to the fact the trial 

court personally viewed the premises involved therein.6

IV. ANALYSIS

1. Adverse Possession

[5] The Siedliks sought to quiet title 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, (2) continuous, 

(3) exclusive, (4) notorious, and (5) adverse possession under 

a claim of ownership for a statutory period of 10 years.7 The 

Siedliks argue on appeal that the district court erred in finding their encroachments were not sufficiently notorious. Upon 

de novo review, we conclude that regardless of the errors 

assigned by the Siedliks, the district court correctly dismissed 

the Siedliks’ amended complaint due to the Siedliks’ failure to 

prove all of the elements of adverse possession.

[6] The acts of dominion over land allegedly adversely possessed must, to be effective against the true owner, be so open, 

notorious, and hostile as to put an ordinarily prudent person on 

notice of the fact that the lands are in the adverse possession of 

another.8 If an occupier’s physical actions on the land constitute visible and conspicuous evidence of possession and use of 

the land, that will generally be sufficient to establish that possession was notorious.9

 Although the enclosure of land renders 

5 See, Steinfeldt v. Klusmire, 218 Neb. 736, 359 N.W.2d 81 (1984); Shirk 

v. Schmunk, 192 Neb. 25, 218 N.W.2d 433 (1974). See, also, Fredericks 

Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).

6 Shirk, supra note 5. See, Grint v. Hart, 216 Neb. 406, 343 N.W.2d 921 

(1984); Barry v. Wittmersehouse, 212 Neb. 909, 327 N.W.2d 33 (1982).

7 Poullos, supra note 1.

8 Id.

9 Id.
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the possession of land open and notorious, and tends to show 

that it is exclusive, it is not the only way by which possession 

may be rendered open and notorious.10 Nonenclosing improvements to land, such as erecting buildings or planting groves or 

trees, which show an intention to appropriate the land to some 

useful purpose, are sufficient.11

In this matter, the evidence showed that the amount of land 

claimed by the Siedliks varied at different places along the 

boundary line. The angling of the disputed area meant that 

the amount of land claimed decreased when moving from the 

front yard toward the backyard.

(a) Front Yard

In the front yard, which runs from the street to the approximate front of the house, the Siedliks claimed 51

⁄2 feet of land 

due to the placement of the front sprinkler head and the maintaining of the grass in the area. The evidence does support the 

Siedliks’ contention that they maintained the lawn in this area. 

However, the evidence also indicates that other than the sprinkler head, no structures or improvements were located within 

this 51⁄2 feet.

[7] It is the Siedliks’ burden to establish all of the elements 

of adverse possession by a preponderance of the evidence. 

With respect to the front lawn, there was a failure of proof 

regarding the element of adverse possession under a claim 

of ownership. Claim of ownership means a possession that is 

hostile, meaning that an occupant holds and is in possession 

of land as the owner and against all other claimants.12 The 

purpose of prescribing the manner in which an adverse 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 

10 Id.

11 Id.

12 See, Brown, supra note 3; Wanha, supra note 3.
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her interest. It is the nature of the hostile possession that constitutes the warning, not the intent of the claimant when he or 

she takes possession.13

[8] With respect to the Siedliks’ maintenance of the yard, the 

evidence does not suggest that their possession was hostile in 

nature, or something more than maintaining the aesthetics of 

the area. In considering the nature of the possession, we note 

that Terri announced that the Siedliks would not encroach. The 

Siedliks did not erect any structures in the area or appropriate 

the land for some useful purpose. We have previously held that 

acts of routine yard maintenance, without more, are insufficient 

to warn the titleholder that another is claiming or using the 

land for his own purpose.14 Something more than a neighbor’s 

watering and mowing over the property line is needed to alert 

a reasonable owner that his or her title is in danger and he or 

she must take steps to protect his interest.15 Additionally, courts 

from other jurisdictions have held that mere maintenance of 

land, such as mowing the grass, cutting the weeds, planting 

flowers, and minor landscaping, does not constitute a hostile 

character of possession sufficient to give notice of an exclusive 

adverse possession.16

Upon de novo review, we find the Siedliks have failed to 

prove, by a preponderance of the evidence, the necessary elements to support a claim of adverse possession of the land 

located adjacent to the front yard.

(b) Middle Yard

Near the middle of the yard, which runs from approximately 

the front of the house to the back of the house, the Siedliks 

13 Id.

14 Poullos, supra note 1.

15 Id.

16 See, Shibley v. Hayes, 214 Ark. 199, 215 S.W.2d 141 (1948); Bailey v. 

Moten, 289 Ga. 897, 717 S.E.2d 205 (2011); Crown Credit Co., Ltd. v. 

Bushman, 170 Ohio App. 3d 807, 869 N.E.2d 83 (2007); Montieth v. 

Church, 68 Ohio App. 2d 219, 428 N.E.2d 870 (1980).
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claimed 3 feet of land due to the placement of a second sprinkler head, a sprinkler control box, a lower retaining wall, and 

landscaping. In light of the district court’s findings, as well as 

our review of the evidence, we find the record indicates that 

these improvements encroached by less than 1 foot into the 

disputed area.

Of importance, the evidence concerning a tract of land 2 feet 

in width referred only to a term used in negotiations and not as 

a measure of the land under a claim of ownership. The parties 

included a legal description for the proposed 2-foot tract in a 

draft purchase agreement, which the Siedliks signed but the 

Nissens declined to sign. The record does not contain a legal 

description for the property which the Siedliks claimed to have 

adversely possessed.

[9,10] We have long recognized that proof of the adverse 

nature of the possession of land is not sufficient to quiet title 

in the adverse possessor; the land itself must also be described 

with enough particularity to enable the court to exact the extent 

of the land adversely possessed and to enter a judgment upon 

the description.17 A claimant of title by adverse possession 

must show the extent of his or her possession, the exact property which was the subject of the claim of ownership, that his 

or her entry covered the land up to the line of his or her claim, 

and that he or she occupied adversely a definite area sufficiently described to found a verdict upon the description.18 This 

standard requires that the claimant provide to the trial court a 

precise legal description rather than general descriptions based 

on landmarks.19

17 Schellhorn v. Schmieding, 288 Neb. 647, 851 N.W.2d 67 (2014); Inserra 

v. Violi, 267 Neb. 991, 679 N.W.2d 230 (2004); Matzke v. Hackbart, 224 

Neb. 535, 399 N.W.2d 786 (1987).

18 Inserra, supra note 17; Pokorski v. McAdams, 204 Neb. 725, 285 N.W.2d 

824 (1979).

19 See, Inserra, supra note 17; Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 

254 (1983). See, also, Royal v. McKee, 298 Neb. 560, 905 N.W.2d 51 

(2017); Sawtell v. Bel Fury Investments Group, 19 Neb. App. 574, 810 

N.W.2d 320 (2012).
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The Siedliks failed to describe the land with enough particularity, because they did not provide a legal description for 

the land over which they claimed ownership. It is clear based 

on the evidence adduced at trial and the Siedliks’ motion to 

amend the pleadings that the Siedliks sought to quiet title in 

a 51⁄2-foot strip of land and that the only legal description in 

evidence pertained to a proposed acquisition of a tract of land 

2 feet in width.

We have consistently rejected adverse possession claims 

when the burden to provide a specific land description is not 

met. In Inserra v. Violi,

20 we concluded that the claimants 

did not meet their burden of proving “an exact and definite 

description of [the] portion of [the lot] to which they claim[ed] 

title by adverse possession.” In Matzke v. Hackbart,

21 we 

rejected a claim where the description provided was “an admitted estimation, with no factual basis expressed in the record.” 

In Steinfeldt v. Klusmire,

22 we noted that the claimant’s evidence “failed to establish any specific boundaries.” The lack 

of a precise land description for a court to enter a judgment 

upon can create problems for future transactions involving 

the land.23

As noted, the evidence of encroachments varied along the 

boundary line. After personally inspecting the land at issue, 

the district court found that the fence and at least one of the 

sprinkler heads no longer encroached and that the Siedliks’ 

encroachments were “less than two feet over the property line.” 

(Emphasis supplied.) This finding is consistent with Ray’s testimony that the sprinkler control box encroached by 6 inches, 

as well as with photographs in evidence which showed that the 

lower retaining wall rested directly on the property line. This 

evidence suggests that the legal description of the 2-foot tract 

20 Inserra, supra note 17, 267 Neb. at 996, 679 N.W.2d at 235.

21 Matzke, supra note 17, 224 Neb. at 541, 399 N.W.2d at 791.

22 Steinfeldt, supra note 5, 218 Neb. at 739, 359 N.W.2d at 83.

23 See Sawtell, supra note 19.
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cannot be used to support the Siedliks’ quiet title claim. The 

varied length of the encroachments along the boundary line 

only reinforces the fact that the Siedliks’ possession of the area 

was not hostile in nature. Moreover, the lower retaining wall 

and drainage system were located in the disputed area for less 

than the required 10-year period.

Upon de novo review, and according deference to the district 

court’s findings based on its inspection of the premises, we 

determine that the Siedliks have failed to prove, by a preponderance of the evidence, the necessary elements to support a 

claim of adverse possession of the land located adjacent to the 

middle yard. We conclude that the Siedliks did not meet their 

burden to provide a specific description for the land which they 

sought to claim by adverse possession.

(c) Backyard

Toward the back of the yard, which runs from the back 

portion of the house to the rear of the lot, the Siedliks 

claimed the disputed land due to the placement of a wooden 

fence. Where a fence has been constructed as a boundary 

line between the property of two landowners, one of whom 

claimed ownership to such fence line for the full statutory 

period of 10 years, and is not interrupted in his possession 

or control during that time, he or she will, by adverse possession, gain title to such land as may have been improperly 

enclosed within his or her own land.24 However, the evidence 

is undisputed that the fence was not constructed as a boundary 

line. This court has held that where neither party considered 

a fence a boundary, the fence does not constitute evidence of 

adverse possession.25

The evidence indicates that a fence was erected in 2005 commencing at the back of the house and running to the southern 

24 McGowan v. Neimann, 144 Neb. 652, 14 N.W.2d 326 (1944).

25 See Wanha, supra note 3, citing Thornburg v. Haecker, 243 Neb. 693, 502 

N.W.2d 434 (1993).
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end of the property line. There was testimony that the corner 

of the fence nearest to the house encroached about 3 feet into 

the Nissens’ land. However, there was no evidence to establish 

how much the remaining portions of fence encroached upon 

the disputed area. Further, the evidence shows that prior to filing suit, the Siedliks removed the wooden fence and replaced 

it with a vinyl fence located inside their property line. As a 

result, the only survey received into evidence does not depict 

the location of the old fence, and no legal description was provided to indicate the amount of encroachment.

Additionally, the Siedliks claimed possession of the land 

beyond the fence up to the sprinkler line. There was evidence 

that until 2008, Daniel mowed beyond the sprinkler line and 

into the disputed area about every other week. Possession must 

be exclusive, and if the occupier shared possession with the 

title owner, the occupier may not obtain title by adverse possession.26 Where the record establishes that both parties have 

used the property in dispute, there can be no exclusive possession on the part of one party for the purpose of establishing 

adverse possession.27

Upon de novo review, we find the Siedliks have failed to 

prove, by a preponderance of the evidence, the necessary elements to support a claim of adverse possession of the land 

located adjacent to the backyard.

2. Boundary Acquiescence

[11] With respect to the Siedliks’ second assignment of 

error, the record shows that the district court did not pass 

upon a claim for quiet title based on the theory of boundary 

acquiescence and that the Siedliks are advancing this theory 

for the first time on appeal. Because an appellate court will not 

consider an issue on appeal that was not passed upon by the 

26 Wanha, supra note 3.

27 Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003); 

Wanha, supra note 3.
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trial court,28 we do not address the Siedliks’ contention that the 

court erred in failing to sustain a claim for the boundary line 

by acquiescence.

V. CONCLUSION

Based upon the foregoing, we affirm the judgment of the 

district court.

Affirmed.

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

(2018).