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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

BROWN v. MORELLO

Cite as 308 Neb. 968

Lillie Brown, appellee, v. Bernard 

Morello, appellant.

___ N.W.2d ___

Filed April 16, 2021. No. S-20-514.

1. Summary Judgment. Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no 

genuine issue as to any material fact or as to the ultimate inferences that 

may be drawn from those facts and that the moving party is entitled to 

judgment as a matter of law.

2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by these rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

3. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determining the relevance of evidence, and an appellate court will not reverse a trial court’s decision regarding relevance 

absent an abuse of discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for clear 

error the factual findings underpinning a trial court’s hearsay ruling and 

reviews de novo the court’s ultimate determination to admit evidence 

over a hearsay objection or exclude evidence on hearsay grounds.

6. 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.

7. Adverse Possession: Notice. To be effective against the true owner, acts 

of dominion over land allegedly adversely possessed must be so open, 

Nebraska Supreme Court Online Library

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

07/02/2021 08:11 AM CDT
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BROWN v. MORELLO

Cite as 308 Neb. 968

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. Adverse Possession. If an occupier’s physical actions on the land 

constitute visible and conspicuous evidence of possession and use of 

the land, such will generally be sufficient to establish that possession 

was notorious.

9. ____. Where both parties have used the property in dispute, there can be 

no exclusive possession by one party.

10. ____. The law does not require that adverse possession be evidenced by 

complete enclosure and 24-hour use of the property. It is sufficient if the 

land is used continuously for the purposes to which it may be adapted.

11. Hearsay: Words and Phrases. A “statement,” for purposes of hearsay, 

is treated as assertion based, which is to say that a statement is a person’s oral or written assertion or nonverbal conduct of a person, if it is 

intended by him or her as an assertion.

12. Trial: Words and Phrases. The word “speculation” is defined as the 

practice or an instance of theorizing about matters over which there is no 

certain knowledge. To “speculate” is to form opinions about something 

without having the necessary information or facts or to make guesses.

13. ____: ____. Objecting to “speculation” is another way of objecting to 

either lack of personal knowledge or expressing an opinion.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Affirmed.

Andrew T. Schlosser, of Fitzgerald, Schorr, Barmettler & 

Brennan, P.C., L.L.O., for appellant.

Catherine Mahern, Christopher A. Mihalo, and Sydney 

Pontius-Maynes, Senior Certified Law Student, of Milton R. 

Abrahams Legal Clinic, for appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Lillie Brown filed a quiet title action against Bernard 

Morello for adverse possession of a small parcel of land adjacent to the parcel upon which her home stands. Morello filed 
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BROWN v. MORELLO

Cite as 308 Neb. 968

a counterclaim. Brown’s motion for summary judgment was 

granted. Morello appeals. We affirm.

BACKGROUND

Brown and her late ex-husband purchased the residential 

property located at 2934 Nicholas Street in Omaha, Nebraska, 

in October 1972. After the couple’s divorce, the property was 

quitclaimed to Brown. Brown has lived in the home since 

1972; her son currently resides with her.

Bernard Morello purchased 2936 Nicholas Street in Omaha, 

Nebraska, at a tax foreclosure sale in 1995. This property is 

a small strip of land measuring approximately 20.7 feet wide 

by 130 feet long and adjoins both Brown’s property and North 

30th Street. The strip is too small to build any dwelling upon.

In an affidavit in support of her motion for summary judgment, Brown averred that until recently, she was under the 

belief that she owned the strip of land and that she paid property taxes on it. Brown averred that there have never been 

buildings or other markers on this strip of land in the time 

she has owned her home and that along with the help of her 

son and grandson, she has mowed the lawn and cleared the 

sidewalk adjoining the parcel during the entire time she has 

lived in her home. Brown also averred that more than 10 years 

ago, she constructed a retaining wall along the western edge 

of the property, which runs the length of the property along 

North 30th Street. Brown averred she recently learned that she 

had not paid the taxes on the land and that the strip was not 

part of her parcel of land, but was instead a separate parcel 

of land.

After learning that she did not own the parcel, Brown 

filed her motion to quiet title. Morello counterclaimed, alleging trespass and seeking removal of the retaining wall and 

compensatory damages. Brown then filed a motion for summary judgment.

Morello filed an affidavit in opposition to summary judgment, in which he averred that he lived in Texas and retained 
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BROWN v. MORELLO

Cite as 308 Neb. 968

an agent for purposes of inspecting and maintaining his 

properties in Omaha, including the property located at 2936 

Nicholas Street. Morello averred in paragraph 5 that

[a]t no time was it ever reported or brought to my attention by my local agent that any actions had been taken 

or were occurring with respect to the subject property 

that would have put me on notice of [Brown’s] open and 

notorious use of the subject property. My agent is familiar 

with my properties and would have reported any event or 

circumstance that endangered or damaged the property.

Brown objected to this paragraph on the basis of hearsay and 

relevance. The district court excluded paragraph 5, but did not 

identify the grounds for sustaining the objections.

Morello further averred in paragraph 6 of his affidavit:

I believed that the retaining wall, which is directly adjacent to the City of Omaha’s sidewalk, is located on City 

property, and was constructed by the City of Omaha. I 

also based this belief on the fact that I never received 

any notice of a City permit being issued to construct the 

retaining wall.

Brown objected to this statement on the grounds of speculation 

and relevance. The district court also sustained this objection 

without identifying the precise grounds for doing so.

Finally, in paragraph 7, Morello averred that he could “find 

no record of a City permit ever being issued for the construction 

of the retaining wall on the subject property.” Brown objected 

to this averment on the basis of relevance, but that objection 

was implicitly denied.

Following a hearing, the district court granted Brown’s 

motion for summary judgment, quieted title in Brown’s favor, 

and dismissed Morello’s counterclaim.

ASSIGNMENTS OF ERROR

Morello assigns, restated, that the district court erred in (1) 

granting Brown’s motion for summary judgment, (2) excluding 

paragraph 5 of Morello’s affidavit on the grounds of hearsay 
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BROWN v. MORELLO

Cite as 308 Neb. 968

and relevance, and (3) excluding paragraph 6 of Morello’s 

affidavit on the grounds of speculation and relevance.

STANDARD OF REVIEW

[1] Summary judgment is proper when the pleadings and 

the evidence admitted at the hearing disclose that there is no 

genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving 

party is entitled to judgment as a matter of law. 1

[2-4] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by these 

rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility. 2 The exercise 

of judicial discretion is implicit in determining the relevance of 

evidence, and an appellate court will not reverse a trial court’s 

decision regarding relevance absent an abuse of discretion. 3 A 

judicial abuse of discretion exists when the reasons or rulings 

of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition. 4

[5] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination to admit evidence over a 

hearsay objection or exclude evidence on hearsay grounds. 5

ANALYSIS

On appeal, Morello assigns that the district court erred in 

granting Brown’s motion for summary judgment and finding 

that she had adversely possessed the parcel of land at issue. 

1 Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).

2 Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

3 Id.

4 Id.

5 Id.
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BROWN v. MORELLO

Cite as 308 Neb. 968

In connection with these contentions, Morello argues that the 

district court made certain evidentiary errors.

Underlying Propositions.

[6] Our propositions regarding adverse possession are familiar. 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

[7,8] To be effective against the true owner, acts of dominion over land allegedly adversely possessed must 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 If an occupier’s physical actions on the land constitute visible and conspicuous evidence of possession and use 

of the land, such will generally be sufficient to establish that 

possession was notorious. 8

[9,10] Where both parties have used the property in dispute, 

there can be no exclusive possession by one party. 9 But the 

law also does not require that adverse possession be evidenced 

by complete enclosure and 24-hour use of the property. 10 It is 

sufficient if the land is used continuously for the purposes to 

which it may be adapted. 11 Evidence must show the intention 

of the claimant to appropriate and use the property as his or her 

own to the exclusion of all others. 12

6 Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).

7 See id.

8 Id.

9 See, Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 

(2003); Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993).

10 Nye v. Fire Group Partnership, supra note 9.

11 Id.

12 Id.
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BROWN v. MORELLO

Cite as 308 Neb. 968

Evidentiary Issues.

We turn first to Morello’s arguments regarding the admissibility of paragraphs 5 and 6 of his affidavit in opposition to 

Brown’s motion for summary judgment.

In paragraph 5, Morello averred that

[a]t no time was it ever reported or brought to my attention by my local agent that any actions had been taken 

or were occurring with respect to the subject property 

that would have put me on notice of [Brown’s] open and 

notorious use of the subject property. My agent is familiar 

with my properties and would have reported any event or 

circumstance that endangered or damaged the property.

As noted, paragraph 5 was objected to on the basis of hearsay 

and relevance; in sustaining the objection, the court did not 

identify the grounds of inadmissibility.

[11] Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2020) defines 

“[h]earsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence 

to prove the truth of the matter asserted.” Generally, we treat 

a “statement” as assertion based, which is to say that a “statement is (a) [a person’s] oral or written assertion or (b) nonverbal conduct of a person, if it is intended by him or her as 

an assertion.” 13

But here, we need not determine whether this averment 

amounted to hearsay. As we explain below, even if the averment was not hearsay, it did not create a material issue of fact 

as to Brown’s claim of adverse possession.

We turn next to paragraph 6. In that paragraph, Morello 

stated that he “believed that the retaining wall . . . is located 

on City property, and was constructed by the City of Omaha.” 

Brown objected on the basis of speculation and relevance. The 

district court sustained the objections but, as with paragraph 5, 

did not explain the basis for that decision.

13 See, § 27-801(1); G. Michael Fenner, The Hearsay Rule 8 (3d ed. 2013).
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[12,13] The word “speculation” is defined as “[t]he practice 

or an instance of theorizing about matters over which there is 

no certain knowledge.” 14 To “speculate” is to form opinions 

about something without having the necessary information 

or facts or to make guesses. 15 Objecting to “speculation” is 

another way of objecting to either lack of personal knowledge 

or expressing an opinion. 16

While the content of paragraph 6 might have been stated 

as belief, this belief was based on an assumption by Morello. 

Morello theorized that the city had constructed the retaining 

wall, apparently based on nothing more than the retaining 

wall’s proximity to the city’s sidewalk and an unsuccessful 

search for permits. Morello’s belief that the retaining wall had 

been constructed by the city was not based on personal knowledge, but, rather, it was based upon an assumption made by 

Morello and was speculation. The district court did not err in 

excluding paragraph 6.

There is no merit to Morello’s arguments regarding evidentiary matters.

Grant of Summary Judgment.

We next turn to the merits of Morello’s appeal, specifically that the district court erred in granting Brown summary 

judgment with respect to her petition, alleging that title to 

2936 Nicholas Street should be quieted in her via the doctrine of adverse possession. At issue on appeal are whether 

Brown’s possession was exclusive and whether it was open 

and notorious.

The burden in an adverse possession case rests on the claimant, who must prove the elements of adverse possession by 

a preponderance of the evidence. 17 Here, Brown was granted 

14 Black’s Law Dictionary 1687 (11th ed. 2019).

15 4 Jerry McKernan, Litigating Tort Cases § 43.11 (2003).

16 Roger C. Park et al., Trial Objections Handbook, § 6.11 (2020).

17 See Siedlik v. Nissen, supra note 6.
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summary judgment and so must show that there was no issue 

of material fact and that she was entitled to judgment as a matter of law. 18

Most of our adverse possession case law involves boundary 

disputes—either between neighbors in a residential subdivision or with respect to farmland or ranchland. For example, 

Siedlik v. Nissen 19 involved a dispute over a 6-foot strip of land 

along the boundary line between two developed properties. We 

affirmed the district court’s finding in favor of the titleholders 

of the strip, concluding that acts of routine yard maintenance 

were insufficient to warn the titleholder that another was 

claiming or using the land for his or her own purpose.

Poullos v. Pine Crest Homes 20 involved a wedge-shaped 

section of land that abutted the boundary line between a 

developed property and an undeveloped property in a residential subdivision. We reversed the district court’s determination that the claimants’ possession of the challenged land 

was notorious, solely as a result of a visible sod line and the 

claimants’ physical acts of maintaining the sod and clearing 

the sidewalk.

We have similar case law with respect to boundary disputes involving the boundaries between residential property 

and agricultural lands. In Nye v. Fire Group Partnership,

 21

the claimants had planted grass, mowed, and maintained 

a 24-foot-wide strip of land abutting their property, which 

included erecting a snow fence in the winter and leaving the 

5- to 6-foot-high fenceposts permanently in place. In addition, the record showed evidence that others were aware of 

the claimants’ use of the property. The trial court rejected the 

claim of adverse possession on summary judgment.

18 See Kaiser v. Allstate Indemnity Co., supra note 1.

19 Siedlik v. Nissen, supra note 6.

20 Poullos v. Pine Crest Homes, 293 Neb. 115, 876 N.W.2d 356 (2016).

21 Nye v. Fire Group Partnership, supra note 9.
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We reversed and found an issue of material fact as to the 

claimants’ open and notorious use of the property, given their 

maintenance of the questioned strip. We also noted a material 

issue of fact as to whether the claimants were in exclusive 

use of the property where the record showed that the titleholders’ use of the property was limited to using the strip of 

land in question to turn around, and sometimes park, farm 

equipment.

Wiedeman v. James E. Simon Co., Inc.,

 22 involved a boundary dispute over a 2.57-acre tract of pastureland lying between 

the claimant’s and titleholder’s properties. We found that the 

claimant’s actions in routinely cleaning and clearing the land 

in question, fencing it for pasture on a regular basis, and 

even hauling gravel off the land was sufficiently open and 

notorious so as to support the quieting of title on the basis of 

adverse possession.

Unlike the above cases where neighbors have disputed ownership over a strip of land adjoining both of their properties, 

this case involves a dispute over an entire, albeit small, parcel 

of land that with respect to its entire depth, adjoins Brown’s 

property on one side and a city sidewalk on the other. The 

parcel was of such a character as to be indistinguishable from 

Brown’s yard.

Here, all of the usual incidents of ownership, aside from the 

payment of taxes, were undertaken by Brown. The record is 

undisputed that the grass of 2936 Nicholas Street was mowed 

by Brown or members of Brown’s family. The record is undisputed that the city sidewalk adjoining the lot at 2936 Nicholas 

Street was cleared of snow by Brown or members of Brown’s 

family. The record is undisputed that the western edge of 2936 

Nicholas Street was partially enclosed by a retaining wall constructed by Brown or on her behalf.

22 Wiedeman v. James E. Simon Co., Inc., 209 Neb. 189, 307 N.W.2d 105 

(1981).
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BROWN v. MORELLO

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In her complaint to quiet title, Brown alleged all elements of 

adverse possession and offered evidence via affidavit to support all of those elements. Of course, we review the granting 

of a motion for summary judgment in a light most favorable to 

the nonmoving party and give that party the benefit of all reasonable inferences. 23 An adverse possession inquiry is normally 

fact based, and thus, the grant of summary judgment in such an 

inquiry is rare.

Had this case gone to trial, this court would not be required 

to consider the record in a light most favorable to Morello and 

would not be required to give Morello the benefit of all reasonable inferences. But in a summary judgment action, we do 

make those considerations in Morello’s favor.

Despite these advantages, when we consider the record in 

Morello’s favor, we find no error in the grant of summary judgment and subsequent quieting of title. Morello was titleholder 

of the property. Though there was evidence that Morello’s 

agent reported to Morello no activity on the property that 

would speak to Brown’s exclusive, open, and notorious use of 

the property, there is also no dispute that Brown engaged in all 

maintenance of the entire parcel and additionally built a retaining wall along the depth of the property.

While our case law generally holds that where both parties 

have used the property in dispute, there can be no exclusive 

possession by one party, 24 there is no evidence in this record 

that Morello put this parcel to any use.

Our opinion today should not be understood as a departure 

or retreat from our recent decisions regarding adverse possession involving platted lots in a municipality; rather, it reflects 

the unusual failure of the record owner to present any evidence that he used the real estate for any purpose during the 

10-year period.

23 See Kaiser v. Allstate Indemnity Co., supra note 1.

24 See, Nye v. Fire Group Partnership, supra note 9; Thornburg v. Haecker, 

supra note 9.
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Cite as 308 Neb. 968

The undisputed evidence is sufficient to support the district 

court’s conclusion on summary judgment that Brown was in 

exclusive, open, and notorious possession of the parcel. The 

district court did not err in refusing to admit paragraphs 6 

and 7 of Morello’s affidavit in granting summary judgment 

in Brown’s favor and quieting title of 2936 Nicholas Street 

to Brown.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.