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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

ISHAM V. JAC

Cite as 317 Neb. 759

Dylan R. Isham, appellant, v.

Billy C. Jack, appellee.

___ N.W.3d ___

Filed October 4, 2024. No. S-22-880.

1. Specific Performance: Equity: Appeal and Error. An action for specific performance sounds in equity, and on appeal, an appellate court 

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

fact and law, is obligated to reach a conclusion independent from the 

conclusion reached by the trial court.

2. Replevin: Judgments: Appeal and Error. In a replevin action tried 

without a jury, the findings and disposition of the trial court have the 

effect of a jury verdict and will not be disturbed unless clearly wrong.

3. Replevin: Proof. In a replevin case, the plaintiff has the burden to prove 

by a preponderance of the evidence that at the time of the commencement of the action (1) the plaintiff was the owner of the property sought, 

(2) the plaintiff was entitled to immediate possession of the property, 

and (3) the defendant wrongfully detained the property.

4. Replevin: Abandonment. Abandonment is a complete defense to a 

replevin action.

5. Abandonment: Proof: Words and Phrases. Abandonment is the voluntary and intentional relinquishment of a right to property, and the 

evidence proving abandonment must be clear and convincing.

6. Abandonment: Intent. The primary elements of abandonment are the 

intention to abandon and the external act by which that intention is carried into effect.

7. ____: ____. Although an abandonment may arise from a single act or 

from a series of acts, the intent to abandon and the act of abandonment 

must conjoin and operate together, or in the very nature of things there 

can be no abandonment.

8. Abandonment: Intent: Proof. The intention to abandon is considered 

the first and paramount inquiry, and actual intent to abandon must be 

shown; it is not enough that the owner’s acts give reasonable cause to 

others to believe that the property has been abandoned.

Nebraska Supreme Court Online Library

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10/04/2024 09:08 AM CDT
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ISHAM V. JAC

Cite as 317 Neb. 759

9. Abandonment. Mere relinquishment of the possession of a thing is not 

an abandonment in a legal sense, for such an act is not wholly inconsist

ent with the idea of continuing ownership; the act of abandonment must 

be an overt act or some failure to act which carries the implication that 

the owner neither claims nor retains any interest in the subject matter of 

the abandonment.

10. Abandonment: Intent: Proof. It is not necessary to prove intention 

to abandon by express declarations or by other direct evidence; intent 

to abandon property or rights in property is to be determined from all 

the surrounding facts and circumstances. It may be inferred from the 

acts and conduct of the owner and from the nature and situation of 

the property.

11. Abandonment: Intent: Evidence: Proof. Mere nonuse of property, 

lapse of time without claiming or using property, or the temporary 

absence of the owner, unaccompanied by any other evidence showing intention, generally are not enough to constitute an abandonment. 

However, such facts are competent evidence of an intent to abandon and, as such, are entitled to weight when considered with other 

circumstances.

Petition for further review from the Court of Appeals, 

Riedmann, Bishop, and Welch, Judges, on appeal thereto 

from the District Court for Butler County, Christina M. 

Marroquin, Judge. Judgment of Court of Appeals reversed 

and remanded with directions.

George H. Moyer, of Moyer, Moyer & Lafleur, for appellant.

No appearance by appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Dylan R. Isham and Billy C. Jack entered into an agreement 

wherein the two would exchange a manufactured home owned 

by Isham for a travel trailer owned by Jack. Included in the 

agreement was an option for Jack to purchase a garage located 

on the lot with the manufactured home. A dispute arose over 

the garage, and Isham filed a petition to allow him to remove 
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ISHAM V. JAC

Cite as 317 Neb. 759

the garage. That petition was denied, with the district court 

finding the garage had been abandoned. Isham appealed, and 

the Nebraska Court of Appeals affirmed. We granted Isham’s 

petition for further review. We reverse the decision of the Court 

of Appeals and remand the cause to that court with directions 

to reverse the decision of the district court and remand the 

cause for further proceedings.

FACTUAL BACKGROUND

On May 11, 2019, Isham and Jack entered into an agreement 

for the trade of Isham’s manufactured home with Jack’s travel 

trailer. Included in that agreement was an option for Jack to 

purchase a garage attached to the manufactured home:

This trade of MFGD home and mobile home excludes the 

MFGD home’s attached 2 car garage owned by . . . Isham 

located at Lot 2 Lakeside Estates. . . . Jack has the option 

to purchase the attached 2 car garage for the amount of 

$3000.00 until May 11, 2020. If the attached 2 car garage 

is not purchased and paid in full by May 11, 2020, . . . 

Isham will remove the attached 2 car garage from Lot 2 

Lakeside Estates.

Jack testified and offered documentary evidence that he sent 

a message to Isham on June 3, 2019, to decline the offer to 

purchase the garage: “Hey, I’m gonna pass on the garage with 

the price and what it will take to fix it[.] I think it’s just to 

much[.] I need to get it moved out soon tho so I can get other 

stuff done.” Jack received no response, but Isham agreed that 

he read this message within a month of it being sent.

On February 25, 2021, Isham contacted Jack via “Facebook 

Messenger,” noting that the option to purchase the garage had 

expired on May 11, 2020, and that he wanted payment for the 

garage or he would remove it as soon as possible. Jack and 

Isham then exchanged messages as follows:

[Jack:] [I don’t know] how to proceed but I messaged 

you in June 2019 and let you know that I wasn’t interested in it and I had never heard anything back[.] I have 

since made repairs and put money into it.
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ISHAM V. JAC

Cite as 317 Neb. 759

. . . .

I’m sure we can work something out but I don’t think 

that it will be $3k and moving the garage now isn’t really 

an option.

. . . .

[Isham:] Honestly I’m gonna have to have a discussion 

with my parents before I do anything because they have 

it in mind to get the building to their place. Cutting the 

price in half is a heavy hit. I’ll get back to you in a day 

or 2.

[Jack:] Ok . . . half of the garage is completely finished and is our living room so moving it at this point is 

completely out of the question. I did let you know shortly 

after we got it that we were not interested and I had not 

heard anything back so I assumed you were not interested 

in it any further[.] I would like to work something out 

with you tho.

The next day, Isham messaged Jack that the price for the 

garage was $3,000, with $1,500 due immediately and the rest 

due later. Jack responded:

I’m not gonna be able to do anything more on it[.] I 

have talked with a lawyer this morning about it and you 

were notified and I heard nothing for well more than 

a year.

. . . .

I’m sorry[.] I notified you on June 3rd, 2019 and you 

have since forfeited with no response.

Isham then messaged Jack that he would be there the next day 

to take measurements of the garage, and Jack responded that 

he would “call the sheriff if [Isham] show[ed] up.”

Isham filed suit on July 8, 2021, seeking specific perform

ance of the term in the parties’ contract allowing him to 

remove the garage. A bench trial was held in the district court 

on August 16, 2022.

Isham testified at trial. He indicated that he met Jack 

through a mutual acquaintance who knew Isham was trying to 
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ISHAM V. JAC

Cite as 317 Neb. 759

move out of the manufactured home and into a different home. 

Jack owned a small travel trailer that was located on a different lot in the same mobile home park where Isham’s home was 

located. Isham testified that he met with Jack and that it was 

his understanding Jack needed more space for his family.

Isham and Jack agreed on the swap, which was negotiated 

mostly via Facebook Messenger but memorialized in a written 

agreement. Isham testified that he wanted to “help somebody 

out” and that his plan was to move Jack’s travel trailer to land 

owned by his parents so he could save money to purchase 

a house.

Isham testified that he did not specifically recall receiving the message regarding Jack’s decision not to exercise the 

option to purchase the garage, blaming it on working the night 

shift for the first time in his life; he thought he could have 

received the message and “cleared” it away without remembering that he had received it. Isham testified that he “would say 

[he read it] sometime within a month” and that

after [Jack] being in [the manufacture home] for a while, 

and not having any contact, and into Covid, and all these 

other things, I noticed [Jack] to start working on the 

property. I don’t remember if he resided [sic] the property, I don’t remember if he started with the garage, or 

the house, or which way exactly it went. But from my 

understanding it became a part of the home, like a livable 

space of the home.

Isham testified that in 2020, he contacted someone about 

moving the garage

probably three or four times, both in person. I think my 

mother might have contacted [the mover] on the phone, 

multiple times throughout 2020.

. . . .

. . . I spoke to [the mover] at the gas station, I had 

run into him. I had run into him at different places. And 

I kept asking him, can we get this moved, what would it 

cost? And his response was always, he couldn’t find the 
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ISHAM V. JAC

Cite as 317 Neb. 759

help. He was not available to move it because he couldn’t 

find the labor force at that time because of Covid.

. . . .

. . . I had talked to [the mover] before I think [the 

option] totally expired. But I think at that point I couldn’t 

afford it. I don’t — I talked to him multiple times. But 

I did not — I did not look for a date of our contract to 

expire before I started looking into options to move it.

Isham also testified that in February 2021, he contacted Jack 

about moving the garage and that he had someone lined up to 

move the garage, though the record does not identify that person. According to Isham, it took some time to reestablish contact with Jack because Isham had switched phones and could 

not find Jack on Facebook. Isham acknowledged that he did 

not go to the manufactured home, which was still in the same 

location, and knock on the door or attempt to use the phone 

number he had for Jack.

At that point, while the conversations set forth above 

between Isham and Jack about moving the garage were taking place, Isham apparently began to observe Jack doing work 

at the property: “It was shortly after our initial . . . contact 

in 2021 that he started the addition.” It is not clear from the 

record whether this is the work that Isham testified occurred 

“into Covid” or if it is different work.

Isham also offered photographs—which he testified that 

his mother took in April 2021 and in late fall of that year or 

in early winter 2022—of the construction work that showed 

an addition between the garage and the manufactured home, 

connecting the two. Though Isham’s mother testified at trial, 

she did not testify that she took the photographs or when she 

took them.

Finally, the owner of a moving company testified. The 

owner stated that Isham’s mother and father “approached [him] 

a couple different times” in May 2020 and afterward. The 

owner testified that at that time, he had a detached retina, and 

his testimony suggests that he was “laid up for about a month 
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ISHAM V. JAC

Cite as 317 Neb. 759

laying on [his] right side.” But he also testified that he did not 

move the garage because he “did not have a signed contract” 

and that he did not have staffing issues due to COVID-19. On 

cross-examination, he testified that if the Ishams had told him 

in May 2020 they wanted to go ahead with moving the garage, 

he “would have sent [his] crew to do it [and] would not personally have been there.”

The district court found in Jack’s favor, first noting that 

Isham sought to enforce the specific term of the parties’ contract allowing Isham to remove the garage, but that this was 

not enforceable because the record showed a “clear abandonment” of any interest Isham had in the garage when (1) 

Isham failed to communicate with Jack after Jack told Isham 

he would not be purchasing the garage (the court found not 

credible Isham’s testimony that he did not know how to get in 

contact with Jack); (2) it was Isham’s mother, and not Isham, 

who made arrangements to move the garage from the property; 

and (3) Isham was solely motivated to obtain the garage for 

his parents’ property. The court stated:

It would be inequitable for the Court to enforce a right 

that . . . Isham has neglected himself to timely enforce 

to the clear detriment of . . . Jack. The Court acknowledges that the owner of the garage is . . . Isham. While 

[Isham] contends that the focus is not on due diligence, 

the law does require that individuals act on their rights. 

Diligence in exercising one’s rights to ownership impact 

the rights of others. Here, under [Isham’s] theory of 

the case, [he] is the rightful owner of the garage, . . . 

Jack has never paid the $3000, therefore [Isham] could 

return at any future time and seek [a] writ of assistance 

for removal. Such an outcome is precluded by equitable 

theories of justice. What if [Isham’s] parents had purchased their new farm in the year 2030? [Isham] cannot 

sit in waiting on his right and spring into action when it 

is most convenient; certainly not when it has prejudiced 

the other party.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

ISHAM V. JAC

Cite as 317 Neb. 759

The Court finds that for twenty months [Isham] took 

no action to exercise his right to remove the garage. The 

pictures in [the record] show the garage to be attached 

by a roofline and siding. Removal of the garage from 

the property would now require detachment from the 

residential property and improvement[s] have been made.

Isham appealed. The Court of Appeals affirmed, finding that 

the district court’s reasoning that Isham had abandoned his 

rights to the garage and had failed to act on those rights was a 

finding that Isham had waived his right under the contract to 

remove the garage and, further, that it was not clear error for 

the district court to find abandonment. 1

ASSIGNMENTS OF ERROR

Isham assigns, renumbered, on further review that the Court 

of Appeals erred in (1) failing to consider Jack’s failure to 

adduce proof of “a clear, unequivocal and decisive action” by 

Isham of a “knowing and intentional waiver of the clause . . . 

allowing [Isham] to remove his two car garage”; (2) failing 

to consider Mason v. Schumacher 2 when making its decision; 

(3) concluding that Isham’s delay resulted in forfeiture, given 

Jack’s delay in telling Isham that Jack considered the garage 

to be abandoned; (4) failing to recognize that Jack “had an 

equal ability and opportunity to contact Isham and assure 

himself that ‘Isham was no longer interested in the garage’ 

before [Jack] concluded that [he] had become the owner of the 

garage”; and (5) affirming the district court’s judgment.

STANDARD OF REVIEW

[1] An action for specific performance sounds in equity, 

and on appeal, an appellate court tries factual questions de 

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

1 See Isham v. Jack, 32 Neb. App. 647, 3 N.W.3d 656 (2024).

2 Mason v. Schumacher, 231 Neb. 929, 439 N.W.2d 61 (1989).
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ISHAM V. JAC

Cite as 317 Neb. 759

is obligated to reach a conclusion independent from the conclusion reached by the trial court. 3

[2] In a replevin action tried without a jury, the findings and 

disposition of the trial court have the effect of a jury verdict 

and will not be disturbed unless clearly wrong. 4

ANALYSIS

A threshold issue in this petition for further review is 

what causes of action were pled in Isham’s initial complaint. 

We read Isham’s complaint as did the Court of Appeals and 

find that it raises actions for both specific performance and 

replevin. Because we find the latter dispositive, we do not 

address Isham’s first assignment of error relating to specific 

performance.

As to Isham’s replevin action, the Court of Appeals noted 

that abandonment is a complete defense to such an action and 

concluded that Isham had abandoned the garage. In his petition for further review, Isham takes issue with this finding and 

directs us to Mason v. Schumacher, which holds that the lapse 

of time without claiming property or nonuse of property does 

not in itself constitute abandonment.

[3-5] In a replevin case, the plaintiff has the burden to prove 

by a preponderance of the evidence that at the time of the 

commencement of the action (1) the plaintiff was the owner of 

the property sought, (2) the plaintiff was entitled to immediate 

possession of the property, and (3) the defendant wrongfully 

detained the property. 5 Abandonment is a complete defense to 

a replevin action. 6 Abandonment is the voluntary and intentional relinquishment of a right to property, and the evidence 

proving abandonment must be clear and convincing. 7

3 Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017).

4 Alford v. Neal, 229 Neb. 67, 425 N.W.2d 325 (1988).

5 Zelenka v. Pratte, 300 Neb. 100, 912 N.W.2d 723 (2018).

6 See 66 Am. Jur. 2d Replevin § 32 (2021). See, also, Graff v. Triple B 

Development Corp., 622 S.W.2d 755 (Mo. App. 1981).

7 Mueller v. Bohannon, 256 Neb. 286, 589 N.W.2d 852 (1999).
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ISHAM V. JAC

Cite as 317 Neb. 759

As Isham notes, the Court of Appeals did not extensively 

cite to this court’s propositions regarding abandonment; in 

particular, it omitted those dealing with the passage of time. 

We restate and reiterate those propositions as follows.

[6,7] The primary elements of abandonment are the intention to abandon and the external act by which that intention is 

carried into effect. 8 Although an abandonment may arise from 

a single act or from a series of acts, the intent to abandon and 

the act of abandonment must conjoin and operate together, or 

in the very nature of things there can be no abandonment. 9

[8,9] The intention to abandon is considered the first and 

paramount inquiry, and actual intent to abandon must be shown; 

it is not enough that the owner’s acts give reasonable cause to 

others to believe that the property has been abandoned. 10 Mere 

relinquishment of the possession of a thing is not an abandonment in a legal sense, for such an act is not wholly inconsistent 

with the idea of continuing ownership; the act of abandonment 

must be an overt act or some failure to act which carries the 

implication that the owner neither claims nor retains any interest in the subject matter of the abandonment. 11

[10,11] It is not necessary to prove intention to abandon 

by express declarations or by other direct evidence; intent to 

abandon property or rights in property is to be determined 

from all the surrounding facts and circumstances. 12 It may be 

inferred from the acts and conduct of the owner and from the 

nature and situation of the property. 13 Mere nonuse of property, lapse of time without claiming or using property, or the 

temporary absence of the owner, unaccompanied by any other 

8 Mason v. Schumacher, supra note 2. See, also, Mueller v. Bohannon, supra

note 7.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id.
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ISHAM V. JAC

Cite as 317 Neb. 759

evidence showing intention, generally are not enough to constitute an abandonment. 14 However, such facts are competent 

evidence of an intent to abandon and, as such, are entitled to 

weight when considered with other circumstances. 15

The burden of proof as to the replevin action was on Isham; 

the burden as to Jack’s defense of abandonment was on Jack. 16

Jack had to show that Isham had abandoned the garage. We 

conclude that Jack did not meet that burden, though we disagree with Isham’s suggestion that the only evidence presented 

was that involving Isham’s nonuse of the garage and the passage of time.

On June 3, 2019, less than a month after the parties completed the exchange of the travel trailer for the manufactured 

home, Jack messaged Isham to reject the option to purchase the 

garage. At that time, Jack asked Isham to remove the garage. 

Isham never responded to that message. Over 20 months later, 

Isham messaged Jack to tell him Isham was coming the next 

day to remove the garage.

There is evidence in the record regarding the period of time 

between Jack’s request to remove the garage and Isham’s message to Jack months later that Isham was coming to remove 

the garage. For example, the record shows that Isham and his 

family were exploring options for moving the garage, a fact 

which it is undisputed Jack was unaware of. And the record 

shows that at some point, Jack began integrating the garage 

into the manufactured home.

But this evidence is not relevant to Isham’s intent as it 

was known to Jack. And other than the initial request regarding removal of the garage and the passage of time, which, 

as we observe above, is insufficient, Jack did not direct the 

district court to any evidence showing Isham had any intent 

to abandon.

14 Id.

15 Id.

16 See Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d 92 (2020).
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ISHAM V. JAC

Cite as 317 Neb. 759

As such, Jack did not meet his burden to show that the 

garage had been abandoned, and the district court was clearly 

wrong in concluding otherwise. We accordingly reverse the 

Court of Appeals’ decision and remand the cause to that court 

with directions to reverse the decision of the district court and 

remand the cause for further proceedings in the district court.

Though we agree that Isham has prevailed in his replevin 

action, we decline to order the garage be returned to Isham, 

given the undisputed evidence in the record that the garage 

has been integrated into Jack’s home. If the property subject 

to a replevin action is not returned, the measure of damages 

is the value of the property as proved, together with lawful interest thereon from the date of the unlawful taking. 

We therefore remand the cause to the Court of Appeals with 

directions to remand the cause to the district court for further 

proceedings.

CONCLUSION

We reverse the decision of the Court of Appeals and remand 

the cause to that court with directions to reverse the decision of 

the district court and remand the cause for further proceedings.

Reversed and remanded with directions.