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302 Nebraska Report

BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

Terry P. Brown and Linda S. Brown, husband

appellees, v. Jacobsen Land and Cattle C

a Nebraska corporation, et al., appellee

State of Nebraska ex rel. Game and P

Commission, intervenor-appe

___ N.W.2d ___

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

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

2. Equity: Appeal and Error. On appeal from an equity action, an 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. 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 the statutory period of 10 years.

4. Adverse Possession: Words and Phrases. A possession that is adverse 

is under a claim of ownership. Claim of ownership or claim of right 

means “hostile,” and these terms describe the same element of adverse 

possession. The word “hostile,” when applied to the possession of an 

occupant of real estate holding adversely, is not to be construed as 

showing ill will, or that the occupant is an enemy of the person holding 

the legal title, but means an occupant who holds and is in possession as 

owner and therefore against all other claimants of the land.

5. Adverse Possession: Notice. The purpose of prescribing the manner 

in which an adverse holding will be manifested is to give notice to 

the real owner that his or her title or ownership is in danger so that 

he or she may, within the period of limitations, take action to protect 

his or her interest. It is the nature of the hostile possession that 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/

06/07/2019 01:07 AM CDT
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

6. Adverse Possession: Title. Possession of property by permission can 

never ripen into title by adverse possession unless there is a change in 

the nature of possession which is brought to the attention of the owner 

in some plain and unequivocal manner that the person in possession is 

claiming adversely thereby.

7. Adverse Possession: Leases: Intent. Entering real property as part of a 

lease agreement is entering it with permission and with acknowledgment 

of the owner’s superior title and is not entering the land with hostile or 

adverse intent.

8. Adverse Possession: Landlord and Tenant: Notice: Intent. A tenant 

cannot assert ownership by adverse possession unless he or she first surrenders possession or, by some unequivocal act, notifies the landlord he 

or she no longer holds under the lease agreement.

9. Adverse Possession. A permissive use remains permissive where an 

original owner permitted the use and devised the land to another who 

simply continued to permit the use.

10. Adverse Possession: Presumptions. As between parties sustaining 

parental and filial relations, the possession of land of the one by the 

other is presumed to be permissive.

11. Landlord and Tenant: Words and Phrases. In the common law, a 

tenant or other lawful occupant who holds over without right is a tenant 

at sufferance.

12. Landlord and Tenant: Contracts. A tenancy at sufferance does not 

require privity of contract or estate between the holdover occupant and 

the property’s record owner.

13. Adverse Possession: Landlord and Tenant. A tenancy at sufferance is 

a permissive interest; it is not an adverse possession and cannot be the 

basis for adverse possession.

Appeal from the District Court for Banner County: Derek C.

Weimer, Judge. Reversed

Douglas J. Peterson, Attorney General, and Charles E. 

Chamberlin for intervenor-appellant.

Andrew W. Snyder, of Chaloupka, Holyoke, Snyder, 

Chaloupka & Longoria, P.C., L.L.O., for appellees Terry P. 

Brown and Linda S. Brown.

Heavican, C.J., Miller-Lerman, Cassel, St

Papik, and Freudenberg
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

Miller-Lerman

NATURE OF CASE

Terry P. Brown (Brown) and Linda S. Brown, husband 

and wife (collectively the Browns), filed an adverse possession action in the district court for Banner County against the 

adjacent record property owner, Jacobsen Land and Cattle 

Company (Jacobsen), to quiet title in disputed agricultural land 

to the north of the Browns’ property. The Nebraska Game and 

Parks Commission (the State) intervened due to a purported 

purchase agreement with Jacobsen by which the State was to 

acquire the disputed land and other land. The State was permitted to present evidence. See Brown v. Jacobsen Land & Cattle 

Co., 297 Neb. 541, 900 N.W.2d 765 (2017). The State opposed 

the Browns’ claim and also asserted that it was entitled to 

relief under various equitable doctrines, because the State 

alleged that it had relied on Brown’s purported misrepresentations regarding the Browns’ interest in the disputed land. After 

trial, the district court quieted title to the disputed land in the 

Browns, and the State appealed. Because the Browns’ interest 

in the disputed land began with permission and did not ripen 

into adverse possession, we reverse.

STATEMENT OF FACTS

Jacobsen is the record owner of agricultural land in Banner 

County, Nebraska. Brown is a longtime farmer and rancher 

in Banner County and owns land adjacent to and south of 

Jacobsen’s property. The disputed land claimed by the Browns 

consists of approximately 77 acres and is located in an area 

within Jacobsen’s recorded land. For many years, the disputed 

land has been fenced in and, as a practical matter, enclosed 

with the Browns’ land used for grazing cattle to the south. This 

fence essentially forms the perimeter of the disputed land. The 

disputed land has been adequately described as follows:

Beginning at the west corner of the boundary line between 

the Jessup/Jacobson and Bud Jessup/Brown properties, 

the fence is on the true boundary line until it encounters 
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

hardpan. . . . The fence then turns north following a ridgeline that eventually turns east and then south back to the 

true property boundary encompassing approximately 77 

acres of the Jessup/Jacobson property.

Brief for appellant at 10.

The evidence indicates, and the district court found, that 

Stanley Jessup, Sr., who owned the land to the south, built 

the fence and used the land to the north, which was owned by 

his brother, Frank Jessup, and under principles recited in our 

analysis, Stanley’s use was permissive. After transfers within 

Frank’s family, John Jessup and Alan Jessup sold the land, 

including the disputed land, to Jacobsen in 2014.

The Browns’ property was formerly owned by Stanley and, 

later, by Stanley “Bud” Jessup, Jr. (Bud). Brown helped Bud 

with his ranching operation on the land, including the disputed 

land, prior to the 1980’s. In the 1980’s, Brown began to lease 

property, including the disputed property, from Bud. Brown 

testified that it was at this point, with permission from Bud, 

that he began grazing cattle on the disputed property. The 

oral lease continued until 1992, when Brown purchased the 

Browns’ property and other real property from Bud. The 1992 

sale did not include the disputed land, but Brown continued to 

use the disputed land as he had under the lease. Records admitted at trial show that the Browns have neither been taxed nor 

paid taxes on the disputed land.

The evidence showed that a barbed wire and post fence 

existed in its current location for many years before the 1980’s. 

As noted, the disputed land is fenced in with the Browns’ ranch 

and Jacobsen and its predecessors in interest have raised cattle 

on the other side of the fence. Brown walks or rides the fence 

line at least annually and has hired a worker to assist him in 

maintaining the fence. The fence follows the topography of the 

land and is attached to trees along the ridge line, and trees have 

grown into the fence in some places.

In approximately 2013, John and Alan decided to sell the 

Jacobsen property, including the disputed land. They offered 
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

Brown an opportunity to buy the entire Jacobsen property, but 

he declined. Brown made an offer to purchase a portion of the 

Jacobsen property that included the disputed land, but John 

and Alan refused the offer. John and Alan sold the property, 

including the disputed land, to Jacobsen in a warranty deed 

filed on May 6, 2014.

Jacobsen soon decided to resell the property, including the 

disputed land. Brown contacted Jacobsen and inquired about 

the sale. In 2014, the State began the process of purchasing the land. Prior to October 2, 2014, the State published 

notice and held a public hearing in Banner County regarding the proposed purchase of Jacobsen’s property, including 

the disputed land. Brown attended several public hearings. 

Although Brown did not express an ownership interest in the 

disputed land, he wrote a letter to a commissioner for the 

State in which he generally opposed the sale. On October 3, 

Jacobsen and the State entered into a purchase agreement for 

the sale of a portion of Jacobsen’s land that included the disputed land.

After Jacobsen and the State entered into their purchase 

agreement, but before they closed and recorded a deed, the 

Browns filed this action against Jacobsen to quiet title in 

the disputed land through adverse possession and recorded 

a lis pendens on the disputed land. The State intervened due 

to its purchase agreement with Jacobsen, the record owner 

of the disputed land. The State asserted various affirmative 

defenses. Jacobsen filed an answer which denied the claim of 

adverse possession and set forth several affirmative defenses, 

but declined to participate throughout most of the litigation, 

did not present evidence, and did not appeal.

The original trial took place in May 2016, and the district court found generally in favor of the Browns. The State 

appealed. We determined that the State, as intervenor, was 

denied its right to participate in the trial, including offering 

evidence and questioning witnesses. See Brown v. Jacobsen 

Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 (2017). We 
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

reversed the decision of the district court and remanded the 

matter for a new trial. See id.

The district court held a second trial on April 12 and 13, 

2018. Brown and the State offered evidence, and the district 

court took the matter under advisement. In an initial order, and 

in a subsequent amended order, the district court found generally in favor of the Browns and against the State.

In summary, the district court reviewed the elements of an 

adverse possession claim, found that the Browns’ evidence 

satisfied each element, and found that the State’s evidence was 

insufficient to overcome the Browns’ proof or otherwise succeed. The district court granted the relief sought by the Browns 

and quieted title to the disputed land described particularly in 

an attached document which was incorporated in its order. The 

State appeals.

ASSIGNMENTS OF ERROR

The State primarily claims, consolidated and restated, that 

the district court erred when it found that the Browns’ evidence 

satisfied their burden of proof and established their entitlement 

to the disputed land by adverse possession. Because the State’s 

foregoing argument is meritorious and dispositive, we do not 

reach the State’s other assignments of error.

STANDARD OF REVIEW

[1,2] A quiet title action sounds in equity. Brown v. Jacobsen 

Land & Cattle Co., supra. On appeal from an equity action, 

an appellate court decides factual questions de novo on the 

record and, as to questions of both fact and law, is obligated 

to reach a conclusion independent of the trial court’s determination. Id.

ANALYSIS

[3] The Browns sought to quiet title to the disputed land 

under the theory of adverse possession. A party claiming title 

through adverse possession must prove by a preponderance of 

the evidence that the adverse possessor has been in (1) actual, 
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

(2) continuous, (3) exclusive, (4) notorious, and (5) adverse 

possession under a claim of ownership for the statutory period 

of 10 years. Poullos v. Pine Crest Homes, 293 Neb. 115, 876 

N.W.2d 356 (2016). The statutory period in Nebraska is 10 

years. Neb. Rev. Stat. § 25-202 (Reissue 2016). Although the 

district court found that the Browns’ possession of the disputed 

land satisfied all of these elements, upon our de novo review, 

we believe there was a failure of proof regarding the last element, i.e., adverse possession under a claim of ownership. 

Because of the Browns’ failure to prove that their possession 

of the disputed land was under a claim of ownership, we need 

not consider other elements of their adverse possession claim 

or the equitable defenses raised by the State.

[4,5] Certain principles of law apply to our analysis. We 

have described the element of adverse possession under a claim 

of ownership as follows:

A possession that is adverse is under a claim of ownership. . . . Claim of ownership or claim of right means 

“hostile,” and these terms describe the same element of 

adverse possession. . . . The word “hostile,” when applied 

to the possession of an occupant of real estate holding 

adversely, is not to be construed as showing ill will, or 

that the occupant is an enemy of the person holding the 

legal title, but means an occupant who holds and is in 

possession as owner and therefore against all other claimants of the land. . . . The purpose of prescribing the manner in which an adverse holding will be manifested is to 

give notice to the real owner that his title or ownership is 

in danger so that he may, within the period of limitations, 

take action to protect his interest. It is the nature of the 

hostile possession that constitutes the warning, not the 

intent of the claimant when he takes possession.

Wanha v. Long, 255 Neb. 849, 859, 587 N.W.2d 531, 540 

(1998).

[6-10] Possession by “permission” is also critical to our analysis, because possession of property by permission can never 
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

ripen into title by adverse possession unless there is a change in 

the nature of possession which is brought to the attention of the 

owner in some plain and unequivocal manner that the person in 

possession is claiming adversely thereby. See Wanha v. Long, 

supra. See, also, Young v. Lacy, 221 Neb. 511, 378 N.W.2d 192 

(1985); Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983). 

With respect to permissive use, it is well settled that entering 

real property as part of a lease agreement is entering it with 

permission and with acknowledgment of the owner’s superior 

title and is not entering the land with hostile or adverse intent. 

See, Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979); 

Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331 (1957). A 

tenant cannot assert ownership by adverse possession unless he 

or she first surrenders possession or, by some unequivocal act, 

notifies the landlord he or she no longer holds under the lease 

agreement. See Jackson v. Eichenberger, 189 Neb. 777, 205 

N.W.2d 349 (1973). The use remains permissive where an original owner permitted the use and devised the land to another who 

simply continued to permit the use. Petsch v. Widger, supra. We 

have noted that “‘[a]s between parties sustaining parental and 

filial relations, the possession of the land of the one by the other 

is presumed to be permissive . . . .’” Chase v. Lavelle, 105 Neb. 

796, 807, 181 N.W. 936, 940 (1921).

[11-13] In the common law, a tenant or other lawful occupant who holds over without right is a tenant at sufferance.

Watkins v. Dodson, 159 Neb. 745, 68 N.W.2d 508 (1955); 

State v. Cooley, 156 Neb. 330, 56 N.W.2d 129 (1952). It is 

not necessary that the original occupancy should have been 

as tenant of the record landowner, because a tenancy at sufferance does not require privity of contract or estate between 

the holdover occupant and the property’s record owner. See, 

Pillans & Smith Co., Inc. v. Lowe, et al., 117 Fla. 249, 157 So. 

649 (1934); 52 C.J.S. Landlord & Tenant § 292 (2012). A tenancy at sufferance is a permissive interest; it is not an adverse 

possession and cannot be the basis for adverse possession. 52 

C.J.S., supra.
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

In this case, the State contends that the Browns’ possession 

of the disputed land was permissive and, thus, not hostile. It 

asserts that the district court erred when it determined that 

“[t]here is no evidence that the [Browns] were given . . . permission.” We agree with the State that this finding is at odds 

with the record.

The district court acknowledged in its findings of fact that 

“[t]he area making up the ‘disputed ground’ was included in 

the lease agreement . . . .” And Brown testified that he received 

permission from Bud to graze his cattle on the disputed land 

as part of his lease agreement. Although Brown points out 

that he did not receive permission by a record owner, such 

fact would not be dipositive. A review of our adverse possession and other jurisprudence recited above shows that 

Brown’s occupancy of the disputed land was not hostile where 

he began his lease—including use of the disputed land—with 

permission, even if such permission flowed from Bud and 

not a record owner. A change in ownership in the disputed 

land did not affect Brown’s intent, which was at no point 

expressed as adverse under a claim of ownership. See Petsch 

v. Widger, supra.

Because the genesis of Brown’s use and possession of the 

disputed land was a lease agreement and by lawful permission, 

when he began to hold over, he became a tenant at sufferance. 

And, as noted, a tenant at sufferance has a permissive interest. 

Brown admitted that neither his use of the disputed land nor his 

conduct toward the record owners, their successors in interest 

and individuals granted or granting permission, changed after 

he bought the Browns’ property. Upon our de novo review, 

we determine that the Browns have not presented evidence of 

an act which manifested notice or warning to the real owner 

of the disputed land that his title or ownership was in danger. 

Brown came to the disputed land by permission, and because 

there was no change in the nature of his possession’s being 

brought home to the true owner, his use did not ripen into 

title by adverse possession. Young v. Lacy, 221 Neb. 511, 378 
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BROWN v. JACOBSEN LAND & CATTLE CO.

Cite as 302 Neb. 538

N.W.2d 192 (1985). Because the Browns failed to prove the 

element of a claim of ownership, their claim of adverse possession must fail.

CONCLUSION

Brown’s use and possession of the disputed land began with 

permission under a lease, and the Browns failed to prove that 

the nature of their possession changed and that such change 

was brought to the attention of the real owners. The Browns 

failed to establish that their possession of the disputed land 

was under a claim of ownership, and therefore, their possession did not ripen into title by adverse possession. The district 

court erred when it concluded to the contrary. Accordingly, we 

reverse the judgment of the district court.

Reversed