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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

BECKNER v. URBAN

Cite as 310 Neb. 746

Brian Beckner, Special Fiduciary of the Testamentary 

Trust Established Under Item Five of the Last Will 

and Testament of Francis R. Urban, also known as 

The Francis R. Urban Family Trust, and Janet K. 

Neujahr, Personal Representative of the 

Estate of Lola R. Urban, deceased, 

appellees and cross-appellants, v. 

Richard D. Urban, appellant 

and cross-appellee.

___ N.W.2d ___

Filed January 21, 2022. No. S-20-345.

supplemental opinion

Appeal from the District Court for Polk County: Rachel 

A. Daugherty, Judge. Former opinion modified. Motion for 

rehearing overruled.

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

David J. Skalka, of Croker, Huck, Kasher, DeWitt, Anderson 

& Gonderinger, L.L.C., for appellees.

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

Papik, and Freudenberg, JJ.

Per Curiam.

The appellees have filed a timely motion for rehearing following the release of our opinion in Beckner v. Urban.

 1 We 

1 Beckner v. Urban, 309 Neb. 677, 962 N.W.2d 497 (2021).

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02/04/2022 08:06 AM CST
- 747 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

BECKNER v. URBAN

Cite as 310 Neb. 746

overrule the motion for rehearing, but modify our opinion 

as follows:

In the analysis section, we withdraw the last sentence in the 

final paragraph 2 under the subheading “(ii) Adverse Possession” 

and substitute the following:

The remaining elements of adverse possession were 

also satisfied on this record. As noted, 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. 3 Here, the 

evidence established that Richard began possessing the 

property adversely in 2001 when he unequivocally repudiated Lola’s title by demanding the deed and communicating that he believed he had paid all sums due under the 

land contract. Since that time, Richard has been in actual 

and continuous possession of the property to the exclusion of Lola and her successors, and he held the property 

openly and notoriously, improving the property and using 

it in a manner similar to that of a true owner. Because he 

did so for the statutory period of 10 years, Richard met 

his burden of proving that he acquired title to the property 

by adverse possession. It was plain error for the district 

court to hold otherwise.

In sum, Richard began adversely possessing the property in 2001 when he distinctly and unequivocally repudiated the contract. At that point, Lola arguably had the 

right to bring an action to recover title and possession 

of the property, 4 notwithstanding the fact that she had 

contracted away her rights to possess the property. But 

Lola sat on her rights and waited until 2018 to file the 

2 Id. at 693, 962 N.W.2d at 509.

3 See Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021). 

4 See Neb. Rev. Stat. § 25-202(1) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

BECKNER v. URBAN

Cite as 310 Neb. 746

instant action. Thus, by the time Lola sought ejectment 

in response to Richard’s adverse possession, the statute 

of limitations for ejectment had already run, and Richard 

had already satisfied the elements of adverse possession. The district court thus erred in issuing an order 

of ejectment.

The remainder of the opinion shall remain unmodified.

Former opinion modified.

Motion for rehearing overruled.