NE Code § 25-202 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-202 - Actions for the recovery of title or possession of real estate or foreclosure of mortgages or deeds of trust as mortgages.

25-202.  Actions for the recovery of title or possession of real estate or foreclosure of mortgages or deeds of trust as mortgages.(1) An action for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages or the foreclosure of deeds of trust as mortgages thereon, can only be brought within ten years after the cause of action accrues. No limitation shall apply to the time within which any county, city, town, village, other municipal corporation, public power and irrigation district, public power district, public irrigation district organized under Chapter 70, article 6, irrigation district organized under Chapter 46, article 1, or natural resources district may begin an action for the recovery of the title or possession of any public road, street, or alley, other public or political subdivision grounds or lands, or city or town lots.(2) For the purposes of this section as relates only to the rights and interests of subsequent purchasers and encumbrancers for value:(a) The cause of action for foreclosure of the mortgage or foreclosure of the deed of trust as a mortgage accrues on the last date of maturity of the debt or other obligation secured by the mortgage or deed of trust as the date is stated in or is ascertainable from the filed record of the mortgage or deed of trust or the filed record of an extension of the mortgage or deed of trust;(b) If no date of maturity is stated or is ascertainable from the filed mortgage or deed of trust or the filed extension, the cause of action for foreclosure of the mortgage or foreclosure of the deed of trust as a mortgage accrues no later than thirty years after the date of the mortgage or deed of trust; or(c) If the mortgage creditor files an affidavit to the effect that the mortgage or deed of trust is unpaid and is still a valid lien, the affidavit is filed before the cause of action is barred under this section, and the affidavit is filed for record in the office of the register of deeds, the cause of action is not barred until ten years after the date the affidavit is filed. The period of ten years shall not be extended by nonresidence, legal disability, partial payment, acknowledgment of debt, or promise to pay.Source   R.S.1867, Code § 6, p. 395;   Laws 1869, § 1, p. 67;   Laws 1899, c. 79, § 6, p. 335;   R.S.1913, § 7564;   C.S.1922, § 8507;   Laws 1925, c. 64, § 1, p. 220;   C.S.1929, § 20-202;   Laws 1941, c. 35, § 1, p. 145;   C.S.Supp.,1941, § 20-202;   R.S.1943, § 25-202;   Laws 1977, LB 208, § 1;   Laws 1995, LB 297, § 1;  Laws 2008, LB851, § 18.  Cross References  Part payment not applicable as against subsequent encumbrancers and purchasers for value, see section 25-216.Annotations  1. Definitions 2. Limitation as to adverse possession 3. Limitation as to remainderman 4. Adverse possession not applicable 5. When cause of action accrues 6. Tolling of statute 7. Inverse condemnation 8. Miscellaneous 1. Definitions "Subsequent purchaser for value" is one acquiring title after statute has run against prior encumbrance shown on record. Purchaser who assumed mortgage and paid interest thereon could not defend against mortgage as "subsequent purchaser for value," on ground of mortgagee's failure to refile mortgage. Tynon v. Bliss, 121 Neb. 80, 236 N.W. 184 (1931). "Subsequent encumbrancer" hereunder is one who acquires his encumbrance after the statute has run against prior recorded encumbrance. Bank acquiring mortgage expressly subject to prior mortgage against which statute has not yet run did not thereafter acquire priority as "subsequent encumbrancer." Bliss v. Redding, 121 Neb. 69, 236 N.W. 181 (1931). 2. Limitation as to adverse possession An action to recover possession of real property from a tenant who remains in possession without the landlord's consent after a lease has expired or been terminated under section 76-1437 is an action for the possession of real property and is therefore subject to the 10-year statute of limitations for the possession of real property as provided for in this section. Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001). One who claims title by adverse possession must prove by a preponderance of the evidence that he or she has been in actual, continuous, exclusive, notorious, and adverse possession under a claim of ownership for the full 10-year period mandated by this section. A claim in the nature of a life estate is not a "claim of ownership" within the meaning of the adverse possession doctrine. Lewis v. Poduska, 240 Neb. 312, 481 N.W.2d 898 (1992). Where the evidence shows that irrigation rights have not been used for more than ten years, a water appropriator loses his rights, independent of any cancellation proceeding. Northport Irr. Dist. v. Jess, 215 Neb. 152, 337 N.W.2d 733 (1983). The ten-year period necessary to bar an action to recover land applies in an action seeking to establish a prescriptive easement. Sturm v. Mau, 209 Neb. 865, 312 N.W.2d 272 (1981). Adverse possession is founded upon the intent with which an occupant held possession, and can best be determined by his acts. The intent, even though mistaken, is sufficient as where claimant occupies to the wrong boundary line believing it to be the true line, and even though he does not intend to claim more than that described in the deed. Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981). In determining the rights of an adverse owner, the entry and possession of his tenant, expressly authorized to act, is the entry and possession of such owner. Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981). Where a fence is constructed as a boundary line, although it is not the actual boundary line, and parties claim ownership of land up to the fence for the uninterrupted statutory period, parties gain title to such land by adverse possession. Conkey v. Anderson Farms, Inc., 205 Neb. 708, 289 N.W.2d 541 (1980); McCain v. Cook, 184 Neb. 147, 165 N.W.2d 734 (1969). Possession by permission of the owner cannot ripen into adverse possession until after such change of position has been brought home to the adverse party. Imperial Service Corp. v. Phipps, 205 Neb. 622, 288 N.W.2d 749 (1980). A person claiming title by adverse possession must occupy and possess the land adversely to the record owners with the requisite intent and purpose of asserting ownership. Rentschler v. Walnofer, 203 Neb. 84, 277 N.W.2d 548 (1979). One who claims title by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious, and adverse possession under claim of ownership for a full period of ten years. Rentschler v. Walnofer, 203 Neb. 84, 277 N.W.2d 548 (1979). Title may not be granted or quieted on the theory of adverse possession in the absence of proof of exclusive possession for a purpose to which the land is adapted for the statutory period of 10 years. Rentschler v. Walnofer, 203 Neb. 84, 277 N.W.2d 548 (1979). Where a person claims title to land by adverse possession by the previous occupants, the claimant must prove previous occupants had a hostile intent to occupy land that was not theirs. Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978). Section 76-701 et seq., R.R.S.1943, provides no specific statute of limitations; therefore the ten-year period in section 25-202, R.R.S.1943, applies in inverse condemnation proceedings. Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977). One who claims title by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious adverse possession under claim of ownership for full period of ten years. Campbell v. Buckler, 192 Neb. 336, 220 N.W.2d 248 (1974). A party, in order to establish title to real estate by adverse possession, must prove by a preponderance of the evidence that he has been in actual, continuous, notorious, and adverse possession thereof under claim of ownership for the full period required by the statute. Shirk v. Schmunk, 192 Neb. 25, 218 N.W.2d 433 (1974). An easement by prescription for discharge of waste irrigation waters into a natural depression through land of another cannot be acquired until it has been exercised without material change under a claim of right for ten years. Peters v. Langrehr, 188 Neb. 480, 197 N.W.2d 698 (1972). Statutory period for the establishment of title to real estate by adverse possession is ten years. Mentzer v. Dolen, 178 Neb. 42, 131 N.W.2d 671 (1964); Fitch v. Slama, 177 Neb. 96, 128 N.W.2d 377 (1964); Beebe v. Reichert, 172 Neb. 172, 108 N.W.2d 804 (1961); Jones v. Schmidt, 170 Neb. 351, 102 N.W.2d 640 (1960). Water rights may be lost by nonuser for the period of statutory limitations relating to real estate. State v. Nielsen, 163 Neb. 372, 79 N.W.2d 721 (1956). One who has taken possession of real estate as tenant of another cannot hold the real estate adversely to his lessor until he surrenders possession, or, by some unequivocal act, notifies the landlord that he no longer holds under the lease. Kennedy v. Gottschalk, 138 Neb. 842, 295 N.W. 813 (1941). Where a fence is constructed as a boundary between two pieces of property, and where the parties claim ownership to the fence for a full ten-year period, and are not interrupted in their possession or control during such period, they will, by adverse possession, gain title to such land as may have been improperly inclosed with their own. Ohme v. Thomas, 134 Neb. 727, 279 N.W. 480 (1938). City discharging sewage into creek for a period of ten years in an adverse manner may acquire an easement for that purpose. Hall v. City of Friend, 134 Neb. 652, 279 N.W. 346 (1938). Where a boundary, supposed to be the true line established by the government survey, is acquiesced in by the adjoining owners for more than ten years, it is conclusive of the location. Romine v. West, 134 Neb. 274, 278 N.W. 490 (1938). Plea of title to land by adverse possession, to be effective, must be proved by actual, open, exclusive, and continuous possession under claim of ownership for the full statutory period of ten years. Ellsworth Corporation v. Stratbucker, 134 Neb. 246, 278 N.W. 381 (1938). Where title to land has been quieted in plaintiff as against claims of defendant, and defendant does not re-enter after such decree, the statute of limitations does not begin to run in favor of defendant and he cannot assert adverse possession until he brings express notice to plaintiff or his vendees that he claims adversely to plaintiff. Lennon v. Kearney, 132 Neb. 180, 271 N.W. 351 (1937). Where mortgage contains clause accelerating due date or maturity on default in payment of interest, and mortgagee elects to declare mortgage due under such option, statute of limitations begins to run from date of such election. Hatch v. Ely, 131 Neb. 882, 270 N.W. 480 (1936). An easement acquired by prescription is limited in extent to adverse use during the ten-year period. Onstott v. Airdale Ranch & Cattle Co., 129 Neb. 54, 260 N.W. 556 (1935). Elements of adverse possession discussed. DeWulf v. DeWulf, 104 Neb. 105, 175 N.W. 884 (1919); Peterson v. Kouty, 103 Neb. 321, 171 N.W. 905 (1919); Armstrong v. Johnson, 97 Neb. 119, 149 N.W. 361 (1914); Jankee v. Robb, 97 Neb. 118, 149 N.W. 362 (1914); Prugh v. Searcy, 97 Neb. 116, 149 N.W. 362 (1914); Dringman v. Keith, 93 Neb. 180, 139 N.W. 1044 (1913); Delatour v. Wendt, 93 Neb. 175, 139 N.W. 1023 (1913); Ryan v. City of Lincoln, 85 Neb. 539, 123 N.W. 1021 (1909); Hull v. Chicago, B. & Q. Ry. Co., 21 Neb. 371, 32 N.W. 162 (1887); Haywood v. Thomas, 17 Neb. 237, 22 N.W. 460 (1885); Gregory v. Lincoln, 13 Neb. 352, 14 N.W. 423 (1882); Horbach v. Miller, 4 Neb. 31 (1875). Tract contiguous to right-of-way acquired by railroad by adverse possession. Ferber v. McQuillen, 99 Neb. 280, 156 N.W. 506 (1916). Right by adverse possession in village street upheld where acquired before amendment of 1899 to this section. Torbitt v. Village of Bennett, 98 Neb. 129, 152 N.W. 301 (1915). Statute runs against bill to declare deed absolute in form a mortgage, in favor of grantee in possession, from time such possession becomes adverse to grantor's title. Minick v. Reichenbach, 97 Neb. 629, 150 N.W. 1001 (1915); Stall v. Jones, 47 Neb. 706, 66 N.W. 653 (1896). There must be adverse public user of defined track or way for period sufficient to bar action to recover land. Smith v. Nofsinger, 86 Neb. 834, 126 N.W. 659 (1910); Nelson v. Sneed, 76 Neb. 201, 107 N.W. 255 (1906). Notorious and exclusive possession without right constitutes a disseizin. Fitzgerald v. Brewster, 31 Neb. 51, 47 N.W. 475 (1890). 3. Limitation as to remainderman An action for recovery of title to, or possession of lands, can only be brought within ten years after the cause of action has accrued, and a remainderman is not required to bring action to quiet title in order to protect his remainder estate from a claim of adverse possession by a grantee of the life estate in possession under the grant. Maxwell v. Hamel, 138 Neb. 49, 292 N.W. 38 (1940). When statute runs against remaindermen stated. Anderson v. Miller, 103 Neb. 549, 172 N.W. 688 (1919); Mohr v. Harder, 103 Neb. 545, 172 N.W. 753 (1919); Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302 (1917). Statute does not always run against remainderman until death of owner of life estate. Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302 (1917); Bohrer v. Davis, 94 Neb. 367, 143 N.W. 209 (1913); McFarland v. Flack, 87 Neb. 452, 127 N.W. 375 (1910). 4. Adverse possession not applicable Actions to recover annual payments provided for by indenture granting perpetual easement for flow of water and to enforce equitable lien growing out of the indenture are not controlled by this section. Frye v. Sibbitt, 145 Neb. 600, 17 N.W.2d 617 (1945). A fee simple title holder under an unrecorded deed does not forfeit title by failure to assert it affirmatively for ten years or any other period. Hadley v. Platte Valley Cattle Co., 143 Neb. 482, 10 N.W.2d 249 (1943). Action for damages against city for changing grade of street, held not barred by statute of limitations. Quivey v. City of Mitchell, 133 Neb. 727, 277 N.W. 50 (1938). Exception as to municipalities does not extend to irrigation districts. Central Irr. Dist. v. Gering Irr. Dist., 122 Neb. 199, 240 N.W. 289 (1932). Railroad right-of-way is not divested by adverse possession so long as railroad operates over same. Edholm v. Missouri Pac. R. R. Corp., 114 Neb. 845, 211 N.W. 206 (1926); McLucas v. St. Joseph & G. I. Ry. Co., 67 Neb. 603, 93 N.W. 928 (1903), former judgment adhered to 67 Neb. 612, 97 N.W. 312 (1903). Public easement in land used for highway cannot be divested by adverse possession; width of highway acquired by public user is question of fact determined by character and extent of use. Donovan v. Union P. R. Co., 104 Neb. 364, 177 N.W. 159 (1920). Statute does not run against action to remove cloud on title while landowner is in exclusive possession. Essex v. Smith, 97 Neb. 649, 150 N.W. 1022 (1915). Where party was placed in possession of land under agreement that he should hold possession until settlement was made, statute would not run on either action for land or claim for money. Tillson v. Holloway, 94 Neb. 635, 143 N.W. 939 (1913). Action to foreclose mortgage may be commenced within ten years even though action on note has become barred. Campbell v. Upton, 56 Neb. 385, 76 N.W. 910 (1898). 5. When cause of action accrues The statute of limitations does not begin to run in case of a resulting trust until trustee clearly repudiates his trust, and the time it commences to run must be determined upon facts in each case. Jirka v. Prior, 196 Neb. 416, 243 N.W.2d 754 (1976). As between cotenants, statute of limitations begins to run from time of ouster. Unick v. St. Joseph Loan and Trust Co., 146 Neb. 789, 21 N.W.2d 752 (1946). Partial payments do not extend period of time for commencing action as against purchaser for value. Weekes v. Rumbaugh, 144 Neb. 103, 12 N.W.2d 636 (1944). Before possession can become adverse between co-owners, notice that the part owner in possession is claiming the entire estate in hostility to his co-owners must be brought home to the latter in some plain and unequivocal manner. Gramann v. Beatty, 134 Neb. 568, 279 N.W. 204 (1938). Petition showing cause accrued twenty-six years before action was begun was demurrable. Parkin v. Parkin, 123 Neb. 836, 244 N.W. 638 (1932). Statute does not begin to run against cestui que trust until trustee repudiates trust, since until then the fraud has not become known. Wiseman v. Guernsey, 107 Neb. 647, 187 N.W. 55 (1922). Action to enforce lien of specific money bequest upon land in hands of residuary legatee, when barred. Overton v. Sack, 99 Neb. 64, 155 N.W. 222 (1915); Klug v. Seegabarth, 98 Neb. 272, 152 N.W. 385 (1915). The statute will continue to run against one who has executed a valid deed of the premises under which the land is so held, although a later conveyance in the chain of title is found to be invalid. Davidge v. Talbot, 98 Neb. 816, 154 N.W. 543 (1915). In mortgagor's action to redeem, statute begins to run when mortgagee takes possession with color of title. Essex v. Smith, 97 Neb. 649, 150 N.W. 1022 (1915); Jackson v. Rohrberg, 94 Neb. 85, 142 N.W. 290 (1913). Statute does not run until notice that trustee denies his right in the property. Goodman v. Smith, 94 Neb. 227, 142 N.W. 521 (1913). Action by heir to recover homestead illegally sold at administrator's sale must be commenced within ten years after attaining his majority. Holmes v. Mason, 80 Neb. 448, 114 N.W. 606 (1908). Action may be brought any time before statutory bar is complete. Clark v. Hannafeldt, 79 Neb. 566, 113 N.W. 135 (1907); Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904); Dorsey v. Conrad, 49 Neb. 443, 68 N.W. 645 (1896). Statute does not run against claim of subrogation under prior mortgage until ten years from maturity of latter. Boevink v. Christiaanse, 69 Neb. 256, 95 N.W. 652 (1903). To obtain deficiency judgment upon mortgage indebtedness, action must be brought within five years. Omaha Savings Bank v. Simeral, 61 Neb. 741, 86 N.W. 470 (1901). Subsequent mortgagee, not made party to foreclosure of prior mortgage, is not barred from action until ten years after cause of action accrues. Baldwin v. Burt, 43 Neb. 245, 61 N.W. 601 (1895). Statute begins to run, when in favor of entryman on public lands. Mills v. Traver, 35 Neb. 292, 53 N.W. 67 (1892); Carroll v. Patrick, 23 Neb. 834, 37 N.W. 671 (1888). 6. Tolling of statute A subsequent encumbrancer is one who acquires one's encumbrance for value after the statute has run against a prior encumbrance. A mortgage on real estate continues as a lien thereon for only 10 years from the maturity of the debt secured unless a payment has been made thereon, or the statute of limitations has otherwise been tolled. Vanice v. Oehm, 247 Neb. 298, 526 N.W.2d 648 (1995). An action to foreclose a real estate mortgage may be brought within the limitation hereunder even though an action on the debt is barred. J. I. Case Credit Corp. v. Thompson, 187 Neb. 626, 193 N.W.2d 283 (1971). Absence from state will not extend the time in which a real estate mortgage foreclosure may be brought against a nonresident. Brainard v. Hall, 137 Neb. 491, 289 N.W. 845 (1940). Death of party against whom statute has commenced to run does not toll statute; it continues to run as against heirs. McNeill v. Schumaker, 94 Neb. 544, 143 N.W. 805 (1913). Running of statute is arrested by service of summons. Butler v. Smith, 84 Neb. 78, 120 N.W. 1106 (1909). Unless tolled, statute of limitations for foreclosure of real mortgage is ten years from maturity of the debt secured. Herbage v. McKee, 82 Neb. 354, 117 N.W. 706 (1908). In determining period of limitation on action to foreclose mortgage, partial payments or written acknowledgment operate to toll statute. Teegarden v. Burton, 62 Neb. 639, 87 N.W. 337 (1901). Conveyance by adverse occupant to one not competent to take title will not arrest running of statute. Myers v. McGavock, 39 Neb. 843, 58 N.W. 522 (1894). 7. Inverse condemnation This section is a general statute of limitations that must yield to the more specific limitation provided in section 25-218 regarding inverse condemnation actions brought against the State. Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017). In the context of a regulatory taking, a cause of action for inverse condemnation begins to accrue when the injured party has the right to institute and maintain a lawsuit due to a city's infringement, or an attempt at infringement, of a landowner's legal rights in the property. Strode v. City of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016). The period of limitations for inverse condemnation actions is the ten years within which actions for adverse possession must be brought pursuant to this section. Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440 N.W.2d 456 (1989). Section 76-701 et seq., R.R.S.1943, provides no specific statute of limitations; therefore the ten-year period in section 25-202, R.R.S.1943, applies in inverse condemnation proceedings. Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977). 8. Miscellaneous This section is applicable to an action to quiet title to an interest in real estate. Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003). The statute of limitations for a judicial action to foreclose on real property under a deed of trust is 10 years. PSB Credit Servs. v. Rich, 251 Neb. 474, 558 N.W.2d 295 (1997). Courts of equity have the inherent power to refuse relief after undue and inexcusable delay independent of the statute of limitations. Cizek v. Cizek, 201 Neb. 4, 266 N.W.2d 68 (1978). Where plaintiff's predecessor in title had been in actual, continuous, notorious adverse possession of island for ten years he became the owner thereof. Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976). A school district is an other municipal corporation and its real estate is other public grounds within provisions of this section. Buras v. School Dist. No. 37 of Sarpy County, 190 Neb. 836, 212 N.W.2d 632 (1973). Undisputed evidence indicated defendants, by maintenance of drainage ditch through plaintiff's land for a period in excess of ten years, but for the public interest involved, acquired easement in their own right. Franz v. Nelson, 183 Neb. 137, 158 N.W.2d 606 (1968). Subsequent encumbrancer is one who acquires his encumbrance for value after statute has run against prior encumbrance. Alexanderson v. Wessman, 158 Neb. 614, 64 N.W.2d 306 (1954). A person, claiming right to mortgaged realty prior to mortgagee whose mortgage was extended by unrecorded written agreement, must show that the person is purchaser or encumbrancer who has parted with something of value. Franklin v. Zarmstorf, 145 Neb. 21, 15 N.W.2d 190 (1944). Where an occupant of real estate disclaims title prior to the running of the statute of limitations, he is precluded from acquiring title by adverse possession. Weisel v. Hobbs, 138 Neb. 656, 294 N.W. 448 (1940). The requirement that mortgage be rerecorded within ten years after cause of action accrues is limited in its application to subsequent purchasers and encumbrancers for value. Hadley v. Corey, 137 Neb. 204, 288 N.W. 826 (1939). Adverse possession of accreted lands must be proved by actual, open, exclusive, and continuous possession under claim of ownership for ten years. Conkey v. Knudsen, 135 Neb. 890, 284 N.W. 737 (1939). Action for relief based on mistake and accident is not governed by this section, as such relief is classed as fraud. Sweley v. Fox, 135 Neb. 780, 284 N.W. 318 (1939). In determining period of limitation in action to foreclose real estate mortgage given as security for note, this section should be construed in connection with section providing that part payment or acknowledgment of debt tolls statute. Steeves v. Nispel, 132 Neb. 597, 273 N.W. 50 (1937). Courts of equity have inherent power to refuse relief after undue and inexcusable delay independent of statute of limitations. Perry v. Markle, 127 Neb. 29, 254 N.W. 692 (1934). Bank held not subsequent encumbrancer within meaning of section. O'Connor v. Power, 124 Neb. 113, 245 N.W. 417 (1932), overruled in 124 Neb. 594, 247 N.W. 414 (1933). Possession as between parties in parental or filial relation is deemed permissive. Chase v. Lavelle, 105 Neb. 796, 181 N.W. 936 (1921). Mortgagor must do equity by tendering amount due on mortgage debt. Pettit v. Louis, 88 Neb. 496, 129 N.W. 1005 (1911). Statute applied to streets. Agnew v. City of Pawnee City, 79 Neb. 603, 113 N.W. 236 (1907); Webster v. City of Lincoln, 56 Neb. 502, 76 N.W. 1076 (1898).