Beckner v. Urban - supplemental opinion , 310 Neb. 746 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    02/18/2022 01:06 AM CST
    - 746 -
    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 fol-
    lowing the release of our opinion in Beckner v. Urban. 1 We
    1
    Beckner v. Urban, 
    309 Neb. 677
    , 
    962 N.W.2d 497
     (2021).
    - 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 pre-
    ponderance 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 repu-
    diated Lola’s title by demanding the deed and communi-
    cating 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 exclu-
    sion 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 prop-
    erty in 2001 when he distinctly and unequivocally repu-
    diated 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).
    - 748 -
    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 posses-
    sion. 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.
    

Document Info

Docket Number: S-20-345

Citation Numbers: 310 Neb. 746

Filed Date: 1/21/2022

Precedential Status: Precedential

Modified Date: 2/18/2022