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

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www.nebraska.gov/apps-courts-epub/
03/18/2022 01:09 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
BECKNER v. URBAN
Cite as 310 Neb. 746Brian 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. 746overrule 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).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
BECKNER v. URBAN
Cite as 310 Neb. 746instant 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.