Puncochar v. Rudolf , 315 Neb. 650 ( 2024 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/05/2024 09:07 AM CST
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650Judith Puncochar, appellant, v.
Jesse D. Rudolf et al., appellees.
___ N.W.2d ___
Filed January 5, 2024. No. S-23-072.
1. Equity: Boundaries: Appeal and Error. An action to ascertain and
permanently establish corners and boundaries of land under Neb. Rev.
Stat. § 34-301 (Reissue 2016) is an equity action.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclusion inde-
pendent of the trial court’s determination.
3. Summary Judgment: Appeal and Error. An appellate court reviews a
district court’s grant of summary judgment de novo.
4. ____: ____. An appellate court affirms a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no
genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
5. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
6. Waters. Land, to be riparian, must have the stream flowing over it or
along its border.
7. ____. The basis of the riparian doctrine, and an indispensable requisite
of it, is actual contact of the land with the water.
8. Waters: Boundaries. Under Nebraska law, title to riparian lands runs to
the thread of the contiguous stream.
9. Waters: Boundaries: Words and Phrases. The thread, or center, of
a channel is the line which would give the landowners on either side
access to the water, whatever its stage might be and particularly at its
lowest flow.
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 65010. ____: ____: ____. Where the thread of the main channel of a river
is the boundary line between two estates and it changes by the slow
and natural processes of accretion and reliction, the boundary follows
the channel.
11. Waters: Boundaries. Meander lines of a river as established by the
original government survey are not boundary lines unless made so by
the instrument of conveyance; instead, the waters themselves constitute
the real boundary.
12. ____: ____. Meander lines are run for the purpose of ascertaining the
exact quantity of land to be charged for and not for the purpose of limit-
ing the title of the grantee to such meander lines.
13. Boundaries: Evidence: Proof. Government corners fixed by the gov-
ernment survey at the time of the original survey furnish the best evi-
dence of the true location of the corners; in the absence of such corners,
or of satisfactory proof of their location, the field notes of the govern-
ment survey (including its plats, if any) furnish prima facie evidence
from which the true corners and lines may be located.
14. Boundaries: Deeds: Conveyances. When lands are granted accord-
ing to an official plat of the survey of such lands, the plat itself, with
all of its notes, lines, descriptions, and landmarks, becomes as much a
part of the grant or deed by which the lands are conveyed, and controls
as if such descriptive features were written on the face of the grant or
deed itself.
Appeal from the District Court for Howard County: Karin
L. Noakes, Judge. Affirmed.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellant.
Stephen D. Mossman and Jacob C. Garbison, of Mattson
Ricketts Law Firm, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this boundary dispute action, Judith Puncochar appeals
from an adverse summary judgment. She contends that the
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650original government survey described her tract of property by
metes and bounds on all four sides. Because we determine that
the original survey showed the tract had one riparian side, we
affirm the district court’s entry of summary judgment.
II. BACKGROUND
The dispute on appeal centers on the boundaries of a lot in
Township 14 North, Range 10 West of the 6th P.M. (Township)
located in Howard County, Nebraska. The lot, Government Lot
1 (GL1), is in Section 15 of the Township, as shown by the
arrow in the excerpt below.
The owner of GL1, Puncochar, sued to determine the
boundary between her land and Government Lot 7 (GL7)—
portions of which are owned by Jesse D. and Elizabeth A.
Rudolf, husband and wife, and by Brian V. Sack and Cathryn
A. Sack. We will refer to the Rudolfs and the Sacks collec-
tively as “the GL7 Owners,” but in doing so, we are mindful
that only the Rudolfs and Brian Sack filed a counterclaim and
joined in the motion for summary judgment. (Cathryn Sack
filed an answer generally denying the allegations of the com-
plaint; she waived filing a brief on appeal.) Puncochar claimed
to own land on both the east and west sides of the Middle
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650Loup River, and she alleged that GL7 did not include accre-
tion. Puncochar asked the court to establish a boundary for
her property in metes and bounds.
The GL7 Owners filed counterclaims to establish the corners
and boundaries of the property in dispute. They requested that
the eastern boundary to GL7 be established as the thread of the
Loup River. The counterclaims alleged that over the past 150
years, the banks of the river abutting GL7 had moved gradually
to the east, uncovering new land to the river’s west.
The parties filed cross-motions for summary judgment. They
agreed that judicial determination of the legal boundary of GL1
would resolve all claims and counterclaims.
After receiving evidence, discussed in more detail as neces-
sary in the analysis section, the court entered summary judg-
ment establishing the boundary between GL1 and GL7 as the
thread of the stream of the Middle Loup River, a branch of
the Loup River. The court stated that GL1 was not legally
described according to Puncochar’s claimed metes and bounds
description on any survey or in any survey notes submitted to
the court.
The court noted that the original Government Land Office
survey showed GL1 to border the river on its western edge,
and the court declared that the original survey showed GL1
to be riparian property. The court stated that “[a]s a matter of
law, the boundary of a lot adjacent to a meander line/river is
presumed to lay within the river, absent a declaration in the
conveyance.” Because the original survey was the best evi-
dence of the western boundary of GL1 and because it showed
that GL1 was riparian property, the court determined that title
to GL1 “runs west to the thread of the river and its western
boundary follows the channel.” In crafting the court’s decree
(styled as a summary judgment), it attached a series of survey
plats developed by a surveyor employed by the GL7 Owners,
which the parties describe as the “Blodgett survey.”
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650Puncochar filed a timely appeal, which we moved to our
docket. 1
III. ASSIGNMENT OF ERROR
Puncochar assigns three errors, which we consolidate and
restate as alleging that the court erred in determining that the
original government survey described GL1 as riparian.
IV. STANDARD OF REVIEW
[1,2] An action to ascertain and permanently establish cor-
ners and boundaries of land under Neb. Rev. Stat. § 34-301(Reissue 2016) is an equity action. 2 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
[3-5] An appellate court reviews a district court’s grant of
summary judgment de novo. 4 An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from the facts and that the moving party is entitled to
judgment as a matter of law. 5 In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted,
and gives that party the benefit of all reasonable inferences
deducible from the evidence. 6
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
2
Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000).
3
Pine Tree Neighborhood Assn. v. Moses, 314 Neb. 445, 990 N.W.2d 884(2023).
4
Id.5
Id.6
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650V. ANALYSIS
1. Judicial Notice Request
In Puncochar’s brief, she asks this court to take judicial
notice of a publication that can be accessed electronically.
The publication, found on the website of the U.S. Bureau of
Land Management, concerns instructions to surveyors of U.S.
public lands published in 1855. Puncochar did not bring this
publication to the district court’s attention. Although judicial
notice of adjudicative facts may be taken at any stage of the
proceeding, 7 we decline to take judicial notice of the contents
of this publication.
2. Principles of Law
[6,7] Land, to be riparian, must have the stream flowing
over it or along its border. 8 The basis of the riparian doctrine,
and an indispensable requisite of it, is actual contact of the land
with the water. 9
“Land is riparian by virtue of the fact that it is so located
in respect to a watercourse or lake that the possessor of
it has lawful access to the water for his private use. The
mere fact that a parcel of land is close by or adjacent
to the water does not make that land riparian when the
water itself is on another’s land, for in such case there
is no access to the water, for private use at least, without
intruding on the land on which the water lies.” 10
[8-10] The parties agree that if GL1 was riparian at the time
it was surveyed, the boundary between GL1 and GL7 is at the
thread of the river. This is because under Nebraska law, title
to riparian lands runs to the thread of the contiguous stream. 11
7
Neb. Rev. Stat. § 27-201(1) and (6) (Reissue 2016).
8
Stratbucker v. Junge, 153 Neb. 885, 46 N.W.2d 486 (1951).
9
Id.10
Id. at 890, 46 N.W.2d at 488, quoting Restatement of Torts § 843 comment
d. (1939).
11
See Anderson v. Cumpston, supra note 2.
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650The thread, or center, of a channel is the line which would give
the landowners on either side access to the water, whatever
its stage might be and particularly at its lowest flow. 12 Where
the thread of the main channel of a river is the boundary line
between two estates and it changes by the slow and natural
processes of accretion and reliction, the boundary follows the
channel. 13 A treatise explains the reasoning behind the entitle-
ment to accretions:
The right to accretions frequently is said to be founded
on a riparian owner’s right of continued access to the
watercourse. If the strips of land accreting to the shore-
line were owned by others than the abutting owners, the
consequence would be a substantial and unjust decrease
in the value of riparian lands. 14
[11,12] The parties also agree that a meander line is not
a boundary between properties. Meander lines of a river as
established by the original government survey are not bound-
ary lines unless made so by the instrument of conveyance;
instead, the waters themselves constitute the real boundary. 15
Meander lines are run for the purpose of ascertaining the exact
quantity of land to be charged for and not for the purpose of
limiting the title of the grantee to such meander lines. 16
The parties further agree that the original government land
survey is controlling. Puncochar asserts that the government
survey, plat (Plat No. 1058), and patent are not open to chal-
lenge by collateral attack. The GL7 Owners likewise “agree
that the plat and field notes established by a government
12
Id.13
Id.14
Richard S. Harnsberger & Norman W. Thorson, Nebraska Water Law &
Administration § 7.02 at 330 (1984).
15
In re Freeholders Petition, 210 Neb. 583, 316 N.W.2d 294 (1982).
16
See, Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808, 35 L. Ed. 428 (1891);
Summerville v. Scotts Bluff County, 182 Neb. 311, 154 N.W.2d 517 (1967).
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650survey are conclusive.” 17 Puncochar concedes that “[t]he title
determination turns on documents, not a veracity contest.” 18
[13,14] Government corners fixed by the government sur-
vey at the time of the original survey furnish the best evidence
of the true location of the corners; in the absence of such cor-
ners, or of satisfactory proof of their location, the field notes
of the government survey (including its plats, if any) furnish
prima facie evidence from which the true corners and lines
may be located. 19 When lands are granted according to an offi-
cial plat of the survey of such lands, the plat itself, with all of
its notes, lines, descriptions, and landmarks, becomes as much
a part of the grant or deed by which the lands are conveyed,
and controls as if such descriptive features were written on the
face of the grant or deed itself. 20
3. Additional Facts
(a) Survey Plat
In 1867, a surveyor created an official government survey
of the Township, recorded as Plat No. 1058. The Government
Land Office approved the survey in 1868.
Plat No. 1058 showed GL1 to be composed of 53 acres
and to be east of the Loup River. It depicted GL7 to be 33
acres directly west across the river from GL1. The plat shows
the Loup River runs through the Township in a northeast-
erly direction.
The right-hand side of Plat No. 1058 captured the meanders
of the Loup River. Because the river runs south to north, the
references on the plat to “Down the left bank” and “Down
right bank” actually run south to north on the plat. The course
of the meanders was marked on the plat by numbered posts.
17
Brief for appellees at 12.
18
Brief for appellant at 5.
19
State v. Cheyenne County, 123 Neb. 1, 241 N.W. 747 (1932).
20
See Cragin v. Powell, 128 U.S. 691, 9 S. Ct. 203, 32 L. Ed. 566 (1888).
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Nebraska Supreme Court Advance Sheets
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650(b) Accompanying Field Notes
The surveyor recorded handwritten survey notes in connec-
tion with his work. Although the notes are at times difficult to
read, they show the surveyor’s marking of various corners and
crossing of the river. The surveyor recorded meanders of the
river. The subscript numbers contained in the field notes refer
to the post numbers that are set forth on the right side of Plat
No. 1058. To the extent Puncochar makes an argument based
on the content of the field notes, we will address the argument
and the notes in connection with our resolution.
(c) Patent
A patent filed in 1884 showed that “Lot 1” in the Township
was included within the land grants made by the U.S. gov-
ernment to the Union Pacific Railroad Company. The patent
showed “Lot 1” to be composed of 53 acres; it did not set forth
any measured boundaries.
4. Resolution
Puncochar’s principal contention is that the original gov-
ernment survey generated a metes and bounds description of
GL1, with four measured and linear sides, rather than tract
with a riparian side. We disagree.
Plat No. 1058 and the field notes show GL1 to be riparian.
The plat does not depict anything other than a riparian tract. It
shows GL1, as well as GL7, abutting the river. The surveyor’s
field notes, from which the plat was drawn, are consistent with
GL1’s having a riparian side. Further, the depiction of the
meandering of the river reinforces that the tract is riparian.
The field notes do not support Puncochar’s argument for
a metes and bounds description. The field notes twice men-
tion the corner to Sections 10, 11, 14, and 15. This corner
would be the northeast corner of GL1. The notes also refer
to the quarter section corner to Sections 14 and 15. Later,
the notes discuss intersecting the left bank of the river for a
temporary corner, setting a flag on the right bank of the river
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650in line between Sections 10 and 15, running a base line from
the temporary corner, and calculating the distance across the
river. The surveyor crossed the river and, in place of the flag,
set a post for a temporary corner. The notes mention: “26.01
[chains] Right bank Loup River runs N5°E[.] Set post deposit
charred stake raised a mound of earth with pits as per instruc-
tions for a corner to fractional Sections 10 & 15.” Plat No.
1058 shows 26.01 chains from the northeast corner of GL1
to the right bank of the river. This point is a meander corner,
which is defined as “[a] corner established at the intersection
of standard, township or section lines with the meander line
near banks of navigable streams or any meanderable body of
water.” The point corresponds with post 20 contained on Plat
No. 1058’s tracking of the meanders of the river. The notes
likewise set forth the meanders on the left and right bank
of the river through Section 15, which match with the posts
depicted on Plat No. 1058 and listed on the right side of the
plat. Contrary to Puncochar’s argument, neither Plat No. 1058
nor the notes establish a measured boundary for the west side
of GL1.
Nor does the recital of 53 acres in the patent conveying
GL1 support the existence of a fixed, rather than a riparian,
boundary. The patent’s recital matches the number of 53 acres
specified on Plat No. 1058. Whether the acreage was actually
53 acres at the time of the original government survey, or
some greater or lesser number, matters not. The original sur-
vey, depicting the riparian boundary, which became a part of
the patent, controlled. But it gave no assurance that the size of
the riparian property would remain fixed at any particular size.
Every government lot depicted on Plat No. 1058 adjoining the
“Loup River” recites an acreage. Such recitals in no way con-
flict with those lots’ riparian character.
Puncochar also relies on a survey performed by a surveyor
she employed purporting to develop a description relying on
the original survey field notes. This represents an attempt to
supplement the field notes to provide a metes and bounds
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PUNCOCHAR V. RUDOLF
Cite as 315 Neb. 650description where the original government survey did not. The
district court was not persuaded that this had any legal effect,
and neither are we.
Having determined that GL1 is riparian, we affirm the
district court’s entry of summary judgment establishing the
boundary between GL1 and GL7 as the thread of the stream
of the Middle Loup River. Thus, the boundaries of GL1 in
Township 14 North, Range 10 West of the 6th P.M. in Howard
County, Nebraska, are fixed as follows: (1) the northeast
corner, by the intersection of Sections 10, 11, 14, and 15 in
said Township; (2) the southeast corner, by the corner estab-
lished in the original government survey at the intersection
of the southeast corner of GL1 and the northeast corner of
Government Lot 2; (3) the northwest corner, by the intersec-
tion of the north line of GL1 with the thread of the stream of
the Middle Loup River; and (4) the southwest corner, by the
intersection of the south line of GL1 with the thread of the
stream of the Middle Loup River. The western boundary of
GL1 is established by the thread of the stream between the
northwest and southwest corners of GL1 thus confirmed.
VI. CONCLUSION
Because the original government survey showed GL1 to be
riparian, we affirm the grant of summary judgment in favor
of the GL7 Owners and confirm the boundaries of GL1 as set
forth above.
Affirmed.