Lillie Brown v. Bernard Morello . Nebraska Adverse Possession
This Douglas County, Nebraska, case involves the property shown here, image courtesy of Google Maps:
The house sits at 2934 Nicholas Street, Omaha, and the plaintiff had lived there since 1972, and always thought that she owned a corner lot. She always mowed the entire lawn and cleared the sidewalk along 30th. She constructed the retaining wall more than 10 years earlier.
But unbeknownst to her, she did not own a corner lot. In 1995, the defendant purchased 2936 Nicholas Street at a tax foreclosure sale. This parcel was not large enough to build on, but was a strip 20.7 feet wide adjoining 30th street. After learning that she did not own the strip, the plaintiff brought an action to quiet title. The defendant counterclaimed for trespass, and the plaintiff filed for summary judgment. The district court, Judge W. Russell Bowie III, granted the motion, and the defendant appealed to the Nebraska Supreme Court.
The Supreme Court agreed that plaintiff had acquired title by adverse possession. The court noted that the plaintiff had exercised all of the usual incidents of ownership, aside from the payment of taxes. It pointed to the lawnmowing, snow clearing, and construction of the retaining wall.
The court pointed out that in cases where both parties used the property, there could not be a claim for adverse possession. But in this case, there was no evidence that the defendant, who resided in Texas, ever made any use of the property. Since the plaintiff had made use of the property for the ten-year required period, she acquired it by adverse possession, and the trial court correctly granted her motion for summary judgment.
The court noted that the case shouldn't be taken as a departure from its line of cases involving adverse possession of platted city lots. But the key factor in this case was the defendant's failure to make any use of the property during the 10 year period.
308 Neb. 968 (Apr. 16, 2021).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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