A-16-915, Ritts v. TEO, Inc. (Appellant)
Holt County, District Court Judge Mark Kozisek
Attorney for Appellant: Ronald E. Temple (Fitzgerald, Vetter, Temple & Bartell)
Attorney for Appellees: Thomas P. Herzog (Herzog Law Office)
Civil Action: Adverse Possession/Quiet Title
Action Taken by Trial Court: The district court found that the appellees proved adverse possession and quieted title to a disputed tract of land in their favor.
Assignments of Error on Appeal: On appeal, the appellant contends that the district court erred quieting title in favor of the appellees based upon the court’s finding that the appellees showed their possession of the disputed tract was adverse and under a claim of ownership for the requisite statutory period.
A-16-0915 Lloyd E. Ritts and Beverly Jean Ritts v. TEO, Inc. (Appellant)
Original trial court: Holt County District Court, Judge Mark Kozisek
Background: The Ritts and TEO own adjoining tracts of real property in Holt County, Nebraska. TEO has owned the north half, which is irrigated cropland, since 2006. Beverly Ritts’ parents purchased the south half in 1960, passed the property on to Beverly in 1985, and Beverly added her husband Lloyd to the title of the south half in 1991. The south half is prairie hay. There is a fence separating the north half and the south half that has been in existence since at least 1960. Beverly, Lloyd, and Beverly’s parents hayed the south half up to the fence line.
In 2014, TEO had a survey performed of the boundary line between the north and south half which survey revealed that the existing fence was not on the survey line, but was 11 feet on the north half. TEO removed the original fence in April 2015 without the Ritts’ permission and installed a new fence in a different location south of the original fence on the surveyed boundary line. The area between the original fence and the new fence contains approximately 1.152 acres of property which is the “disputed area.”
The Ritts filed a lawsuit against TEO which, among other things, asked the district court to quiet title of the disputed property in the Ritts pursuant to an adverse possession claim. Under Nebraska law, a party claiming title through adverse possession must prove, by the preponderance of the evidence, that adverse possessor has been in “(1) actual, (2) continuous, (3) exclusive, (4) notorious, and (5) adverse possession under a claim of ownership for the statutory period of 10 years.” Poulios v. Pine Crest Homes, LLC, 293 Neb. 115, 118, 876 N.W.2d 356, 359 (2016). TEO filed an answer and counterclaim seeking a decree to quiet title in the disputed area in favor of TEO, the record owner.
Trial was held on July 14, 2016. The parties stipulated to the actual, continuous, exclusive and notorious possession elements of the Ritts’ adverse possession claim. Thus, the only issue at the trial was the required element of an adverse claim of ownership for ten (10) consecutive years. Following a trial to the district court, the district court filed an order holding that the Ritts were the owners of the disputed area by virtue of the doctrine of adverse possession and ordered that title of the disputed area be quieted in the Ritts’ favor. TEO was also ordered to remove the new fence and reinstall the prior fence on the property line specifically designated in the judgment and dismissed TEO’s counterclaim with prejudice.
TEO disagreed with the decision of the district court and has filed an appeal with this court. The Court of Appeals will consider TEO’s argument on appeal that the district court erred in quieting title in favor of the Ritts based upon the doctrine of adverse possession.
Attorneys: Ronald E. Temple (Fitzgerald, Vetter, Temple & Bartell) (for TEO, Inc.) ; Thomas P. Herzog (Herzog Law Office) (for the Ritts).