Brown v. Jacobsen Land & Cattle Co.
302 Neb. 538
| Neb. | 2019Background
- Terry and Linda Brown (the Browns) sued Jacobsen Land & Cattle Company to quiet title to ~77 acres that had been fenced and used with the Browns’ adjacent ranch but was within Jacobsen’s recorded property.
- Browns’ use began as permissive grazing under an oral lease from Bud Jessup in the 1980s; Browns bought adjacent property in 1992 but the disputed parcel was not conveyed to them.
- The fence enclosing the disputed land had existed for decades; Browns maintained it and grazed cattle there, but did not pay taxes on the disputed land.
- Jacobsen acquired title in 2014; soon thereafter the State of Nebraska (Game and Parks Commission) negotiated to purchase Jacobsen’s property including the disputed parcel.
- Browns filed suit and recorded a lis pendens before Jacobsen’s sale closed; the State intervened. After a first trial and a remand for procedural error, a second trial resulted in the district court quieting title to the Browns.
- On appeal the Nebraska Supreme Court considered whether Browns’ possession was adverse (hostile) or merely permissive (including tenancy at sufferance), and reversed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Browns established adverse possession (hostile claim of ownership) for 10 years | Browns: Long, open, continuous, exclusive, and notorious use (fence, grazing, maintenance) met statutory elements | State/Jacobsen: Use began by permission (lease); no unequivocal act showing hostile claim; holdover was tenant at sufferance | Court: Use began permissively and never changed to hostile; adverse possession not established |
| Whether permissive use can ripen into adverse possession absent an unequivocal change | Browns: Continued use and maintenance of fence signaled ownership claim | State: Permission by prior owner and continued permissive use precludes ripening without clear notice to record owner | Court: Possession by permission cannot ripen unless nature of possession changes and is plainly communicated; no such change occurred |
| Effect of prior lease and family relationship on presumption of permissive possession | Browns: Lease was informal and permission from Bud insufficient to defeat claim | State: Lease and familial relations create presumption of permission | Court: Lease and family ties support presumption of permissive possession; Browns failed to rebut it |
| Whether tenant at sufferance can claim adverse possession | Browns: Claim that holding over after purchase of adjacent land established ownership claim | State: Tenancy at sufferance is permissive and cannot support adverse possession | Court: Tenant at sufferance is permissive; cannot be basis for adverse possession |
Key Cases Cited
- Poullos v. Pine Crest Homes, 293 Neb. 115 (adverse possession elements and 10-year statute)
- Wanha v. Long, 255 Neb. 849 (claim of ownership/hostility defined; notice function of hostile possession)
- Young v. Lacy, 221 Neb. 511 (permissive use does not ripen absent unequivocal change brought home to owner)
- Petsch v. Widger, 214 Neb. 390 (permissive use continues when original owner permits and successor continues permission)
- Svoboda v. Johnson, 204 Neb. 57 (entry under lease is permissive and not hostile)
- Jackson v. Eichenberger, 189 Neb. 777 (tenant cannot claim adverse possession without surrender or unequivocal notice to landlord)
- Chase v. Lavelle, 105 Neb. 796 (possession by family members presumed permissive)