Brown v. Morello
957 N.W.2d 884
Neb.2021Background:
- Brown bought and has lived at 2934 Nicholas St. since 1972; a small adjacent parcel (2936 Nicholas St.) measuring ~20.7' x 130' adjoins her yard and the city sidewalk.
- Brown and her family mowed the grass, cleared the adjoining sidewalk, and for over 10 years constructed/maintained a retaining wall along the parcel’s western edge.
- Morello acquired title to 2936 Nicholas St. at a tax foreclosure sale in 1995 and lives in Texas; he used a local agent to inspect/maintain his Omaha properties.
- Brown filed to quiet title, claiming adverse possession; Morello counterclaimed for trespass and sought removal/damages related to the retaining wall.
- At summary judgment, the district court excluded portions of Morello’s affidavit (paragraphs 5 and 6) on hearsay/speculation/relevance grounds, granted Brown’s motion, quieted title to Brown, and dismissed Morello’s counterclaim.
- Morello appealed, arguing (1) the grant of summary judgment was erroneous (elements of adverse possession not met, particularly exclusivity and notoriety) and (2) the court erred in excluding affidavit paragraphs.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown proved adverse possession to quiet title | Brown: she exercised actual, continuous, exclusive, notorious, and adverse possession for the statutory 10 years (mowing, snow removal, retaining wall, presumed tax payment) | Morello: Brown’s acts were routine maintenance insufficient to establish exclusivity/notorious use; his agent would have reported any adverse use | Court: Affirmed summary judgment for Brown — undisputed evidence showed Brown’s exclusive, open, notorious possession and Morello presented no evidence of use during the period |
| Whether excluding Morello’s affidavit ¶5 (agent report) was erroneous (hearsay/relevance) | Brown: objected as hearsay and irrelevant | Morello: ¶5 showed his lack of notice because his agent would have reported activity | Court: Exclusion not reversible — even if admissible ¶5 would not create a material factual dispute on adverse possession |
| Whether excluding Morello’s affidavit ¶6 (belief wall was City’s) was erroneous (speculation/lack of personal knowledge) | Brown: objected as speculation and irrelevant | Morello: asserted belief the City built the wall based on proximity to sidewalk and lack of permit record | Court: Properly excluded ¶6 as speculative/lacking personal knowledge |
Key Cases Cited
- Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019) (elements and standards for adverse possession)
- Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003) (routine maintenance may be insufficient; exclusivity disputes)
- Poullos v. Pine Crest Homes, 293 Neb. 115, 876 N.W.2d 356 (2016) (visible maintenance and sod line can support notoriety)
- Wiedeman v. James E. Simon Co., Inc., 209 Neb. 189, 307 N.W.2d 105 (1981) (clearing, fencing, and other visible acts can establish open and notorious possession)
- Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020) (summary judgment standard applied)