317 Neb. 68
Neb.2024Background
- Susan Dzingle and Thomas Krcilek, siblings, each own adjacent quarter sections of land in Valley County, Nebraska, inherited and divided from their mother's estate in 2020.
- An old fence had existed for decades, dividing the two quarters, but a government survey marker found in 2019 indicated that the legal boundary was 20 feet west of the fence.
- When the property was divided, the siblings agreed not to survey the land at that time due to cost, but each could commission a survey later if desired.
- After inheriting, Dzingle assumed the fence marked the boundary; Krcilek (aware of the marker) had not disclosed this belief during the estate administration.
- Dzingle sued to establish the fence as the legal boundary via mutual recognition/acquiescence, the common grantor rule, and reformation of the deeds; the trial court ruled for Krcilek, finding the survey marker controlled.
- Dzingle appealed, challenging the boundary determination and denial of her equitable claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Common Grantor Rule | Rule should apply to quarter secs | Applies only to lot conveyance | Rule inapplicable; applies only to lots |
| Mutual Recognition/Acquiescence to Fence | Parties acquiesced to fence | Not for required 10 years; siblings only owned since 2020 | Doctrine does not apply; no 10-year acquiescence post-separation |
| Presumptive Boundary from Old Fence | Fence long recognized, should control boundary | Govt marker sets legal boundary | Govt survey marker prevails; old fence not controlling |
| Reformation of Deeds for Unilateral Mistake | Krcilek failed to disclose; deeds should be reformed | No duty; mutual intent was to divide by quarter section | No fraud/inequity; no basis for reformation |
Key Cases Cited
- Huffman v. Peterson, 272 Neb. 62 (Neb. 2006) (discussed scope of the common grantor rule; applies only where conveyance by lot number)
- Sila v. Saunders, 274 Neb. 809 (Neb. 2008) (articulates requirements for mutual recognition and acquiescence in Nebraska)
- Hausner v. Melia, 212 Neb. 764 (Neb. 1982) (presumption as to boundaries where government survey acquiesced to by owners)
- Streeks v. Diamond Hill Farms, 258 Neb. 581 (Neb. 2000) (factors for imposing duty to disclose for reformation claims)