S & R American Farms v. Russell Farm & Ranch, A-15-998

Background

S & R American Farms (S & R) and Russell Farm and Ranch (Russell) are riparian neighbors on the Middle Loup River; a parcel (the “island”) between historical channels is contested.
The 1873 survey showed a single channel with the island north of the stream; later aerial photos (1938 onward) show channel migration and eventual single-channel flow north of the island.
S & R recorded a survey by its surveyor (Mitchell Humphrey) locating the thread of the stream north of the disputed land; Russell’s surveyor agreed the present thread is north but disputed the legal boundary’s history.
S & R withheld email communications between its counsel and Humphrey as privileged; district court granted a protective order and denied Russell’s motions to compel.
District court admitted Humphrey’s sworn affidavit and attached (uncertified) survey, found the changes were due to accretion (not avulsion), treated the filed survey as presumptive evidence under Neb. Rev. Stat. § 81-8,122.01, and granted summary judgment to S & R.
Russell appealed, challenging discovery rulings, the survey’s admissibility, and the summary judgment holding that the boundary follows the thread of the stream north of the disputed land.

Issues

Issue	Plaintiff's Argument (Russell)	Defendant's Argument (S & R)	Held
1) Were emails between S & R’s counsel and expert discoverable?	Russell argued privilege was not properly asserted and sought production; claimed court should review in camera.	S & R asserted attorney-client and work-product protection; deposition of the expert provided substantive equivalent.	Court: protective order proper; Russell failed to show substantial need or undue hardship to overcome privilege/work product.
2) Admissibility/foundation for Humphrey’s recorded survey (uncertified copy attached to affidavit)?	Russell objected that the copy was not certified as required by §§ 25-1334, 27-902.	S & R relied on Humphrey’s sworn affidavit attesting to personal knowledge and that the copy is true and correct.	Court: affidavit provided sufficient authentication; survey admissible.
3) Whether the thread-of-stream boundary shifted by accretion or avulsion (affecting title)?	Russell contended changes could be avulsive and thus boundary should remain at former thread; genuine issue of fact existed.	S & R argued changes were gradual (accretion/reliction); Humphrey saw no evidence of avulsion; recorded survey presumptively establishes boundary.	Court: Humphrey’s filed survey presumptive; Russell produced no affirmative evidence of avulsion; summary judgment for S & R.
4) Whether district court abused discretion on other discovery rulings and evidentiary objections (misc.)	Russell raised additional discovery and evidentiary objections.	S & R defended district court’s broad discretion and procedures followed for expert discovery and protective orders.	Court: assignments either not separately argued or lacked merit; no abuse of discretion.

Key Cases Cited

Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (discovery rulings reviewed for abuse of discretion)
Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (work-product protection for expert communications; substantial-need standard)
Gonzalez v. Union Pacific R.R. Co., 282 Neb. 47, 803 N.W.2d 424 (broad latitude for protective orders)
Curry v. Furby, 20 Neb. App. 736, 832 N.W.2d 880 (thread of stream concept; boundary follows gradual changes)
Babel v. Schmidt, 17 Neb. App. 400, 765 N.W.2d 227 (avulsion leaves original boundary in place)
Hoff v. Ajlouny, 14 Neb. App. 23, 703 N.W.2d 645 (affidavit from person with personal knowledge can authenticate an attached recorded document)
Olson v. Olson, 13 Neb. App. 365, 693 N.W.2d 572 (errors must be assigned and argued to be reviewed)
Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407, 882 N.W.2d 910 (summary judgment standard on evidentiary record)