Opinion
No. A-10-1104.
09-27-2011
ROLAND C. WHITNEY, APPELLANT, v. SID DOAK AND EDCO, LLC, A NEBRASKA LIMITED LIABILITY COMPANY, APPELLEES.
Jon S. Schroeder, of Schroeder & Schroeder, P.C., and Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier & Byrne, P.C., for appellant. J. Bryant Brooks, of Mousel, Brooks, Garner & Schneider, P.C., L.L.O., for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Hitchcock County: DAVID URBOM, Judge. Affirmed.
Jon S. Schroeder, of Schroeder & Schroeder, P.C., and Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier & Byrne, P.C., for appellant.
J. Bryant Brooks, of Mousel, Brooks, Garner & Schneider, P.C., L.L.O., for appellees.
IRWIN, CASSEL, and PIRTLE, Judges.
CASSEL, Judge.
I. INTRODUCTION
Roland C. Whitney appeals from the district court's decree holding that 23 acres of his land belong to EDCO, LLC, by adverse possession. The key issue is whether Arthur Carmody, one of EDCO's predecessors in title, kept the 23 acres fenced in along with his deeded land for at least 10 years, thereby acquiring the land by adverse possession. Because the matter turns on issues of fact and credibility of witnesses, we give weight to the court's findings and affirm its decree.
II. BACKGROUND
We first insert a diagram to assist the reader in understanding the complicated legal descriptions of the real estate involved in this appeal.
Whitney is the record owner of a parcel of land southwest of Trenton, Nebraska, which is generally depicted by the six-sided figure formed by lines in bold print. The legal description of this land is:
All of Lots 2 and 3, in Section 3, Township 2 North, Range 33 West of the 6th P.M., Hitchcock County, Nebraska, lying south of old Highway No. 34 (now a CountyWhitney received this land from his parents, who had purchased the land from Loyd Campbell in 1989. Thus, we refer to Whitney's parcel as "the Campbell land."
Road); the SW¼NE¼; the SE¼NW¼; the NE¼SW¼; and all of Lots 6 and 7 in Section 3, Township 2 North, Range 33 West of the 6th P.M., Hitchcock County, Nebraska.
The Campbell land mainly consists of pasture and is crossed by the Republican River. On the diagram, the current location of the river across the Campbell land is depicted by a line of dashes and dots, where each dash is separated by three dots. There are approximately 40 acres of the Campbell land located south of the river.
While Whitney has always known that he owned land south of the river, he did not know the exact boundaries of the land until he had a survey completed for a potential buyer in 2008. At that time, Whitney learned that EDCO, his neighbor to the south and east, was in possession of approximately 23 acres of his land south of a fence line generally following the north bank of the river and east of a north-south fence connected to the riverbank fence. It is these 23 acres in lots 6 and 7 (mostly in lot 7) of section 3 that are in dispute in this lawsuit ("the disputed land"). In the diagram, the disputed land is the shaded area generally located at the bottom right and within the six-sided figure.
EDCO owns land to the south and east of the Campbell land ("the Carmody land"). The legal description of the Carmody land is as follows:
Lot Nine (9) and Lot Ten (10) in Section Three (3), Township Two (2) North, Range Thirty Three (33) West of the 6th P.M., and Lot Ten (10) and Eleven (11) in Section Two (2), Township Two (2) North, Range Thirty Three (33) West of the 6th P.M.EDCO obtained record title to this land by warranty deed from Scott and Lesa Snyder in 2005. The Snyders had similarly obtained the land by warranty deed in 2000. Up until that time, the land had been owned by Arthur until his death and thereafter by Grace Carmody, Arthur's widow.
At the same time as EDCO obtained the Carmody land from the Snyders, it also received a quitclaim deed to the following:
All of the Grantor's right, title, and interest, if any, in Lot Seven (7) and Lot Eight (8), in Section Three (3) and Lot Five (5) and Lot Six (6) in Section Two (2), Township Two (2) North, Range Thirty Three (33) West of the 6th P.M.The Snyders had received this interest by quitclaim deed from Grace in 2000. As Whitney discovered upon trying to sell the Campbell land, these two quitclaim deeds constituted a cloud upon the title of the Campbell land.
In April 2009, Whitney brought this action to clear the cloud on the title to the Campbell land and to determine the boundaries of the land south of the river. In response, EDCO and Sid Doak filed an answer and EDCO asserted a counterclaim, alleging that EDCO owned the disputed property by adverse possession, including the possession of its predecessors.
A trial was held in the district court for Hitchcock County on April 28 and 29 and July 6, 2010. At trial, there was testimony from numerous witnesses as to the history of the Campbell land, the Carmody land, and the disputed land.
Under the ownership of Campbell, Whitney, and his father, the Campbell land was used to pasture cattle. Campbell ran his own cattle on the land until 1976, when he began leasing the land to Jim McConnell. Whitney and his father continued the lease arrangement with Jim when they acquired the Campbell land in 1989. When Jim retired, the lease was taken over by Harold and Shirley McConnell (the McConnells), who were in business with Jim. The McConnells were still leasing the Campbell land at the start of this lawsuit.
The McConnells also leased the Carmody land to run their cattle from as far back as 1954 until December 1999. In December, they signed a termination agreement with Grace ending their lease on the land. The termination agreement did not include the disputed land in the legal description of the rented land.
Prior to the termination of the Carmody lease, the McConnells had access to the entire riverbed, including the disputed land. Because the McConnells leased both the Campbell land and the Carmody land prior to 2000, it is unclear which lease encompassed the disputed land. Furthermore, the exact terms of each lease are unknown. The McConnells leased the Campbell land from both Campbell and Whitney through an oral lease, and the written leases between the McConnells and Arthur were not introduced into evidence. As a result, the parties dispute under which lease the McConnells were actually renting the disputed land.
Since the termination of the Carmody lease, the McConnells have been excluded from the disputed land by Snyder, EDCO, and Doak. In 2000, the Snyders reinforced the fences surrounding the disputed land and removed a gate that provided access to the disputed land from the west. The Snyders stopped leasing to the McConnells and blocked them from using the land to which they previously had access. The Snyders also put up "no trespassing" signs on the disputed land.
The Snyders undoubtedly began excluding people from the Carmody land and the disputed land in 2000, but the parties presented conflicting evidence about how the land was guarded prior to 2000. There is no disagreement that Arthur excluded people from the Carmody land. He was known for zealously guarding his property, posting the land with "no trespassing" signs, and patrolling for trespassers. But the parties adduced conflicting evidence about whether Arthur defended and posted "no trespassing" signs on the disputed land specifically.
The parties also disputed the existence of certain fences on and around the disputed land prior to 2000. Most of the fences on the disputed land had been in existence for many years and were not in dispute. A fence (referred to at trial as "fence No. 1") runs the entire north edge of the disputed land and connects up with the fence on the north edge of the Carmody land. Another fence (referred to at trial as "fence No. 4") runs along approximately the south half of the west edge of the disputed land and continues south along the west edge of the Carmody land. The only disputed portion of fence (referred to at trial as "fence No. 2") runs along approximately the north half of the west edge of the disputed land, including where fence No. 2 spans the river as currently located. When fence No. 2 is in existence, the fence surrounding the disputed land on the north and west edges is complete. Furthermore, when fence No. 2 is in existence, the Carmody land and the disputed land are completely enclosed as a single unit. Whitney's evidence did not contest that fence No. 2 has existed since 2000 but he claimed that it was not in existence prior to that time. EDCO maintained that the fence existed for many years prior to 2000 and was merely renovated at that time. The parties presented conflicting evidence regarding the existence of fence No. 2 prior to 2000.
During the course of the trial and at the request of all parties, the district court made a personal inspection of the disputed land, accompanied by the parties and counsel.
After taking the evidence under advisement, the district court issued a decree, styled as an order, on October 13, 2010, declaring EDCO to be the owner of the disputed land by adverse possession. The district court also ordered each party to pay its own costs.
The court's decree included extensive findings of fact addressing each of the elements of adverse possession. With regard to fence No. 2, we quote the court's findings in part as follows:
[Whitney] also testified that the fence across the river (referred to at trial as fence [No.] 2) was not present in 1989. [Whitney] admitted that he didn't know he owned the disputed property until the survey was completed in 2008, but that he knew he "owned ground south of the river." Art Skinner testified that he has had a tree stand for hunting located on Lot 6 on the land owned by McConnell since the 1960's; that the fences referred to as fences [No.] 1, [No.] 2, [No.] 3, and [No.] 4 were always located where they presently are located. . . . Skinner specifically testified that a fence existed across the river since the 1960's, although it occasionally was washed out and rebuilt. Nathan Hoyt testified that he rebuilt the fence around the Carmody property including fence [No.] 1 and [No.] 4 in 2000 or 2001; that the fences were rebuilt in the location that the fences existed at that time. All of the witnesses who knew Art Carmody, testified that Art Carmody was very protective of his land; that he fenced the entire property; and that he vigorously and diligently protected the property from trespassers. [Scott] Snyder testified that before he bought the Carmody property, he and the attorney for Grace Carmody walked the entire property and the entire property including the disputed property was totally enclosed by fences. Snyder testified that fence [No.] 2 was not rebuilt since he purchased the property; it was there when he bought the property.
Whitney timely appeals. EDCO and Doak filed a purported cross-appeal.
III. ASSIGNMENTS OF ERROR
Whitney alleges that the district court erred (1) in determining that Doak and EDCO had been in actual, continuous, exclusive, notorious, and adverse possession of the disputed land under a claim of ownership for more than 10 years and (2) in not quieting title to the disputed land in Whitney and restoring him to possession of the disputed land.
EDCO and Doak allege in their purported cross-appeal that the district court erred in failing to award costs to EDCO and Doak.
IV. STANDARD OF REVIEW
Adverse possession actions are equitable in nature, and an appellate court therefore reviews the record de novo and reaches an independent conclusion without reference to the findings of the trial court. Kelley v. Long, 3 Neb. App. 467, 529 N.W.2d 72 (1995). However, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Madson v. TBT Ltd. Liability Co., 12 Neb. App. 773, 686 N.W.2d 85 (2004).
V. ANALYSIS
1. ADVERSE POSSESSION
A party claiming title through adverse possession must prove by a preponderance of the evidence that the 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. Inserra v. Violi, 267 Neb. 991, 679 N.W.2d 230 (2004).
We give considerable weight to the district court's factual findings, which resolved factual disputes and assessed the credibility of witnesses. As we recited above, on issues of fact our standard of review expressly permits this deference to the trial court's findings.
We agree with EDCO and Doak that Arthur acquired the disputed land by adverse possession long before the quitclaim deed from Grace to the Snyders in 2000. After one has acquired title by adverse possession, the adverse possessor has an indefeasible title which can only be divested by his conveyance of the land to another or by a subsequent disseisin for the statutory limitation period. State Nat. Bank & Trust Co. v. Jacobsen, 218 Neb. 682, 358 N.W.2d 743 (1984). Because Arthur acquired title in the disputed land by adverse possession as early as 1964 and Grace thereafter continued Arthur's possession and then transferred this title to the Snyders by quitclaim deed, who in turn transferred title in the disputed land to EDCO and Doak by quitclaim deed, we need not concern ourselves with tacking on the possession of the Snyders or EDCO and Doak.
We specifically address each element of adverse possession, according weight to the trial court's factual findings on disputed issues of fact.
(a) Actual
Arthur was in actual possession of the disputed land since 1954 even though he leased the disputed property to the McConnells. A tenant may adversely possess real property in the name of his landlord. Rush Creek Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998). Because the McConnells leased the disputed land from Arthur and possessed the disputed land through the grazing of cattle on it beginning in 1954, Arthur had possession from the start of the lease.
Although the evidence at trial included conflicting testimony as to whether the disputed land was included under the lease for the Campbell land or the Carmody land, we conclude that the disputed land was included under the Carmody lease. Whitney testified at trial that his family had rented their land south of the river, including the disputed land, to the McConnells since 1989. Shirley testified that before the lease with Whitney, the disputed land was being leased from Campbell. However, Harold testified as follows:
Q. Okay, and now just for clarity, this area that's kind of triangular with the green on the north side between gate three and the top part of where there was -- where it's indicated no fence and then down along the west side where it's also green and then it's connected with yellow, you understand that that's the 23 acres that's kind of in dispute?Because Harold identified the disputed land on a map immediately prior to agreeing that he leased "all of this" from Arthur, this testimony leads us to the conclusion that the McConnells were leasing the disputed land from Arthur. For the reasons cited below, we adopt the facts as presented by Harold's testimony.
A. In dispute, yes, I do.
Q. Now, and your testimony is that when you rented the property from Carmodys back before . . . Campbell got on the scene, you leased all of this included in that land?
A. Right, right.
The use of the land before the McConnells began leasing the Campbell land in 1976 suggests that the McConnells were already leasing the disputed land from Arthur at that time. Shirley testified that even prior to 1976 the McConnells had access to the land south of the river. Since the McConnells were not leasing the Campbell land prior to 1976, access to the disputed land could only come from the lease with Arthur. We also highlight the fact that prior to 1976, Campbell was running his own cattle on the Campbell land, but never let his cattle onto the disputed land. From these facts, we conclude that the McConnells had access to the disputed land prior to 1976 by virtue of their lease with Arthur.
The circumstances surrounding the exclusion of the McConnells from the disputed land in 2000 also indicate that the disputed land was covered by the Carmody lease. When the McConnells were excluded from the disputed land, there was no corresponding reduction in rent for the Campbell land, as would be expected had the McConnells been cut off from land included under the Whitney lease. Moreover, at that time neither Whitney nor the McConnells complained that they were shut out of land to which they had a right. Rather, the exclusion of the McConnells from the disputed land corresponded with the termination of the Carmody lease. Even though the termination agreement did not list the disputed land in the legal description, the other circumstances surrounding the Carmody lease lead us to conclude that the lease included the disputed land. Therefore, we find that the McConnells' lease with Arthur included the disputed land.
Having found that the McConnells leased the disputed land under the Carmody lease, it follows that Arthur would have possessed the disputed land through the McConnells, his tenants, if the McConnells' use of the land was sufficient to constitute possession. The McConnells used the disputed land as pasture for their cattle. Pasturing cattle on a disputed tract supplies the possession necessary to sustain a claim of adverse possession. Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993). Therefore, the McConnells possessed the disputed land because they ran their cattle on it. Since the McConnells began possessing the disputed land in 1954 when they began running cattle on the Carmody land, Arthur possessed the disputed land beginning in 1954.
The disputed land was fenced in with the Carmody land--providing further evidence that Arthur actually possessed the disputed property. The Carmody land has always been surrounded by a fence and marked with "no trespassing" signs. Fences Nos. 1, 2, and 4, on the north and west edges of the disputed land, connect to this fence such that the disputed land is fenced off as part of the Carmody land. The exact dates when fences Nos. 1, 2, and 4 were built are not known, but Skinner testified that these fences have existed since at least the 1960's. Marcy Shadley testified to seeing the Carmody fences around the disputed property back in the 1980's. The evidence also shows that when Hoyt replaced these fences in 2000, the existing Carmody fences surrounded the disputed land and, with the exception of the fence across the river, were quite old.
Whitney does not dispute that fences Nos. 1 and 4 have existed for quite some time, but he does contend that fence No. 2 was built in only 2000. At trial, Whitney, Shirley, Harold, and Roger Woodraska all testified that there was no fence across the river prior to 2000. Hoyt said that there was already a fence across the river when he rebuilt the Carmody fences in 2000, but he claimed that it was only a few years old. In contrast, Doak claimed that the fence has always been there. Tom Baker, Skinner, and William Fritsch testified to a fence being across the river in the 1960's. Doak specifically remembers it being there in the 1970's. And Shadley remembers a fence across the river in the 1980's. Scott Snyder also testified that there was an electric fence across the river prior to 2000.
Once again, we accord the district court's findings the weight permitted by our standard of review. The district court gave particular weight to Skinner's testimony that a fence existed across the river since the 1960's and Hoyt's testimony that he rebuilt the fence across the river in the location of a fence that already existed. Giving weight to the court's findings, we conclude that fence No. 2 has existed across the river since the 1960's.
With fences Nos. 1, 2, and 4 existing since the 1960's, the disputed land has been enclosed as part of the Carmody land for many years. This provides further evidence of Arthur's actual possession of the disputed land.
Based upon the findings establishing that the McConnells were present on the disputed land as Arthur's tenants since 1954 and that the disputed land was enclosed along with the Carmody land by fences, we hold that Arthur, as EDCO's predecessor, was in actual possession of the disputed land for the requisite 10 years as early as 1964.
(b) Continuous
In the context of an adverse possession claim, the term "continuous" means uninterrupted and stretching on without break or interruption. See Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003). The law does not require the possession to be evidenced by persons remaining continuously upon the land and constantly from day to day performing acts of ownership. Id. It is sufficient if the land is used continuously for the purposes to which it may be naturally adapted. Id. The disputed land is grassland, meant to be used, like the land surrounding it, for the grazing of cattle. The land was used for this purpose continuously after 1954 under the McConnells' lease of the Carmody land. Aside from periodic wash-outs of the fence across the river, the fence surrounding the disputed land was also continually in existence since at least the 1960's. Therefore, Arthur's possession of the disputed land was "continuous."
(c) Exclusive
Possession must be exclusive for the required 10-year period in order for there to be adverse possession. See Madson v. TBT Ltd. Liability Co., 12 Neb. App. 773, 686 N.W.2d 85 (2004). And if the occupier shared possession with the title owner, the occupier may not obtain title by adverse possession. Id.
There is no evidence that Arthur shared possession with Campbell or Whitney. In fact, Campbell and Whitney conspicuously ceased their activities on the land at the boundary with the disputed property. Campbell ran his own cattle on the pasture north of the disputed land, but did not run his cattle on the disputed land. Similarly, Whitney cleared all the trees from the land north of the disputed land, but did not clear any trees south of the river.
Whitney contends that Arthur did not have exclusive possession because it is impossible to tell whether the McConnells had access to the disputed land under the lease with Arthur or the lease with Campbell. However, as we have already explained, we have concluded that the McConnells had access to the disputed land by virtue of their lease with Arthur, not their lease with Campbell or Whitney. Consequently, the fact that the McConnells ran their cattle across the Campbell land, the Carmody land, and the disputed land as one unit does not establish any use of the land by Campbell or Whitney.
Neither did anyone else make use of the disputed land during Arthur's possession. The exclusive nature of Arthur's possession of the disputed land is demonstrated by the reputation he had for patrolling his land and keeping trespassers off his property. At trial, there was testimony that the occasional hunter or trespasser would venture onto the Carmody land. However, this does not destroy the exclusivity of Arthur's possession. The Nebraska Supreme Court has previously held that the fact that trespassers may occasionally have hunted or fished on property without permission is not sufficient to interrupt adverse possession. See Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993).
We hold that Arthur did not share possession with Whitney or Campbell and that his possession was exclusive.
(d) Notorious
The acts of dominion over land allegedly adversely possessed must, to be effective against the true owner, be so open, notorious, and hostile as to put an ordinarily prudent person on notice of the fact that the lands are in adverse possession of another. Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003). The enclosure of land renders the possession of land open and notorious. See id. The fact that the disputed land has been enclosed by fences since the 1960's, therefore, makes Arthur's possession open and notorious.
The existence of "no trespassing" signs on the disputed property also supports our conclusion that Arthur's possession was open and notorious. Arthur was known for keeping his land heavily posted with "no trespassing" signs. As a result, it was obvious to local residents which fence lines were Carmody fences. We acknowledge that the testimony at trial was split on the existence of "no trespassing" signs on the disputed land. Doak and Fritsch testified that there were "no trespassing" signs on the disputed property, just like on the rest of Arthur's property, while Shirley and Whitney testified that there were no such signs along the fence around the disputed property. Again, we place emphasis on the fact that the district court highlighted how Arthur fenced the entire Carmody land, including the disputed land, and "vigorously and diligently protected the property from trespassers." The district court evidently concluded that this vigorous and diligent protection of the disputed land included the posting of "no trespassing" signs. The existence of these signs put Campbell and Whitney on notice that Arthur was in possession of the disputed land.
We hold that Arthur's possession of the disputed land was open and notorious.
(e) Adverse
The final element of adverse possession is that the possession must be adverse and under a claim of ownership, which means hostile. See Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998). Possession is hostile when the occupant is in possession as owner and against all other claimants of the land. See id. This element of adverse possession requires some showing of intent on the part of the adverse possessor to assert his or her ownership of the property. See Kelley v. Long, 3 Neb. App. 467, 529 N.W.2d 72 (1995). The intent with which the occupier possesses the land may be determined by examining the acts of the occupier and the nature of his possession. Id.
EDCO and Doak argue that where the party in possession shows open, visible, continuous, and unmolested use for 10 years, the use will be presumed adverse and under claim of right. In support of this proposition, they cite Teadtke v. Havranek, 279 Neb. 284, 777 N.W.2d 810 (2010). Whitney properly notes in his reply brief that Teadtke v. Havranek, supra, is a case about prescriptive easement. To acquire title through adverse possession, all elements must be proved by a preponderance of the evidence. See Inserra v. Violi, 267 Neb. 991, 679 N.W.2d 230 (2004).
Even without benefit of any presumption, EDCO established that Arthur was in adverse and hostile possession for the required period of 10 years. It is clear that Arthur meant to assert his ownership of the disputed land because the land was completely fenced in. It does not matter that the fences may not originally have been built to serve as boundary lines and that Whitney and the McConnells still do not see the fences as boundaries. What matters is that the fences surrounding the disputed land were considered boundary lines by Arthur, the Snyders, EDCO, and Doak. Both parties need not consider the fence a boundary. Wanha v. Long, supra. Rather, it is the adverse possessor's intent that is relevant. Id. Arthur's intent was demonstrated by his actions in zealously patrolling his property and posting it with "no trespassing" signs. Arthur had a reputation, and virtually everyone knew not to trespass or hunt within the confines of his land. These actions show that Arthur intended to possess the disputed land to the exclusion of and against all other claimants of the land.
Whitney notes in his brief that there are instances in which Arthur did not assert his ownership of the disputed land. He specifically notes that Arthur did not claim the disputed land when making oil and gas leases with Baker and that the disputed land was not listed on the estate inventory filed when Arthur died. However, actual assertion of a claim of ownership is not necessary to prove adverse possession. F & J Enterprises v. DeMontigny, 6 Neb. App. 259, 573 N.W.2d 153 (1997). Since the majority of Arthur's actions over the years evidenced an intent on his part to possess the land against all other claimants of the land, these individual instances of nonassertion do not destroy the existence of the final element of adverse possession.
Neither does the failure to pay real estate taxes on the disputed land destroy the adversity and hostility of Arthur's possession. Whitney relies upon Bush v. Griffin, 76 Neb. 214, 107 N.W. 247 (1906), to argue that Arthur did not have the intent to adversely possess the disputed land because he did not pay the property taxes. Bush v. Griffin, supra, held that the fact that an individual claiming adverse possession has not paid taxes is of weight as tending to show that he did not intend to claim title as against the rightful owner. But the court also stated that the fact that an individual claiming adverse possession paid no taxes "of itself would not defeat his claim of title by adverse possession." Id. at 217, 107 N.W. at 248. Indeed, since Bush v. Griffin, supra, the Nebraska Supreme Court has found adverse possession in numerous instances where the record owners have paid real estate taxes throughout the period of adverse possession. See, e.g., Converse v. Kenyon, 178 Neb. 151, 132 N.W.2d 334 (1965); Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981); State Nat. Bank & Trust Co. v. Jacobsen, 218 Neb. 682, 358 N.W.2d 743 (1984). Therefore, where the facts of the case tend toward the finding of adverse possession, the failure of the person claiming title by adverse possession to pay taxes and even the payment of taxes by the record owner will not preclude the court from finding that possession has been hostile.
We find that Arthur's possession of the disputed land was hostile and adverse.
Therefore, having found that Arthur's possession of the disputed land was actual, continuous, exclusive, notorious, and adverse for the statutory period of 10 years, we hold that Arthur acquired title to the disputed land by adverse possession. This ownership interest devolved to Grace and was transferred to the Snyders and then to EDCO by quitclaim deed.
2. QUIET TITLE
Because the district court did not err in finding that EDCO had acquired title to the disputed land by adverse possession, we find no merit in Whitney's claim that the district court erred in not quieting title to the disputed land in Whitney and restoring him to possession of the disputed land.
3. CROSS-APPEAL
EDCO and Doak cross-appeal based on the district court's failure to award them costs. However, we do not reach the cross-appeal because EDCO and Doak did not file their brief for cross-appeal in accordance with the requirements of Neb. Ct. R. App. P. § 2-109(D) (rev. 2008). A party filing a cross-appeal must set forth a separate division of the brief prepared in the same manner and under the same rules as the brief of appellant. Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d 75 (2009). Thus, the cross-appeal section must set forth a separate title page, a table of contents, a statement of the case, assigned errors, propositions of law, and a statement of facts. Id. EDCO and Doak's brief did not include a separate title page, table of contents, statement of the case, or statement of facts for the cross-appeal. Also, the cross-appeal was not noted on the cover of the brief, as is required by § 2-109(D)(4). Therefore, we decline to consider the merits of the purported cross-appeal.
VI. CONCLUSION
Because Arthur was in actual, continuous, exclusive, notorious, and adverse possession of the disputed land for the required 10 years and his possession subsequently devolved to Grace, who conveyed the disputed land to the Snyders, who in turn conveyed it to EDCO, the district court did not err in holding that EDCO is the owner of the disputed land by adverse possession or in refusing to quiet title in Whitney. Because EDCO and Doak did not file a brief on cross-appeal that met the requirements of § 2-109(D), we refuse to reach their cross-appeal regarding costs. We affirm the decree of the district court.
AFFIRMED.