Schellhorn v. Schmieding

SCHELLHORN v. SCHMIEDING 	647
Cite as 288 Neb. 647
A rlAn D. S chellhorn AnD DAwn l. S chellhorn,
AppelleeS AnD croSS-AppellAntS, v. JoSeph l.
SchmieDing AnD cArol l. S chmieDing,
AppellAntS AnD croSS-AppelleeS.
851 N.W.2d 67
Filed July 25, 2014. 	No. S-13-418.
1. Equity: Quiet Title. A quiet title action sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate
court resolves questions of law and fact independently of the trial court’s
determinations.
3. Adverse Possession: Proof: Time. 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 a statutory period of
10 years.
4. Adverse Possession: Boundaries. Proof of the adverse nature of the posses-
sion of land is not sufficient to quiet title in the adverse possessor; the land
itself must also be described with enough particularity to enable the court to
exact the extent of the land adversely possessed and to enter a judgment upon
the description.
5. Laches. The defense of laches is not favored in Nebraska.
6. ____. Laches occurs only if a litigant has been guilty of inexcusable neglect in
enforcing a right and his or her adversary has suffered prejudice.
7. Laches: Equity. Laches does not result from the mere passage of time, but
from the fact that during the lapse of time, circumstances changed such that
to enforce the claim would work inequitably to the disadvantage or prejudice
of another.
8. Easements. The law treats a claim of prescriptive right with disfavor.
9. Easements: Proof: Time. A party claiming a prescriptive easement must show
that its use was exclusive, adverse, under a claim of right, continuous and unin-
terrupted, and open and notorious for the full 10-year prescriptive period.
Appeal from the District Court for Seward County: KAren
B. F lowerS, Judge. Affirmed.
Kent E. Rauert and Matthew R. Watson, of Svehla, Thomas,
Rauert & Grafton, P.C., for appellants.
Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellees.
heAvicAn, c.J., wright, connolly, StephAn, mccormAcK,
miller-lermAn, and cASSel, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:34 AM CST

648 	288 NEBRASKA REPORTS
wright, J.
NATURE OF CASE
Arlan D. Schellhorn (Schellhorn) and Dawn L. Schellhorn
sought to quiet title in their favor to a disputed parcel of land
of which Joseph L. Schmieding (Schmieding) and Carol L.
Schmieding were the record owners. The Schmiedings filed
a cross-claim seeking a prescriptive easement in the event
that title was quieted in the Schellhorns. The district court
for Seward County quieted title in favor of the Schellhorns.
The Schmiedings appeal, claiming the district court erred
in quieting title in the Schellhorns and in not granting the
Schmiedings a prescriptive easement. The Schellhorns cross-
appeal, claiming that in the event that title should have been
quieted in the Schmiedings, the Schellhorns should be granted
a prescriptive easement. We affirm, and dismiss the cross-
appeal as moot.
SCOPE OF REVIEW
[1,2] A quiet title action sounds in equity. Ottaco Acceptance,
Inc. v. Larkin, 273 Neb. 765, 733 N.W.2d 539 (2007). On
appeal from an equity action, an appellate court resolves ques-
tions of law and fact independently of the trial court’s deter-
minations. Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009,
759 N.W.2d 464 (2009).
FACTS
The Schellhorns and the Schmiedings are each record own-
ers of parcels of agricultural property in Seward County. The
Schellhorns own the east half of the northwest quarter of
“Section Five (5), Township Eleven (11), North, Range Two
(2), East of the 6th P.M.,” and the Schmiedings own the north-
west quarter of the northwest quarter of the same section. The
disputed parcel is a 17-foot strip of land on the east edge of
the northwest quarter of the northwest quarter. The disputed
parcel includes a driveway and a strip of land along the east
side of the driveway. On the west side of the driveway is a
waterway or ditch that runs north and south, somewhat parallel
to the driveway.

SCHELLHORN v. SCHMIEDING 	649
Cite as 288 Neb. 647
On July 2, 2012, the Schellhorns filed their operative peti-
tion to quiet title to the disputed parcel. The Schellhorns alleged
that since at least the 1940’s, the west boundary of the disputed
parcel, and not the boundary of record, had been observed as
the boundary between the Schellhorn and Schmieding prop-
erties. The Schmiedings denied the Schellhorns’ claim and
counterclaimed for a prescriptive easement over the disputed
parcel in the event that the district court quieted title in
the Schellhorns.
Trial was held on October 23, 2012. Evidence showed that
the Schellhorns had farmed their property and used the disputed
parcel since 1989 and had purchased their property at auction
in 2001. Prior to the Schellhorns’ purchase, three successive
generations of the Luethke family had owned the Schellhorn
property. In 2001, Ralph Luethke (Schellhorn’s stepfather)
and two relatives sold the property at public auction, and the
Schellhorns were the successful bidders.
The Schmiedings purchased their property in 1987, and
prior to that purchase, they had no knowledge of or experience
with the property. The Schmiedings first expressed uncertainty
about the location of the property line to the Schellhorns
when they purchased the east half of the northwest quarter
at public auction in 2001. Schmieding announced at the auc-
tion that there was uncertainty regarding the location of the
boundary line between his property and the property sold to
the Schellhorns.
During 	the 	years 	after 	the 	auction, 	Schmieding 	and
Schellhorn had numerous conversations about the boundary
line, but failed to reach any agreement about the boundary.
In those conversations, Schellhorn always maintained that the
waterway belonged to the Schmiedings and that the driveway
belonged to the Schellhorns.
Luethke testified that as a child in the early 1940’s, he
was present when a fence was constructed on what was then
believed to be the boundary line between the Schellhorn
and 	Schmieding 	properties. 	Luethke 	said 	that 	the 	fence
had been located between the now-existing driveway and
waterway. The fence ran north and south, and replaced an

650 	288 NEBRASKA REPORTS
existing broken-down fence. Luethke testified that the fence
was removed in 1958 or 1959 in order to build up the drive-
way and that the waterway was created to prevent water from
flowing over the west side of the driveway.
Another section of fence ran south from a cornerpost located
at the southeast corner of the Schmieding property to the south-
ern boundary of the northwest quarter section. There was testi-
mony that both this southern fence and the Luethke fence, run-
ning north and south, connected to the cornerpost. Schellhorn
testified that he thought the cornerpost was the boundary
between the Schellhorn property, the Schmieding property, and
a property referred to by the parties as “the Baack property,”
which was the southwest quarter of the northwest quarter.
Schellhorn admitted that without a survey, he could not know
if the cornerpost marked the boundary or was located on the
Baack property.
In 2001, the Schellhorns removed the southern section of
fence to allow a center pivot on the Baack property to cross
onto the Schellhorn property. The Schellhorns left the corner-
post and two other posts intact to maintain a physical record
of the fence’s location. Edward Hladky (who helped remove
the fence), Schellhorn, and Luethke testified that they could
look down the southern fence line northward and see that the
natural extension of the fence proceeded between the water-
way and the driveway on the disputed parcel. Schellhorn also
testified that the driveway varied in width and bowed slightly
to the east. Luethke testified that the sight line was consist-
ent with the location of the Luethke fence removed in 1958
or 1959.
In 2006, Schmieding found a marker from a 1982 survey,
and in 2010, he informed Schellhorn that he was going to
consider the marker to be the record boundary between their
properties. Schellhorn determined that the marker found by
Schmieding was located 17 feet east of the cornerpost that he
had treated as the boundary. This 17-foot strip of land is the
disputed parcel.
Luethke testified that neither he nor his parents ever asked
or ever would have asked for permission to use the driveway
on the disputed parcel. Schellhorn and Hladky, who had farmed

SCHELLHORN v. SCHMIEDING 	651
Cite as 288 Neb. 647
the Schellhorn property since 1989, stated that they had used
the 10- to 12-foot driveway as part of the Schellhorn property
for that entire period and had never asked for or received per-
mission to use it.
Schmieding testified that after the boundary dispute arose,
he told Schellhorn that he did not have a problem with the
Schellhorns’ using the disputed parcel. Schmieding used the
disputed parcel to access his field for irrigating, cultivating,
planting, spraying chemicals, and harvesting, and Schellhorn
was aware of this use.
Schmieding denied asking permission to use the driveway.
Schmieding also denied that Schellhorn’s use of the disputed
parcel interfered with his use of it. Both parties maintained
the disputed parcel by shredding grass and hauling in dirt.
Schmieding said that he shredded grass on the disputed par-
cel several times a year and that his wife sprayed weeds and
checked irrigation on the disputed parcel approximately once a
year. Schellhorn testified that after he purchased the Schellhorn
property in 2001, Schmieding never did maintenance work on
the driveway.
In late 2010 and early 2011, Schmieding made preparations
to farm the disputed parcel by filling in the waterway and
chiseling the driveway area. Subsequently, the Schellhorns ini-
tiated their action to quiet title.
On April 12, 2013, the district court quieted title to the
disputed parcel, specifically, the “East 17 feet of the NW 1⁄4
of the NW 1⁄4 of Section 5, Township 11, North, Range 2 East
of 6th P.M., Seward County, Nebraska,” in the Schellhorns. It
denied the Schmiedings’ claim for a prescriptive easement over
the disputed parcel, reasoning that the Schmiedings’ use of the
driveway was presumed to be permissive and that no prescrip-
tive easement was acquired.
ASSIGNMENTS OF ERROR
On appeal, the Schmiedings assign that the district court erred
in (1) quieting title of the disputed parcel in the Schellhorns,
because they failed to produce evidence demonstrating the
location of the actual recorded boundary line and therefore
failed to provide an exact and definite description of the land

652 	288 NEBRASKA REPORTS
they claimed to have entered and possessed; (2) quieting title
in the Schellhorns when their adverse possession claim was
barred by the doctrine of laches; and (3) in the alternative, fail-
ing to find that the Schmiedings obtained a prescriptive ease-
ment for use of the driveway.
On cross-appeal, the Schellhorns assign that in the event
they are not entitled to title of the disputed parcel by adverse
possession, they are entitled to a prescriptive easement over the
disputed parcel to continue to use it for a farm road and related
farm purposes.
ANALYSIS
ADverSe poSSeSSion
[3] 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 a statutory period of 10 years. Wanha v. Long,
255 Neb. 849, 587 N.W.2d 531 (1998). The Schmiedings do
not dispute that the Schellhorns met their burden of proof for
each of these elements. Instead, the Schmiedings claim that the
Schellhorns failed to produce any evidence demonstrating the
physical location of the actual recorded boundary line. Without
such evidence, the Schmiedings argue, the district court could
not have known the distance between the recorded boundary
line and the Luethke fence.
[4] Proof of the adverse nature of the possession of land
is not sufficient to quiet title in the adverse possessor; the
land itself must also be described with enough particularity to
enable the court to exact the extent of the land adversely pos-
sessed and to enter a judgment upon the description. Matzke v.
Hackbart, 224 Neb. 535, 399 N.W.2d 786 (1987). The court
quieted title to the east 17 feet of the Schmiedings’ property in
the Schellhorns.
Evidence at trial established that the observed boundary
between the Schellhorn and Schmieding properties was the
still discernible Luethke fence line between the waterway
and the driveway. Although the fence had been removed, the

SCHELLHORN v. SCHMIEDING 	653
Cite as 288 Neb. 647
cornerpost still existed. From that cornerpost, remnants of
another fence ran south. That adjacent fence provided a sight
line for the location of the Luethke fence line and, thereby, the
observed boundary.
There was also evidence concerning the record boundary.
Schmieding testified that he located a survey marker from
1982. Later, he informed Schellhorn that he intended to treat
the marker as the record boundary. Although Schellhorn testi-
fied that he could not definitely identify the survey marker as
the record boundary without another survey, the remainder of
his testimony demonstrated his belief that the survey marker
represented the record boundary.
Schellhorn measured the distance between the observed
boundary line and the line corresponding with the survey
marker, and he found the distance to be 17 feet. The 17-foot
strip of land on the east side of the Schmieding property is
the disputed parcel. The district court ruled in favor of the
Schellhorns, quieting title to the “East 17 feet of the NW 1⁄4
of the NW 1⁄4 of Section 5, Township 11, North, Range 2 East
of 6th P.M., Seward County, Nebraska.” We conclude that the
description of the disputed parcel set forth by the evidence is
specific enough to support the district court’s judgment.
The Schmiedings further contend that the disputed parcel
could not be a regular shape, as claimed by the Schellhorns
and awarded by the district court, because the driveway var-
ies in size and bows to the east. The Schmiedings argue that
the driveway forms the basis of Luethke’s testimony regard-
ing the western boundary of the disputed parcel. However,
it is not the driveway that the Schellhorns presented as the
observed boundary, but, rather, the historic Luethke fence
line. There was no testimony that the fence line was not
straight, and there was space in the disputed parcel for the
10- to 12-foot driveway to meander within it. In sum, evi-
dence of a bowing driveway does not negate the evidence
that the disputed parcel is regularly shaped. This argument
lacks merit.
For the foregoing reasons, we reject the Schmiedings’ first
assignment of error.

654 	288 NEBRASKA REPORTS
lAcheS
The Schmiedings contend that the Schellhorns’ claim is
barred by the doctrine of laches, because the Schellhorns and
their predecessors in interest committed inexcusable neglect
in failing to bring this action in a reasonable time period after
it became ripe, thereby directly prejudicing the Schmiedings.
The Schmiedings claim that they have been prejudiced because
any witness they could have called on their behalf is deceased.
Nothing in the record established that the Schmiedings were
prejudiced by any of the Schellhorns’ actions.
[5-7] The defense of laches is not favored in Nebraska.
Farmington Woods Homeowners Assn. v. Wolf, 284 Neb. 280,
817 N.W.2d 758 (2012). Laches occurs only if a litigant has
been guilty of inexcusable neglect in enforcing a right and his
or her adversary has suffered prejudice. Id. Laches does not
result from the mere passage of time, but from the fact that
during the lapse of time, circumstances changed such that to
enforce the claim would work inequitably to the disadvantage
or prejudice of another. Id.
The Schellhorns and their predecessors, the Luethke fam-
ily, had always treated the disputed parcel as their own,
based on their understanding of the boundary line. Schellhorn
communicated this to Schmieding when the latter expressed
doubt about the boundary line. The Schellhorns had no reason
to file a claim to quiet title to the disputed parcel until the
Schmiedings began treating the disputed parcel as their own
by preparing to farm it.
We find no prejudice to the Schmiedings. They were uncer-
tain about the location of the boundary as early as 2001. They
were aware of the Schellhorns’ position on the matter but took
no legal action to settle the boundary dispute.
The doctrine of laches does not apply in the instant case,
and the district court did not err in quieting title to the disputed
parcel in the Schellhorns.
preScriptive eASement
[8,9] We next consider whether the Schmiedings obtained a
prescriptive easement for use of the disputed parcel. The law
treats a claim of prescriptive right with disfavor. Feloney v.

SCHELLHORN v. SCHMIEDING 	655
Cite as 288 Neb. 647
Baye, 283 Neb. 972, 815 N.W.2d 160 (2012). We have held
that a party claiming a prescriptive easement must show that its
use was exclusive, adverse, under a claim of right, continuous
and uninterrupted, and open and notorious for the full 10-year
prescriptive period. Id.
Schellhorn testified that he dealt with the Schmiedings
as if the driveway on the disputed parcel belonged to the
Schellhorns. Schellhorn was aware that the Schmiedings rou-
tinely used the driveway on the disputed parcel for various
purposes and did not deny the Schmiedings access to it. The
Schellhorns did not impede the Schmiedings’ use of the dis-
puted parcel until the Schmiedings prepared to farm the dis-
puted parcel and the Schellhorns initiated the quiet title action.
Until the Schmiedings prepared to farm the disputed parcel,
their use was permissive, and they failed to prove that such use
was adverse. See Lake Arrowhead, Inc. v. Jolliffe, 263 Neb.
354, 639 N.W.2d 905 (2002) (permissive use is not adverse).
The district court did not err in denying the Schmiedings’
request for a prescriptive easement.
On cross-appeal, the Schellhorns request a prescriptive ease-
ment over the disputed parcel in the event that we conclude
they have not acquired it by adverse possession. Because the
district court did not err in quieting title to the disputed parcel
in the Schellhorns, their cross-appeal is moot.
CONCLUSION
For the reasons stated above, we affirm the judgment of the
district court and dismiss the cross-appeal as moot.
AFFirmeD.