Babel v. Schmidt

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400 17 NEBRASKA APPELLATE REPORTS

§ 60-6,197.06; Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006).
Because of Richardson’s prior convictions for felony driving
under suspension, the district court sentenced Richardson to 3
to 6 years’ imprisonment, a sentence clearly within the statu-
tory limits. The record shows that the district court did con-
sider other relevant factors besides Richardson’s past criminal
history. In particular, the court noted Richardson’s need for
alcohol treatment and his desire to not “be here again.” After
reviewing the record and the presentence investigation report,
which reflects previous driving under suspension convictions
and sentences of various lengths, we conclude that the district
court’s sentence was not an abuse of its discretion.

V. CONCLUSION
The district court did not err in denying Richardson’s
motions to suppress or abuse its discretion in sentencing
Richardson. There was sufficient evidence in the record to sup-
port Richardson’s conviction.
AFFIRMED.

THOMAS E. BABEL, APPELLANT, V.
JERRY SCHMIDT ET AL., APPELLEES.
765 N.W.2d 227

Filed March 3, 2009. No. A-08-089.

1. Equity: Boundaries: Appeal and Error. An action to ascertain and permanently
establish corners and boundaries of land under Neb. Rev. Stat. § 34-301 (Reissue
2008) is an equity action.

2. Equity: Appeal and Error. In an equity action, an appellate court reviews the
record de novo and reaches an independent conclusion without reference to the
conclusion reached by the trial court, except that where credible evidence is in
conflict, the appellate court will give weight to the fact that the trial court saw the
witnesses and observed their demeanor while testifying.

3. Waters: Words and Phrases. Avulsion is a sudden and perceptible loss of or
addition to land by the action of water, or a sudden change in the bed or course

of a stream.

4. :_____. Avulsion is a change in a stream that is violent and visible and arises
from a known cause.

5. : ____. Accretion is the process of gradual and imperceptible addition of

solid material, called alluvion, thus extending the shoreline out by deposits made

by contiguous water; reliction is the gradual withdrawal of the water from the
land by the lowering of its surface level from any cause.
6. Waters: Boundaries. Where the thread of the main channel of a river is the
boundary line between two estates and it changes by the slow and natural proc-
esses of accretion and reliction, the boundary follows the channel.
7. ____: ____. Accretion, regardless of which bank to which it adds ground, leaves
the boundary still at the center of the channel.
8. ____: ____. Avulsion has no effect on boundary, but leaves it in the center of the
old channel.
9. Waters. The applicability of the law of avulsion is not dependent upon the navi-
gability of the waterway.
10. Waters: Quiet Title: Proof. A party who seeks to have title in real estate quieted
in him on the ground that it is accretion to land to which he has title has the
burden of proving the accretion by a preponderance of the evidence.
11. Pleadings: Evidence: Proof: Waiver. Generally, admissions made in pleadings
are taken as proof of the fact alleged and thereby waive or dispense with the need
to produce evidence of that fact.
12. Trial: Witnesses: Evidence. Where a party without reasonable explanation testi-
fies to facts materially different concerning a vital issue, the change clearly being
made to meet the exigencies of pending litigation, such evidence is discredited as
a matter of law and should be disregarded.
13. Real Estate: Boundaries: Title. When asserting a real estate ownership or
boundary claim, a party must prevail, if at all, on the strength of his own title, and
not on the perceived weakness in the title of others.
14. Waters: Boundaries: Title. Title to riparian lands runs to the thread of the con-
tiguous stream.
15. Waters: Boundaries: Words and Phrases. The thread, or center, of a channel
is the line which would give the landowners on either side access to the water,
whatever its stage might be and particularly at its lowest flow.
16. Waters: Boundaries: Title. Where title to an island bounded by the waters of
a nonnavigable stream is in one owner and title to the land on the other shores
opposite the island is in other owners, the same riparian rights appertain to the
island as to the mainland.
Appeal from the District Court for Merrick County: michAel
J. owens, Judge. Reversed and remanded with directions.
David A. Domina, of Domina Law Group, p.C., L.L.O.,
and patrick J. Nelson, of Jacobsen, Orr, Nelson, Lindstrom &
Holbrook, p.C., L.L.O., for appellant.
Jerom e. Janulewicz, of Mayer, Burns, koenig & Janulewicz,
for appellees.
inBody, Chief Judge, and sievers and moore, Judges.
BABeL v. SCHMIDT 	401
Cite as 17 Neb. App. 400

sievers, Judge.
INTRODUCTION
This appeal involves conflicting claims of ownership to
riparian land in the form of islands located between the banks
of the platte River in Merrick County, Nebraska. In a sen-
tence, the resolution of the dispute depends upon whether the
legally effective boundary is the present “thread of the stream”
or whether there was an avulsive event proved, which, while
changing the location of the thread of the stream, would not
change the legal boundary between the owners from what it
was at the time of the avulsive event. Thomas e. Babel, the
landowner on the south bank of the platte River, appeals the
decision of the district court for Merrick County that found
that the boundary between his property and the property of
the north bank landowners (the heirs at law of Arthur Schmidt,
hereinafter collectively the Schmidts) was created by avulsion.
Consequently, the district court found that the boundary was
as alleged by the Schmidts in their counterclaims, filed pursu-
ant to Neb. Rev. Stat. § 34-301 (Reissue 2008), rather than
the thread of the stream. We reverse the district court’s order,
because we find that the Schmidts failed to prove an avulsive
event by the requisite proof. As a result, the boundary between
the lands of Babel and the Schmidts is determined by the cur-
rent location of the thread of the stream.
FACTUAL BACkGROUND
Babel and the Schmidts own property on the south bank and
the north bank, respectively, of the platte River near Chapman
in Merrick County, and as a result, they own the riparian
lands consisting of islands between their respective banks of
the platte River. Who owns what island land is the crux of
the lawsuit.
So that our factual recitation is more understandable, we
begin by defining the legal concept of the “thread of the
stream.” In Monument Farms, Inc. v. Daggett, 2 Neb. App. 988,
995, 520 N.W.2d 556, 562 (1994), we said:
The thread or center of a channel, as the term is employed,
must be the line which would give the owners on either
side access to the water, whatever its stage might be, and
402 	17 NeBRASkA AppeLLATe RepORTS

particularly at its lowest flow. State v. Ecklund, 147 Neb.
508, 23 N.W.2d 782 (1946). In other words, the thread of
the stream is the deepest groove or trench in the bed of a
river channel, the last part of the bed to run dry.
We point out at this juncture that the parties have stipulated
to the current location of the thread of the stream in the area of
this boundary dispute. Babel is the record title owner of “Island
No. 5,” which is located to the south of the thread of the stream
and to the south of “Island No. 3,” to which the Schmidts are
record title owners. In this litigation, the Schmidts lay claim
to a portion of Island No. 5, as set forth in their counterclaims
upon which the case was tried. Because the maps, surveys, and
photographs which are crucial to the case do not lend them-
selves to effective narrative, we have attached as appendix A to
our opinion a reproduction of exhibit 59 (with orienting labels
affixed by Babel for briefing purposes that we have “borrowed”
from Babel’s brief) in an effort to more effectively orient the
reader. Appendix A is an aerial photograph of the river, its
various channels, and the two islands in dispute taken near the
time of trial.
On March 8, 2006, Babel filed suit against the Schmidts,
seeking to establish the boundary for Island No. 3 and Island
No. 5. The Schmidts answered and filed counterclaims to
establish the western and southern boundaries of their property
pursuant to § 34-301. Four days before trial, Babel dismissed
his complaint without prejudice, and the case proceeded to
trial solely on the Schmidts’ counterclaims, filed May 15 and
July 10, 2006. In addition to stipulating to the current location
of the thread of the stream, the parties stipulated that Babel
is the record title owner of that “part of Island 5 in Section
12, Township 12 North, Range 7 West of the 6th p.M., in
Merrick County, Nebraska, containing 6 and 26 hundredths
acres, more or less, and accretions thereto of Island No. 5.”
The parties also stipulated that the Schmidts were the record
title owners of
Island No. 3 located [(a)] partially in Section 1, Township
12 North, Range 7 West of the 6th p.M.[;] (b) . . . partially
in Section 6, Township 12 North, Range 6 West of the 6th
p.M.; and (c) partially in Section 31, Township 13 North,
BABeL v. SCHMIDT 	403
Cite as 17 Neb. App. 400

Range 6 West of the 6th p.M., all in Merrick County,
Nebraska, and all accretion land deriving from and adja-
cent to such Island No. 3.
Babel alleged that the boundary separating his property from
the Schmidts’ is located at the current thread of the stream of
the main channel of the platte River. The Schmidts sought
to establish that their alleged property line was the original
boundary of Island No. 3 and its meanders prior to an avulsive
event and that such property line ran along the south side of
Island No. 5 at the place where the thread of the stream was
previously located, meaning that the Schmidts would own
considerably more land than provided for in their legal descrip-
tion—and Babel would own less. The parties agreed that nei-
ther would harvest or cut timber on the disputed land during
the pendency of the lawsuit, including any appeal, and that any
claim for damages resulting from improper cutting of timber
would be resolved at a later time.
This boundary dispute arose in late 2005 or early 2006 after
Charles Schmidt employed Jim Graves, the Merrick County
surveyor, to conduct a survey on Island No. 3 after Arthur died,
so as to enable the Schmidt family to settle Arthur’s estate.
Graves discovered that there were significant discrepancies
between the legal descriptions of the islands and the cadastral
map that had been prepared in 1988. Original surveys of the
area were conducted by the Government Land Office (GLO)
in 1858, 1862, 1865, and 1866. Additional surveys had been
conducted on the properties, including the islands, in 1921 and
1932. Graves determined that the GLO surveys of Island No. 3
differed considerably from all later surveys as well as from his
own 2006 survey.
prior to Graves’ 2006 survey and his discovery of differences
from the earlier surveys, neither the Schmidts nor Babel had
been aware of a boundary dispute. In 1992, Babel fenced a por-
tion of Island No. 3, including a portion north of the boundary
that the Schmidts asserted in this litigation. Until 2006, Babel
did not receive any notice from Arthur (or any of his heirs) that
the boundary between the two islands or the ownership thereof
was in dispute. The part of Island No. 3 that lies to the north of
the stipulated thread of the stream, which part is indisputably
404 	17 NeBRASkA AppeLLATe RepORTS

owned by the Schmidts, was conveyed by quitclaim deed to
Todd and Charlene Vanhousen in 2006. Charles testified that
the Vanhousens planned to purchase any additional property
from the Schmidts which resulted from this litigation and that
the Vanhousens had entered into a written contract with the
Schmidts to such effect.
DISTRICT COURT DeCISION
A bench trial was held on the Schmidts’ counterclaims on
September 18, 2007, in the district court for Merrick County.
The trial court issued its memorandum opinion and order on
December 19. The court stated that the two issues before it
concerned (1) the configuration of Island No. 3 on the original
GLO surveys and (2) whether the Schmidts presented sufficient
evidence for the court to find that the channel to the north of
the disputed property was created by a sudden act constituting
avulsion—meaning, we would add, that the boundary would
not be the stipulated thread of the stream, but, rather, would
be the channel flowing along the southern boundary of Island
No. 5. The court stated, and neither party disagrees, that the
disputed portion is highlighted in yellow on exhibit 47, which
can be described as the easternmost tip of Island No. 5, a tri-
angle measuring approximately 4,600 feet in length and 1,400
feet at its widest point. The district court concluded that the
change in the main channel to the north resulted from a sudden
act constituting avulsion and found generally in favor of the
Schmidts, declaring the legal boundary to be that which they
alleged in their counterclaims. In its order, the court remarked,
“What [the avulsive] act was is in some question, but the nature
of the evidence is such that the channel was not changed by
accretion.” Babel timely appealed the district court’s ruling to
this court.
STANDARD OF ReVIeW
[1,2] An action to ascertain and permanently establish cor-
ners and boundaries of land under § 34-301 is an equity action.
Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000).
In an equity action, an appellate court reviews the record de
novo and reaches an independent conclusion without reference
BABeL v. SCHMIDT 	405
Cite as 17 Neb. App. 400

to the conclusion reached by the trial court, except that where
credible evidence is in conflict, the appellate court will give
weight to the fact that the trial court saw the witnesses and
observed their demeanor while testifying. See Sila v. Saunders,
274 Neb. 809, 743 N.W.2d 641 (2008).
ASSIGNMeNTS OF eRROR
Babel assigns as error the following actions of the district
court: (1) finding avulsion had been proved, (2) finding that
any part of the southern meanders of Island No. 3 are located
south of the main channel, and (3) finding the southern and
western boundaries of the Schmidts’ land as alleged in the
Schmidts’ counterclaims and failing to find and determine the
southern boundary of the Schmidts’ land as alleged in Babel’s
replies and exhibit 43.
ANALySIS
The core question before us in this appeal, remembering
that our review is de novo on the record, is whether there
was sufficient evidence adduced by the Schmidts to show that
avulsion occurred that altered the course of the river from
the channel south of Island No. 5 to the current thread of the
stream located between Island No. 3 and Island No. 5 some-
time between the 1858 GLO survey and the 1921 survey of
Island No. 3, the timeframe asserted during oral argument—
although we note that the Schmidts’ answers to interrogatories
in evidence would extend the time period to 1938. However,
in the final analysis, whether the end of the timeframe is 1921
or 1938 is of no consequence. In conjunction with our stan-
dard of review, we note that there really are no disputed facts,
beyond the ultimate determinate fact of whether there was an
avulsive event. We begin with the legal principles that guide
our analysis.
[3-5] The law of avulsion and accretion is well settled in
Nebraska. Avulsion is a sudden and perceptible loss of or addi-
tion to land by the action of water, or a sudden change in the
bed or course of a stream. Monument Farms, Inc. v. Daggett, 2
Neb. App. 988, 520 N.W.2d 556 (1994). Avulsion is a change
in a stream that is violent and visible and arises from a known
406 	17 NeBRASkA AppeLLATe RepORTS

cause, such as a freshet or a cut through which a new channel
has formed. See Conkey v. Knudsen, 141 Neb. 517, 4 N.W.2d
290 (1942), vacated on other grounds 143 Neb. 5, 8 N.W.2d
538 (1943). On the other hand, accretion is the process of
gradual and imperceptible addition of solid material, called
alluvion, thus extending the shoreline out by deposits made
by contiguous water; reliction is the gradual withdrawal of
the water from the land by the lowering of its surface level
from any cause. Monument Farms, Inc. v. Daggett, supra. In
summary, the changes wrought by accretion versus avulsion
involve processes that are markedly different, and each process
has a different consequence for the boundary between the land-
owners on opposite banks of the river.
[6-9] Where the thread of the main channel of a river is the
boundary line between two estates and it changes by the slow
and natural processes of accretion and reliction, the bound-
ary follows the channel. Ziemba v. Zeller, 165 Neb. 419, 86
N.W.2d 190 (1957). Accretion, regardless of which bank to
which it adds ground, leaves the boundary still at the center
of the channel. See, Anderson v. Cumpston, 258 Neb. 891,
606 N.W.2d 817 (2000); Lienmann v. County of Sarpy, 145
Neb. 382, 16 N.W.2d 725 (1944); Conkey v. Knudsen, supra;
Monument Farms, Inc. v. Daggett, supra. On the other hand,
avulsion has no effect on boundary, but leaves it in the center
of the old channel. See Lienmann v. County of Sarpy, supra.
See, also, O’Connor v. Petty, 95 Neb. 727, 146 N.W. 947
(1914) (holding that change by avulsion in main channel of
Missouri River does not change boundary between states of
Iowa and Nebraska). The applicability of the law of avulsion is
not dependent upon the navigability of the waterway. Anderson
v. Cumpston, supra.
[10] A party who seeks to have title in real estate quieted
in him on the ground that it is accretion to land to which he
has title has the burden of proving the accretion by a prepon-
derance of the evidence. State v. Matzen, 197 Neb. 592, 250
N.W.2d 232 (1977). The burden to show that the channel of the
river changed by avulsion obviously would be the same. Babel
argues that there is a presumption of accretion if avulsion is
not shown. However, we disagree that such presumption exists
BABeL v. SCHMIDT 	407
Cite as 17 Neb. App. 400

under Nebraska law and find the reasoning of United States v.
Wilson, 433 F. Supp. 57 (N.D. Iowa 1977), on this point per-
suasive where the court applied Nebraska law to land altered
by the changing course of the Missouri River.
past cases have illustrated the sorts of events that constitute
avulsion. See, Anderson v. Cumpston, supra (party admitted
that change in thread of platte River was brought about sud-
denly by artificial structures and diversion, thus doctrine of
avulsion applied and boundary remained in center of old chan-
nel); Ziemba v. Zeller, supra (based on photographs and eye-
witness reports, construction of diversion dam and riprapped
dike some 700 to 800 feet long, which shut off main channel,
constituted avulsion); Ingraham v. Hunt, 159 Neb. 725, 68
N.W.2d 344 (1955) (flash floods that suddenly, violently, and
visibly moved channel of river far toward north of original
channel can be considered avulsion); Conkey v. Knudsen, supra
(evidence was sufficient to show ice gorge created by spring
floods in 1910 altered course of Missouri River and constituted
avulsion, not accretion). It is noteworthy that no such similar
events as described in the foregoing cases are identified in
the evidence as the avulsive event allegedly at work in the
present case.
We first deal with Babel’s argument that the Schmidts
conclusively conceded that the channel north of Island No. 5,
which is the agreed-upon current thread of the stream, was not
changed by avulsion. The Schmidts were served with inter-
rogatories, and in response to a question about the manner,
nature, and date of any avulsive act that changed the location
of the channel of the platte River, the Schmidts answered
by filing some responses in June and some in August 2006.
The response upon which Babel’s argument is premised is
as follows: “The location of the channels of the platte River
presently carrying water located north of the east Half of
Island Number 5 has not changed location by avulsion. It
has, however, changed in width over time due to changes
both natural and man-made.” There can be no question that
the above answer is an admission, which cuts against the
Schmidts’ central premise that the ownership of the contested
island land is determined by an avulsive event. When asked on
408 	17 NeBRASkA AppeLLATe RepORTS

cross-examination at trial, Charles stated that this statement
was accurate to the best of his knowledge and belief at the time
it was made. In the supplemental response to interrogatories
submitted by Charles on April 26, 2007, he adds the following
to his previous response:
Island No. 3 was bisected by a channel as a result of
an avulsive act, of indefinite or unknown origin, that
occurred after the GLO surveys of Island No. 3 and prior
to July 23, 1938. Since that date, upstream changes in the
river, both natural and man-made, have caused this chan-
nel and others to change over time such that at the present
time this channel now contains the thread of the stream of
the platte River.
[11,12] Babel claims, without citation of authority, that the
first interrogatory answer is, in effect, a conclusive admis-
sion by the Schmidts that there was no avulsion. Generally,
admissions made in pleadings are taken as proof of the fact
alleged and thereby waive or dispense with the need to pro-
duce evidence of that fact. Brunges v. Brunges, 255 Neb. 837,
587 N.W.2d. 554 (1998). However, we believe a party may
introduce evidence in conflict with their prior admission unless
doing so runs afoul of the rule from Momsen v. Nebraska
Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981),
which holds that where a party without reasonable explana-
tion testifies to facts materially different concerning a vital
issue, the change clearly being made to meet the exigencies
of pending litigation, such evidence is discredited as a matter
of law and should be disregarded. See, also, Insurance Co. of
North America v. Omaha Paper Stock, Inc., 189 Neb. 232, 202
N.W.2d 188 (1972). From our experience, we believe it is fair
to say that while the Momsen rule is well known and often
asserted, it is actually infrequently applied.
Thus we assume that Babel would have us apply the Momsen
rule and disregard the Schmidts’ evidence of avulsion from Dr.
Robert Joeckel, which evidence we discuss in detail later. The
important considerations in discrediting testimony as a mat-
ter of law are that the testimony pertains to a vital point, that
it is clearly apparent the party made the change to meet the
exigencies of the pending case, and that there is no rational or
BABeL v. SCHMIDT 	409
Cite as 17 Neb. App. 400

sufficient explanation for the change in testimony. Levander v.
Benevolent and Protective Order of Elks, 257 Neb. 283, 596
N.W.2d 705 (1999). We find that there is a rational and suf-
ficient explanation for the change in position from the first
interrogatory answer of “no avulsion” to the supplemental
response to the interrogatory and evidence at trial from which
the Schmidts argue that they had proved avulsion. The interrog-
atory answer was a layperson’s answer, whereas the evidence
that arguably proves avulsion is the product of expert inves-
tigation done by Joeckel after the first interrogatory answer.
We find that there is a reasonable explanation for the change,
that the first interrogatory answer is not conclusive, and that
the other evidence of avulsion offered by the Schmidts is not
discredited as a matter of law under Momsen v. Nebraska
Methodist Hospital, supra. Consequently, the practical effect is
simply that the first interrogatory answer is considered, along
with the Schmidts’ evidence of avulsion, in our de novo review
of the record.
The only evidence as to whether an avulsive act altered the
course of the river came from Graves and Joeckel. Graves was
asked if he had an opinion, based on his training as a surveyor,
as to why there would be a channel currently across Island No.
3 that is not indicated in the GLO survey of 1858. In response,
Graves said:
[T]here must have been a smaller — a small stream that
went through there and something has, erosion or what-
ever, caused through the time since it was surveyed until
— even from the time they originally surveyed until 1921,
it actually had — must have grown quite a bit. . . .
And there’s something — probably was a small island,
small channel through there and something made it grow
to be a larger one, got more water at that point than it had
or stopped going in different directions. Some reason that
all of a sudden it became a lot because if it was that big,
it should have showed up on the GLO.
Graves also testified that in his personal opinion, not as a
surveyor, but, rather, as a person familiar with the river, he
did not know exactly what caused the river to change course
but suspected a flood or ice jam. Graves’ comments about the
410 	17 NeBRASkA AppeLLATe RepORTS

possibility that a small stream existed and the occurrence of a
flood or ice jam are not based upon personal knowledge, are
not expert opinion, and are clearly mere speculation. Graves’
unchallenged testimony shows that the location of the thread
of the stream has changed, making Babel’s Island No. 5 bigger
and the Schmidts’ Island No. 3 smaller. However, in order for
the Schmidts to prevail on their counterclaims—meaning that
the boundary is not the thread of the stream—the Schmidts’
burden, under the legal principles we have outlined above, is
to prove that the change occurred by avulsion. Graves’ testi-
mony simply does not prove avulsion, although it does show
a change in the course of the river, but at an unknown point
in time.
Finally, Graves testified that the thread of the stream was
widening over time, from 138.7 feet in 1921 to over 300 feet
in 2006. To the extent that this evidence is probative of any-
thing, to us it supports the notion of change in the thread of the
stream by a gradual process—the hallmark of accretion, rather
than avulsion.
We turn next to the Schmidts’ claim that the testimony of
Joeckel, an associate professor of soil science and geology at
the University of Nebraska-Lincoln, establishes that the change
in the course of the river is due to avulsion. Joeckel testified
about two soil samples that he took from Island No. 5 by dig-
ging holes with a spade and one sample taken from Island No.
3 in the same fashion. The samples were taken from the center
of the northeastern portion of Island No. 3 (labeled “A” on the
map in exhibit 46), from the northern edge of Island No. 5 near
the thread of the stream (labeled “B” on the map in exhibit
46), and from the center of the northeastern part of Island No.
5 (labeled “C” on the map in exhibit 46). Joeckel testified that
the soil profile of site A was broadly similar to site B and that
both sites had thick “A and C horizons” and relatively no “B
horizon.” A soil horizon, according to Joeckel’s testimony, is a
layer within a soil sample that exists because of differences in
chemical, physical, and biological processes at different depths
below the land surface of the soil, measured from the surface
of the land downward. In reference to the soil sample from site
B, Joeckel testified:
BABeL v. SCHMIDT 	411
Cite as 17 Neb. App. 400

These soils are all developed in river sediment. So we
kept digging, basically, as deep as we could go by hand
with the spade, down to 85 centimeters. So no evidence
for there being more than one unit of sediment being
deposited on that site, hence, came to the conclusion that
the soil was developed in a single episode, single length
of time after deposition had ceased at the site.
As to the soil sample from site C, Joeckel stated that it was
obviously a different profile from either site A or B. Joeckel
testified that site C had much more geomorphic activity and
episodes of sedimentation and soil development. He stated that
site C had been subject to more regular flooding and sedimen-
tation events than either site A or B, which had been subject
to fewer, if any, severe floods. Joeckel did not opine that any
particular soil samples resulted from accretion or avulsion.
When asked whether the soil profile at site C was consistent
with accretion land, Joeckel limited his testimony to discussion
of the thickness of the soil horizons at each site and his conclu-
sions that site C had more episodes of sedimentation and soil
development than either site A or B.
The Schmidts argue Joeckel’s testimony about the three
soil samples shows that site C was formed by accretion and
that an avulsive event occurred at some point to separate
site A from site B, because the two sites are now located on
different islands, whereas, according to the Schmidts’ argu-
ment, they were once part of the same island. The Schmidts
further argue that Joeckel’s testimony about the soil samples
shows the thread of the stream changed in a dramatic fashion
so as to have bisected the original island and that as such,
they have shown an avulsive event that requires the property
boundary to be located along the original thread of the stream.
Consequently, according to the Schmidts’ argument, the origi-
nal boundary of Island No. 3 and its southern meanders, which
corresponds with the channel south of Island No. 5 as alleged
by the Schmidts, is the effective boundary between the lands
of Babel and the Schmidts, rather than the current thread of
the stream.
The problem is that Joeckel did not testify to the conclu-
sions that the Schmidts argue. While Joeckel did testify to
412 	17 NeBRASkA AppeLLATe RepORTS

finding differences in the soil at sites A and B when compared
to site C, he did not offer an opinion as to when the soil pat-
terns he found at the three sites were formed—particularly in
relation to the surveys in evidence that go back as far as 1858.
Joeckel did testify that the soil pattern he observed at sites A
and B were likely created in “a single episode, single length
of time after deposition had ceased at the site.” Whether the
land in question was identifiable as having remained intact
through the substantial change in the river has been seen
as relevant to avulsion. See, United States v. Wilson, 433 F.
Supp. 57 (N.D. Iowa 1977); Jeffrey v. Grosvenor, 261 Iowa
1052, 157 N.W.2d 114 (1968). While we see the evidence
regarding the soils at sites A and B as supporting the avulsion
theory to a degree, it does not carry the Schmidts’ burden of
proof by itself. We so conclude because there is no evidence
as to when such “single episode” occurred, what caused it, or
whether a “single episode” in the language of soil science, the
basis upon which Joeckel testified, has the same hallmarks as
the legal concept of avulsion, which requires a sudden and
violent change in the course of the river. The significance of
the passage of time, obviously an important factor in deter-
mining whether avulsion occurred because of the requirement
of “suddenness,” is more equivocal with respect to accretion.
For example, in the instance of the Missouri River, accretion
has been described as being either rapid or gradual, but avul-
sion was said to be characteristically sudden and rapid. See,
United States v. Wilson, supra; Jeffrey v. Grosvenor, supra.
No evidence was offered which would enable a fact finder to
say what the avulsion event was, how and why it occurred,
and when it occurred—no particular day, month, year, or even
decade being identifiable from the evidence. And, of course, it
follows from the foregoing that no one testified to witnessing
the event, nor was any historical record proffered—evidence
that would clearly help satisfy the “perceptible” requirement
for an avulsive event.
[13] We have previously rejected the speculation of the
surveyor, Graves, about a “possible ice jam” as simply not
probative. Thus, we are left with Joeckel’s testimony that sites
A and B, now separated from one another by the thread of the
BABeL v. SCHMIDT 	413
Cite as 17 Neb. App. 400

stream, have similar soil composition, but which is different
from that found at site C. From this we are to conclude that
soil samples from sites A and B evidence avulsion and thereby
to infer that an avulsive event changed the course of the river,
causing the thread of the stream to now flow between Island
No. 3 and Island No. 5 as depicted on appendix A, whereas
before such event, the thread of the stream was to the south of
its present location. The Schmidts’ basic premise seems to be
that they disproved accretion at sites A and B, that Babel did
not prove accretion there, and that thus the change in course
of the river had to have been by avulsion. This seems an apt
point to recall that when asserting a real estate ownership or
boundary claim, a party must prevail, if at all, on the strength
of his own title, and not on the perceived weakness in the title
of others. See Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d
313 (1994).
Therefore, the burden is on the Schmidts to show that an
avulsive event did occur. It is clear that the law defines such an
event as sudden and perceptible. See Monument Farms, Inc. v.
Daggett, 2 Neb. App. 988, 520 N.W.2d 556 (1994) (avulsion is
sudden and perceptible loss of or addition to land by action of
water, or sudden change in bed or course of stream). See, also,
Conkey v. Knudsen, 141 Neb. 517, 4 N.W.2d 290 (1942) (avul-
sion is change in stream that is violent and visible and arises
from known cause, such as freshet or cut through which new
channel has formed), vacated on other grounds 143 Neb. 5, 8
N.W.2d 538 (1943).
These various elements that constitute the hallmarks of an
avulsive event simply are absent from the evidentiary record.
The district court did not make a finding of a sudden, violent,
perceptible, and known event that changed the course of the
river at the pertinent location, but, rather, relied on Joeckel’s
characterization of the soil samples to find that avulsion had
occurred. This sparse evidence—that, at best, merely suggests
the possibility of avulsion, but of an unknown nature, from an
unknown cause, and occurring at an unknown time between
1858 and either 1921 or 1938—is simply insufficient to carry
the Schmidts’ burden of proving that the change in the river’s
course occurred from avulsion. As a result, we reverse the
414 	17 NeBRASkA AppeLLATe RepORTS

trial court’s finding in favor of the Schmidts on their counter-
claims, as well as reversing its declaration that the boundary
between the lands of Babel and the Schmidts is as set forth in
exhibit 45.
Finally, we address the Schmidts’ claim that Frank v. Smith,
138 Neb. 382, 293 N.W.2d 329 (1940), applies as an excep-
tion to the law of avulsion and accretion, which exception
they assert supports the district court’s decision. This excep-
tion applies when the river changes its main channel not by
excavating, passing over, and then filling the intervening place
between the old channel and the new channel, but by flowing
around the intervening land where the change to the new chan-
nel results from an increase year to year in the amount of water
flowing in the new channel. Id. The law then requires that the
boundary line remain in the old channel rather than the new
channel as long as the old channel remains a running stream.
Id. In State v. Ecklund, 147 Neb. 508, 23 N.W.2d 782 (1946),
the Nebraska Supreme Court found the exception to the law
of accretion and avulsion detailed in Frank v. Smith, supra, to
apply to a boundary dispute over lands bordering the North
platte River. In Ecklund, numerous farmers testified that the
north channel had originally carried most of the water, but after
dams had been built upstream, the south channel began to have
more flow and should be considered the thread of the stream.
The court held:
In view of the evidence in the record, and in the light
of the law as set out herein, we have reached the conclu-
sion that, while the change of the main channel of the
North platte River in section 8, from the north side to
its present location on the south side, may have been a
gradual change throughout a space of at least 40 years,
yet the thread of the stream, flowing on the north side
when each of the parties hereto secured their land, did not
gradually move over the subsequently formed intervening
lands that were formed to the south thereof. However, the
south branch of the river flowing south of Ware Island did
finally become the main channel, but this was subsequent
to the formation of the land herein involved, and the true
boundary line between the respective riparian owners
BABeL v. SCHMIDT 	415
Cite as 17 Neb. App. 400

remains the line of the thread of the stream where it for-
merly ran in the north channel.
State v. Ecklund, 147 Neb. at 523, 23 N.W.2d at 790. A similar
holding was reached in Valder v. Wallis, 196 Neb. 222, 242
N.W.2d 112 (1976), where the course of the Missouri River
was altered by the U.S. Army Corps of engineers’ construction
of dikes, which moved the river westward and placed a parcel
of land that had been in Burt County, Nebraska, on the Iowa
side of the river.
Whether the facts involve a river cutting a new main
channel as in Valder v. Wallis, or an existing channel
supplanting a parallel channel as the thread of the stream
as in State v. Ecklund, the more sudden and violent the
change in the thread of a stream, the more likely the
court has been to override the general rule and find
that the riparian boundary remains in the thread of the
original main channel, even if water no longer flows in
that channel.
Monument Farms, Inc. v. Daggett, 2 Neb. App. 988, 996, 520
N.W.2d 556, 563 (1994). However, in cases where this excep-
tion has been applied, there was ample evidence that the river
did in fact change course in a sudden and violent manner,
as well as evidence as to how that change took place. That
is not the case here. There is only Graves’ speculation of an
ice jam as to how and why the river changed course, and this
is insufficient. We have no evidence in the record that the
change in the river which allegedly bisected Island No. 3, as
surveyed in the 1850’s and 1860’s, was sudden or violent or
that the original channel was supplanted by the current thread
of the stream. We therefore decline to apply the exception in
this case because, based upon the record, we cannot say that
the river changed in such a way as to warrant the exception
in Frank v. Smith, 138 Neb. 382, 293 N.W.2d 329 (1940),
to apply.
[14-16] Now that we have determined that the Schmidts
have failed to sustain their burden of proof, we must determine
the location of the boundary to separate the Schmidts’ land
from Babel’s. The location of the thread of the stream is not in
dispute in this case. The parties agreed that the current thread
416 	17 NeBRASkA AppeLLATe RepORTS

of the stream runs along the north side of Island No. 5. Graves
testified that he determined the current thread of the stream
to be the channel north of Island No. 5 instead of the channel
south of Island No. 5, because it was “a lot deeper and a lot
wider, carried a lot more water than the one that [one of the
attorneys for the Schmidts] had showed which was the south
channel, the clear south channel of the platte River.” And the
parties ultimately stipulated to the present location of the thread
of the stream. Under Nebraska law, title to riparian lands runs
to the thread of the contiguous stream. Anderson v. Cumpston,
258 Neb. 891, 606 N.W.2d 817 (2000). The thread, or center,
of a channel is the line which would give the landowners on
either side access to the water, whatever its stage might be and
particularly at its lowest flow. Id. The same principles in set-
ting the boundary at the thread of the stream are applicable to
islands within the river. Where title to an island bounded by
the waters of a nonnavigable stream is in one owner and title
to the land on the other shores opposite the island is in other
owners, the same riparian rights appertain to the island as to
the mainland. Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329
(1976). Because we find the Schmidts have not proved, by a
preponderance of the evidence, that the thread of the stream
changed by avulsion or that the exception set forth in Frank v.
Smith, supra, and State v. Ecklund, 147 Neb. 508, 23 N.W.2d
782 (1946), applies, the boundary between the riparian lands of
Babel and the Schmidts is the stipulated current thread of the
stream as alleged in paragraph 7 of exhibit 77. We remand the
cause to the district court with directions to make such finding
establishing the boundary.
CONCLUSION
The order of the district court is hereby reversed, and
the boundary is determined to be as alleged in paragraph 7
of Babel’s petition, in evidence as exhibit 77. The cause is
remanded to the district court for entry of judgment establish-
ing the boundary as set forth in our opinion.
reversed And remAnded wiTh direcTions.
(See page 418 for appendix A.)
BABeL v. SCHMIDT 	417
Cite as 17 Neb. App. 400

SCHMIDT ISLAND Island #3 - and accretions.
BABEL ISLAND Island #5 - and accretions.
APPENDIX A
Main Channel - Agreed to Thread of the Stream
South
North
418
17 NEBRASKA APPELLATE REPORTS