Obermiller v. Baasch

542 	284 NEBRASKA REPORTS
deposit in the trust account. We believe the equitable remedy
is to place the remaining money in the existing pre-need trust
account, give Quail Creek all existing records which document
the pre-need sales, and allow Quail Creek to withdraw the
money as it renders services. And unlike the district court, we
conclude that the money should not revert to Bruce no matter
how much time has passed. Accordingly, we affirm the district
court’s judgment as modified by this opinion.
A ffirmed As modified.
PAul obermiller And betty lou obermiller,
husbAnd And wife, APPellees, v. GAry bAAsch
And dennis bAAsch, APPellAnts.
823 N.W.2d 162
Filed October 26, 2012. 	No. S-11-1042.
1. Equity: Quiet Title. A quiet title action sounds in equity.
2. Injunction: Equity. An action for injunction sounds in equity.
3. Equity: Appeal and Error. On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to questions of both fact and
law, is obligated to reach a conclusion independent of the conclusion reached by
the trial court.
4. Vendor and Vendee: Words and Phrases. A merchantable title is a title which
a person of reasonable prudence, familiar with the facts and the questions of law
involved, would accept as a title which could be sold to a reasonable purchaser.
5. Waters: Boundaries: Title. Title to riparian lands runs to the thread of the con-
tiguous stream.
6. 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.
7. 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.
8. Waters: Words and Phrases. The thread of a stream is that portion of a water-
way which would be the last to dry up.
9. Trespass: Title. To bring an action in trespass, the complaining party must
have had title to or legal possession of the land when the acts complained of
were committed.
10. Trespass: Liability. Liability for trespass exists if an actor intentionally enters
land in the possession of another, or causes a thing or third person to do so.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

OBERMILLER v. BAASCH 	543
Cite as 284 Neb. 542
11. 	Trespass. A trespass can be committed on, above, or beneath the surface of
the land.
12. Injunction: Equity. Where an injury committed by one against another is con-
tinuous or is being constantly repeated, so that complainant’s remedy at law
requires the bringing of successive actions, that remedy is inadequate and that
injury will be prevented by injunction. In such cases, equity looks to the nature
of the injury inflicted, together with the fact of its constant repetition, or con-
tinuation, rather than to the magnitude of the damage inflicted, as the ground of
affording relief.
Appeal from the District Court for Howard County: KArin
l. noAKes, Judge. Affirmed.
Patrick J. Nelson, of Law Office of Patrick J. Nelson,
L.L.C., for appellants.
Roger G. Steele and Liana Steele, of Steele Law Office,
for appellees.
heAvicAn, c.J., wriGht, connolly, stePhAn, mccormAcK,
miller-lermAn, and cAssel, JJ.
miller-lermAn, J.
NATURE OF THE CASE
This appeal, filed by brothers Gary Baasch and Dennis
Baasch, the appellants, concerns disputed land located in
Howard County, Nebraska, in and near the Middle Loup
River. After a bench trial, the district court for Howard
County denied Gary Baasch’s counterclaim for quiet title. The
district court found that husband and wife Paul Obermiller
and Betty Lou Obermiller, the appellees, owned all the land
they claimed to own, that the fence constructed by the appel-
lants was on the appellees’ land, and that Gary Baasch does
not own any of the disputed land. The court found that
the appellants had trespassed and ordered the appellants to
remove the fence and enjoined them from blocking access
to the land owned by the appellees. Gary Baasch and Dennis
Baasch appeal. Although our reasoning differs from that of
the district court, we affirm.
STATEMENT OF FACTS
To summarize, this case involves entitlement to land in the
Middle Loup River and whether there was a trespass thereon

544 	284 NEBRASKA REPORTS
by nonowners warranting an injunction. The appellees filed a
trespass action occasioned by the appellants’ putting up a fence
on certain accreted land contiguous to the appellants’ property
and sought injunctive relief. However, due to the comprehen-
sive relief sought by Gary Baasch, an appellant, in his coun-
terclaim, the case was tried initially as a quiet title action, and
after resolution of the ownership issue, the court considered
the trespass claim and whether the appellees were entitled to
injunctive relief.
The appellees allege they own part of an island referred to as
“Lot 9” on island No. 1 and claim ownership of land that has
accreted thereto on the east and south sides of Lot 9 down to
the centerline of the remaining channel or stream to the south.
In this case, the channel to the south is sometimes referred
to as the “slough.” Over time, the channel to the south has
narrowed and produced accreted land. The main body of the
Middle Loup River runs roughly west to east on the north side
of Lot 9. The appellees claimed that the appellants had built
a fence and otherwise trespassed on the appellees’ property.
Throughout this case, it appears that the appellees have main-
tained that they are entitled to land north of the centerline of
the slough and that Gary Baasch is entitled to accretion south
of the centerline of the slough.
Gary Baasch, an appellant, owns land on the mainland
which is located to the south of Lot 9 and south of the slough;
he claims ownership of all the accretion. Gary Baasch alleged
that due to a defect in title concerning Lot 9, the appellees
were not entitled to accretion to Lot 9, and sought to quiet
title to the accretion in his name. For completeness, we note
that Gary Baasch suggests on appeal that the evidence at trial
would show that he is also entitled to Lot 9, but there is no
allegation or claim to this effect in the controlling pleadings,
and in view of the evidence and our disposition, we reject this
assertion, as did the district court.
The property at issue on appeal is located in and near
the Middle Loup River in the southwest quarter of Section
22, Township 13 North, Range 11 of the 6th P.M., Howard
County. According to a survey conducted by Timothy Aitken
in February 2010, the land at issue is composed of two

OBERMILLER v. BAASCH 	545
Cite as 284 Neb. 542
contiguous areas of land. One area, Lot 9, is historically said
to consist of approximately 27 acres, although some land
has been eroded. The other area is to the east and south of
Lot 9 and consists of land which has accreted to Lot 9 and is
located north of the centerline of the slough. These two areas
were depicted and described on an exhibit attached to the
complaint. After trial, the district court quieted title in these
two areas in the appellees and incorporated this description in
its judgment.
In his answer and counterclaim, Gary Baasch alleged, inter
alia, that the appellants did not own Lot 9 and that he owned
the accretion thereto. In their answer to the counterclaim, the
appellees alleged that they owned Lot 9 and certain accretion
thereto and denied that Gary Baasch owned their property and
accretion thereto.
The record indicates that when Lot 9 was originally platted,
it was part of an island in the Middle Loup River surrounded
by a channel to the north and a channel to the south. The
south channel separated the island, including Lot 9, from the
mainland to the south of the island. Gary Baasch claims own-
ership of Lot 5 on the mainland situated to the south side of
the island, and the record contains no challenge to his claim of
ownership of Lot 5.
Aerial maps and testimony indicate that over time, the chan-
nel to the south of Lot 9 has narrowed and, as noted above, is
now what the parties refer to as the “slough.” Witnesses for all
parties testified that water from the slough still empties into
the Middle Loup River. Because of the narrowing of the south
channel, land now exists between Lot 9 and Lot 5 which was
not evident on some earlier surveys. Lot 9, as well as accre-
tion thereto north of the centerline of the slough, is the land
at issue on appeal. It seems there is no dispute that the accre-
tion was not platted by the U.S. government, and it appears
from the record that no one pays taxes on this land. At trial,
all parties testified that they have used the accretion for recre-
ational purposes and have granted permission to others to use
the property.
The record contains numerous recorded documents regard-
ing the title to Lot 9. Although the record does not contain

546 	284 NEBRASKA REPORTS
evidence showing that Lot 9 was conveyed to a private indi-
vidual by the U.S. government, the evidence shows that in
1894, Robert Harvey, a surveyor, surveyed the area and des-
ignated Lot 9 as part of an island. Harvey indicated that the
eastern part of the island, Lot 9, was in Section 22 and was an
approximately 27-acre tract.
A certified land patent from the U.S. Bureau of Land
Management, 	dated 	May 	25, 	1885, 	indicates 	that 	Johan
Nordquist was the owner of Lot 4 in the southwest quarter of
the northwest quarter of Section 22. Lot 4 lies north of Lot 9
and is located on the mainland on the north side of the Middle
Loup River. In April 1904, Johan Nordquist and his wife,
Carolina Nordquist, quitclaimed any interest they had in Lot 9
to Alex Sandberg by a handwritten document. By a handwrit-
ten quitclaim deed dated September 12, 1904, Alex Sandberg
and Lizzie Sandberg conveyed their interest in Lot 9 on island
No. 1 in Section 22 to Anna Carolina Granlund. By a war-
ranty deed filed October 12, 1923, Anna Granlund conveyed
her interest in Lot 9 on island No. 1 in Section 22 to Albin
Granlund. The language of this warranty deed indicated that it
is intended as a conveyance of the land.
On April 20, 1973, Paul Obermiller purchased Lot 9 at pub-
lic auction from the heirs of Albin Granlund. Paul Obermiller
received a quitclaim deed from the Granlund heirs filed July
2, 1973, and an executor’s quit claim deed on behalf of the
estate of William Granlund, filed July 2, 1973. Dennis Baasch
testified that he was present at the auction and further testified
that he did not dispute that Paul Obermiller purchased Lot 9 at
the auction. On March 6, 1995, Paul Obermiller conveyed his
interest in Lot 9 to himself and his wife, Betty Lou Obermiller,
by a joint tenancy warranty deed.
In 1974, the appellees installed a trailer on Lot 9 and have
maintained it since then. They have also maintained roads and
trails on Lot 9, paid taxes on Lot 9, and used Lot 9 for recre-
ational purposes. From 1973 to 2009, Dennis Baasch and his
family rented Lot 9 from the appellees for grazing cattle.
In 2008, the appellants hired Casey Sherlock, the Hall
County surveyor, to conduct a retracement survey of the sur-
vey done by Harvey in 1894 to determine the boundary line

OBERMILLER v. BAASCH 	547
Cite as 284 Neb. 542
between Gary Baasch’s property and the appellees’ property.
Sherlock testified that a retracement survey is the retrace-
ment of an existing survey performed by another surveyor
and that it is the duty of a retracement surveyor to locate on
the ground the boundary lines and corners established by the
original survey.
The Sherlock survey is dated December 31, 2008, and shows
a 27.73-acre tract, which is the retracement of Lot 9 surveyed
by Harvey. Rather than treating the 27.73 acres as Lot 9, the
Sherlock survey labels the 27.73 acre tract as “Accretion” to
Lot 5 and under the “Legal Description” states:
A tract of land being part of accretion to Gov’t Lot
Five (5) located in the West Half of Section 22, Township
Thirteen (13) North, Range Eleven (11) West of the
Sixth Principal Meridian, Howard County, Nebraska, also
referred to as Lot No. 9 by Robert Harvey on a survey
dated January 29, 30, and 31, 1894, said tract being more
particularly described as follows . . . .
The Sherlock survey indicates that Lot 5 is located to the south
of the 27.73-acre tract. The Sherlock survey also labeled the
accreted land as “Accretion.” Sherlock did not survey Lot 5.
In April 2009, members of the Baasch family claiming
to own all the accreted land informed Paul Obermiller that
they intended to install a fence on the accreted land along the
eastern boundary of the 27.73 acres identified in the Sherlock
survey. Paul Obermiller objected. Nevertheless, in May 2009,
the appellants installed the fence. The fence blocked access to
some roads and trails that the appellees used to access the land
contiguous to Lot 9 which had been created by accretion.
In the fall of 2009, the appellees hired Aitken, a Howard
County surveyor and a senior surveyor with Olsson Associates,
to survey the land the appellees claimed to own. The Aitken
survey, dated February 25, 2010, depicts an area of land with
the Middle Loup River as the northern boundary and the cen-
terline of the slough as the southern boundary. This area of
land is composed of Lot 9 and the accretion thereto north of
the centerline of the slough. The Aitken survey also shows
a line indicating the fence installed by the appellants. This
survey is attached to the amended complaint. A later Aitken

548 	284 NEBRASKA REPORTS
survey, dated June 2010, shows the survey line for Lot 9 and
states that Lot 9 is approximately 27 acres. Another Aitken
survey, also dated June 2010, shows the accretion to the east
and south of Lot 9. The Aitken survey attached to the amended
complaint depicts the totality of the land which is claimed by
the appellees, namely Lot 9 and the accretion thereto north of
the centerline of the slough.
On February 26, 2010, the appellees filed their amended
complaint and alleged that the fence constructed by the appel-
lants was installed on their property and that the installation
was a trespass, invasion, and encroachment on their land. The
appellees sought injunctive relief and damages.
In their amended answer and counterclaim filed June 21,
2010, the appellants denied the trespass claim, and Gary Baasch
alleged a counterclaim seeking quiet title to the accretion. Gary
Baasch alleged that the accreted land cannot be owned by the
appellees because the appellees are not the legal owners of
Lot 9. Gary Baasch further alleged that he owns Lot 5 and that
by virtue of this ownership interest, he also owns the accretion
because such land has accreted to Lot 5.
After a trial, the district court entered its judgment on
November 2, 2011. The court first analyzed the quiet title
claim and determined that the appellees are the legal owners of
Lot 9 and that they were entitled to the accretion lying north
of the centerline of the slough because it is accretion to Lot 9.
Therefore, the court rejected Gary Baasch’s claim for quiet
title and quieted title in the appellees to the land composed of
Lot 9 and the accretion thereto “north of the centerline of the
slough.” In its judgment, the court incorporated by reference
the legal description found on the February 2010 Aitken survey
and proposed by the appellees and attached to their amended
complaint. This award of land is challenged by the appellants
on appeal.
In making its determination, as a preliminary matter, the
court rejected the argument that any of the parties owned the
accreted land at issue by adverse possession, because no party
could prove exclusive possession of the property.
In determining that the appellees are the legal owners of
Lot 9, the district court cited United States v. Fullard-Leo,

OBERMILLER v. BAASCH 	549
Cite as 284 Neb. 542
331 U.S. 256, 67 S. Ct. 1287, 91 L. Ed. 1474 (1947), for its
application of the theory of the “lost grant.” The district court
explained that the theory of the lost grant
recognizes that lapse of time may cure the neglect or fail-
ure to secure the proper muniments of title to government
land, even though the lost grant may not have been in fact
executed. In order for this doctrine to be applicable, the
possession must be under a claim of right, actual, open
and exclusive.
The district court stated “the presumption of a lost grant to
land is an appropriate means to quiet long possession.” The
district court noted although the government had the authority
to convey Lot 9, there are no patents or other documents sug-
gesting that the government did so. However, the court went
on to state “the property [Lot 9] has been possessed and trans-
ferred to private individuals for over a century without objec-
tion from the government or anyone else.” The court reasoned
that because the appellees purchased their interest in Lot 9 at
a public auction in 1973 and their possession has been actual,
open, and exclusive since that time, the appellees are the equi-
table owners of Lot 9, and that, applying Nebraska law, the
appellees own the contiguous accretion north of the centerline
of the slough.
Because the district court found that the appellees are the
owners of Lot 9 and also the owners of the identified accre-
tion thereto, the court found that the appellants’ installation
of the fence on this property was a trespass on the appellees’
land. The court ordered the appellants to remove the fence
and enjoined them from blocking or denying access to the
appellees’ property. The court denied the appellees’ request
for monetary damages, stating that it was not supported by
the evidence.
The appellants appealed.
ASSIGNMENTS OF ERROR
The appellants assign, restated and rephrased, that the dis-
trict court erred when it (1) determined that the appellees
own the approximately 27-acre area known as Lot 9 and the
accretion thereto north of the centerline of the slough and

550 	284 NEBRASKA REPORTS
(2) determined that the appellants’ installation of the fence
is a trespass on the appellees’ land, entitling the appellees to
an injunction.
STANDARDS OF REVIEW
[1] A quiet title action sounds in equity. Newman v. Liebig,
282 Neb. 609, 810 N.W.2d 408 (2011).
[2] An action for injunction sounds in equity. Prime Home
Care v. Pathways to Compassion, 283 Neb. 77, 809 N.W.2d
751 (2012).
[3] On appeal from an equity action, an appellate court tries
factual questions de novo on the record and, as to questions
of both fact and law, is obligated to reach a conclusion inde-
pendent of the conclusion reached by the trial court. American
Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807
N.W.2d 492 (2011).
ANALYSIS
The appellants claim that the district court erred when it
found that the appellees are the owners of Lot 9 and the accre-
tion thereto north of the centerline of the slough. The appellants
assert that because the appellees failed to demonstrate that they
are the owners of Lot 9, the appellees cannot be the owners
of the accretion they were awarded. The appellants argue that
because the appellees do not own the land on which the fence
was installed, the appellees cannot properly claim that installa-
tion of the fence was a trespass. Gary Baasch contends that he
is the owner of the accretion awarded to the appellees and that
title should be quieted in him. For the reasons explained below,
we reject the appellants’ arguments.
Quiet Title.
The district court determined that the appellees are the own-
ers of Lot 9 on the basis of the theory of the lost grant. The
appellees have also asserted that they are the rightful owners
of Lot 9 under the Marketable Title Act. Although we agree
with the district court that the appellees are the legal owners of
Lot 9, we affirm for different reasons.
Neb. Rev. Stat. § 76-288 (Reissue 2009) of the Marketable
Title Act provides:

OBERMILLER v. BAASCH 	551
Cite as 284 Neb. 542
Any person having the legal capacity to own real
estate in this state, who has an unbroken chain of title to
any interest in real estate by such person and his or her
immediate or remote grantors under a deed of conveyance
which has been recorded for a period of twenty-two years
or longer, and is in possession of such real estate, shall be
deemed to have a marketable record title to such interest,
subject only to such claims thereto and defects of title
as are not extinguished or barred by the application of
the Uniform Environmental Covenants Act and sections
25-207, 25-213, 40-104, and 76-288 to 76-298, instru-
ments which have been recorded less than twenty-two
years, and any encumbrances of record not barred by the
statute of limitations.
Neb. Rev. Stat. § 76-289 (Reissue 2009) provides:
A person shall be deemed to have the unbroken chain
of title to an interest in real estate as such terms are
used in sections 25-207, 25-213, 40-104, and 76-288 to
76-298 when the official public records of the county
wherein such land is situated disclose a conveyance
or other title transaction dated and recorded twenty-
two years or more prior thereto, which conveyance or
other title transaction purports to create such interest in
such person or his immediate or remote grantors, with
nothing appearing of record purporting to divest such
person and his immediate or remote grantors of such
purported interest.
Title transaction as used in sections 25-207, 25-213,
40-104, and 76-288 to 76-298, means any transaction
affecting title to real estate, including title by will or
descent from any person who held title of record at the
date of his death, title by a decree or order of any court,
title by tax deed or by trustee’s, referee’s, guardian’s,
executor’s, master’s in chancery, or sheriff’s deed, as well
as by direct conveyance.
Neb. Rev. Stat. § 76-290 (Reissue 2009) provides:
Such marketable title shall be held by such person and
shall be taken by his successors in interest free and clear
of all interest, claims, and charges whatever, the existence

552 	284 NEBRASKA REPORTS
of which depends in whole or in part upon any act, trans-
action, event, or omission that occurred twenty-two years
or more prior thereto, whether such claim or charge be
evidenced by a recorded instrument or otherwise, and all
such interests, claims, and charges affecting such interest
in real estate shall be barred and not enforceable at law or
equity, unless any person making such claim or asserting
such interest or charge shall, on or before twenty-three
years from the date of recording of deed of conveyance
under which title is claimed, or within one year from
April 8, 1947, whichever event is the latest in point of
time, file for record a notice in writing, duly verified
by oath, setting forth the nature of his claim, interest or
charge; and no disability nor lack of knowledge of any
kind on the part of anyone shall operate to extend the time
for filing such claims after the expiration of twenty-three
years from the recording of such deed of conveyance or
one year after April 8, 1947, whichever event is the latest
in point of time.
Enacted in 1947, § 76-288 has been described as set-
ting “forth the criteria which must be satisfied in order for
a person to be deemed to have a marketable record title.”
Gregory B. Bartles, Comment, The Nebraska Marketable Title
Act: Another Tool in the Bag, 63 Neb. L. Rev. 124, 145-46
(1984). The purpose of the Marketable Title Act was to set
a time behind which people examining title to land would
not have “to look for discrepancies in title in order to deter-
mine whether or [not] it is a good marketable title” and thus
“protect the public against the overmeticulous title exam-
iner.” Judiciary Committee Hearing, L.B. 175, 60th Leg. (Feb.
12, 1947).
It has been observed that marketable title acts are designed
to work in conjunction with the recording acts, and not to sup-
plant them. Bartles, supra. Thus, it remains appropriate to refer
to the recorded documents relative to the land at issue and it is
logical to do so in order to determine the “root of title” which
is a conveyance of land which serves as the foundation upon
which a person currently claiming a chain of title relies. Id.
at 136.

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Cite as 284 Neb. 542
The “root of title” concept has been explained as
“that conveyance or other title transaction in the chain of
title of a person, purporting to create the interest claimed
by such person, upon which he relies as a basis for the
marketability of his title, and which was the most recent
to be recorded as of a date [twenty-three] years prior to
the time when marketability is being determined. The
effective date of the ‘root of title’ is the date on which it
is recorded.”
Id. (quoting Model Marketable Title Act § 8(e), reprinted in
Lewis M. Simes & Clarence B. Taylor, The Improvement
of Conveyancing by Legislation (1960)). The “root of title”
concept is embodied in the Marketable Title Act at §§ 76-288
and 76-290.
Subject to certain exceptions in the Marketable Title Act,
persons who satisfy four requirements for invoking the aid of
the act are deemed to have marketable record title. In particu-
lar, it has been observed:
In order to invoke the aid of the [Marketable Title] Act,
persons must: (1) have the legal capacity to own real
estate in Nebraska; (2) have an unbroken chain of title to
any interest in real estate by the person and the person’s
immediate or remote grantors; (3) have the unbroken
chain of title trace through a deed of conveyance which
has been of record for twenty-three years or longer; and
(4) be in possession of such real estate.
Bartles, supra at 137.
We considered the act in Smith v. Berberich, 168 Neb. 142,
95 N.W.2d 325 (1959). In Smith, we determined that a quit-
claim deed did not serve as a satisfactory root of title document
and that the appellees in that case could not invoke the aid of
the Marketable Title Act to sustain their claim of ownership
of the land by absolute title. In Smith, a patent to land was
issued in 1911, naming the heirs of Lewis E. Smith, 10 broth-
ers and sisters, as patentees. One of these heirs, Francis L.
Smith, executed and delivered a quitclaim deed to Lizzie M.
Smith, his wife. In 1946, after Lizzie Smith had died intestate
in 1935, the county court assigned the entire tract of land to
Lizzie Smith’s heirs, the appellees. Relying on the quitclaim

554 	284 NEBRASKA REPORTS
deed and the Marketable Title Act, the county court quieted
title in the appellees. The county court reasoned that because
the appellees were the successors in interest of a grantee of
the land by a quitclaim deed from a tenant in common, which
had been recorded for more than 22 years, the appellees were
entitled to the land.
We reversed the award of land in the appellees in Smith.
We noted initially that the patent, the quitclaim deed, and the
decree of heirship constituted the entire chain of title. In revers-
ing, we determined that a quitclaim deed was not the kind of
conveyance that could have created, under the Marketable Title
Act, an entire title to the land in the grantee.
In Smith, we explained, “This court has consistently adhered
to the doctrine that the distinguishing characteristic of a quit-
claim deed is that it is a conveyance of any interest or title
of the grantor in and to the land described rather than of the
land itself.” 168 Neb. at 146, 95 N.W.2d at 327. The quitclaim
deed from Francis Smith to Lizzie Smith purported to create
in Lizzie Smith nothing more than the interest that her grantor,
Francis Smith, had in the land, which the record suggested was
an undivided one-tenth interest as a tenant in common. The
quitclaim deed did not purport to create in Lizzie Smith an
entire title to the land nor to convey the land itself. We stated
in Smith that the appellees were claiming an interest in the land
that was more extensive than that which the quitclaim deed
purported to create in the grantee, Lizzie Smith.
We noted in Smith that if the conveyance from Francis
Smith to Lizzie Smith had purported to create an entire title
to the land in the grantee, Lizzie Smith, then it would have
served as a conveyance which satisfied the provisions of the
Marketable Title Act, and the appellees in that case would have
been able to invoke the aid of the act to sustain their claim of
title to the land. We determined that the quitclaim deed at issue
was not the type of conveyance that could serve as the root of
title under the Marketable Title Act.
Unlike Smith, the evidence in this case includes a document
which conveyed the land, Lot 9, and can serve as the proper
root of title foundation under the Marketable Title Act. On the
record before us, the warranty deed from Anna Granlund to

OBERMILLER v. BAASCH 	555
Cite as 284 Neb. 542
Albin Granlund, filed October 12, 1923, can serve as the root
in the chain of title. That warranty deed provided that in con-
sideration for $3,000, Anna Granlund granted and conveyed to
Albin Granlund the real estate in Howard County described in
part as follows:
Lot Numbered Nine (9) on Island Numbered One (1)
in Section Twenty Two (22), in Township Thirteen (13)
North,of Range Eleven (11) West,of the Sixth Principal
Meridian,located in the Loup River, according to Survey
thereof made by Robert Harvey,County Surveyor,on the
29ʺ,30ʺ and 31ʺ days of January,1894, and recorded in
Surveyors Record No.1, at Page 405.
The warranty deed further provided:
And I [Anna Granlund] do hereby covenant with the
said Grantee , and with his heirs and assigns that I am
lawfully seized of said premises; that they are free from
encumbrance[;] that I have good right lawful authority to
sell the same; and I do hereby covenant to warrant and
defend the title to said premises against the lawful claims
of all persons whomsoever.
And the said Anna Carolina Granlund hereby relin-
quishes all her right,title and ownership whatsoever in
and to the above described premises.
Unlike the quitclaim deed in Smith v. Berberich, 168 Neb. 142,
95 N.W.2d 325 (1959), this warranty deed conveys the land
and all interests to the land that is described, not just the mere
interest in the land of the grantor.
[4] If a title is merchantable, it is marketable, and we have
stated that a “‘merchantable title is a title which a man of
reasonable prudence, familiar with the facts and the questions
of law involved, would accept as a title which could be sold
to a reasonable purchaser.’” Podewitz v. Gering Nat. Bank,
171 Neb. 380, 389, 106 N.W.2d 497, 504 (1960) (quoting
Northouse v. Torstenson, 146 Neb. 187, 19 N.W.2d 34 (1945)).
The warranty deed from Anna Granlund to Albin Granlund has
the hallmarks of merchantable title, and we treat it as a market-
able title.
After Anna Granlund conveyed Lot 9 to Albin Granlund
by warranty deed in 1923, Paul Obermiller purchased Lot 9

556 	284 NEBRASKA REPORTS
at an auction in 1973. Incidentally, Dennis Baasch testified
that he was present at this auction. Paul Obermiller received a
quitclaim deed from Albin Granlund’s heirs and an executor’s
quitclaim deed on behalf of the estate of William Granlund.
In 1995, Paul Obermiller conveyed Lot 9 to himself and Betty
Lou Obermiller, his wife, by a joint tenancy warranty deed.
The recorded document which serves as the root of title in
this case is the warranty deed from Anna Granlund to Albin
Granlund in 1923. Being recorded in 1923, it has been recorded
for longer than 22 years prior to the time when marketability
is being determined in this case, and there has been a recorded
chain of title since that time. There is no evidence purporting
to divest the appellees of their interest. See § 76-289. And
the appellees established possession of Lot 9. See § 76-288.
Therefore, under the Marketable Title Act, the appellees own
Lot 9.
[5-8] Under Nebraska law, because the appellees own
Lot 9, which is part of an island, they also own the accretion
to Lot 9 to the thread of the slough. In Babel v. Schmidt, 17
Neb. App. 400, 765 N.W.2d 227 (2009), the Nebraska Court
of Appeals explained the law of accretion in Nebraska. The
court stated:
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 setting 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 non-
navigable 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).
Babel, 17 Neb. App. at 417, 765 N.W.2d at 240. The thread of
the stream is that portion of a waterway which would be the
last to dry up. Madson v. TBT Ltd. Liability Co., 12 Neb. App.

OBERMILLER v. BAASCH 	557
Cite as 284 Neb. 542
773, 686 N.W.2d 85 (2004) (citing Ziemba v. Zeller, 165 Neb.
419, 86 N.W.2d 190 (1957)).
Here, the evidence shows that Lot 9 was originally part of
an island located in the Middle Loup River, with a channel of
the river running on the north of the island and a channel run-
ning on the south. The record shows that over time, the chan-
nel along the south of Lot 9 has narrowed, and it is now the
slough. Witnesses for all parties testified that the slough still
empties into the Middle Loup River. Because of the narrow-
ing of the south channel, there is now land between Lot 9 and
Lot 5 which was not evident on earlier surveys. Because we
have determined that the appellees own Lot 9, under Nebraska
riparian law, they are also the owners of the accretion thereto
situated north of the thread of the stream, which is the cen-
terline of the slough. This is the determination reached by the
district court. Accordingly, although for reasons different from
those of the district court, we determine that the district court
properly quieted title in Lot 9, and the accretion thereto north
of the thread of the slough, in the appellees and denied Gary
Baasch’s claim for quiet title.
Trespass and Injunction.
The district court found that the installation of a fence by
the appellants on the property of the appellees was a trespass
on the appellees’ land. The court ordered the appellants to
remove the fence and enjoined them from blocking or denying
access to the appellees’ property. For the reasons which follow,
we affirm.
An action for injunction sounds in equity. Lambert v.
Holmberg, 271 Neb. 443, 712 N.W.2d 268 (2006). On appeal
from an equity action, we try factual questions de novo on the
record and, as to questions of both fact and law, we are obli-
gated to reach a conclusion independent from the conclusion
reached by the trial court. Id.
[9] To bring an action in trespass, the complaining party
must have had title to or legal possession of the land when the
acts complained of were committed. Id. As explained above,
we have affirmed the determination that the appellees own both
Lot 9 and the accretion north of the centerline of the slough

558 	284 NEBRASKA REPORTS
upon which the appellees constructed a fence. Accordingly, the
appellees may bring an action in trespass.
[10,11] Liability for trespass exists if an actor intention-
ally enters land in the possession of another, or causes a thing
or third person to do so. Id. A trespass can be committed on,
above, or beneath the surface of the land. Id. In the present
case, the appellants intentionally constructed a fence along the
boundary of Lot 9 on the appellees’ land. As explained above,
Lot 9 and the accreted land at issue are owned by the appel-
lees; therefore, the appellants constructed this fence on land
owned by the appellees. This fence blocks trails and access
from Lot 9 to the appellees’ accreted property. Because the
appellants’ construction of a fence on the appellees’ land pre-
vents the enjoyment of the appellees’ rights of possession and
property in the land, see id., it constitutes a trespass.
[12] Although where simple acts of trespass are involved,
equity will not act, Harders v. Odvody, 261 Neb. 887, 626
N.W.2d 568 (2001), given the evidence in this case, an injunc-
tion is necessary because the fence constructed by the appellants
constitutes a continuous and repeated trespass. See Lambert v.
Holmberg, supra. In Lambert, we stated:
Where an injury committed by one against another is con-
tinuous or is being constantly repeated, so that complain-
ant’s remedy at law requires the bringing of successive
actions, that remedy is inadequate and that injury will be
prevented by injunction. . . . In such cases, equity looks
to the nature of the injury inflicted, together with the fact
of its constant repetition, or continuation, rather than to
the magnitude of the damage inflicted, as the ground of
affording relief.
271 Neb. at 450, 712 N.W.2d at 275.
Here, the appellants’ act of installing the fence on the appel-
lees’ land impaired the appellees’ access to and enjoyment of
their land. Because the fence on the appellees’ land constituted
a continuous trespass, in equity, injunctive relief was appropri-
ate. Other jurisdictions have similarly granted injunctive relief
directing the removal of fences constructed on another’s land.
See Brandao v. DoCanto, 80 Mass. App. 151, 951 N.E.2d 979
(2011) (determining grant of injunction ordering removal of

STATE v. HOWELL 	559
Cite as 284 Neb. 559
portions of new building and fence encroaching on owner’s
land was not inequitable); Seminary v. DuPont, 41 So. 3d 1182
(La. App. 2010) (finding that neighbor’s fence encroached
upon homeowner’s property, supporting issuance of manda-
tory injunction); Crow v. Batchelor, 456 S.W.2d 241 (Tex.
Civ. App. 1970) (determining trial court’s grant of mandatory
injunction requiring defendant to remove fence was not abuse
of discretion).
The district court properly enjoined the appellants. Therefore,
we affirm the order of the district court.
CONCLUSION
The appellees are the rightful owners of both Lot 9 and
the accretion north of the centerline of the slough, as the dis-
trict court correctly determined. Because the appellees own
the land, the appellants’ intentional installation of a fence on
the land constituted a continuous trespass, and the appellees
were entitled to an injunction, as the district court ordered.
Accordingly, we affirm.
A ffirmed.
stAte of nebrAsKA, APPellee, v. Justin d. howell, APPellAnt.
822 N.W.2d 391
Filed October 26, 2012. 	No. S-12-115.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, the appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that the appellate court reviews inde-
pendently of the trial court’s determination.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a rea-
sonable doubt.