Adverse Possession – Land Used Continuously

Continuous means “uninterrupted … stretching on without break or interruption.” It is sufficient if the land is used continuously for the purposes to which it might be naturally adapted. Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984); Knight v. Denman, 64 Neb. 814, 90 N.W. 863 (1902). See Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).

Generally, if an occupier’s physical actions on the land constitute visible and conspicuous evidence of the possession and use of the land, such acts will be sufficient to establish that the possession was actual and notorious. F & J Enterprises, Inc. v. DeMontigny, 6 Neb.App. 259, 573 N.W.2d 153 (1997); Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994). For example, posting signs, maintaining a boundary fence and grazing livestock on the disputed tract of land were actual, open and notorious. Wiedeman v. James E. Simon Co., Inc., 209 Neb. 189, 307 N.W.2d 105 (1981).

The party claiming adverse possession must occupy the property in the same manner as an owner would occupy the property. Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984); Barnes v. Milligan, 200 Neb.450, 264 N.W.2d 186 (1978); Knight v. Denman, 64 Neb. 814, 90 N.W. 863 (1902). See also Jones v. Schmidt, 170 Neb. 351, 102 N.W.2d 640 (1960).

No particular acts are required to establish “actual possession.” Rather the acts required depend upon the character of the land and the use that can reasonably be made of it. Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998); Olson v. Fedde, 171 Neb. 704, 107 N.W.2d 663 (1961); Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993).

Alleged possession of a disputed tract through livestock operations was insufficient to establish continuous use for ten-year period required for adverse possession where there were years in which there was no livestock on the tract and no records were kept regarding the presence or absence of livestock using the tract. Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984).

While the law does not require that adverse possession be evidenced by complete enclosure and 24-hour use of the property for the purposes for which it is adapted, there must be an element of exclusivity under a claim of ownership. Rush Creek Land and Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998) (quoting Thornburg v. Haeker, 243 Neb. 693, 502 N.W.2d 434 (1993); Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981)). Where the record establishes that both parties have used the property in dispute, there can be no exclusive possession on the part of one party. Rush Creek Land and Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998); Thornburg v. Haeker, 243 Neb. 693, 502 N.W.2d 434 (1993); Cofer v. Kuhlmann, 214 Neb. 341, 333 N.W.2d 905 (1983). See Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).

Generally, seasonal and recreational use and, therefore, occasional use, even if occurring annually, cannot ripen into title for the real estate on which such recreation takes place. Hardt v. Eskam, 218 Neb. 81, 352 N.W. 2d 583 (1984).

SEE ALSO EVIDENCE – ENCLOSURE