Adverse Possession – Motives

The intent to assert ownership of the property is a requirement for adverse possession, although intent is inferred in most cases. The intent of occupant holding possession of property by adverse possession can best be determined by his or her acts. Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998); F&J Enterprises, Inc. v. DeMontigny, 6 Neb.App. 259, 573 N.W.2d 153 (1997); Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978); Barnes v. Milligan, 196 Neb. 50, 241 N.W.2d 508 (1976); Pettis v. Lozier, 205 Neb. 802, 290 N.W.2d 215 (1980); Berglund v. Sisler, 210 Neb. 258, 262, 313 N.W.2d 679, 682 (1981); Nebraska State Bank v. Gaddis, 208 Neb. 136, 302 N.W.2d 686 (1981); Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331 (1957). However, adverse possession does not depend upon the remote motive of the occupant or whether that motivation is guilty or innocent. Fitzgerald v. Brewster, 31 Neb. 51, 47 N. W. 475 (1890); 3 Am. Jur. 2d, Adverse Possession, § 104, p. 188.

Claim of right or of ownership means hostile and these terms describe the same element of adverse possession. Ordinarily the intent with which the occupier possesses the land can best be determined by his acts and the nature of his possession. The statute of limitations will not run in favor of an occupant of real estate, unless the occupancy and possession are adverse to the true owner and with the intent and purpose of the occupant to assert his ownership of the property. Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993); Berglund v. Sisler, 210 Neb. 258, 262, 313 N.W.2d 679, 682 (1981). See also Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978).

If the railroad’s initial use was permissive, the railroad could not have acquired title to the property by adverse possession and, thus, could not have conveyed title to right-of-way to another. Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994).