To bring an action in trespass, the complaining party must have had title or legal possession of the land when the acts complained of were committed. Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994); Flobert Indus. v. Stuhr, 216 Neb. 389, 343 N.W.2d 917 (1984). See also Franz v. Nelson, 183 Neb. 137, 158 N.W.2d 606 (1968); Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984) (holding that plaintiffs were not entitled to damages for trespass because plaintiffs failed to prove ownership by adverse possession).
The party bringing a trespass action has the burden of establishing that he had title or possession of the property before he can proceed with his trespass action. Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994). See Flobert Indus. v. Stuhr, 216 Neb. 389, 343 N.W.2d 917 (1984) (addressing ownership issue before considering the trespass action).
Plaintiffs were not entitled to any damages alleged to have been sustained as a result of trespass on disputed tract by defendants inasmuch as their recovery depended on a title to tract which plaintiffs did not have. Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984).
Land contract purchaser who placed fence posts outside fence line, on disputed strip to which adjoining landowners had acquired title by adverse possession, was required to pay cost of filling in potholes and returning land to its former condition. Horkey v. Schriner, 215 Neb. 498, 340 N.W.2d 1 (1983). See also Spilinek v. Spilinek, 215 Neb. 35, 337 N.W.2d 122 (1983); Wiedeman v. James E. Simon Co., Inc., 209 Neb. 189, 307 N.W.2d 105 (1981); George Rose Sodding & Grading Co., Inc. v. City of Omaha, 187 Neb. 683, 193 N.W.2d 556 (1972), appeal on remand 190 Neb. 12, 205 N.W.2d 655 (1973).
County cannot, even under applicable statutes, open section line road without giving notice to landowners, hearing the landowners claim for damages, or appointing appraisers and making provisions for payment of landowners’ damages, and if it attempts to do so it is a trespasser. Breiner v. Holt County, 7 Neb.App. 132, 581 N.W.2d 89 (1998); Olson v. Bonham, 212 Neb. 548, 324 N.W.2d 260 (1982); Scotts Bluff County v. Tri-State land Co., 93 Neb. 805, 142 N.W. 296 (1913); Henry v. Ward, 49 Neb. 392, 68 N.W. 518 (1896); Chicago, B. & Q. R. Co. v. Douglas County, 1 Neb. (Unoff.) 247, 95 N.W. 339 (1901).
The Department of Roads has authority to enter upon any property to make surveys. State v. Merritt Brothers Sand & Gravel Co., 180 Neb. 660, 144 N.W.2d 180 (1966).