Cumpston Research

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David A Cumpston continued


 Anderson's reply to defendants Cumpstons and Viteras' answer and counterclaim not only admitted that the geographical centerline initially corresponded with the thread of the Platte River, but also admitted that “artificial structures and diversions led to sudden reductions and shifts in the flow of the stream resulting in the Platte River becoming a braided stream with many small channels.”   Further, the evidence establishes that, for all practical purposes, it is impossible to ascertain the present location of the thread of the Platte River.   We need not make such a determination in this case, however, because Anderson has admitted that the change in the thread of the Platte River was brought about suddenly by artificial structures and diversions.   In view of Anderson's foregoing admissions, the doctrine of avulsion provides that the boundary of Anderson's property should remain “ ‘as it was[,] in the center of the old channel.’ ”   See Ziemba v. Zeller, 165 Neb. at 422, 86 N.W.2d at 193.   Applying the well-settled law of avulsion to the instant case, we conclude that the north boundary of Anderson's property is the geographical centerline of the Platte River.


Our de novo review of the record leads us to the same conclusion, based on both equitable principles and the doctrine of avulsion.   The evidence establishes that in 1869, the thread of the Platte River was at or very near the geographical centerline of the Platte River.   In approximately 1903, again in the 1930's, and finally in the 1970's, a series of bridges known as the Darr bridges were built across the Platte River, after which the flow of the river shifted and began to flow in two channels, the south  channel initially being the wider channel.   In 1941, the flow of the river was once again affected by the Kingsley Dam, the construction of which caused the north channel to carry more water than its southern counterpart.   In addition to such artificial diversions, the nature of the bed of the Platte River is such that there is no way to predict which channel will be the last to dry up.   Moreover, there is absolutely no evidence of either channel completely drying up after the construction of the third Darr bridge in the 1970's.


Finally, except for Anderson, each of the landowners in the area who testified at trial expressed a long-held belief that the boundary between accretion lands on the north bank and the south bank was the geographical centerline.   Although Anderson testified at trial that he was unaware that he was being taxed on accretion land extending north to the geographical centerline, his failure to investigate the boundary of the property upon which he has been taxed does not justify basing our conclusion on his alleged lack of knowledge.   Equity would not be done by taking land away from those who have paid taxes thereon, and regarded and treated it as their own for so long, and granting the land to another who has absolutely no reason, on the record before us, to believe that the land was his property.


Our review of the record reveals that the district court correctly determined the thread of the Platte River to be the geographical centerline thereof and accordingly established the north boundary of Anderson's property along that geographical centerline.   Simply put, the establishment of the thread of the stream at anywhere but the geographical centerline would be, on the record before us, nothing but pure speculation and conjecture.   This conclusion should have been reached, however, via application of the law of avulsion, rather than reliance upon the theories of adverse possession or recognition and acquiescence invoked by the district court.   Nonetheless, Anderson's assignments of error are without merit.


Having determined that the boundary between the property of Anderson and that of the defendants was properly established at the geographical centerline of the Platte River, we need not address defendants Cumpstons and Viteras' cross-appeal.




The law of avulsion applies to the instant case, and upon our application of that doctrine, we conclude that the north boundary of Anderson's property and the south boundary of the defendants' properties is properly established at the geographical centerline of the Platte River as measured from the original meander line of the Platte River according to the original government plat of Township 9 North, Range 22 West of the 6th P.M., in Dawson County, Nebraska, dated January 25, 1869, and filed in the Nebraska State Surveyor's office.   The decision of the district court is therefore affirmed.






WRIGHT and CONNOLLY, JJ., concur in the result.