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606 N.W.2d 817 (2000) 258 Neb. 891 Jeffrey S. ANDERSON, appellant and cross-appellee,
v. Dennis A. CUMPSTON et al., appellees and cross-appellants,
Phyllis E. Hastings and Paulsen, Inc., a Nebraska corporation, appellees, and Robert Behrens, intervenor-appellee. No. S-97-863. Supreme Court of Nebraska.
March 3, 2000. 819*819 Patrick J. Nelson, of Jacobsen, Orr, Nelson, Wright, Harder & Lindstrom, P.C., Kearney, for appellant.
820*820 Gregory C. Lauby and Donald J. Pepperl, of Pepperl & McMahon Law Offices, Lincoln, for appellees Dennis A. Cumpston, Richard L. Cumpston, Robert L. Vitera, Karen S. Vitera, and Lori S. Cumpston.
Larry R. Baumann, of Kelley, Scritsmier & Byrne, P.C., North Platte, for appellees Phyllis E. Hastings and Paulsen, Inc., and intervenor-appellee Robert Behrens.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
PER CURIAM. NATURE OF CASE
Jeffrey S. Anderson filed an equitable action to establish the corners and boundaries between his land and the land of the defendants pursuant to Neb.Rev.Stat. § 34-301 (Reissue 1998). Anderson owns land accretive to the south bank of the Platte River, while the defendants own land across the Platte River from Anderson, including land accretive to the north bank. After a bench trial, the district court established the boundary between Anderson's property and that of the defendants at the geographical centerline of the Platte River. Anderson timely appealed, alleging that the court erred by not establishing the boundary at the thread of the stream, which he asserts is currently in the north channel of the Platte River. Defendants Dennis A. Cumpston, Richard L. Cumpston, Lori S. Cumpston, Robert L. Vitera, and Karen S. Vitera cross-appealed (collectively defendants Cumpstons and Viteras), claiming that the district court erred by not establishing the boundary at the thread of the stream, which they allege is currently in the south channel of the Platte River. For the reasons that follow, we affirm.
Anderson owns land along the south meander line, or bank, of the Platte River generally described as all Platte River accretion lands deriving from and adjacent to government Lots 1, 2, and 3, Section 16, and deriving from and adjacent to government Lot 2, Section 9, all in Township 9 North, Range 22 West of the 6th P.M., Dawson County, Nebraska. Defendants Cumpstons and Viteras; Paulsen, Inc.; and intervenor, Robert Behrens, own adjacent parcels of property along the north meander line, or bank, of the Platte River; the property is located directly north from and has a south boundary contiguous with the north boundary of Anderson's property. Anderson filed the instant action to have certain corners and boundaries of his land ascertained and permanently established under § 34-301. Shortly thereafter, Behrens intervened as a defendant because he had recently entered a contract to purchase land involved in this controversy from defendant Phyllis E. Hastings.
In his petition, Anderson requested that the north boundary of his property be established at the thread of the stream of the Platte River, which he asserts is in the north channel. Defendants Cumpstons and Viteras filed an answer; in paragraph 3 thereof, it was alleged that when the United States of America conveyed the land described in Anderson's petition to the parties' predecessors in title, the Platte River flowed seasonally bank to bank and the geographical center line roughly corresponded to the thread of the stream; that thereafter 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. In the same pleading, defendants Cumpstons and Viteras counterclaimed, asserting that if the court were to conclude that the thread of the stream no longer corresponded to the geographical centerline, the boundary to Anderson's property should be established at the thread of the Platte 821*821 River, which they claim is presently located in the south channel. Anderson filed a reply to defendants Cumpstons and Viteras' answer and counterclaim, denying certain claims and admitting the aforementioned allegations contained in paragraph 3 of their answer.
As the case progressed, but prior to trial, several landowners who were initially named as defendants in Anderson's petition either settled or were dismissed from the lawsuit by order of the district court. At the time of trial, those defendants still involved in the dispute were the Cumpstons; the Viteras; Paulsen, Inc.; Hastings; and intervenor Behrens (collectively the defendants).
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.
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