Saturday, July 29, 2006

Nebraska supreme court resolves boundary line dispute between homeowners in subdivision ex-Governor Kerrey once owned. Huffman v. Peterson, S-04-941, 272 Neb. 62 (2006) Adjacent homeowners disputed their boundary line when newer homeowner sought to put in a detached garage. The homeowners there longer refused and the newer homeowner sued to quiet title. The complaining homeowners counterclaimed for ejectment. Supreme Court notes that the Plaintiff filed the wrong type of action to litigate the boundary dispute, but the defendant didnt object. Supreme Court holds that a common grantor had conveyed both properties and thus the parties understanding of the common grantor's boundary line controls. Boundary disputes are not to be determined in a quiet title action. Rather, boundary disputes are properly brought as an action in ejectment or pursuant to Neb. Rev. Stat. § 34-301 (Reissue 2004). Rush Creek Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998). But when parties pursue a boundary dispute as a quiet title action without objection, the mode of procedure is no longer in question. Id. The common grantor rule provides that where conveyances from a common grantor to adjoining landowners describe the premises conveyed by lot numbers, but adjoining owners purchase with reference to a boundary line then marked on the ground, the boundary line, as marked on the ground by the common grantor, is binding upon such adjoining landowners and all persons claiming under them irrespective of the length of time which has elapsed thereafter. See Phillippe v. Horns, 188 Neb. 304, 196 N.W.2d 382 (1972). This equitable rule is designed to ascertain the intention of the parties with respect to the location of premises described by lot number in a conveyance which is executed by a grantor who conveys only part of an area of land owned by him. Kraus v. Mueller, 12 Wis. 2d 430, 107 N.W.2d 467 (1961).

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