Harvat v. Clear Creek Drainage Dist.

249 N.W.2d 209 (1977)

197 Neb. 352

Jerry Lee HARVAT et al., Appellants, v. CLEAR CREEK DRAINAGE DISTRICT, etc., Appellees.

No. 40732.

Supreme Court of Nebraska.

January 12, 1977.

*210 William E. Pfeiffer, Spielhagen, Spielhagen & Pfeiffer, Omaha, for appellants.

Charles E. Wright, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellees.

Heard before SPENCER, McCOWN, and CLINTON, JJ., and MORAN and KELLY, District Judges.

MORAN, District Judge.

Jerry Lee Harvat and his hunting companions claimed a prescriptive right to hunt and fish on and off the east bank of the north half of the defendant district's island in the Platte River. The hunting area claimed extended approximately 300 yards east from the northern tip of the island to the thread of the river and a maximum distance of 200 yards east from the east bank at the center of the island. The trial court denied the plaintiffs' claims and granted the defendant's counterclaim barring plaintiffs from asserting any interest in the property and enjoining them from further trespass. Errors assigned by plaintiffs are that the decision is not sustained by sufficient evidence and is contrary to law. We affirm.

From 1961 to 1973 Jerry Lee Harvat and the other plaintiffs fished and hunted waterfowl in the area. It is not enclosed and not until 1972 did Harvat indicate the perimeters of his claim by stakes. Duck blinds and decoy sets were placed and moved up and down the river bank and in the river throughout the period to take advantage of good decoy water. Harvat hunted every day of duck season throughout the period except on weekends when "kids were running all over the place." He resisted attempts of other hunters to move into the area, but there was testimony that at times other hunters used the area claimed by plaintiffs. The defendant's officers also testified defendant had leased the island to others for hunting.

While hunting and fishing rights are property rights which may be acquired as are other property rights, plaintiffs' evidence falls short of establishing entitlement by prescription on at least two counts. Their use was not exclusive, and the extent of their claim is too indefinite for a determinate description. See, Kuhlmann v. Platte Valley Irr. Dist., 166 Neb. 493, 89 N.W.2d 768; Wemmer v. Young, 167 Neb. 495, 93 N.W.2d 837.

The order and judgment are affirmed.

AFFIRMED.