Conkey v. Anderson Farms, Inc.

289 N.W.2d 541 (1980)

205 Neb. 708

Duane F. CONKEY, Raymond Conkey, Frank Conkey, and Lucille Conkey, Appellants, v. ANDERSON FARMS, INC., Appellee.

No. 42686.

Supreme Court of Nebraska.

March 11, 1980.

Thomas A. Vakulskas, Sioux City, Iowa, for appellants.

Smith, Smith & Boyd, South Sioux City, for appellee.

Heard before KRIVOSHA, C. J., McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

WHITE, Justice.

The landowners appeal from an order dismissing a petition to establish a boundary of their property on government survey lines, and from the decree quieting title by adverse possession in favor of defendant to lands, the bare legal title to which is held by plaintiffs.

The weight of the evidence establishes and the trial court held that long established fence lines existed between the plaintiffs' and defendant's property for far longer *542 than the statutory period; that the land was occupied under claim of right for more than the statutory period; and that the claim of title was actual, open, and continuous. Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976).

Where a fence is constructed as a boundary line, although it is not the actual boundary line and parties claim ownership of land up to the fence for the uninterrupted statutory period, parties gain title to such land by adverse possession. McCain v. Cook, 184 Neb. 147, 165 N.W.2d 734 (1969).

We conclude on independent examination of the record that the trial court was correct and the judgment should be affirmed.

AFFIRMED.

BOSLAUGH, J., participating on briefs.