Hoebel, William S.

English

University of Denver

Water Law Review Volume 9 Issue 1 Article 58 9-1-2005 Montross v. Burks Ranch, Inc., No. A-03-1164, 2005 Neb. App. LEXIS 165 (Neb. Ct. App. Aug. 2, 2005) William S. Hoebel Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation William S. Hoebel, Court Report, Montross v. Burks Ranch, Inc., No. A-03-1164, 2005 Neb. App. LEXIS 165 (Neb. Ct. App. Aug. 2, 2005), 9 U. Denv. Water L. Rev. 258 (2005). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWauthority to regulate groundwater users, or administer groundwaterrights for the benefit of surface water appropriators, neither its actionnor inaction amounted to a taking.In conclusion, the court upheld the district court'sjudgment grant-ing summary judgment in favor of DNR on Spear T's claims for negli-gently failing to curtail groundwater use and dismissing Spear T's claimof inverse condemnation.Donald E. FrickMontross v. Burks Ranch, Inc., No. A-03-1164, 2005 Neb. App. LEXIS165 (Neb. Ct. App. Aug. 2, 2005) (holding that the trial court did noterr in setting an equitable riparian boundary or in dismissing claims ofacquiescence and damages).Ronald and Janice Montross ("Montrosses") filed this action in thedistrict court for Hitchcock County, Nebraska, seeking a determinationof the boundary line between their property and that of their adjoiningneighbor, Burks Ranch, Inc. ("Burks"). The Montrosses set forth aclaim for adverse possession; they alleged that the parties and theirpredecessors in title recognized that the boundary line between theproperties was the centerline of "the meandering channel of the Re-publican River," and they sought damages for Burks' alleged trespasson and removal of trees from their property. Burks filed a counter-claim, seeking to set the legal boundary between the properties at thenorthern-most meander line of the Republican River and claiming theMontrosses' predecessor in title had agreed to that boundary. Thetrial court dismissed the Montrosses' claims of adverse possession, ac-quiescence in a boundary, and damages, and dismissed Burks' cross-claim, holding that there was no evidence supporting any finding of amutual agreement or acquiescence in light of an outstanding leaseagreement between the parties and their predecessors in tile. Thetrial court set the boundary line at the mean of the river's northern-most and southern-most meander lines. Both parties appealed thedecision.In 1872, the Republican River represented the boundary line be-tween the Montross property to the north and the Burks property tothe south. In 1935, a flood caused the river to change its course andbegin flowing in an easterly direction to the north of its original chan-nel. By 1943, the Republican River had returned to its original chan-nel. However, a series of flash floods between 1945 and 1952 causedthe river to again flow north of its original channel, where it has re-mained since. The change in the river's course left approximately 70to 80 acres of the Montross property lying south of the river channeland approximately 15 to 20 acres of the Burks property lying north ofthe channel. A 1952 survey completed to resolve the boundary disputelocated and marked the north meander line of the original river chan-Volume 9COURT REPORTSnel. In January 2001, a licensed line surveyor determined the north-ern-most and southern-most meander lines of the Republican River.From his findings, he derived a legal description of the Montross andBurks properties, setting the boundary at the mean between the northand south meander lines of the river.In its de novo review, the Nebraska Court of Appeals noted thatunder Nebraska law, title to riparian land runs to the thread or centerof the contiguous stream. The thread of a channel is the line that givesthe landowners on either side access to the water whatever its stagemight be, particularly at its lowest flow. Where the thread of the mainchannel of a river is the boundary line between two estates and itchanges by the slow and natural processes of accretion and reliction,the boundary follows the channel. Avulsion occurs when a streamforming the boundary between two properties suddenly abandons itsold bed and seeks a new one. Such a change of channel does notchange the boundary line. The boundary remains as it was in the cen-ter of the old channel. The court reasoned that the avulsive event of1935 did not effect a change to the boundary between the Montrossand Burks properties. It would remain as it was, in the center of theold channel rather than shifting to the thread of the new channel.On appeal, the Montrosses claimed that the boundary should havebeen set at the southern-most boundary of their property, the pre-1935position of the Republican River. This claim suggested that the rivermeandered south between 1872 and 1935. The court noted that aparty seeking to have title quieted to him or her on the ground of ac-cretion maintained the burden of proving such accretion by a prepon-derance of the evidence. The court found no evidence to support theMontrosses' claim. The court affirmed the rulings of the trial court,finding no error in recognizing the mean between the meander lines,rather than the location of the thread of the river, as the most equita-ble solution for all parties.William S. Hoebel, IIIEdlund v. 4-S, LLC, 702 N.W.2d 812 (Neb. Ct. App. 2005) (holding thetrial court erred in determining that, because no channel was conclu-sively established as the thread of the stream, the property line layequidistant between two main channels of the stream).Eleanor M. Edlund ("Edlund") brought an action to ascertain andestablish the boundary line between her land and the land of 4-S, LLC("4-S"), a landowner to her north. The parties agreed that the bound-ary line between their properties was the thread of the stream of thePlatte River, but disagreed on the location of the thread. Where thethread of a stream is the boundary between estates and the stream hastwo channels, the thread of the main channel is the boundary betweenthe estates. Holding the evidence to be inconclusive, the DistrictIssue I

Montross v. Burks Ranch, Inc., No. A-03-1164, 2005 Neb. App. LEXIS 165 (Neb. Ct. App. Aug. 2, 2005)

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Montross v. Burks Ranch, Inc., No. A-03-1164, 2005 Neb. App. LEXIS 165 (Neb. Ct. App. Aug. 2, 2005)

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