Bush Island, Inc. v. Kortum

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Bush Island, Inc. v. Kortum

Additional Case Names
9:50am
Case Number
A-20-0391
Court Number
Merrick
Call Date
March 10, 2021
Case Time
9:00 AM
Case Summary

A-20-0391, Bush Island, Inc. (appellant) v. Ronald H. and Gloria Kortum, Jacqueline and Duane Drummond, Kathleen Fowles, Bradley Lockenvitz, Sarah Lockenvitz, John Lockenvitz, and Norman and Sue Ellen Krug (appellees/defendants) v. John and Tamara Allen, Kenneth L. Vettel, Larry L. Sands Revocable Trust, Nancy J. Sands Revocable Trust, and Bruce W. Rodabaugh (appellees/cross-defendants)

Merrick County, District Judge James C. Stecker

Attorneys for Appellant:  Stephen D. Mossman, Jacob C. Garbison (Mattson Ricketts Law Firm)

Attorneys for Appellees/Defendants:  David A. Jarecke, Ellen C. Kreifels (Blankenau Wilmoth Jarecke L.L.P.)

Attorney for Appellees/Cross-Defendants:  Charles W. Campbell (Angle, Murphy & Campbell, P.C., L.L.O.)

Equity Action:   establishing corners and boundaries of riparian property

Action Taken by Trial Court:  Following a bench trial, the district court determined that Bush Island failed to prove its accretion claim, the defendants proved the existence of a mutually recognized boundary and proved title to certain island lots, and the cross-defendants proved their claims for title by accretion and adverse possession.

Assignments of Error on Appeal:  On appeal, Bush Island assigns that the district court erred in (1) allowing hydrologist Robert Mussetter to testify as an expert as to matters of law, (2) holding that the middle channel forms the northern boundary of the Bush Island accretion claim, (3) holding that the middle channel of the Platte River in the area in question has persisted through time, (4) holding that Bush Island recognized the existence of a mutually recognized boundary fence for a period greater than 10 years, (5) finding that Bush Island’s accretion claim is limited to the south and east of the fence as depicted in exhibit 186, (6) considering exhibit 211 as evidence of an agreement as to the disposition of real property, (7) finding that island lots 1 through 8 separately existed and have been recognized as separate islands for over 100 years, (8) finding that the Kortum defendants acquired title to the unidentified islands, (9) considering exhibit 205, (10) admitting exhibit 215, (11) allowing Kyle Catt to testify that certain ovals depicted on exhibits 34, 391, and 392 were “the same,” (12) admitting page 4 of exhibit 244, (13) holding that the Act of August 3, 1846, as amended by the Isolated Tract Act of February 26, 1895 provided for the sale of unsurveyed islands, (14) holding that Bush Island failed to prove its accretion claim, (15) holding that Bush Island was required to determine the high water mark of the channels surrounding its property in order to prevail in its accretion claim, (16) finding that cross-defendants Allen and Sands acquired land in the area in question by adverse possession, (17) finding that cross-defendants Allen and Sands are entitled to the accretion north of the secondary thread of the Platte River in the area in question, (18) granting defendant Allen accretion to land not in issue at trial, (19) holding that the defendants and cross-defendants met their burden to prove their boundaries, and (20) permitting the defendants to amend their counterclaim at trial.

Case Location
Web Conference
Court Type
District Court
Schedule Code
A1
Panel Text
Riedmann, Bishop, and Welch, Judges