The Nebraska Court of Appeals’ March 3, 2009 opinion in Babel v. Schmidt, 17 Neb App 400 (2009) reversed a District Court decision, and awarded title to a contested island in Nebraska’s Platte River to Tom Babel. Mr. Babel, represented by David A. Domina of Domina Law Group pc llo and Patrick J. Nelson of Jacobson Orr Nelson, et al., Kearney, asserted that his island, owned by Mr. Babel of record, expanded in size through accretion over an extended period of time.
Owners of a nearby upstream island contended the river’s channel or thread moved suddenly, in an avulsive event.
The Court of Appeals’ Opinion affirmed a number of known, but seldom articulated, rules governing riparian water rights, streams, and changes in the courses of rivers and streams within Nebraska’s boundaries. The decision is important because Nebraska is commonly said to have more miles of running water than any other state in the nation.
The Court considered surveys conducted by the U.S. Government Land Office during Nebraska territorial days in 1858, 1862, 1865, and 1866. Surveys were also conducted in 1921, 1932, and 2006.
The controversy decided by the Court of Appeals was touched off by a 2006 conveyance. At issue was a triangular-shaped parcel measuring 4,600 feet in length and 1,400 feet in width. The Trial Court concluded that an avulsive event, occurring at an unknown time and in an undetermined way, caused the river to shift. As a result, title to the property should move to the Schmidts. Mr. Babel appealed.
The Court of Appeals observed that, “Avulsion is a sudden and perceptible loss of or addition to land by the action of water, or a sudden change in the bed or course of a stream.” The Court noted an avulsion must be “violent and visible and arises from a known cause, such as a freshet or a cut through which a new channel has formed.”
On the other hand, the Court observed that “accretion is a process of gradual and imperceptible addition of solid material called alluvion, thus extending the shoreline out by deposits made by contiguous water; reliction is the gradual withdrawal of water from the land by the lowering of its surface level from any cause.”
The Court noted that, “Where the thread of the main channel of a river is the boundary line between two estates and it changes by slow and natural processes of accretion and reliction, the boundary follows the channel.… Accretion, regardless of which bank to which it adds ground, leaves the boundary still at the center of the channel…. On the other hand, avulsion has no effect on boundary, but leaves it in the center of the old channel.”
Where title to real estate is sought to be established, one must prove ownership on the strength of his own title, by the greater weight of the evidence.
The Court of Appeals disagreed that where there is no direct evidence of avulsion, a presumption of accretion arises. But it held that avulsion must be proven by direct and positive evidence, none of which was educed by Schmidt.
The Court of Appeals rejected appraisal testimony from a representative of the State Surveyor’s Office, and testimony from an associate professor of soil science and geology concerning soil samples the geologist thought were consistent with avulsion, but not with accretion.
The Court of Appeals noted it saw the geologic evidence “as supporting the avulsion theory to a degree, it does not carry the Schmidts’ burden of proof by itself. We so conclude because there is no evidence as to when such ‘single episode’ occurred, what caused it, or whether a ‘single episode’ in the language of soil science… has the same hallmarks as the legal concept of avulsion…” The Court noted that Mr. Babel’s position must prevail, and ownership of the land must pass to him.
The District Court judgment was reversed. The case was remanded, and the Court of Appeals concluded title must be awarded to Mr. Babel.
Finally, the Court of Appeals applied the same principles that govern land on either bank of a river to land changing between islands within a river. Specifically, the Court held announced an important rule:
“The same principles in setting the boundary at the thread of the stream are applicable to islands within the river. Where title to an island bounded by the waters of a nonnavigable stream is on one owner and title to the island on the other shores opposite the island is in the other owners, the same riparian rights appertain to the island as to the mainland.”
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