by Victoria Heldt
Oppliger v. Vineyard
(Nebraska Court of Appeals, September 20, 2011)
This case deals with land bordering the shores of the North Platte River in Lincoln County, Nebraska. The Oppligers own land on the north side of the river, while the Vineyards own the land directly south of the Oppliger’s land on the opposite side of the river. The Oppligers and the Vineyards seek to clarify where the boundary line exists between their respective properties. The complication within this case stems from the fact that the North Platte River has bifurcated into two channels, making it difficult to discern the exact location of the property boundary line. The Oppligers feel that it should be established in the southern channel, while the Vineyards feel that it should be in the northern channel. The Court based the decision on the determination of which channel should be considered the main channel of the river.
A key question was whether the change in the river’s flow and width is the result of accretion or the result of avulsion. Accretion is the extension of a shoreline by a gradual, imperceptible addition of solid material. Avulsion is characterized by a sudden, abrupt change in the land by water and can be caused by things such as a flood or the construction of a dam. Whether the change in the land was caused by accretion or avulsion has an affect on how the property line is drawn between the two properties. The Court noted that “changes in the location of the river or its channels caused by avulsion do not change the boundary, whereas changes by accretion would change the boundary.” It applied this principle to the facts of the case.
The district court concluded that the property boundary should be drawn at the geographical centerline that was established by the Government Land Office (GLO) in a survey in 1870. They stated that it was impossible to determine the main thread of the river otherwise, adopting the opinion of the Oppliger’s expert witness that it was “reasonable to assume that the thread of the main channel of the North Platte River in 1870 was at or near the geographic centerline of the river.” Further, the court found that any changes in the location of the main flow of the river were caused by avulsive events: 1) construction of the Sarben Bridge and Kingsley Dam 2) floods in 1970 and 1973, and 3) artificial flows from the Kingsley Dam for irrigation purposes. It then rejected each party’s claim of ownership by adverse possession.
The Vineyards appealed the case to the Court of Appeals, asserting numerous claims regarding evidentiary issues. The Court briefly addressed them, but focused most of their time determining whether the boundary line could reasonably be determined and, if so, where it should be drawn. It listened to testimony from expert witnesses brought in by both parties to the case. The Oppliger’s witness stated that the main thread of the stream should be defined as the last part of the stream to dry up. He felt the last part to dry up would be the southern channel since he found it to be a foot deeper than the northern channel and it had a stronger flow. The Vineyard’s expert witness (Harvey) claimed the northern channel was the main thread. He noted the characteristics of the northern channel suggest it is the older of the two channels and that the southern channel flows into the northern channel at one point. Additionally, he asserts that the northern channel would be the last to dry up due to the additional flow from the southern channel, coupled with additional flow of groundwater from the north. Harvey further explained that after the construction of the upstream dam, the flow of the river substantially decreased. The reduction in flow decreased the width of the channel. As the channel narrowed, it fostered more vegetation growth which strengthened the resistance of the river banks. Harvey stated that “the increased erosion resistance of the banks and the reduced flood peaks significantly reduce the potential for channel changes except during infrequent larger floods.” He testified that it was “reasonable to assume” that the unusually high river flows during floods in 1971 and 1973 were the cause of the creation of the southern channel. These peak flows should be classified as avulsive events and therefore would not change the property boundary. The Court deemed Harvey as a more qualified expert witness and therefore adopted his theories.
The Court also concluded that a fence established to the north of the northern channel did not constitute a boundary line by acquiescence. In order to claim a boundary line by acquiescence, both parties must acknowledge the line as a boundary. In this case, the Vineyards did not acknowledge or accept the fence as a boundary line and the previous owner of the property (who constructed the fence) testified that it was never meant to be a boundary. It was erected only to keep cattle from entering the river.
The Court of Appeals reversed the district court decision, establishing the northern channel of the North Platte River as the boundary line between the two properties.