IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
S & R AMERICAN FARMS V. RUSSELL FARM & RANCH
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
S & R AMERICAN FARMS, LLC, APPELLEE,
V.
RUSSELL FARM AND RANCH CORP., APPELLANT, AND TODD RUSSELL ET AL., APPELLEES.
Filed December 6, 2016. No. A-15-998.
Appeal from the District Court for Custer County: KARIN L. NOAKES, Judge. Affirmed.
Patrick J. Nelson, of Law Office of Patrick J. Nelson, L.L.C., for appellant.
Arend R. Baack, of Leininger, Smith, Johnson, Baack, Placzek & Allen, for appellee S & R
American Farms, LLC.
MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
RIEDMANN, Judge.
INTRODUCTION
Russell Farm and Ranch Corporation (Russell) appeals from the order of the district court
for Custer County granting summary judgment in favor of S & R American Farms, LLC (S & R).
S & R originally brought this action to quiet title to a portion of land along the property line
separating its property from that of Russell. S & R also sought to affirmatively determine the
northern boundary of the land that it claimed to own. Following an adverse judgment, Russell
appeals. Based on our review of the record, we affirm.
BACKGROUND
S & R and Russell are riparian landowners along the Middle Loup River in Custer County,
Nebraska. S & R is the record owner of portions of government Lots 3, 4, 5, and 6 in Section 31,
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Township 20 North, Range 20 West of the 6th P.M. The Middle Loup River runs along the northern
edge of S & R’s property. Russell owns the land directly north of the river, across from the S & R
property involved in this matter.
The crux of this dispute is regarding an area of land that the parties have referred to as an
“island.” The original government survey of this portion of land, dating to 1873, showed the river
as a single channel as it passed along the property. The disputed island was located north of the
river, separated from the S & R property by the channel flowing to the south of it. The next
depiction of this portion of the river is an aerial photograph taken in 1938. The river was no longer
a single channel, but rather had multiple channels and depicted several islands where previously
there had been none.
Aerial photography of the river over the next decades showed that the flow of the river
began shifting north, away from S & R’s property and towards Russell’s property. Over time,
water ceased to flow in the southern channel that had once separated the island from the S & R
property.
By 1988, the river was once again a single channel, which now flowed to the north of the
disputed land. Since this time, Russell can only reach this land by crossing the river or by crossing
through S & R’s property. While the parties agree that the main channel now flows north of the
island, they dispute the mechanism by which the river moved to the north as well as the boundary
between their properties.
S & R initiated these proceedings in November 2014 to quiet title as to the disputed land
and establish the northern boundary of its property. Both parties retained their own surveyor and
geographer to examine the land in question. S & R’s surveyor, Mitchell Humphrey, inspected the
property and created a survey of the area, which he then filed with the Nebraska survey record
repository. Humphrey identified what he believed to be the thread of the stream, located north of
the land in question, and incorporated that location into the legal description of S & R’s property
on the survey.
Russell’s surveyor, Trenton Snow, also prepared a survey of the area in question. This
survey differed from that of Humphrey and identified the “boundary thread of the stream” to be in
a different location from the thread of the stream. However, in his deposition, Snow agreed that
the physical location of the current thread of the stream is north of the disputed property, a position
consistent with that of Humphrey. Both parties also asked their expert geographers to opine as to
how the course of the river changed, but they could not say for certain how such changes had
occurred.
During the discovery process, Russell requested a complete copy of Humphrey’s file.
S & R obliged, but informed Russell that there were several documents that it had not turned over,
claiming that they were subject to attorney-client privilege and the work product doctrine.
Specifically, S & R stated that the documents were emails between counsel and its surveyor,
Humphrey. Russell then served additional interrogatories and requests for document production
on S & R seeking the contents of those emails. When S & R objected to these requests, Russell
filed motions to compel with the district court. S & R filed a motion for a protective order
concerning the information that Russell was seeking.
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A hearing was held on March 26, 2015. After receiving evidence and hearing argument
from counsel, the district court overruled Russell’s motions to compel and granted S & R’s motion
for a protective order.
S & R then filed a motion for summary judgment, arguing that there were no genuine issues
of material fact and that it was entitled to judgment as a matter of law. In support of its motion, it
included an affidavit from Humphrey. Attached to the affidavit was a copy of the survey he had
created, although it was not a certified copy. Russell objected to the admission of this survey on
foundational grounds but the objection was overruled.
The district court subsequently granted summary judgment in favor of S & R. It determined
that S & R had presented uncontested evidence that the changes to the river had occurred due to
accretion, and while Russell suggested that the changes were due to avulsion, it offered no
evidence in support of that claim. The district court also found that Humphrey’s survey had been
properly filed pursuant to Neb. Rev. Stat. § 81-8,122.01 (Reissue 2014) which therefore made it
the official record and established presumptive evidence of the facts stated therein. Because
Russell had not presented sufficient evidence to overcome such presumption, it determined the
northern boundary of S & R’s property as the thread of the stream. Russell now appeals.
ASSIGNMENTS OF ERROR
Russell assigns, restated and reordered, that the trial court erred in (1) overruling its motion
to compel S & R to respond to interrogatories relating to communications between S & R and its
surveyor expert witness; (2) overruling its motion to compel S & R to respond to a request for
document production relating to communications between S & R and its surveyor expert witness;
(3) overruling its motion seeking authorization to serve a Neb. Ct. Disc. R. 6-334(A) subpoena on
S & R’s surveyor expert witness and his employer for documents relating to communications
between S & R and its surveyor expert witness; (4) sustaining S & R’s motion for a protective
order regarding Russell’s discovery requests; (5) overruling its foundational objection to a portion
of Humphrey’s affidavit offered in connection with summary judgment proceedings; (6)
overruling its objection to a portion of Dart’s affidavit offered in connection with summary
judgment proceedings on grounds of speculation and conjecture, and (7) granting summary
judgment in favor of S & R and establishing the northern boundary of land as depicted in
Humphrey’s survey.
STANDARD OF REVIEW
Generally, decisions regarding discovery are directed to the trial court and an appellate
court will uphold them absent an abuse of discretion. Roskop Dairy v. GEA Farm Tech., 292 Neb.
148, 871 N.W.2d 776 (2015). An abuse of discretion exists when a judge acts or refrains from
acting and the result is clearly untenable and unfairly deprives a litigant of a substantial right or
just result. Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).
The party asserting error in a trial court’s ruling on discovery bears the burden of showing that the
ruling was an abuse of discretion. Id.
In a civil case, the admission or exclusion of evidence does not constitute reversible error
unless it unfairly prejudiced a substantial right of the complaining party. In re Estate of Clinger,
292 Neb. 237, 872 N.W.2d 37 (2015).
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An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any material fact or as to the
ultimate inferences that may be drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407, 882 N.W.2d
910 (2016). In reviewing a summary judgment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment was granted and gives that party the benefit
of all reasonable inferences deducible from the evidence. Id.
ANALYSIS
DISCOVERY MOTIONS
Russell assigns four separate errors relating to discovery orders entered by the district
court. These orders included an order (1) overruling a motion to compel answers to interrogatories;
(2) overruling a motion to compel responses to request for production of documents; (3) overruling
a motion to serve a Rule 6-334(A) subpoena; and (4) sustaining S & R’s motion for protective
order. Of these assigned errors, however, S & R argues only the order overruling its motion to
compel production of documents and, tangentially, the order sustaining S & R’s motion for
protective order. Therefore, we do not address the other two assigned errors. See Olson v. Olson,
13 Neb. App. 365, 693 N.W.2d 572 (2005)(errors must be assigned and argued to be reviewed by
an appellate court).
S & R refused to produce email messages between its counsel and Humphrey, its expert
surveyor, claiming the documents were privileged attorney client documents or otherwise
protected under the work-product doctrine. It sought a protective order pursuant to Neb. Ct. R.
Disc. §6-326(b)(4), which the district court granted. Russell argues that S & R had the burden of
proving that the requested documents were privileged and that S & R did not meet that burden.
Most of Russell’s argument focuses on the procedures required for asserting privilege set out in
Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).Under the Greenwalt
framework, Russell argues that in order to assert either attorney-client privilege or the work
product doctrine, S & R should have stated with specificity how each element of the asserted
privilege was met, which Russell claims it did not do. Russell also asserts that the district court
should have ordered that the documents be turned over to the court so the court could review the
material in camera.
We find Russell’s reliance on Greenwalt to be misplaced. While some of the issues in the
present case are similar to those in Greenwalt, it can be distinguished because Greenwalt
concerned production of the defendant’s internal documents, whereas the current case concerns
production of documents from an expert witness. The inclusion of an expert witness invokes
additional rules of discovery that are more appropriately tailored for reviewing the issues present
here. Instead, we find the case Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789
N.W.2d 260 (2010), to be instructive.
In Podraza, the defendant inadvertently forwarded to the plaintiffs correspondence
between one of its paralegals and its expert witness. Id. New Century then sought a protective
order prohibiting the Podrazas from using that information and ordering them to destroy all copies
of the emails on the grounds that they constituted privileged work product. Id. Podrazas challenged
this assertion. The Nebraska Supreme Court undertook an analysis pursuant to Neb. Ct. R. Disc.
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§§ 6-326(b)(3) and 6-326(b)(4) and determined that the correspondence constituted privileged
work product. Id. The Court also found that in order to obtain privileged work product, a party
must, at a minimum, demonstrate a substantial need for the materials and an inability, without
undue hardship, to acquire a substantial equivalent. Id.
Nebraska Discovery Rule § 6-326(b)(3) discusses the work product doctrine. It states, in
relevant part:
Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a
party may obtain discovery of documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party’s representative (including his or her attorney,
consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of his or her case and that
he or she is unable without undue hardship to obtain the substantial equivalent of the
materials by other means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other representative
of a party concerning the litigation.
Subsection (b)(4) of the same rule pertains specifically to expert witnesses. In relevant part,
it states:
Trial Preparation: Experts. Discovery of facts known and opinions held by experts
otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired
or developed in anticipation of litigation or for trial may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each
person whom the other party expects to call as an expert witness at trial, to state the subject
matter on which the expert is expected to testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a summary of the grounds for each
opinion.
These rules make clear that to be granted discovery of work product materials, a party must, at
minimum, demonstrate a substantial need for them and an inability to obtain a substantial
equivalent without enduring undue hardship. Furthermore, the rules lay out what a party is entitled
to discover in terms of an expert witness’ opinion developed in preparation for litigation. A party
is entitled to know the identity of the expert, the subject matter upon which he or she will testify,
the substance of his or her testimony, and a summary of the grounds for forming his or her opinion.
Russell has not demonstrated a substantial need for the email correspondence between
counsel and S & R’s surveyor expert witness. Additionally, Russell has not shown that it is unable
to obtain the substantial equivalent without undue hardship. Russell admits that it has deposed
Humphrey. Such deposition gave Russell the opportunity to find out what Humphrey’s opinion
was as well as the facts upon which he relied to form that opinion. S & R asserts that the only
additional information in the requested emails constitutes work product insofar as it reflects
counsel’s opinions and legal strategies prepared in anticipation of trial. There has not been any
showing made that the content of the requested emails contains anything to which Russell is
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entitled that it has not already received or had the opportunity to explore during deposition. In the
absence of a showing of substantial need for the emails beyond what has already been provided to
Russell under § 6-326(b)(4), we find no abuse of discretion in the district court’s decision to
overrule Russell’s motion to compel.
As to the district court’s ruling in favor of S & R on its motion for a protective order
regarding Russell’s discovery requests, we turn to Neb. Ct. R. Disc. § 6-326(c). It states in part:
Protective Orders. Upon motion by a party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is pending . . . may make
any order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.
The Nebraska Supreme Court has held that Nebraska law gives trial courts broad latitude to grant
protective orders in order to prevent the disclosure of materials for many types of information.
Gonzalez v. Union Pacific R.R. Co., 282 Neb. 47, 803 N.W.2d 424 (2011). The U.S. Supreme
Court has also interpreted this language in the same manner, explaining that such wide latitude is
necessary because the “trial court is in the best position to weigh fairly the competing needs and
interests of parties affected by discovery.” Id. We again note that Russell did not specifically argue
this assignment of error in its brief. However, we find the underlying issues to be closely related
to those regarding its motion to compel. Having concluded that the district court did not err in
denying Russell’s motion to compel the production of emails between S & R and its expert witness,
we defer to the broad discretion of the district court, and its weighing of the parties’ interests, in
finding that the subject material required an order of protection. We therefore find no abuse of
discretion.
FOUNDATIONAL OBJECTION TO HUMPHREY’S AFFIDAVIT
Russell asserts that the district court should have sustained its foundational objection to the
survey attached to Humphrey’s affidavit. Russell’s objection was that the copy of the survey was
neither sworn nor certified, thereby violating Neb. Rev. Stat. §§ 25-1334 and 27-902 (Reissue
2008). We disagree.
Nebraska Evidence Rule 902 states that extrinsic evidence of authenticity as a prerequisite
to admissibility is not required for certain kinds of documents, such as copies of an official record
or report, or a document authorized by law to be recorded or filed, and actually recorded or filed,
in a public office when it is certified as correct by the custodian or other person authorized to make
the certification. Neb. Rev. Stat. § 27-902 (Reissue 2008). While such documents may be
considered “self-authenticating,” this does not preclude authentication by other means. Indeed, if
a proffered document is not self-authenticating, it necessarily must be authenticated using extrinsic
evidence.
Nebraska Revised Statutes § 25-1334 (Reissue 2008) speaks to the requirements for
supporting affidavits and provides in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set
forth facts as would be admissible in evidence, and shall show affirmatively that the affiant
is competent to testify to the matters stated therein. Sworn or certified copies of all papers
or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
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With specific regard to public records, Neb. Rev. Stat. § 27-1005 (Reissue 2008) states:
The contents of an official record, or of a document authorized to be recorded or
filed and actually recorded or filed, including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in accordance with section 27-902
or testified to be correct by a witness who has compared it with the original.
This court has previously held that an affidavit stating that the affiant had personal
knowledge of an attached copy of a public record, and that such record was a true and correct copy
of the original, could be properly admitted. Hoff v. Ajlouny, 14 Neb. App. 23, 703 N.W.2d 645
(2005). In Hoff, the plaintiff alleged that Ajlouny had violated certain protective covenants to
which his residence was subject. Id. A copy of the protective covenants was recorded in the office
of the register of deeds for that county. Id. Hoff filed a motion for summary judgment that included
a copy of the protective covenants and an affidavit by her attorney, which swore to the authenticity
of the attached covenants. Id. Ajlouny argued that the copy of the protective covenants should not
have been admitted into evidence on the grounds that insufficient foundation had been laid. Id.
This court performed an analysis under Neb. Rev. Stat. §§ 25-1334 and 27-1005 and determined
that the attorney’s affidavit, which stated that he had personal knowledge of the relevant facts and
swore that the accompanying exhibit was a true and correct copy of the protective covenants as
recorded in the office of the register of deeds, was sufficient and the attached exhibit could properly
come into evidence. Id.
We find the case before us now to be factually similar to Hoff. As in Hoff, we are presented
with a copy of a public record, Humphrey’s survey, which has not been certified and is not
self-authenticating. We are also presented with an affidavit from a party, Humphrey, swearing to
have personal knowledge and swearing that the copy is true and correct as to the original, which
has been recorded or filed. Accordingly, we find that Humphrey’s sworn affidavit provided
sufficient foundation to authenticate the accompanying exhibit. Therefore, we find that the
admission of the affidavit was proper and thus we find no merit in this assignment of error.
3. Summary Judgment
Russell next assigns that the district court erred in granting S & R’s motion for summary
judgment and establishing the northern border to its property. Specifically, Russell claims that the
evidence presented at the hearing on summary judgment indicated that there were genuine issues
of material fact. We disagree.
Before examining each party’s argument, we first review the basic principles of water law.
The term “thread of the stream” refers to the line in a body of water that would give landowners
on both sides of it access to the water, particularly when it is at its lowest flow. Curry v. Furby, 20
Neb. App. 736, 832 N.W.2d 880 (2013). The thread of the stream is the deepest portion of the
waterway, the area that would be last to dry up. Id. The location of the thread of the stream is
significant because under Nebraska law, title to riparian land runs to the thread of the contiguous
stream. Id. This means that finding the location of the thread of the stream is a necessary step in
determining the legal boundary between riparian properties.
The course of a waterway may change due to accretion, reliction, or avulsion. Accretion
refers to the gradual and imperceptible process whereby solid material is added to the shoreline,
thus extending the land bordering the water. Id. Reliction refers to the gradual withdrawal of the
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water from the land caused by the lowering of its surface level from any cause. Id. Avulsion, on
the other hand, is a sudden and perceptible change to the land, either an addition or loss, due to the
action of the water. Id. Avulsion is a violent and visible change to the waterway that results from
a known cause, such as a freshet. Id.
These processes are significantly different from one another and have different
consequences for the boundary line of the surrounding land. Id. When the waterway, and therefore
the thread of the stream, changes over time due to the slow and natural processes of accretion and
reliction, the legal boundary follows. Id. However, changes to the waterway due to avulsion do not
affect the boundary, which remains at the location of the thread of the former stream. Babel v.
Schmidt, 17 Neb. App. 400, 765 N.W.2d 227 (2009). When a party seeks to quiet title to land due
to accretion or avulsion, he must prove such by a preponderance of the evidence. Curry v. Furby,
supra.
Section 81-8,122.01 establishes that a survey, meeting certain foundational requirements,
is presumptive evidence of the facts stated therein. It states in relevant part:
Whenever a survey has been executed by a land surveyor who is registered under
the Land Surveyors Regulation Act, a record of such survey bearing the signature and seal
of the land surveyor shall be filed in the survey record repository established pursuant to
section 81-412 if such survey meets applicable regulations. . . . The record of survey shall
be filed within ninety days after the completion of the survey . . . and shall consist of the
following minimum data: (1) Plat of the tract surveyed; (2) legal description of the tract
surveyed; (3) description of all corners founds; (4) description of all corners set; (5) ties to
any section corners, quarter corners, or quarter-quarter corners found or set; (6) play or
record distances as well as field measurements; and (7) date of completion survey. The
record of survey so filed shall become an official record of survey, and shall be presumptive
evidence of the facts stated therein, unless the land surveyor filing the survey shall be
interested in the same.
We explained the effect of this statute in Curry v. Furby, supra. In Curry, plaintiffs were
riparian landowners whose property was separated from their southerly neighbors, the Furbys, by
the Middle Loup River. Id. The Currys brought an action to establish the southern boundary of
their property, which they alleged had changed due to accretion and reliction. Id. There, we found
the survey of the Currys’ land, including a legal description and the location of the thread of the
stream, to be presumptive evidence of the boundary because it complied with the requirements of
§ 81-2,122.01. Id. Furthermore, we found that the Furbys did not adduce adequate evidence to
overcome such presumption and thus affirmed the district court’s order in favor of the Currys. Id.
In the present action, Humphrey’s survey meets the foundational requirements of
§ 81-8,122.01 and is therefore presumptive evidence of the facts stated therein, including the
thread of the stream and the northern boundary. To rebut the presumption of the boundary
established in the Humphrey survey, it was incumbent upon Russell to present evidence that the
thread of the stream changed through avulsion. It failed to do so.
Russell’s experts did not adduce any affirmative evidence that an avulsive event occurred.
Both experts admitted that they had no knowledge as to how the course of the river changed after
the original 1873 survey. Russell’s geographer stated that he had no way of knowing how the river
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had changed. Russell’s surveyor asserted that the river could have changed “different ways
possibly, some sudden, some over time.” However, beyond this speculation that the course of the
river could have changed suddenly, he could not point to any evidence specifically supporting
avulsion.
To the contrary, Humphrey opined that, after visiting the site in person, he did not see any
evidence that an avulsive event had taken place. He noted the lack of scouring or scoring of the
banks, which would have been an indication that avulsion had occurred. In his best estimation, he
believed that the river had moved over time rather than suddenly.
In the absence of any evidence of avulsion, we find that Russell did not present sufficient
evidence to overcome the statutory presumption. Viewing the evidence in the light most favorable
to Russell, we find that there is no genuine issue of material fact. Humphrey’s survey
presumptively established the location of the thread of the stream, which runs north of the property
in question, and Russell failed to overcome that presumption. We therefore find no merit in this
assignment of error.
REMAINING ASSIGNMENTS OF ERROR
Russell assigns three additional errors, concerning the district court’s ruling in regards to
Russell’s motion to compel interrogatories, its motion seeking authorization to serve Neb. Ct. Disc.
R. 6-334(A) subpoenas, and its objection to a portion of Dart’s affidavit on grounds of speculation
and conjecture. However, Russell’s brief contains no argument pertaining to these assignments of
error. An alleged error must be both specifically assigned and specifically argued in the brief of
the party asserting the error in order to be considered by an appellate court. See Olson v. Olson,
supra. We therefore do not address these assigned errors.
CONCLUSION
We conclude that the district court did not err in finding no genuine issue of material fact
as to the location of the thread of the stream, and thereby granting summary judgment in favor of
S & R. Furthermore, we find that the district court did not err in its rulings on the discovery motions
nor in overruling Russell’s foundation objection to Humphrey’s affidavit. We therefore affirm the
district court’s order in its entirety.
AFFIRMED.
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