Spady v. Pughes

- 373 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
Jerry Spady, appellee and cross-appellant,
v. Ron Pughes et al., appellees, and
Ben Engel and Andrea Engel,
appellants and cross-appellees.
___ N.W.3d ___
Filed January 28, 2025. 	No. A-23-1004.
1. Equity: Quiet Title. A quiet title action sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclusion inde-
pendent of the trial court’s determination.
3. Equity: Evidence: Appeal and Error. In an appeal of an equity action,
where credible evidence is in conflict on a material question of fact, an
appellate court considers and may give weight to the fact that the trial
court heard and observed the witnesses and their manner of testifying,
and accepted one version of the facts rather than another.
4. Damages: Appeal and Error. A fact finder’s decision as to the amount
of damages will not be disturbed on appeal if it is supported by the
evidence and bears a reasonable relationship to the elements of the dam-
ages proved.
5. Adverse Possession: Proof: Time. A party claiming title through
adverse possession must prove by a preponderance of the evidence that
the adverse possessor has been in (1) actual, (2) continuous, (3) exclu-
sive, (4) notorious, and (5) adverse possession under a claim of owner-
ship for a statutory period of 10 years.
6. Adverse Possession: Notice. To be effective against the true owner, acts
of dominion over land allegedly adversely possessed must be so open,
notorious, and hostile as to put an ordinarily prudent person on notice of
the fact that the lands are in the adverse possession of another.
7. Adverse Possession. If an occupier’s physical actions on the land
constitute visible and conspicuous evidence of possession and use of
the land, such will generally be sufficient to establish that possession
was notorious.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:36 AM CDT

- 374 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
8. ____. Where both parties have used the property in dispute, there can be
no exclusive possession by one party.
9. ____. The law does not require that adverse possession be evidenced by
complete enclosure and 24-hour use of the property. It is sufficient if the
land is used continuously for the purposes to which it may be adapted.
10. ____. Actual occupancy or possession is always involved in any claim
to land by adverse possession. No particular act is required to establish
actual possession. Rather, the acts required depend upon the character of
the land and the use that can reasonably be made of it.
11. Adverse Possession: Notice. The acts of dominion over land allegedly
adversely possessed must, to be effective against the true owner, be so
open, notorious, and hostile as to put an ordinarily prudent person on
notice of the fact that the lands are in adverse possession of another.
12. Adverse Possession. If an occupier’s physical actions on the land
constitute visible and conspicuous evidence of possession and use of
the land, that will generally be sufficient to establish that possession
was notorious.
13. ____. Although the enclosure of the land renders the possession of land
open and notorious, it is not the only way by which possession may be
rendered open and notorious. Nonenclosing improvements to land, such
as erecting buildings or planting groves or trees, which show an inten-
tion to appropriate the land to some useful purpose, are sufficient.
14. Adverse Possession: Title. Title may be acquired by adverse posses-
sion even though the claim of ownership was invalid and the occupant
believed the occupant was asserting legal rights only. The claim of
adverse possession is founded upon the intent of the occupant, such
intent being determined by the occupant’s acts. Intent, even though
mistaken, is sufficient where the claimant occupies to the wrong line
believing it to be true and even though the claimant does not intend to
claim more than that described by the deed. The possession of the occu-
pant is not less adverse because the occupant took and had possession
innocently and through mistake; it is the visible and exclusive posses-
sion with intention to possess the land occupied under the belief that it
belongs to the occupant that constitutes its adverse character.
15. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial process.
16. Estoppel. The doctrine of judicial estoppel prevents a party from taking
a position inconsistent with one successfully and unequivocally asserted
by the same party in a prior proceeding.
17. ____. Judicial estoppel is to be applied with caution so as to avoid
impinging on the truth-seeking function of the court, because the doc-
trine precludes a contradictory position without examining the truth of
either statement.

- 375 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
18. Judgments: Issue Preclusion. Issue preclusion applies where (1) an
identical issue was decided in a prior action, (2) the prior action resulted
in a final judgment on the merits, (3) the party against whom the doc-
trine is to be applied was a party or was in privity with a party to the
prior action, and (4) there was an opportunity to fully and fairly litigate
the issue in the prior action.
19. Property: Damages. Where the land damaged can be returned to its
prior condition by treatment, grading, or otherwise, the damage is tem-
porary and the landowner is entitled to such expenses as part of his or
her damages.
20. Actions: Property: Damages. In an action for compensatory damages
for cutting, destroying, and damaging trees and other growth, and for
related damage to the land, when the owner of land intends to use the
property for residential or recreational purposes according to his or her
personal tastes and wishes, the owner is not limited to the difference in
value of the property before and after the damage or to the stumpage or
other commercial value of the timber. Instead, the owner may recover as
damages the cost of reasonable restoration of the property to its preexist-
ing condition or to a condition as close as reasonably feasible. However,
the award for such damage may not exceed the market value of the
property immediately preceding the damage.
Appeal from the District Court for Adams County: Morgan
R. Farquhar, Judge. Affirmed.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellants.
Robert M. Sullivan, of Sullivan Law, P.C., L.L.O., for appel-
lee Jerry Spady.
William K. Rounsborg and Todd R. McWha, of Waite &
McWha Law Firm, for appellee Ron Pughes.
Riedmann, Chief Judge, and Moore and Welch, Judges.
Riedmann, Chief Judge.
I. INTRODUCTION
Ben Engel and Andrea Engel appeal from the order of the
district court for Adams County that quieted title to 1.36 acres
of land in Jerry Spady (Spady) under a theory of adverse pos-
session and awarded him damages. Spady cross-appeals from

- 376 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
the same order. Following our review, we affirm the judgment
of the district court.
II. BACKGROUND
1. Procedural History
In 1977, Spady purchased a parcel of land on Prairie Lake
Road near Hastings, Nebraska, which parcel we will refer to
throughout the opinion as the “Hastings property.” At the time,
it was a vacant lot and adjacent land was owned by the par-
ties’ predecessors. For simplicity’s sake, we will refer to that
land as belonging to the current owners. In 1979, Spady began
building a home on the lot, which home was finished in 1983
or 1984. Spady later built a detached garage next to the house,
which garage was likely completed by 1990. Approximately
10 to 20 feet of the garage encroached on the Engels’ prop-
erty. In 1999, Spady constructed a pond to the northwest of
his home. The pond encroached on the Engels’ land, as well
as adjacent land now owned by Ron Pughes and Jennifer
Pughes. Landscaping, including a Japanese garden and a koi
pond, that Spady added near the pond also encroached on
the Engels’ property. Additionally, Spady’s then wife, Sandy
Spady, “reforaged all of the forest in the back” that ran along
the 32 Mile Creek to the north of the property, and she planted
and maintained over 250 chokecherries in that area, which
also was on neighboring land.
When Ben began adding an addition to the home he pur-
chased from his father, he suspected the pond and garage
encroached on his property. In the spring of 2015, Ben had
the property surveyed, and it confirmed his suspicion. Ben
was concerned because the pond was only half full and his
dog had fallen in and could not get out. He met with Spady,
and Spady agreed to keep the pond full. According to Ben,
Spady told him during that conversation that because the
improvements were on Ben’s land, he was welcome to use
them anytime.

- 377 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
In November 2018, while Spady was out of town, Ben,
with Ron’s permission, used an excavator to fill in the pond,
effectively leveling it. In the process, railroad ties that had
been used to construct the pond were buried in the dirt. After
leveling the pond, the Engels and the Pugheses put up fences
and signs to mark the boundary lines of their respective
properties.
After Spady discovered the pond had been destroyed, he
had the property surveyed to determine the dimensions of the
area around the pond and other landscaping, which area was
shown to be an area of 1.36 acres. The northern portion of the
1.36 acres was a long panhandle running along the high water
mark of the 32 Mile Creek that stretched from the garage to
the pond, and then enclosed the pond area. The panhandle and
northwest portion of the pond was on the Engels’ property,
and the remainder was on the Pugheses’ property. Spady filed
this action to quiet title in the 1.36 acres in his name under a
theory of adverse possession. At trial, multiple witnesses testi-
fied and numerous exhibits were entered into evidence. The
following is a summary of evidence presented at trial relevant
to the issues on appeal.
2. Pond
(a) Construction of Pond
Records from Darrel Stromer, who constructed the pond,
showed that construction began in 1999. The site was exca-
vated, and the pond was constructed using railroad ties on the
outside to act as a wall. In order to preserve a large cotton-
wood tree that was within the excavated area, an island was
built around it in the middle of the pond. Spady and Sandy
piped in water from their irrigation well to fill the pond.
However, from the time the pond was built, it would not hold
water and Spady and Sandy continued to pump water into
the pond. Sometime after the pond was built, but prior to the
couple’s divorce proceedings, which took place from 2013 to

- 378 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
2015, Sandy placed a rubber liner in the pond; however, the
pond continued to lose water.
Photographs of the pond showed an area with flowers and
other landscaping surrounding it. Sandy planted daylilies and
other plants around the pond and assisted in installing a sprin-
kler system. Spady added light poles around the pond. A brick
pathway was created near the pond, and a garden area and koi
pond were added. According to several witnesses, the 1.36
acres appeared to be part of Spady’s backyard.
Rick Johnson, the owner of a sod company, saw the pond
sometime prior to 2014. He testified that Spady’s backyard
flowed into the pond area, which appeared to be part of
Spady’s property. Roger Ahlers, the owner of a lawn main-
tenance company, maintained the property around the pond
annually from 2005 until September 2018. Ahlers confirmed
that during his time working on Spady’s property, he was under
the impression that the area around the pond was Spady’s prop-
erty, because it was fenced in with railroad ties, had benches
and light poles, and looked like the rest of Spady’s yard.
(b) Condition of Pond After 2014
Sandy believed she and Spady stayed at the Hastings prop-
erty about 2 months out of the year, exclusively in the sum-
mer, from the time the pond was built until their divorce. In
an email sent near the time of the divorce, Spady represented
that he had not lived in Hastings for more than 2 months a
year since he had retired around the year 2000. Sandy was
granted exclusive use of the Hastings property at the begin-
ning of the 2013 divorce proceedings and stayed there until
September 2014. When she left the property, she believed
the pond was empty, dilapidated, and falling apart. There was
erosion on the banks, numerous floods had taken railroad ties
away, and the rubber liner was peeling back.
Spady took possession of the Hastings property after Sandy
moved out, and he spent time working to restore the property,
including the gardens and the “lake.” Spady removed the tree

- 379 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
and its island from the middle of the pond in an attempt to stop
the pond from leaking, but it continued to leak and Spady was
continually working to try and fix it.
Spady testified that he believed the 1.36 acres was included
in his purchase of the Hastings property, but, regardless, he
had used it. He denied seeing anyone using the 1.36 acres
without his permission after 1999. If he had seen someone
on the 1.36 acres without his permission, he would have told
them to get off the property. Spady thought taxes for the area
were included in his property taxes for the Hastings property,
but he did not know for sure. Sandy testified that Spady had
told her that he had permission from Ben’s father to “clean it
all up,” but Spady denied this.
As previously described, the 1.36 acres had a long panhan-
dle to the north running alongside the high water mark of the
32 Mile Creek from the garage to the pond, and then dipped to
the south to enclose the pond area. The surveyor Spady hired
to determine the area he was claiming by adverse possession
testified that he included part of an adjacent wooded area
slightly inside the 1.36 acres, but he could not quantify how
much. The surveyor used the high water mark of the nearby
creek for the northern boundary of the panhandle portion, and
he used the area of what appeared to have been disturbed and
excavated earth to determine the remaining boundaries in the
northwest section.
3. Engels’ Use of 1.36 Acres
The Engel family had originally owned the land now owned
by the Engels and the Pugheses, and Ben grew up on that
land from 1974 until about 1993 or 1994. He returned and
expanded the house on that land in 2014 or 2015. It is unclear
exactly when the property the Pugheses now own was sold
outside the Engel family, but it appears to have been some-
time around the year 2000. Ben testified that during his life,
including after the pond was built in 1999, he would use the
land his family owned, including the 1.36 acres at issue here.

- 380 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
Ben confirmed, however, that he did not use any of the land-
scaped or manicured portions of the 1.36 acres; rather, his use
was confined primarily to the wooded area along the perim-
eter of the 1.36 acres. Ben stated he would occasionally drive
an “ATV” through the wooded area; he also took walks and
sometimes picked up firewood in the wooded area.
Ben believed that he used the wooded area at least once a
year between 2004 and 2014; he moved into his current house
around 2015. Ben was asked to mark on an exhibit the area
of the 1.36 acres that contained trees. Most of the area he
identified along the southern and western border adjacent to
the pond was outside of the 1.36 acres; however, he identified
trees along the northern border within the 1.36 acres.
Ben testified that from 1983 through 2020, he would drive
an ATV between his parents’ house to his grandfather’s house,
which was south of the area, a few times a year. However,
when riding his ATV, he would not go on the landscaped
portions of Spady’s yard. Ben confirmed that when on the
narrower portion of the 1.36 acres, even when he crossed the
creek, he was not within 20 feet of the property line.
Michael Bauer, Ben’s friend, testified that he would use
the land with Ben, including the 1.36 acres, and had done
so throughout his life. Bauer also limited his use of the land,
stating they would have gone to the edge of the treed area but
would not have gone onto the landscaped portions. The only
time Bauer recalled being on the banks of the pond was around
the time Ben was building the addition in 2014 or 2015.
4. Condition of Pond in 2018
When the Pugheses purchased their property in 2018, Ron
was disappointed in the condition of the pond. He described it
as “an empty hole with trash and debris and T-Posts sticking
out the bottom of an empty hole.”
Ben testified that there was about a 2-year period after the
removal of the tree and island when the pond sat in the same
condition with no water and the liner showing. He described

- 381 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
debris at the bottom and a ripped liner, and he stated that
although some daylilies still grew, a lot of grasses and weeds
had taken over. Photographs taken during this time period con-
firmed his description. Ben was concerned because there were
electrical wires running up trees alongside the koi pond and
wires hanging from trees around the pond area; he was worried
about his children playing in the area.
Spady disputed that the pond had deteriorated over the years
prior to demolition. He asserted that the photographs identified
by Ben as being taken before demolition were actually taken
after the pond had been leveled. The maintenance worker who
performed Spady’s yardwork stated he considered the area to
be a well-manicured yard all the way up through September
2018. He stated the interior of the pond was “dug up,” but that
the exterior of the pond was in “good shape.”
5. Damages
The Pugheses’ counsel retained an appraiser who deter-
mined that the value of the 1.36 acres was $2,040 before the
leveling and that the leveling caused no change in value. The
same appraiser determined that the value of Spady’s entire
property, including the 1.36 acres, was $1 million, both before
and after the leveling of the pond. Spady presented testimony
to establish what it would cost to rebuild the pond to what
he believed was its former condition. This included bids to
replace an electrical system, sprinkler system, and landscaping.
We will provide additional facts related to the damages sought
in our analysis below.
6. District Court Order
The district court found that Spady had proved all the ele-
ments necessary to establish adverse possession. It found that
the Engels and the Pugheses had trespassed on the area when
Ben leveled the pond, awarded Spady damages to clean out
the buried debris, and awarded him the bid amount to repair
the damaged sprinkler system. However, it noted that it was

- 382 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
unclear what condition the pond was in when it was leveled.
The district court denied Spady damages for the electrical
system and for the cost of replacing damaged vegetation and
reconstruction of the pond due to lack of proof. Although the
district court found in favor of Spady on his claim for loss of
enjoyment and nuisance, it declined to award damages, find-
ing them to be “duplicative” of other requested damages. The
Engels appealed, and Spady filed a cross-appeal on the issue
of damages.
III. ASSIGNMENTS OF ERROR
The Engels assign, restated, that the district court erred in
quieting title in the 1.36 acres in favor of Spady because (1)
he failed to prove the elements of adverse possession, (2) his
chosen use of the 1.36 acres was a public nuisance, and (3)
his adverse possession claim was barred by judicial estoppel
and issue preclusion. The Engels also assign that the district
court erred in awarding Spady damages in excess of the market
value of the 1.36 acres prior to the leveling.
On cross-appeal, Spady assigns, reordered, that the district
court erred in (1) finding it needed to know the exact condi-
tion of the pond at the time of the leveling, (2) overlooking
the testimony of two of Spady’s witnesses, (3) failing to find
that elements of electrical damages were in evidence, and (4)
failing to award damages for his loss of use and enjoyment of
the property.
Spady argues, but does not assign, that the damages awarded
do not bear a reasonable relationship to the damages proved at
trial and that the damages awarded are insufficient to compen-
sate him for the damages caused by the leveling. However,
because he does not assign these as error, we will not address
them. An alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting error to
be considered by an appellate court. In re Interest of Quiotis
C., 32 Neb. App. 932, 9 N.W.3d 224 (2024).

- 383 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
IV. STANDARD OF REVIEW
[1,2] A quiet title action sounds in equity. Siedlik v. Nissen,
303 Neb. 784, 931 N.W.2d 439 (2019). On appeal from an
equity action, an appellate court decides factual questions de
novo on the record and, as to questions of both fact and law, is
obligated to reach a conclusion independent of the trial court’s
determination. Id.
[3] In an appeal of an equity action, where credible evi-
dence is in conflict on a material question of fact, an appellate
court considers and may give weight to the fact that the trial
court heard and observed the witnesses and their manner of
testifying, and accepted one version of the facts rather than
another. Id.
[4] A fact finder’s decision as to the amount of damages will
not be disturbed on appeal if it is supported by the evidence
and bears a reasonable relationship to the elements of the dam-
ages proved. Funk v. Lincoln-Lancaster Cty. Crime Stoppers,
294 Neb. 715, 885 N.W.2d 1 (2016).
V. ANALYSIS
1. Engels’ Appeal
(a) Adverse Possession
[5] The Engels assign that the district court erred in quiet-
ing title of the 1.36 acres in Spady, because he failed to prove
the elements of adverse possession. A party claiming title
through adverse possession must prove by a preponderance of
the evidence that the adverse possessor has been in (1) actual,
(2) continuous, (3) exclusive, (4) notorious, and (5) adverse
possession under a claim of ownership for a statutory period
of 10 years. Brown v. Morello, 308 Neb. 968, 957 N.W.2d
884 (2021).
[6,7] To be effective against the true owner, acts of domin-
ion over land allegedly adversely possessed must be so open,
notorious, and hostile as to put an ordinarily prudent person
on notice of the fact that the lands are in the adverse posses-
sion of another. Id. If an occupier’s physical actions on the

- 384 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
land constitute visible and conspicuous evidence of possession
and use of the land, such will generally be sufficient to estab-
lish that possession was notorious. Id.
[8,9] Where both parties have used the property in dispute,
there can be no exclusive possession by one party. Id. But the
law also does not require that adverse possession be evidenced
by complete enclosure and 24-hour use of the property. Id. It
is sufficient if the land is used continuously for the purposes
to which it may be adapted. Id. Evidence must show the inten-
tion of the claimant to appropriate and use the property as his
or her own to the exclusion of all others. Id.
(i) Actual
[10] Actual occupancy or possession is always involved
in any claim to land by adverse possession. Wanha v. Long,
255 Neb. 849, 587 N.W.2d 531 (1998). No particular act is
required to establish actual possession. Id. Rather, the acts
required depend upon the character of the land and the use that
can reasonably be made of it. Id. Spady built a garage, and a
portion of the garage was on the land in dispute and remained
there from the time it was built until the present action was
filed. Although the exact time the garage was built was not
known, it appeared from the evidence to have happened prior
to 1990.
In 1991 or 1992, Sandy “reforaged all of the forest in the
back” with chokecherries and “things for the wildlife.” She
gathered wild violets and planted them in the woods. As
related to the pond, in 1999, Spady hired Stromer to clear the
area and excavate the dirt, and then the excavated area was
filled with water. Sandy built a brick pathway, a koi pond,
and a Japanese garden. She planted daylilies around the pond.
Spady added light poles and a sprinkler system to the area.
These elements all remained on the land, at least until 2018.
Johnson believed Spady’s entire backyard included the
pond. Ahlers was under the impression the area around the
pond belonged to Spady because it was fenced in with railroad

- 385 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
ties, had benches and light poles, and looked like the rest of
Spady’s yard. Sandy gardened all the property, including the
northwest corner and the 1.36 acres. Sandy held different
events on the property to raise money for community organi-
zations and projects; she confirmed this included giving tours
through the 1.36 acres. Building a garage, a pond, and land-
scaping the area, along with hosting guests, is consistent with
the character of the land and the use that could be made of it.
Spady had actual possession of the property at issue.
(ii) Continuous
The Engels argue that Spady did not continuously possess
the 1.36 acres because he was only present at the Hastings
property seasonally. But the law does not require that adverse
possession be evidenced by complete enclosure and 24-hour
use of the property. Brown v. Morello, 308 Neb. 968, 957
N.W.2d 884 (2021). It is sufficient if the land is used con-
tinuously for the purposes to which it may be adapted. Id.
Evidence must show the intention of the claimant to appropri-
ate and use the property as his or her own to the exclusion of
all others. Id.
Here, the development of the ponds, the erection of the
garage, and the establishment of the brick pathway and land-
scaping support a finding that the land was adapted for
Spady’s enjoyment of the land. The evidence further supports
a finding that the Spadys, through their fundraisers and other
events that they hosted which included use of the 1.36 acres,
continuously used the land for the purpose for which it was
adopted. Although Spady was not always on the property, the
changes he made to the land, such as the garage, pond, and
landscaping, evince the continuous use for which it had been
adapted. Spady returned at regular intervals and used these
features. The evidence was sufficient to show continuous
possession.
In their reply brief, the Engels rely in part on Hardt v.
Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984), to support their

- 386 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
position that Spady’s seasonal use does not satisfy the continu-
ous use requirement. In Hardt, however, the Nebraska Supreme
Court noted that “[t]here [was] no evidence that the hunting-
related activity was such as would give notice to anyone that
title to real estate was being claimed by adverse possession.”
218 Neb. at 83, 352 N.W.2d at 585. We find Hardt to be dis-
tinguishable from the present case. Here, Spady made physical
changes to the land. He built a garage, pond, brick pathway,
koi pond, and Japanese garden. Sandy planted daylilies, vio-
lets, and chokecherries. Unlike the situation in Hardt, these
signs of ownership were permanent and remained continuously
on the land, giving notice to everyone that title to real estate
was being claimed by adverse possession. Under the circum-
stances of this case, Spady showed continuous use.
(iii) Exclusive
We find the evidence established that Spady’s use of the
1.36 acres was exclusive for at least 10 years. Although the
Engels do not argue that Spady did not have exclusive pos-
session of the manicured and landscaped portions of the 1.36
acres, they contend that he did not exclusively possess the
wooded area along the northern boundary he now claims. They
argue this area “is natural woodland that was never developed
by the Spadys at all.” Brief for appellants at 24.
The survey reflects the northern boundary on a diagram;
there is no photograph upon which this diagram is imposed
that would precisely show how much of the wooded area
is included in the 1.36 area. The surveyor testified that the
wooded area was “slightly inside” of the 1.36 acres, but he
was unable to quantify the extent. Rather, he testified that he
used the high water mark of the 32 Mile Creek as the north-
ern boundary. Spady confirmed that the creek did not abut
the boundary of the 1.36 acres. According to Spady, the land
between the creek and the boundary is “part of the creek bed
. . . there’s a lot of wooded — fall — downed trees and stumps
and it’s — it’s lowland and it’s a lot lower than the yard.”

- 387 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
Evidence regarding Spady’s use of this area includes Sandy’s
testimony that she planted 250 chokecherry trees in “the for-
est” and that she “reforaged all of the forest in the back.” She
gathered wild violets and planted them in the woods. Sandy
additionally testified that she worked with Ben’s father to clear
log jams out of the creek. Ron testified that there were wires
“on top of the creek” and “pipes and pumps” “pumping out of
the creek.” We find this evidence refutes the Engels’ argument
that Spady did not develop or use the wooded area.
We 	recognize 	there 	was 	conflicting 	evidence 	presented
regarding whether Ben had been in the wooded area of the
1.36 acres after the pond was built. Spady testified that he had
not seen anyone that had not been given permission on the
property in question. Ben and Bauer both testified that during
the time in question, they used the 1.36 acres, but Bauer clari-
fied that they never went on the mowed or landscaped areas.
Ben confirmed that he stayed away from the landscaped areas.
In their brief on appeal, the Engels rely on a 2001 survey
and photographic evidence dating from 2015 to show that
Spady did not have exclusive use of the land. They do not
explain how simply having a survey of the entire addition
done in 2001 proves nonexclusive possession. Nor do photo-
graphs depicting use by the Engels in 2015 and later negate
a finding that Spady had established exclusive possession by
using the property for a 10-year period after its construction
in 1999.
Further, even if Ben had sporadically, over the 10-year
period, been on a small portion of the 1.36 acres, this would
not have been sufficient to interrupt Spady’s exclusive pos-
session. In Nye v. Fire Group Partnership, 265 Neb. 438,
657 N.W.2d 220 (2003), the Supreme Court, when discussing
exclusivity of use, noted that the adverse possessors presented
evidence that they never saw the record owner on the prop-
erty. Because that case involved a grant of summary judg-
ment, the court noted that whether the record owner used a
part of the tract was an issue of material fact relevant to the

- 388 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
determination of exclusivity. It stated that “even if [the record
owner] occasionally parked machinery on the property and
used part of it as a turnaround, the frequency of the use affects
a determination of exclusivity.” Id. at 445, 657 N.W.2d at 226
(emphasis supplied). This suggests sporadic use may be insuf-
ficient to interrupt the exclusive possession of the adverse
possessor and is dependent upon the frequency of the use.
Additionally, “sporadic use, temporary presence, or permis-
sive visits by the record owner will not defeat the exclusivity
element of adverse possession.” 2 C.J.S. Adverse Possession
§ 59 at 573-74 (2023). Even if Ben had sporadically used a
small portion of the 1.36 acres in the manner he testified to
at trial, it would not have been sufficient to interrupt Spady’s
exclusive possession.
(iv) Notorious
[11-13] The acts of dominion over land allegedly adversely
possessed must, to be effective against the true owner, be so
open, notorious, and hostile as to put an ordinarily prudent
person on notice of the fact that the lands are in adverse pos-
session of another. Poullos v. Pine Crest Homes, 293 Neb. 115,
876 N.W.2d 356 (2016). If an occupier’s physical actions on
the land constitute visible and conspicuous evidence of pos-
session and use of the land, that will generally be sufficient
to establish that possession was notorious. Id. Although the
enclosure of the land renders the possession of land open and
notorious, it is not the only way by which possession may
be rendered open and notorious. Id. Rather, nonenclosing
improvements to land, such as erecting buildings or planting
groves or trees, which show an intention to appropriate the
land to some useful purpose, are sufficient. Id.
Here, the physical alterations to the land previously described
show an intention to appropriate the land to a useful purpose.
The district court described the area as “a well-manicured,
beautiful pond area complete with green grass, lush beds of
daylily flowers, lighting, and other improvements.”

- 389 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
These acts and changes to the land were sufficiently notori-
ous to put an ordinarily prudent person on notice that the lands
were in the adverse possession of another, and to give notice
to adjoining record owners that their title or ownership was in
danger. See Poullos v. Pine Crest Homes, supra.
(v) Adverse Under Claim of
Ownership for 10 Years
The evidence established that the garage was constructed
by 1990. Spady clearly adversely possessed the area with the
garage for a period of more than 10 years. The pond was built
in 1999 and remained until it was leveled in 2018. Sandy
believed the brick pathway and koi pond were built sometime
in the 1990s. At trial, Spady testified that the koi pond was still
there. The evidence clearly established that Spady possessed
these areas for more than 10 years.
[14] We acknowledge that Sandy testified that Spady told
her he had permission from Ben’s father to “clean up” the
area where the pond was eventually built, but Spady disputed
this. Spady testified that he thought he had purchased the
property at issue, but even if mistaken, this does not defeat his
claim that he adversely possessed it. Title may be acquired by
adverse possession even though the claim of ownership was
invalid and the occupant believed the occupant was asserting
legal rights only. Wanha v. Long, 255 Neb. 849, 587 N.W.2d
531 (1998). The claim of adverse possession is founded upon
the intent of the occupant, such intent being determined by the
occupant’s acts. Id. Intent, even though mistaken, is sufficient
where the claimant occupies to the wrong line believing it to
be true and even though the claimant does not intend to claim
more than that described by the deed. Id. The possession of
the occupant is not less adverse because the occupant took
and had possession innocently and through mistake; it is the
visible and exclusive possession with intention to possess the
land occupied under the belief that it belongs to the occupant
that constitutes its adverse character. Id. We find that Spady

- 390 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
established that he adversely possessed the 1.36 acres under a
claim of ownership for a period of 10 years. The district court
did not err in quieting title to the 1.36 acres in Spady.
(b) Public Nuisance
The Engels assign that the district court erred in quieting
title in Spady because his use of the 1.36 acres created a public
nuisance that bars his adverse possession claim. They assert
adverse possession cannot be obtained over a public nuisance.
Their argument is premised on alleged violations of Adams
County zoning regulations and Nebraska drainage statutes.
(i) Additional Facts
The 32 Mile Creek is to the north of Spady’s property and
runs west to east through the Engels’ and the Pugheses’ prop-
erty. The land between the creek and the 1.36 acre parcel is
wooded and is part of the creekbed. At trial, Sandy testified
that to her knowledge, the Hastings property was in a flood
zone. The Pugheses offered the 2010 Adams County zoning
regulations, as amended through 2016, into evidence. The dis-
trict court took judicial notice of the document and directed
the parties to reference the specific flood plain sections upon
which they relied in their posttrial briefs. The Engels offered
flood plain regulations into evidence, but the district court did
not receive the exhibit.
Ben described the creek as having two different levels:
The wooded area is where the water flows. All of that
wooded area is where water flows through. It’s not just
the little channel that trickles when irrigation water runs
through it. Most of the time it’s dry, and then — until the
spring or irrigation starts up, and then it floods.
Ben admitted that he never needed to contact a government
official to seek remedy for the “blockage of the waterway”
before the demolition, nor did he recall ever telling Spady he
was concerned about the diversion of water in the creek or any
flooding caused by the berm around the pond.

- 391 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
(ii) Analysis
The Engels argue that the evidence showed that Spady’s
actions 	violated 	Adams 	County 	zoning 	regulations 	and
Nebraska drainage statutes. The Engels cite to cases both in
and outside of our jurisdiction that they contend stand for the
proposition that one cannot obtain land by adverse possession
if the land is used to maintain a public nuisance.
As it relates to the Adams County zoning regulations, the
Engels argue only that the regulations require a permit to build
in a flood plain and that because Spady did not obtain a per-
mit prior to digging the pond, it was “illegal” for him to do
so. Brief for appellants at 32. There is no evidence, however,
that the 2010 zoning regulations were in effect in 1999 when
the pond was dug. Furthermore, the Engels provide no legal
authority for their implied conclusion that building without a
permit required by local zoning regulations constitutes a public
nuisance or precludes a party from obtaining title to the land
upon which the party builds by adverse possession. Rather,
they rely upon Neb. Rev. Stat. § 28-1321(2) (Reissue 2016),
the general criminal nuisance statute, and Neb. Rev. Stat.
§ 31-221 (Reissue 2016), the statute imposing penalties for
obstructing a watercourse, as support for their argument that
Spady’s use of the 1.36 acres constituted a public nuisance.
We disagree.
Section 28-1321(2) states in pertinent part that “the obstruct-
ing or impeding, without legal authority, of the passage of any
navigable river, harbor, or collection of water; . . . or unlaw-
fully diverting any such watercourse from its natural course
or state to the injury or prejudice of others; . . . shall be
deemed nuisances.” Section 31-221 makes it a misdemeanor
for any person to “willfully fill up, injure or destroy any
watercourse.” The Engels assert that Spady’s construction of
the pond diverted the nearby creek, causing damage to their
property. However, the validity of their argument rests upon
proof that Spady’s actions constituted diversion of a water-
course. “Watercourse” is defined as “[a]ny depression or draw

- 392 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
two feet below the surrounding lands and having a continuous
outlet to a stream of water, or river or brook . . . .” Neb. Rev.
Stat. § 31-202 (Reissue 2016).
The Engels argue that the creek at issue here is a “water-
course” because Spady testified that the creek is “probably 10
feet lower than my yard.” However, this testimony is insuffi-
cient to prove the creek was a watercourse.
In Belsky v. County of Dodge, 220 Neb. 76, 369 N.W.2d
46 (1985), the Supreme Court determined that a landowner’s
failure to produce evidence that a creek met the statutory defi-
nition of watercourse was fatal to his claim seeking an injunc-
tion against the county for obstructing drainage from his
farm. Although it was established that there was an adjacent
creek, the record was void of the remaining elements. The
court stated: “The destination of [the creek] is undisclosed.
Absence of such evidence precludes any finding that [the
creek] is a watercourse within § 31-202. We conclude that
there is no statutory watercourse involved in the case before
us.” Id. at 81, 369 N.W.2d at 51.
Likewise, in the present case, the evidence supports the
existence of a creek near the 1.36 acres; however, there is no
evidence to support that the creek led to a continuous outlet
as required by statute. We find the Engels failed to prove that
Spady’s use of the land constituted a public nuisance due to
diversion of a “watercourse.”
(c) Judicial Estoppel and Issue Preclusion
The Engels assign that the district court erred in quieting
title to the 1.36 acres in favor of Spady because he did not
disclose ownership of the land during his divorce proceedings.
They assert that the doctrines of judicial estoppel and issue
preclusion now bar Spady from asserting ownership of that
land. We disagree and will address each doctrine in turn.
(i) Additional Facts
Spady testified that when he purchased the property in 1977,
it was so long ago that he had no way of knowing what he

- 393 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
had purchased. He testified that he thought he had purchased
it and owned it. An appraisal completed in 2013 for Spady’s
divorce proceedings indicates that the appraiser included the
1.36 acres as part of the property, noting that the property had
“two ponds stocked with various fish species” and including
photographs of the area.
(ii) Analysis
[15-17] Judicial estoppel is an equitable doctrine that a
court invokes at its discretion to protect the integrity of the
judicial process. Clemens v. Emme, 316 Neb. 777, 7 N.W.3d
166 (2024). The doctrine of judicial estoppel prevents a party
from taking a position inconsistent with one successfully and
unequivocally asserted by the same party in a prior proceed-
ing. See id. Judicial estoppel is to be applied with caution so
as to avoid impinging on the truth-seeking function of the
court, because the doctrine precludes a contradictory position
without examining the truth of either statement. Id. Before a
court may apply the judicial estoppel doctrine, bad faith or
an actual intent to mislead on the part of the party asserting
inconsistent positions must be demonstrated. See id.
The Engels argue that during Spady’s divorce proceedings,
he should have disclosed any interest he had in the 1.36 acres,
and that he failed to do so. Thus, they argue, he cannot claim
it now. However, as noted above, there must be bad faith or
an actual intent to mislead demonstrated on the part of the
party asserting inconsistent positions. The Engels make no
such assertion.
Based on the evidence cited above, Spady appeared to
believe at the time of his divorce that the Hastings property
included the 1.36 acres and the Hastings property was awarded
to him in the divorce. Upon discovering that this 1.36 acres
was not included in his property, he filed this action to quiet
title. The district court did not err in concluding that judicial
estoppel did not preclude it from quieting title to the 1.36 acres
in Spady.

- 394 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
[18] The Engels also assign that the district court erred
in quieting title to the 1.36 acres in Spady because Spady
is barred by the doctrine of issue preclusion from asserting
ownership in the 1.36 acres. Issue preclusion, also referred
to as collateral estoppel, applies where (1) an identical issue
was decided in a prior action, (2) the prior action resulted in
a final judgment on the merits, (3) the party against whom the
doctrine is to be applied was a party or was in privity with a
party to the prior action, and (4) there was an opportunity to
fully and fairly litigate the issue in the prior action. Fraternal
Order of Police Lodge #88 v. State, 316 Neb. 28, 3 N.W.3d
82 (2024).
We find the final factor to be dispositive and do not address
the other factors. In the divorce proceeding between Spady
and Sandy, there was not an opportunity to litigate a quiet title
action that involved third parties. As such, issue preclusion
does not apply in this case. The district court did not err in
determining that issue preclusion did not prevent it from quiet-
ing title to the 1.36 acres in Spady.
(d) Damages in Excess of Market Value
The Engels assign that the district court erred in awarding
Spady damages that were in excess of the market value of
the 1.36 acres. They argue that the Supreme Court’s decision
in Keitges v. VanDermeulen, 240 Neb. 580, 483 N.W.2d 137
(1992), precludes Spady from recovering more than the market
value of the land immediately preceding the damage, and that
Russell v. Franklin County, 27 Neb. App. 684, 934 N.W.2d
517 (2019) (Russell I), limits recovery to the market value of
the 1.36 parcel. We disagree.
[19,20] The Supreme Court has previously stated that in
determining the proper measure of damages, “‘where the land
damaged can be returned to its prior condition by treat-
ment, grading, or otherwise, the damage is temporary and the
landowner is entitled to such expenses as part of his or her
damages.’” Keitges v. VanDermeulen, 240 Neb. at 589, 483

- 395 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
N.W.2d at 143, quoting Kula v. Prososki, 228 Neb. 692, 424
N.W.2d 117 (1988). The court explained:
One person’s unsightly jungle may be another person’s
enchanted forest; certainly the owner of such land should
be allowed to enjoy it free from a trespasser’s bulldozer.
Indeed, a trespasser should not be allowed, with impunity,
to negligently or willfully wreak havoc on a landowner’s
natural woods, and the landowner’s attempted recovery
for such injury should not be entirely frustrated by the
fact that the market does not reflect his personal loss.
Thus, we hold that in an action for compensatory dam-
ages for cutting, destroying, and damaging trees and other
growth, and for related damage to the land, when the
owner of land intends to use the property for residential
or recreational purposes according to his personal tastes
and wishes, the owner is not limited to the difference in
value of the property before and after the damage or to
the stumpage or other commercial value of the timber.
Instead, he may recover as damages the cost of reason-
able restoration of his property to its preexisting condi-
tion or to a condition as close as reasonably feasible.
However, the award for such damage may not exceed
the market value of the property immediately preceding
the damage.
Keitges v. VanDermeulen, 240 Neb. at 589-90, 483 N.W.2d
at 143.
Based on Keitges, Spady is entitled to reasonable restoration
damages, limited by the market value of the property immedi-
ately preceding the damage. See, also, “L” Investments, Ltd.
v. Lynch, 212 Neb. 319, 322 N.W.2d 651 (1982). The Engels
argue that Spady’s restoration damages are capped by the fair
market value of the 1.36 acres as determined by the Pugheses’
appraiser. They contend that “[u]nder the Keitges rule, this
is the maximum cap on damages . . . Spady can recover for
damage to his real estate and fixtures.” Brief for appellants at
39. They rely upon dicta contained in Russell I, supra, in sup-
port of this limitation.

- 396 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
In Russell I, the plaintiffs filed an inverse condemnation
case after the county removed trees from their property. The
district court granted summary judgment in favor of the county,
determining that the proper measure of damages was the
diminution in value of the land after the taking and awarded
plaintiffs that amount. Id. On appeal, a majority of this court
affirmed. Id. In rejecting plaintiffs’ argument that they were
entitled to the costs of restoring the trees taken, the majority
noted that the damages sought exceeded the fair market value
of the property. In making this determination, the majority
observed that plaintiffs sought recovery for replacing trees on a
parcel of land that comprised approximately 1 percent of their
entire property. It determined, in dicta, that even if the cost of
restoration was the proper measure of damages, the damages
sought exceeded 1 percent of the value of the entire tract. It
ultimately determined that the proper measure of damages was
the difference in the fair market value of the land before and
after the taking and affirmed the district court’s grant of sum-
mary judgment in favor of the county, which limited plaintiffs’
damages to that amount. Id.
On further review, the Supreme Court affirmed the result
reached by this court. It concluded that the plaintiffs in Russell
I were not entitled to restoration damages, but instead were
limited to diminution in market value damages. See Russell
v. Franklin County, 306 Neb. 546, 946 N.W.2d 648 (2020)
(Russell II). Based on expert testimony received at the sum-
mary judgment hearing, the court affirmed the district court’s
order granting the county’s motion for summary judgment
and awarding the plaintiffs damages of $200. Id. A review
of Russell I reveals that the diminution in value of $200 was
derived at by determining the value of the “entire property
before the taking” and subtracting from that amount the prop-
erty’s value after the taking. See Russell I, 27 Neb. App. at
687, 934 N.W.2d at 520.
Following the rationale of utilizing the change in value
of the entire tract when determining diminution in value, we

- 397 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
conclude that limiting the fair market value of the Spady prop-
erty to the value of the 1.36 parcel over which he obtained
ownership by adverse possession would be erroneous. The evi-
dence supports that the 1.36 acres was a contiguous extension
of the land Spady purchased and upon which he built his home.
The 2013 appraisal conducted in conjunction with Spady and
Sandy’s divorce described the property as having “extensive
landscaping. There are two ponds well stocked with various
fish species. There are many tree and flower plantings. The
32 Mile Creek flows through the property.” The photographs
incorporated in the appraisal include the 1.36 acres. Based on
this appraisal, and testimony from Johnson and Ahlers that
Spady’s backyard appeared to be one contiguous piece of land
that included the pond and surrounding areas, we see no reason
to isolate this small parcel from the rest of Spady’s property
when determining its market value.
We find further support for our decision in the Restatement
(Second) of Torts § 929 (1979). Although addressing diminu-
tion in value, its comment states that “[i]f only a portion of the
tract of land has been directly harmed, the diminished value of
the entire tract is considered.” Id., comment a. at 545. Another
comment explains that “when a garden has been maintained in
a city in connection with a dwelling house, the owner is enti-
tled to recover the expense of putting the garden in its original
condition even though the market value of the premises has not
been decreased by the defendant’s invasion.” Id., comment b.
at 546. In these examples, the land that has been damaged is
not isolated from the property as a whole.
The Supreme Court has stated that § 929 is consistent with
its decision in “L” Investments, Ltd. v. Lynch, 212 Neb. 319,
327, 322 N.W.2d 651, 656 (1982), quoting Schiltz v. Cullen-
Schiltz & Assoc., Inc., 228 N.W.2d 10 (Iowa 1975), wherein
that court stated:
“[T]he principle underlying allowance of damages is to
place the injured party in the same position, so far as
money can do it, as he would have been had there been

- 398 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
no injury or breach of duty, that is, to compensate him for
the injury actually sustained . . . .
. . . .
“Where the injury is such that the premises may be
restored to as good condition as it was before, the mea-
sure of recovery is the fair and reasonable cost and
expense of such restoration.”
Here, Spady’s property was one contiguous parcel that
included his home, the garage, the landscaped area, the brick
pathway, the koi pond, and the pond that was eventually
destroyed. Under Keitges v. VanDermeulen, 240 Neb. 580, 483
N.W.2d 137 (1992), Spady may recover the cost of reason-
able restoration to the land’s preexisting condition, or as close
as possible, and evidence related to the land’s diminution in
value has no relevance. However, the award for such damage
may not exceed the market value of the property immediately
preceding the damage. See id. As explained above, we con-
clude the market value is not limited to the 1.36 acres, but,
rather, includes the whole of the Spady property.
The most recent appraisal introduced at trial was conducted
by an appraiser hired by the Pugheses’ counsel. In August
2022, the appraiser determined that Spady’s property had a
value of $1 million and that this was the value both before
and after the destruction of the pond. Using this appraisal, the
value of the property prior to the pond’s destruction was $1
million; therefore, Spady could not be awarded more than that
amount to restore the land to its condition prior to the damage.
Here, the district court awarded Spady total restoration dam-
ages of $60,095. This being less than the fair market value of
the property prior to the pond’s destruction, the district court
did not err in its award of damages.
2. Spady’s Cross-Appeal
(a) Knowledge of Pond’s Condition
Spady assigns that the district court erred in finding that it
needed to know the exact condition of the 1.36 acres at the

- 399 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
time of leveling. He argues that because the Engels chose to
level the pond with no warning, they should bear the burden
of proving the exact condition of the property. He further
argues that he provided evidence that the 1.36 acres was in
good or very good condition almost to the day of the leveling
through photographs and testimony of the lawn care worker
who maintained the yard. The district court noted that it was
unable to award costs related to replacement of vegetation
and reconstruction of the pond because it did not know “the
exact condition of the disputed property at the time” it was
destroyed. Although the district court did not need to know the
exact condition of the property, it did need to know its general
condition in order to determine whether the costs requested
were true restoration costs.
Although Spady provided several photographs that showed
a beautiful, landscaped pond and surrounding area, he could
only identify the timeframe of the photographs as after the
pond was constructed, and possibly before 2015. Conversely,
the Engels and the Pugheses provided photographs that were
taken much closer in time to the leveling of November 2018,
which photographs showed an empty hole with vegetation
growing in it, an exposed liner with some rips, and rail-
road ties.
Spady argues that the burden of proof as to the property’s
condition should have been on the Engels because they “chose
to do this without any forwarning [sic].” Brief for appellee at
29. But damages are an element of a plaintiff’s cause of action.
See Bedore v Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68
(2011). The evidence adduced by the Engels and the Pugheses
contradicted Spady’s evidence of the pond’s condition. Given
the conflicting evidence of the property’s condition, we find
no error in the court’s refusal to award damages for vegetation
replacement and pond reconstruction.
(b) Witness Testimony
Spady assigns that the district court erred in disregarding
the testimony from two of his witnesses, Stromer and Johnson.

- 400 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
Both witnesses prepared bids for the cost to clean the debris
and to rebuild the pond. Spady argues that their testimony
regarding the cost of restoring the property to what Spady said
was its former condition was uncontradicted.
As set forth above, the district court refused to award dam-
ages to restore the pond because it was unable to determine
its condition at the time of destruction. We found no error
in that regard. Consequently, the court did not err in deny-
ing Stromer’s and Johnson’s estimates for restoration of the
pond. We note the court awarded damages for the cleanup and
disposal of the railroad ties and liner and utilized Johnson’s
estimate of $55,100, which exceeded that of Stromer’s estimate
of $41,500.
(c) Electrical Damages
Spady assigns that the district court erred in failing to find
that elements of the electrical damages were in evidence.
(i) Additional Evidence
As it related to the electrical aspect of the 1.36 acres, Spady
described that there were light poles around the lake. Spady
testified that after the leveling of the pond, the electricity
in the koi pond area and other areas of the yard would not
work; he stated that the lines had been cut and everything was
unhooked. Spady confirmed that there was electrical work in
the 1.36 acres that was temporary in nature, including the use
of extension cords. Spady agreed that in his deposition, he had
stated that the only electrical work that he knew where there
would have been inspectors was his gazebo area, because some
of the lighting was only temporarily installed. He testified,
however, that the light poles were permanently installed.
Spady provided the testimony of two electricians who pro-
vided estimates for the electrical work to be performed on
the pond area. One electrician testified that his bid would be
to replace everything up to code, but he did not know if the
electrical work that had previously been installed had been up
to code. The other electrician had never seen the area prior to

- 401 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
the leveling; rather, Spady provided much of the information.
The bid was based on the scope of the electrical work that
Spady described, along with the electrician’s visit to the site.
(ii) Analysis
Spady argues that two independent experts provided esti-
mates of fair and reasonable costs to restore damaged elec-
trical components to their former conditions. Spady argues
the Engels did not offer evidence to contradict this evidence.
However, Spady’s evidence as to the electrical costs suffers
from the same shortcoming as his request for pond restoration
damages. The district court found that although the Engels and
the Pugheses should pay the cost of damages to the electri-
cal system, Spady had failed to prove the necessary elements
related to the damage to the electrical system.
It is unclear from this record what type of electrical system
was in place in and around the 1.36 acres prior to the level-
ing. Spady is entitled to recover the cost to repair or replace
the damage done by the trespass, but he is not entitled to the
cost of improving or upgrading what was damaged. To deter-
mine the extent of that damage, the district court first needed
to know what type of electrical system existed before the
leveling. There was little information presented regarding the
electrical system in place prior to the leveling. For example,
light poles were undisputedly erected around the pond, but
there were wires hanging from trees around the area. Spady
admitted much of the electrical work was temporary and that
the only inspected area would have been around the gazebo.
The estimates offered at trial were for permanent and code-
compliant work. We find no error in the district court’s refusal
to award damages for electrical work that enhanced, rather
than replaced, the existing electrical work.
(d) Loss of Use and Enjoyment
Spady assigns that the district court erred in failing to award
him damages for his loss of use and enjoyment in the 1.36
acres due to the leveling of the pond area. Spady’s complaint

- 402 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
SPADY v. PUGHES
Cite as 33 Neb. App. 373
alleged that a private nuisance was created because destroying
the pond reverted the area back into a low-lying wet area that
harbored mosquitos and weeds and that burying the railroad
ties created a new nuisance on Spady’s property. The district
court found for Spady on this claim, but did not award addi-
tional damages. The district court stated that the damages
awarded on this claim would be duplicative, as they related to
the actual damage done to the property, and that no specific
request or evidence as to any other theory of recovery was pre-
sented to justify an award.
The district court determined that upon proof of sufficient
evidence, the Engels and the Pugheses would be liable under a
trespass theory for the costs to replace the sprinkler and irriga-
tion system, replace the electrical system, clean up, replace the
vegetation, and reconstruct the pond, but limited recovery to
the pond cleanup and sprinkler and irrigation system repair due
to the lack of proof by Spady.
Although Spady asserted a claim for loss of use, he did not
attempt to quantify a value for this claim at trial, nor did he
present evidence of the extent he currently used the property.
See Russell II, supra (observing that no loss of use dam-
ages were identified by parties). Evidence was presented that
during his marriage to Sandy, the couple would host social
events and fundraisers, but the marriage ended in 2015. Given
Spady’s testimony that he was at the Hastings property only
approximately 2 months a year and the absence of any evi-
dence as to activity on the land since Spady regained posses-
sion of the property in 2015, we find no error in the district
court’s refusal to award additional damages on this claim.
VI. CONCLUSION
We find that the district court did not err in quieting title in
the 1.36 acres in Spady, nor did it err in its award of damages.
We therefore affirm the judgment of the district court.
Affirmed.