## Facts

- Arthur Schmidt owned riparian land on the north bank of the Platte River in Merrick County, Nebraska, and Thomas E. Babel owned riparian land on the south bank directly across from Schmidt.
- Under the parties’ deeds and Nebraska riparian law, each tract extended to the river’s “thread” (the deepest part of the main channel), and the parties’ riparian ownership included islands within the river.
- The dispute centered on ownership of island and riverbed lands between the banks, including “Island No. 3” (record title in the Schmidts) and “Island No. 5” (record title in Babel), situated on opposite sides of the present thread.
- The parties stipulated to the current location of the thread of the stream in the area at issue.
- The Platte River’s course had changed over time; the parties disagreed whether the change occurred suddenly (avulsion) or gradually (accretion and reliction).
- Schmidt (and later his heirs, the Schmidts) claimed a sudden avulsive event—such as a flood or ice jam—shifted the channel, so the legal boundary remained at the historic thread rather than the present thread.
- To support avulsion, the Schmidts offered testimony from Graves (a surveyor), who suggested an ice jam or flood could have caused a rapid shift, and Joeckel (a geology professor), who testified about soil deposits and island characteristics.
- Babel contended the river changed course gradually by accretion and reliction, so the boundary moved with the river and was the current, stipulated thread.
- The district court accepted the Schmidts’ avulsion theory and entered a decree fixing the boundary as alleged in their counterclaims under Neb. Rev. Stat. § 34-301, rather than at the current thread.
- Babel appealed.

## Issues

1. Whether the Schmidts proved, by the required standard of proof, that the Platte River’s change in course resulted from avulsion so that the boundary remained at the former thread rather than moving with the river’s current thread.
2. Whether speculative or equivocal testimony, consistent with either gradual change or a sudden event, is sufficient to establish avulsion and displace the default rule that the boundary follows the thread of the stream.

## Decision

- The Nebraska Court of Appeals reversed the district court.
- The court held the Schmidts failed to prove an avulsive event by the required level of proof.
- Because avulsion was not established, the boundary between the parties’ riparian lands was determined by the current location of the thread of the stream (as stipulated by the parties).

## Legal Principles

- In an equity action to determine a boundary under Neb. Rev. Stat. § 34-301, an appellate court reviews the record de novo, giving weight to the trial court’s ability to observe witnesses when credibility is important.
- For opposite riparian owners, the boundary line generally is the thread of the stream—defined as the deepest groove or trench in the bed of the river channel, the last part to run dry at low flow.
- If a river’s course changes gradually by accretion (deposit) or reliction (recession of water), the riparian boundary moves with the river and remains at the thread.
- If a river’s course changes suddenly and perceptibly by avulsion, the boundary remains at the thread of the old channel.
- Avulsion is not presumed; the party asserting avulsion bears the burden to prove it by clear and convincing evidence.
- Proof that amounts to conjecture, or evidence that is equally consistent with gradual change and avulsion, does not satisfy the burden to establish avulsion.
- When avulsion is not proved, ownership of riverbed and island lands is determined by the present thread, allocating lands on each side of the thread to the riparian owner on that side.

## Conclusion

Babel v. Schmidt held that the Schmidts did not meet their burden to prove a sudden avulsive shift in the Platte River’s channel; therefore, the legal boundary between the opposite riparian owners was the river’s current, stipulated thread, and the district court’s contrary boundary decree was reversed.


Babel v. Schmidt, 765 N.W.2d 227 (2009)