Felicia J. Melendez, appellant,
Rodney L. Holling and Brandy A. Holling, appellees.
Easements: Adverse Possession: Equity: Jurisdiction:
Appeal and Error. A suit to confirm a prescriptive
easement is one grounded in the equitable jurisdiction of the
district court and, on appeal, is reviewed de novo on the
record, subject to the rule that where credible evidence is
in conflict on material issues of fact, an appellate court
will consider that the trial court observed the witnesses and
accepted one version of the facts over another.
Easements: Words and Phrases. An easement is
an interest in land owned by another person, consisting of
the right to use or control the land, or an area above or
below it, for a specific limited purpose.
Easements. A claimant may acquire an
easement through prescription.
Easements: Proof: Time. A party claiming a
prescriptive easement must show that its use was exclusive,
adverse, under a claim of right, continuous and
uninterrupted, and open and notorious for the full 10-year
Easements: Adverse Possession: Words and
Phrases. The word "exclusive" in reference
to a prescriptive easement does not mean that there must be
use only by one person, but, rather, means that the use
cannot be dependent upon a similar right in others.
Adverse Possession: Title: Time. Use by
predecessors in title may be tacked onto a claimant's use
in order to meet the 10-year requirement for adverse
Easements: Adverse Possession: Proof. In
order to prove a prescriptive easement, the claimant must
establish each of the elements by clear, convincing, and
Easements: Presumptions: Proof: Time.
Generally, once a claimant has shown open and notorious use
over the 10-year prescriptive period, [27 Neb.App. 157]
adverseness is presumed. At that point, the landowner must
present evidence showing that the use was permissive.
Easements: Presumptions. A presumption of
permissiveness exists when an owner permits unenclosed and
undeveloped lands to be used by neighbors.
The presumption of permissiveness applies to unenclosed
wilderness but not to an unenclosed parking lot in a downtown
shopping center or a driveway in a suburban neighborhood.
When the owner of a property has opened or maintained a right
of way for his or her own use and the claimant's use
appears to be in common with that use, a presumption of
The presumption of permissiveness may be rebutted by showing
that the claimant is making the claim as of right.
from the District Court for Adams County: Stephen R.
Illingworth, Judge. Affirmed.
Jeffrey P. Ensz, of Lieske, Lieske & Ensz, PC, L.L.O.,
Richard L. Alexander, of Richard Alexander Law ...