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Melendez v. Holling

Court of Appeals of Nebraska

April 23, 2019

Felicia J. Melendez, appellant,
v.
Rodney L. Holling and Brandy A. Holling, appellees.

         1. 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.

         2. 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.

         3. Easements. A claimant may acquire an easement through prescription.

         4. 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 prescriptive period.

         5. 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.

         6. 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 possession.

         7. Easements: Adverse Possession: Proof. In order to prove a prescriptive easement, the claimant must establish each of the elements by clear, convincing, and satisfactory evidence.

         8. 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.

         9. Easements: Presumptions. A presumption of permissiveness exists when an owner permits unenclosed and undeveloped lands to be used by neighbors.

         10.___:___. 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.

         11.___:___. 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 permissiveness exists.

         12.___:___. The presumption of permissiveness may be rebutted by showing that the claimant is making the claim as of right.

          Appeal from the District Court for Adams County: Stephen R. Illingworth, Judge. Affirmed.

          Jeffrey P. Ensz, of Lieske, Lieske & Ensz, PC, L.L.O., for appellant.

          Richard L. Alexander, of Richard Alexander Law ...


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