Plaintiff sued Defendant, seeking an order imposing a prescriptive easement over Defendant’s driveway and ordering him to remove a portion of a retaining wall, which Defendant built. The trial court granted Defendant’s motion for summary judgment. Plaintiff appealed.
In Nebraska, when a claimant uses a neighbor’s driveway or roadway without interfering with the owner’s use or the driveway itself, the use is presumed to be permissive.
Michael Feloney (Plaintiff) and Robert Baye (Defendant) owned homes separated by a sixteen-foot-wide alley. The narrow driveways for each home were situated directly across from one another on opposite sides of the alley. Due to the narrow driveway, Plaintiff often would use Defendant’s driveway to help him make the turn into his garage. Additionally, Plaintiff frequently shoveled snow from Defendant’s driveway so that he could continue to use it during the winter months. Subsequently, Defendant constructed a retaining wall over his driveway to combat a drainage problem. The wall prevented Plaintiff from continuing to use Defendant’s driveway. Plaintiff sued Defendant seeking an order imposing a prescriptive easement over Defendant’s driveway and ordering him to remove a portion of the retaining wall. Defendant filed a counter-claim seeking to quiet title to the driveway. Defendant filed a motion for summary judgment, which the trial court granted. Plaintiff appealed.
Whether a use is presumed to be permissive when a claimant uses a neighbor’s driveway or roadway without interfering with the owner’s use or the driveway itself.
Yes. The trial court’s ruling is affirmed. In Nebraska, when a claimant uses a neighbor’s driveway or roadway without interfering with the owner’s use or the driveway itself, the use is presumed to be permissive.
An easement is an interest in a portion of land owned by another individual that allows the non-owner to use it or control it for a specific, limited purpose. Similar to how property may be acquired through adverse possession, an easement may be acquired by prescription. However, most jurisdictions do not readily grant prescriptive easements because the end result is burdening an owner’s land without compensation for the benefit of a non-owner. In Nebraska, a party claiming a prescriptive easement must show that use of the property was exclusive, adverse, under a claim of right, continuous and uninterrupted, and open and notorious for a period of ten years. Here, Defendant first argues that Plaintiff’s use of the driveway was not under a claim of right. Plaintiff counters that he, and the prior owner of his property, actively used Defendant’s driveway for a period of more than ten years and that he personally shoveled snow off the driveway, although he did not do so for a ten-year period. Once it is shown that a party openly and notoriously used property for ten years, adverseness is presumed. At that point, Defendant must show that Plaintiff had permission to use the driveway to counter adverseness. In Scoville v. Fisher, 149 N.W.2d 339 (Neb.1967), the court held that a presumption of permissiveness arises when the land in dispute is unenclosed. Plaintiff claims that the rule articulated in Scoville should apply only to land that is not only unenclosed but also undeveloped. It is true that the rule has traditionally been applied to land such as wilderness and other undeveloped parcels of property. Consequently, the presumption of permissiveness rule generally does not apply to a parking lot in a downtown shopping center or a residential driveway such as Defendant’s in a suburban neighborhood. Nevertheless, here the presumption of permissiveness may be found based upon other facts. In Dan v. BSJ Realty, LLC, 953 So.2d 640 (Fla.App.2007), there was a common roadway that served two businesses, even though the roadway was situated on the defendant’s property. In Dan, the court held that “use in common with the owner is presumed to be in subordination of the owner’s title and with his or her permission.” Id. at 642-43. Therefore, when the owner of property has maintained a right of way for his own use and another user happens to use it as well, the presumption is that the non-owner’s use is being used with the owner’s permission and not adversely. Here, Defendant’s driveway was used by those in his home as well as by Plaintiff. Because Defendant was aware that Plaintiff was using his driveway, he effectively gave permission to Plaintiff to use it. Therefore, Plaintiff’s use was not adverse in nature and a prescriptive easement may not be granted.