Easements – Elements to Prove a Prescriptive Right

The six elements which must be established to prove a prescriptive right are delineated in Leu v. Littell, 2 Neb. App. 323, 513 N.W.2d 24 (1993):

        First, continuous and uninterrupted use may be established by use of the easement “whenever there was any necessity to do so and with such frequency that the owner of the servient estate would have been apprised of the right being claimed.” Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979). In Leu the evidence established that she used the trail road when it was necessary to go from south of Clark’s property to Leu’s land north of Clark’s property. Leu and other witnesses established that the public traversed the trail road when there was reason to use it. There was no dispute that a clear trail road existed. The evidence established this element.

        Second, the use must be “open and notorious so that the owner will learn of the use, assuming that he keeps himself informed about the condition of his property.” (Emphasis omitted) Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979). In Leu, the court found that the well-established trail road would notify the owner that somebody was traveling not only across her land, but from her land in both directions. Significant parts of the trail road on Clark’s land could have no purpose other than to get across her land to Leu’s land. Apparently, Clark did not keep herself informed of the current use, but she did admit she knew and approved of the auto gates. The evidence established this element.

        Third, the use must be exclusive. As used in this connection, the word “exclusive” could be misunderstood. It does not mean that no one but the claimant uses the road. It simply means the claimant’s right to use the property does not depend upon a similar right in others. Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979).

        The fourth element is that the claimant’s use of the prescriptive easement is under claim of right, and the fifth element is that the claimant’s right must be adverse. The court in Leu found the following holding from Svoboda to be quite applicable to the situation where the use of the trail road predated the memories of the litigants who were in their eighties:

 [I]f a person proves uninterrupted and open use for the necessary period without evidence to explain how the use began, the presumption is raised that the use is adverse and under claim of right, and the burden is on the owner of the land to show that the use was by license, agreement, or permission. The presumption of adverse use and claim of right, when applicable, prevails unless it is overcome by a preponderance of the evidence.

(Emphasis omitted) Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979).

        Sixth, the assertion of a prescriptive easement may be defended against on the basis that the use was made by permission. To get to this sixth element, it is required that a claimant show open, visible, continuous, and unmolested use of the land for the necessary period, and the use will be presumed to be under a claim of right. Once so established, this presumption may be rebutted by the owner of the servient estate only by proving by a preponderance of the evidence that the use was by license, agreement, or permission. Leu v. Littell, 2 Neb. App. 323, 513 N.W.2d 24 (1993); Sturm v. Mau, 209 Neb. 865, 312 N.W.2d 272 (1981). In Leu, Clark attempted to dispute Leu’s evidence that use of the trail road was made by the public. However, the existence of so visible a trail road for so long a period made Clark’s challenge difficult to accept. The reality of the matter is that the trail road existed because it is used. In other words, the vehicle tracks in the sand which formed the trail road were there because it was used. Use was the trail road’s only maintenance.

See Breiner v. Holt County, 7 Neb.App. 132, 581 N.W.2d 89 (1998); F & J Enterprises, Inc. v. DeMontigny, 6 Neb.App. 259, 573 N.W.2d 153 (1997).