Highway – Establish by Prescription

A highway may be established by prescription when used adversely by the public continuously for a period of 10 years or more. Leu v. Littell, 2 Neb. App. 323, 513 N.W.2d 24 (1993). See Sellentin v. Terkildsen, 216 Neb. 284, 343 N.W.2d 895 (1984); Lancaster County, ex rel. Rosewell v. Graham, 120 Neb. 785, 235 N.W. 338 (1931).

To establish the requisite public prescriptive easement, the public must show that the use and enjoyment of the land was exclusive, adverse, continuous, uninterrupted, open and notorious, and under a claim of right for the full 10-year prescriptive period. Furthermore, “there must be a use by the general public under a claim of right adverse to the owner of the land of some particular defined line of travel, and the use must be uninterrupted and without substantial change for 10 years or more.” Leu v. Littell, 2 Neb. App. 323, 513 N.W.2d 24 (1993); Sellentin v. Terkildsen, 216 Neb. 284, 343 N.W.2d 895 (1984).

For purposes of determining the extent of public prescriptive easement with respect to a “trail road” which is an unimproved and unmaintained road, the public’s right to use the “trail road” was not limited to the actual beaten path, but extended to such width as was reasonably necessary for public travel, including reasonable width to drive livestock, and the public had a prescriptive right to pass eroded areas within a reasonable distance. Leu v. Littell, 2 Neb. App. 323, 513 N.W.2d 24 (1993).

Evidence in action to enjoin lot owner from obstructing road running through his property in an unincorporated village and for damages for assault and destruction of personal property established a prescriptive public use and existence of easement for public road across lot before defendant became owner thereof more than 20 years before trial in view of testimony of continual use of such road by plaintiff and public since the early 1900’s, contrary to contention of defendant that the use of road was permissive only. Smith v. Bixby, 196 Neb. 235, 242 N.W.2d 115 (1976).

Evidence supported trial court’s determination of a 20-foot width for public road acquired by prescription across defendant’s lot. Smith v. Bixby, 196 Neb. 235, 242 N.W.2d 115 (1976).