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05/23/2025 09:09 AM CDT
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
Barbara Fey and L. Gail Wurtele, appellees,
v. Jeffery A. Olson and Dianne M.
Dowding, appellants.
___ N.W.3d ___
Filed May 23, 2025. No. S-24-567.
1. Easements: 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, the 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 in 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. ____. The law treats a claim of prescriptive right with disfavor.
5. 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.
6. Easements: Proof. To prove a prescriptive easement, a claimant must
establish each of the elements by clear, convincing, and satisfactory
evidence.
7. Easements: Presumptions: Proof: Time. Generally, once a claimant has shown open, notorious, and continuous use over a prescriptive
period, adverseness is presumed.
8. Easements: Presumptions. Where the land is subject to an exception, a
presumption of permissiveness rather than adverseness arises.
9. Easements. Implied acquiescence is not the same as permission.
10. ____. A neighborly accommodation or a courtesy is not hostile or adverse
and cannot ripen into adverse possession or prescriptive easement.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
11. ____. Easements to provide access for agricultural and recreational uses
are permitted.
Appeal from the District Court for Otoe County: Julie D.
Smith, Judge. Affirmed.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellants.
Ryan K. McIntosh, of Brandt, Horan, Hallstrom & Stilmock,
for appellees.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik,
Freudenberg, and Bergevin, JJ.
Miller-Lerman, J.
NATURE OF CASE
The appellants, Jeffery A. Olson and Dianne M. Dowding,
challenge the orders of the district court for Otoe County that
established a prescriptive easement in favor of the appellees,
Barbara Fey and L. Gail Wurtele, across the appellants’ property for purposes of both agricultural farming and recreational
use. The order also granted injunctive relief regarding inaccessible crops. The appellants filed a timely appeal. We affirm.
STATEMENT OF FACTS
The property referred to as the “Fey Property” in Otoe
County, Nebraska, is a tract of land that has been owned by the
appellees or their family members since 1857. Presently, Fey
has a life estate interest in the Fey Property and Wurtele owns
the remainder interest.
The Fey Property is bordered to the south in part by the
appellants’ property, hereinafter referred to as the “Dowding
Property.” The Little Nemaha River runs roughly east-west
through the Fey Property and divides it into northern and
southern portions. The approximately 18.42 acres to the south
of the river are inaccessible by vehicles or farm machinery
except by crossing northward through the Dowding Property.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
A trail, or access road, crosses the Dowding Property and
has been used by the appellees and their family members,
tenants, and guests to access the southern portion of the Fey
Property since at least the time Fey took ownership more than
60 years ago. Until the facts giving rise to the current matter
arose, such use had been without disagreement.
The appellants acquired the Dowding Property’s 40 acres in
2016 and have no knowledge of the history of permissive or
nonpermissive use. This case arose after the appellants locked
the gate from the county road intersection to the access road.
The appellees brought an action for a declaratory judgment,
which sought, inter alia, a prescriptive easement allowing
them access to their property over the Dowding Property and
asked for injunctive relief prohibiting the appellants from
interfering with the right of access to the Fey Property.
Trial centered on the historic use of the access road. The
Fey Property had been used for various activities, such as row
crop farming, pasturing horses and cattle, hunting, camping,
sleigh rides, and family gatherings, including an annual family
trapshoot event. Fey’s husband had built a cabin where family
gatherings were held, and the cabin was now abandoned. The
Fey Property was hunted by members of the appellees’ family every year until the access road was closed. Subsequently,
without access to the inaccessible property, the annual trapshoot event was moved to Wurtele’s home.
Wurtele was not present when her great-grandfather
acquired the claimed interest in the access road. She testified that prior to the appellants’ ownership of the Dowding
Property, the predecessors in interest were not asked for, and
did not give, permission to the appellees, or their predecessors
in interest, to utilize the access road. Wurtele testified, “We
used it when we needed it and nobody questioned it,” since it
was the only way to access the Fey Property. Wurtele testified
that when she was a child, she accessed the Fey Property by
horse or occasionally on foot, but that is no longer possible.
Fey testified that for many years, the predecessors crossed
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
the property of one another. When the appellees’ inaccessible
property is used for grazing, crossing the Dowding Property
is necessary to check on the cattle, and in the spring and in
the fall, trucks must deliver and remove cow-calf pairs using
the access road.
In a written order, the trial court found that the appellees’
use of the property has been both agricultural and recreational.
Specifically, it found that the widest farm equipment used in
the last 10 years was the appellees’ tenant’s combine harvester,
which is approximately 24 feet wide.
The trial court found that the use of the access road by
the appellees had been exclusive, adverse, under a claim of
right, continuous and uninterrupted, and open and notorious
for beyond the full 10-year prescriptive period. It determined
that a prescriptive easement had been established and declared
and ordered that the appellees, and their successors in interest,
have the right of ingress and egress to the Fey Property, utilizing the access road across the Dowding Property. It ordered the
easement to run with the land.
Although the appellants argued that the prescriptive easement should be limited to agricultural uses only, the court
found that the appellees had established both recreational and
agricultural uses, including camping and hunting. The court
stated that the appellees are entitled to “drive vehicles, campers, four-wheelers, and other vehicles in accordance with their
historic use.” The court declined to take up an alternative
theory of easement by necessity because it had already decided
that prescriptive easement was established.
The court also found that there are currently crops planted
on the appellees’ inaccessible property, and because the crops
will not be able to be harvested without use of the access road
across the Dowding Property, the Feys were entitled to injunctive relief. The court enjoined the appellants from interfering
with the appellees’ use. The court ordered that if the appellants used a lock to secure the gate to access the Dowding
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
Property, then the appellees and their successors in interest
must be able to maintain access.
This appeal followed.
ASSIGNMENTS OF ERROR
The appellants assign, summarized and restated, that the
district court erred when it (1) granted a prescriptive easement,
(2) failed to impose further restrictions on the prescriptive
easement, and (3) declined to take up the issue of easement by
necessity.
STANDARD OF REVIEW
[1] A suit to confirm a prescriptive easement is one grounded
in the equitable jurisdiction of the district court and, on appeal
to this court, is reviewed de novo on the record, subject to
the rule that where credible evidence is in conflict on material issues of fact, this court will consider that the trial court
observed the witnesses and accepted one version of the facts
over another. Teadtke v. Havranek, 279 Neb. 284,
777 N.W.2d
810 (2010); Melendez v. Holling,
27 Neb. App. 156,
927
N.W.2d 834 (2019).
ANALYSIS
In this case, the appellants claim that the district court erred
when it granted the appellees a prescriptive easement and
other relief and failed to consider the appellants’ suggestion to
grant an easement by necessity. We do not believe the district
court committed error.
[2-4] An easement is “‘[a]n interest in land owned by
another person, consisting in the right to use or control the
land, or an area above or below it, for a specific limited purpose.’” Feloney v. Baye, 283 Neb. 972, 976,
815 N.W.2d 160,
164 (2012), quoting Black’s Law Dictionary 585-86 (9th ed.
2009). Nebraska case law recognizes that a claimant may
acquire an easement through prescription. Feloney v. Baye,
supra. Nebraska case law has previously noted that the law
treats a claim of prescriptive right with disfavor. Id.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
[5,6] In prescriptive easement cases, we have held that 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. See Feloney v. Baye, supra. The word
“exclusive” in reference to a prescriptive easement does not
mean that there must be use only by one person. Teadtke v.
Havranek, supra. In order for the appellees to prove a prescriptive easement, they had to establish each of the elements
by clear, convincing, and satisfactory evidence. See Fyfe v.
Tabor Turnpost,
22 Neb. App. 711,
860 N.W.2d 415 (2015).
Commonly, the element of adverseness is at issue, as it is in
this case.
[7] Following our de novo review of the record, not repeated
here, we believe the appellees directly established the required
elements save for adverseness. Generally, once a claimant has
shown open, notorious, and continuous use over a prescriptive
period, adverseness is presumed. See, Feloney v. Baye, supra;
Teadtke v.
Havranek, supra. We have stated that if a claimant
“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.” Teadtke v. Havranek,
279 Neb. at 294,
777 N.W.2d at 819. At that point, to defeat
the claim, the landowner must present evidence that the use
was permissive. Feloney v. Baye, supra.
[8] The foregoing presumption of adverseness is the general
rule; however, it is subject to exceptions, such as where the
land is vacant or unimproved. See id. Where the land is subject to an exception, a presumption of permissiveness rather
than adverseness arises. See id. Referring to the nature of the
land and facts recited above, including that the appellees lack
access to certain land and that they have used the access road
over the appellants’ land uninterruptedly for decades, we conclude that the presumption of permissiveness applicable to the
exceptions does not apply here. The appellees were entitled
to a presumption of adverseness. We therefore examine the
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
evidence to determine the correctness of the district court’s
determination that the appellants did not overcome the appellees’ evidence of adverseness and, failing that, the appellees
were entitled to a prescriptive easement.
The appellants have urged this court to review the evidence
and to conclude that adverseness was not established and, as
such, that the appellees’ use was permissive. Having reviewed
the evidence, we believe the record shows that adverseness
as understood in law was established by the appellees and
not rebutted by the appellants. That is, the appellants did not
provide sufficient evidence to overcome the presumption of
adverse use and a claim of right.
At trial, Wurtele testified that permission to cross the appellants’ property was neither requested nor given. She testified
as follows:
Q. Insofar as you know, was the access to [the Fey]
property always by permission?
A. No.
Q. Well, how was it, then? If it wasn’t adverse, how
was it?
A. We used it when we needed it and nobody questioned it.
Q. All right. And doesn’t that mean it was by
permission?
A. We didn’t ask for permission.
When Wurtele was asked, “Have any of the previous owners of
the Dowding property ever given you actual permission to use
the access road?” she testified that permission was never given.
The appellants assert that the foregoing evidence shows that
the appellants or their predecessors “consented” to the appellees’ use and that such consent established permission. We do
not agree.
[9] Generally speaking, in the law regarding prescriptive
easements, use is either adverse or permissive. See, e.g.,
Feloney v. Baye, 283 Neb. 972,
815 N.W.2d 160 (2012). In
our view, this record does not show that the appellants or
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
their predecessors consented to the appellees’ use; rather, the
evidence showed that, at best, the appellants acquiesced. We
have considered “acquiescence” in property cases and indicated that acquiescence of an owner is not a permissive use.
See, Fischer v. Grinsbergs,
198 Neb. 329,
252 N.W.2d 619
(1977); Melendez v. Holling,
27 Neb. App. 156,
927 N.W.2d
834 (2019). Other courts have held similarly. In Cremer v.
Cremer Rodeo Land and Livestock Co.,
192 Mont. 208, 211,
627 P.2d 1199, 1201 (1981), the Montana Supreme Court
stated that “[i]mplied acquiescence is not the same as permission.” We agree with this statement. It has been stated that
to grant permission “‘means more than mere acquiescence;
it denotes the grant of permission in fact. . . .’” Walker v.
Phillips,
393 Mont. 46, 57,
427 P.3d 92, 100 (2018) (quoting
Cremer, supra). Thus, to the extent that the appellants acquiesced, use by the appellees was not permissive.
[10] The appellants additionally argue that access may
have resulted from being good neighbors. We do not find
evidence to support this assertion. Although we are aware
that a neighborly accommodation or a courtesy is not hostile
or adverse and cannot ripen into adverse possession or prescriptive easement, the principle rests on evidence of neighborliness, which evidence is lacking in this record. Annot.,
Neighborly Accommodation, 56 A.L.R.7th Art. 8 (2020). We
have acknowledged that a neighborly accommodation is permissive and not an adverse use. Feloney v. Baye, supra.
However, based on the record, we determine that the district
court did not err when it concluded that the appellees established the elements of entitlement to a prescriptive easement,
and the appellants did not rebut such evidence.
The appellants also claim that the district court erred in the
scope of the relief awarded. Given the evidence, we do not
believe the district court erred with respect to the scope of the
prescriptive easement it granted.
A prescriptive easement for both agricultural and recreational use was granted. At trial, the appellants tendered, but
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
the district court did not adopt, a proposal more limited in
scope. In its order, the district court described the scope and
use of the easement as follows:
[T]he plaintiffs [the appellees] have established an easement by prescription across the Dowding Property for
ingress and egress to the Fey Property across the access
road depicted and described in Exhibit 4, the survey dated
March 19, 2024, and legally described in the attached
Exhibit “A” hereto (the “Access Road”), subject to the
following limitations:
A. The plaintiffs, and their successors in interest to the
Fey Property, shall have the right of ingress and egress
to the Fey Property utilizing the Access Road across the
Dowding Property for purposes of agricultural farming
and recreational uses, including camping and hunting.
Any vehicles or machinery shall not exceed twenty-four
feet (24’) in width.
B. This prescriptive easement shall run with the land
and bind the successors in interest to both the Fey Property
and the Dowding Property.
C. Such ingress and egress upon the Access Road may
be granted by the plaintiffs, and their successors in interest, to their tenants, contractors, workmen, guests, and
invitees.
D. The plaintiffs, and their successors in interest, shall
not utilize the Access Road in a way that unreasonably
disturbs or interferes with the quiet use and enjoyment of
the Dowding Property by the defendants and their successors in interest.
E. The plaintiffs, and their successors in interest, shall
maintain the Access Road in good repair so that no
unreasonable damage will result therefrom.
F. This prescriptive easement shall be permanent and
run with the land, until the occurrence of any of the
following:
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
i. When the Fey Property, or that portion of the Fey
Property lying south of the Little Nemaha River, have
unity of ownership with the Dowding Property;
ii. When all of the owners of the Fey Property and
the Dowding Property agree to its termination in a writing filed of record with the Otoe County Register of
Deeds; or
iii. When terminated by a judgment of decree of this
Court.
G. The defendants [the appellants] are hereby enjoined
from interfering with the plaintiffs’ use of the access
road. Should the defendants choose to maintain a locked
gate to access the Dowding Property, the defendants shall
allow for the plaintiffs, and their successors in interest, to
maintain access via their own lock.
[11] We have stated that the extent of an easement is determined from the use actually made of the property during the
running of the prescriptive period. Easements to provide access
for agricultural and recreational uses, like those in the court’s
order quoted above, are permitted. See, Werner v. Schardt,
222 Neb. 186,
382 N.W.2d 357 (1986) (modifying farm easement to 20 feet consistent with historic agricultural use); K &
H Hideaway v. Cheloha,
24 Neb. App. 297,
885 N.W.2d 760
(2016) (stating that private road was used for primarily recreational, but also agricultural, purposes).
The appellants maintain that the scope of the order failed
to particularize the uses to which the easement could be put.
Following our de novo review of the record, we determine that
there is support for the order of the district court with respect
to the uses and scope identified in the easement awarded. See,
e.g., Teadtke v. Havranek,
279 Neb. 284,
777 N.W.2d 810
(2010); Fischer v. Grinsbergs,
198 Neb. 329,
252 N.W.2d 619
(1977); Hopkins v. Hill,
160 Neb. 29,
68 N.W.2d 678 (1955);
Jurgensen v. Ainscow,
155 Neb. 701,
53 N.W.2d 196 (1952).
The appellants also claim that the district court erred when
it did not find it necessary to address their theory of an
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
FEY V. OLSON
Cite as 319 Neb. 45
easement by necessity. Because we determine that the matter
was resolved by issuance of its prescriptive easement order,
we agree with the district court that it was not necessary or
prudent to address easements of necessity.
CONCLUSION
We have reviewed the evidence. As explained above, we
determine that the district court did not err in the issuance or
scope of the prescriptive easement awarded to the appellees.
And the court did not err in its injunctive relief. Accordingly,
we affirm.
Affirmed.
