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04/23/2019 09:06 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     27 Nebraska A ppellate R eports
                                              MELENDEZ v. HOLLING
                                              Cite as 27 Neb. App. 156




                       Felicia J. Melendez, appellant, v. Rodney L. Holling
                                 and Brandy A. Holling, appellees.
                                                   ___ N.W.2d ___

                                        Filed April 23, 2019.     No. A-17-1201.

                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 prescrip-
                    tive 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,
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           Nebraska Court of A ppeals A dvance Sheets
                27 Nebraska A ppellate R eports
                          MELENDEZ v. HOLLING
                          Cite as 27 Neb. App. 156

     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 shop-
     ping 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, P.C., L.L.O., for
appellant.
  Richard L. Alexander, of Richard Alexander Law Office, for
appellees.
   Pirtle, A rterburn, and Welch, Judges.
   A rterburn, Judge.
                        INTRODUCTION
   Felicia J. Melendez appeals from an order of the district
court for Adams County that found she had failed to prove
the existence of either a prescriptive easement or an implied
easement across land belonging to her neighbors, Rodney L.
Holling and Brandy A. Holling. Melendez argues on appeal
only that the district court erred in not awarding her a prescrip-
tive easement across the Hollings’ property. Finding no merit
to her argument, we affirm the order of the district court.
                    BACKGROUND
  Melendez owns a house located at 716 North Colorado
Avenue in Hastings, Nebraska, while the Hollings own the
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                      MELENDEZ v. HOLLING
                      Cite as 27 Neb. App. 156

house located immediately to the south, at 712 North Colorado
Avenue. Melendez’ house contains three o­ne-bedroom
apartment-style units. The Hollings purchased the house
­
located at 712 North Colorado Avenue with the intent to
renovate and then resell it. Part of the renovation included
the installation of a paved driveway running from the street,
then alongside the house, and ending flush with the back of
the house. A privacy fence was built around the backyard.
The newly constructed driveway and privacy fence were built
along the property line between the two properties.
   On October 15, 2015, Melendez filed a complaint against
the Hollings, asking the district court to find that a prescrip-
tive easement existed over a portion of the Hollings’ property.
She alleged that a shared driveway previously existed, which
was located on the southern portion of her property and the
northern portion of the Hollings’ property. Melendez further
alleged that the shared driveway had been continuously used
for a period of more than 10 years and used in an actual,
open, notorious, and hostile manner. Melendez alleged in her
complaint that the Hollings’ new driveway and privacy fence
along the property line would cause irreparable injury and
damage to her by preventing her tenants from being able to
access the rear of her property for purposes of parking. At
trial, Melendez testified that if two panels of the privacy fence
were ordered removed, her tenants would retain the ability to
park their cars behind the house.
   Trial was held on July 19, 2017, consisting of the testi-
mony of the parties, two tenants who previously rented from
Melendez, the prior owner of the Melendez property, and
the Hastings building inspector. Numerous exhibits were also
admitted into evidence.
   The driveway in question sits between Melendez’ apartment
house and the Hollings’ house. Melendez testified that the
driveway between the two properties was a shared driveway
with separate approaches when she purchased the property.
She stated that people from both properties used the driveway.
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                     MELENDEZ v. HOLLING
                     Cite as 27 Neb. App. 156

She never asked for nor received either written or verbal per-
mission to use the driveway from the previous owners of 712
North Colorado Avenue or the Hollings. Melendez described
the driveway as narrowing as you move from the street, past
the houses, and toward the back of the properties. In the back-
yard of Melendez’ property is a small parking area where her
tenants parked their cars. Melendez testified that she bought
her property in 2012 from Laura Witte. Melendez testified
that she never communicated with the prior owner of 712
North Colorado Avenue or the Hollings regarding use of the
driveway between the houses. No permission was granted nor
had there been any past denial of access to the portion of the
driveway located on the 712 North Colorado Avenue side of
the property line. Melendez made no improvements such as
providing gravel or other resurfacing with respect to either the
parking area or the driveway as it existed on her side of the
property line.
   Witte testified that she had owned the property at 716 North
Colorado Avenue for 12 years before selling it to Melendez.
While Witte owned the property, she told her tenants that they
could use the shared driveway to access the back parking area
on her property but that they could not park on the driveway
due to its shared nature. She testified that she believed that
the driveway was part of both neighboring properties and had
always considered it to be a shared driveway. Witte could
not recall ever asking for or receiving any type of permission
from the prior owners of 712 North Colorado Avenue to drive
vehicles over a portion of that property in order to access
the rear of her property. She also could not ever recall being
told by the prior owners that her tenants should stop using
the driveway.
   In August 2015, the Hollings bought the house at 712 North
Colorado Avenue, intending to renovate and then resell it.
Rodney Holling testified that the seller made no representa-
tions to him regarding a shared driveway. He testified that he
had never given any of Melendez’ tenants permission to use
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                     MELENDEZ v. HOLLING
                     Cite as 27 Neb. App. 156

the driveway nor had he told them they were prohibited from
using it. Even though neither Melendez nor her tenants asked
him for permission to use the preexisting driveway to access
the rear of her property, he did not seek to prohibit the ten-
ants from using the driveway until such time as the exterior
improvements were made. He acknowledged that a portion
of the privacy fence would have to be removed in order for
cars to access the back parking area on Melendez’ property.
He noted that he made the exterior improvements based on
his belief that most prospective buyers would prefer a private
driveway over a shared driveway. He also noted that the back-
yard of Melendez’ property consisted of “grass and weeds.”
Until the lawsuit was filed, he had intended to build a garage
inside the privacy fence.
   Melendez had the property surveyed. The surveyor’s flags
showed that the dirt driveway in question laid almost evenly
on the Hollings’ property and on Melendez’ property. Based on
the property survey, the Hollings installed the privacy fence on
the property line in the backyard and poured the new concrete
driveway flush with the property line.
   Two of Melendez’ tenants testified during trial. Anthony
Garvin lived in an apartment at 716 North Colorado Avenue
for about a year during a period of time that included the
Hollings’ purchase of the neighboring property and adding the
new driveway and privacy fence. Garvin testified that there
was no division between the properties when he first moved
in and that he used the shared driveway to access the back
parking area. However, he stated that he could no longer get
his vehicle to the back parking area once the Hollings’ privacy
fence was erected. From that point on, Garvin accessed the
back parking area by driving across the neighboring property
to the north.
   Breanna Draper lived in an apartment at 716 North Colorado
Avenue both before and after the Hollings installed the new
driveway and erected their privacy fence. Like Garvin, Draper
testified that she also used the shared driveway to access the
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                      MELENDEZ v. HOLLING
                      Cite as 27 Neb. App. 156

parking area behind Melendez’ property. However, once the
Hollings’ privacy fence was up, she could no longer access
the backyard parking area. She testified that she did not enter
the parking area from the north side as Garvin had because she
did not want to drive through that neighbor’s yard.
   Both Garvin and Draper testified that they observed other
tenants park in a small parking area directly across the street,
which was in front of a daycare center. Draper testified that
the daycare parking lot was often full during operating hours.
Draper and Melendez also testified that one parking spot
immediately to the side of the house remained available for the
use of tenants.
   A building inspector for the city of Hastings testified that
the parking area in front of the daycare was open to the pub-
lic. Street parking was prohibited on the near, or east, side of
North Colorado Avenue but was allowed on the other side.
He also testified that city codes required that any parking lot
behind the house be paved, be graveled, or have crushed rock
on it. He stated Melendez’ house could have multiple apart-
ments only if it had “legal nonconforming status.”
   Following trial, the district court entered an order on October
20, 2017, which held that Melendez had failed to prove that she
was entitled to a prescriptive easement or an implied easement.
The court found that Melendez did not have exclusive use of
the driveway and that her use was permissive in nature. The
court further found that Melendez had not put the Hollings on
notice that she was claiming use of the driveway under right.
Accordingly, the district court entered judgment on behalf of
the Hollings and dismissed Melendez’ complaint.
   Melendez now appeals the district court’s judgment.
                 ASSIGNMENT OF ERROR
   Melendez assigns on appeal that the district court erred in
finding that she was not entitled to a prescriptive easement
across a portion of 712 North Colorado Avenue, the property
owned by the Hollings.
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                     MELENDEZ v. HOLLING
                     Cite as 27 Neb. App. 156

                   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, 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. K & H Hideaway v. Cheloha, 24 Neb. App. 297,
885 N.W.2d 760 (2016).
                          ANALYSIS
    [2,3] The law of prescriptive easements has been called “a
tangled mass of weeds,” yet the core principles of the doc-
trine are well established in Nebraska. Feloney v. Baye, 283
Neb. 972, 815 N.W.2d 160 (2012). An easement is an inter-
est 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. Id. Nebraska case law recognizes
that a claimant may acquire an easement through prescription.
Id. However, the law treats a claim of prescriptive right with
disfavor. Id. The reasons are obvious—allowing a person to
acquire prescriptive rights over the lands of another is a harsh
result for the burdened landowner and essentially rewards a
trespasser by granting a trespasser the right to use another’s
land without compensation. See id.
    [4-7] 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. K & H Hideaway v. Cheloha,
supra. 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. Id. Use by predecessors in
title may be tacked onto a claimant’s use in order to meet the
10-year requirement. Fischer v. Grinsbergs, 198 Neb. 329, 252
N.W.2d 619 (1977). In order to prove a prescriptive easement,
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                     MELENDEZ v. HOLLING
                     Cite as 27 Neb. App. 156

the claimant must establish each of the elements by clear,
convincing, and satisfactory evidence. See K & H Hideaway
v. Cheloha, supra.
   [8-10] Generally, once a claimant has shown open and noto-
rious use over the 10-year prescriptive period, adverseness is
presumed. Feloney v. Baye, supra. At that point, the landowner
must present evidence showing that the use was permissive.
Id. Exceptions to this general rule do exist, however. First,
the Supreme Court determined in Scoville v. Fisher, 181 Neb.
496, 149 N.W.2d 339 (1967), that a presumption of permis-
siveness exists instead when an owner permits unenclosed
and undeveloped lands to be used by neighbors. However, in
Feloney v. Baye, supra, the court held that this 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. As such, this presump-
tion does not apply in the present case. However, this finding
does not end our analysis.
   In Feloney v. Baye, supra, the court addressed a scenario
wherein the plaintiff for a number of years utilized the
defendant’s driveway in order to turn his vehicle to enter
his garage. A narrow alley separated the parties’ properties,
but did not leave adequate space for the plaintiff to make a
sharp turn into the driveway. The defendant decided to build
a retaining wall on his driveway in order to alleviate a drain-
age issue which made it impossible for the plaintiff to use
the defendant’s driveway. The plaintiff filed suit seeking the
removal of the wall by way of the declaration of a prescrip-
tive easement.
   [11,12] Although the Supreme Court found that this pre-
sumption of permissive use did not apply, another exception
related to permissive use did exist. The court held that 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
also exists. See Feloney v. Baye, 283 Neb. 972, 815 N.W.2d
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                      MELENDEZ v. HOLLING
                      Cite as 27 Neb. App. 156

160 (2012). The foundation for the presumption is the likeli-
hood that the owner is acting neighborly as opposed to acqui-
escing in a tortious trespass over his land. Id.
      [W]hen a claimant uses a neighbor’s driveway or road-
      way without interfering with the owner’s use or the
      driveway itself, the use is to be presumed permissive.
      As noted, the law disfavors prescriptive easements. And
      using a neighbor’s driveway to turn around in is a com-
      mon act. Landowners who permit such acts out of neigh-
      borly accommodation would likely stop doing so if their
      continued accommodation meant that they would one day
      lose the power to control the development of their land.
      “‘Such [a] rule would [lead to] a prohibition of all neigh-
      borhood accommodations in the way of travel.’”
Id. at 981, 815 N.W.2d at 167-68. Permissiveness is merely
a presumption in instances such as this, and the presumption
may be rebutted by showing that the claimant is making the
claim as of right. See id.
   In the present case, Melendez argues that the district court’s
reliance on the principles outlined in Feloney v. Baye, supra,
ignored the holding of Majerus v. Barton, 92 Neb. 685, 139
N.W. 208 (1912). The court in Majerus v. Barton, supra,
established that adverseness is presumed when the claimant of
an easement demonstrates uninterrupted and open use for the
necessary period of time without explanation of how the use
began. The court in Feloney v. Baye, supra, reaffirmed that
general rule. Although Melendez correctly states the general
rule, she ignores its exceptions that have developed during
the century since Majerus v. Barton, supra, was decided. The
court in Feloney v. Baye, supra, merely recognized—and not
for the first time—that there are factual scenarios where a pre-
sumption of permissiveness can exist. See, e.g., Gerberding v.
Schnakenberg, 216 Neb. 200, 204, 343 N.W.2d 62, 65 (1984)
(“[w]hile it is the general rule . . . that a showing the use has
been open, visible, continuous, and unmolested for the pre-
scriptive period raises a presumption that the use was under
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                     MELENDEZ v. HOLLING
                     Cite as 27 Neb. App. 156

a claim of right and not permissive, . . . the rule is not with-
out exceptions”).
   Melendez demonstrated uninterrupted and open use of the
shared driveway for at least 10 years, including her predeces-
sor in title’s use, meaning that adverseness would be presumed
under the general rule if it applied. However, in this case, the
exception to the general rule applies. A presumption of per-
missiveness exists, because Melendez was using the Hollings’
driveway in common with the Hollings and their predeces-
sors and without interfering with their use. Melendez herself
testified that occupants of both properties drove on the shared
driveway without interference from the other’s use. Therefore,
since Melendez presented no evidence that rebutted the pre-
sumption of permissiveness and no evidence that she had put
the Hollings on notice that she was making a claim of right,
she has failed to meet her burden.
   Melendez used the shared driveway at issue in this case by
virtue of the Hollings’ neighborly accommodation. We can-
not now find that the Hollings lost their power to control the
development of their land because of their act of neighborly
accommodation. We agree with the district court in finding
that Melendez failed to ever put the Hollings on notice that
she was claiming use of the shared driveway under right.
Therefore, we further agree with the district court in finding
that Melendez did not rebut the presumption of permissiveness
and that she was not entitled to a prescriptive easement across
the Hollings’ property.
                        CONCLUSION
  The district court did not err in finding that Melendez was
not entitled to a prescriptive easement across the Hollings’
property. Thus, we affirm the district court’s judgment.
                                                    A ffirmed.
