                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      AHRENS V. TICHOTA


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                   DONALD R. AHRENS AND KENNETH L. AHRENS, APPELLEES,
                                               V.

                    JASON M. TICHOTA AND GINA R. TICHOTA, APPELLANTS.


                            Filed August 27, 2019.    No. A-18-094.


      Appeal from the District Court for Otoe County: MICHAEL A. SMITH, Judge. Reversed and
remanded for further proceedings.
       Mark S. Dickhute for appellants.
       Thomas D. Prickett, of Reinsch, Slattery, Bear & Minahan, P.C., L.L.O., for appellees.


       PIRTLE, ARTERBURN, and WELCH, Judges.
       PIRTLE, Judge.
                                       INTRODUCTION
       Jason M. Tichota and Gina R. Tichota (hereinafter the appellants) appeal from an order
granting summary judgment in favor of Donald R. Ahrens and Kenneth L. Ahrens (hereinafter the
appellees) entered by the district court for Otoe County. For the reasons stated below, we reverse
and remand for further proceedings.
                                        BACKGROUND
       The appellees are farmers. They lease ground from the Union Pacific Railroad (UPRR)
where they have constructed grain bins and other personal property. In order to access the grain
bins on the leased ground they must traverse property owned by the appellants. The district court
concluded there were no material facts in dispute and the appellees had established entitlement to
a “public prescriptive easement” across the appellants’ land in order to access the grain bins.



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     On September 19, 2003, the appellants purchased 8.1 acres in Otoe County, Nebraska,
commonly known as 5716 Deer Road, Nebraska City, Nebraska, but legally described as
     part of the Northeast Quarter of Section 23, Township 9, Range 13 in Otoe County,
     Nebraska, more particularly described as: commencing at the SW 1/4 of said NE 1/4,
     thence North 576 feet to a point on the West line of said quarter section, thence East 528
     feet to a point, thence Northward about 50 feet to a point on the west boundary of the
     Missouri Pacific right of way, thence Southeasterly along the West line of said right of way
     to the South line of said NE 1/4 of said Section thence West about 833 feet to the place of
     beginning.

The property includes a residence, a pasture, out buildings, and Deer Road. Access to the
appellants’ home is by way of Deer Road, which connects with North Highway 57, and Deer Road
is entirely within the legal description of the appellants’ property.
         Margaret Ross and Clarence Ross owned the above-described property immediately prior
to the appellants. The Rosses purchased the property in October 1957. Sometime in the late 1970’s
Loren Haveman purchased the leasehold improvements on the UPRR right of way now owned by
the appellees. Haveman used the leasehold improvements to operate the Haveman Grain Company
until the improvements were sold to the appellees in August 1998. Haveman’s affidavit is some
evidence of the early use of Deer Road as a route to the grain bins by area farmers. Haveman used
Deer Road during the same time the Rosses were using Deer Road and he never heard any
objection from the Rosses about his use of the road. Affidavits from other area farmers establish
use of Deer Road to access Haveman Grain Company but the property which includes Deer Road
was always owned by someone else dating from 1858.
         When the appellants moved into the property they started noticing their adjoining
neighbors to the north, Larry Starner and his wife (the Starners), were using Deer Road to access
their pasture even though they had alternative access on North Highway 57. Since the Starners
were good neighbors and their use had minimal impact on Deer Road, Jason advised Larry he was
permitted to continue the use of Deer Road.
         The appellants also noticed the appellees’ use of Deer Road and in the summer of 2007,
Jason approached the appellees in an effort to reach a similar “permissive use” understanding.
         While the Starners use of Deer Road did no harm, Jason complained to the appellees that
their use of the road by large farm equipment and fully loaded semi tractor-trailers had resulted in
annual expenditures of $700 to $800 for grading and rocking expenses. Jason is an engineer by
education and training and he calculated that one semi-trailer trip over Deer Road, when loaded,
is equivalent to 90 trips by a passenger car. Jason suggested the appellees might like to chip in for
maintenance of the appellants’ private road. The appellees told Jason they were not willing to be
responsible for any maintenance since they believed the road to be public and the county should
be responsible for the maintenance, but, if any other party might be responsible, Jason should
check with the UPRR. The appellees had been using Deer Road to access improvements on the
UPRR right-of-way pursuant to a leasehold contract with the UPRR since 1998. The appellees told
Jason his lease with the UPRR was renewed in 2001 through August 2021.




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        Jason told the appellees he wanted to be a good neighbor so while he pursued some sort of
maintenance arrangement with the UPRR, the appellees were permitted to use Deer Road. The
appellees denied ever having been given permission to use Deer Road by either of the appellants.
        Negotiations with the UPRR failed in June 2015 and in August 2015, Jason advised both
the UPRR and the appellees that continued use of Deer Road after August 31, 2015, would be
construed as an “intentional trespass.” Permission to use Deer Road extended by Jason to the
appellees in 2007, was revoked in 2015 and Jason posted a “Private Property” sign at the top of
Deer Road.
        After August 31, 2015, Jason made note of continuing use of Deer Road by the appellees
as they drove to and from their grain bins. Jason made reports to the county sheriff and the county
attorney but no citations were issued in 2015. In early October 2015, Jason encountered Donald at
the corner of Highway 75 and County Road “C.” Jason stopped to talk to Donald and again tried
to persuade him to work out a maintenance agreement. Donald again told Jason he was not
interested in any maintenance agreement, and besides, Donald believed he had a “prescriptive
easement” over Jason’s property. This was the first time Jason had heard of the appellees’
“prescriptive easement” claim. Donald warned Jason he had every intention of putting grain in the
bins on the UPRR ground which meant using Deer Road. Jason told Donald his use of Deer Road
was “at his own risk.”
        Jason contacted the county attorney for Otoe County in January 2016 after growing
frustrated with the lack of action on his trespass claims against the appellees. The county attorney
was unaware the appellees had continued to use Deer Road after September 1, 2015, so he wrote
Donald a letter in March 2016. The letter advised Donald that it was the county’s position that
Deer Road is the appellants’ private property; that the law presumes use is “permissive by the
owner,” and that Donald did not have a recorded easement. The county attorney encouraged
Donald to find some resolution with Jason since his office considered it a “civil matter” and the
sheriff was reluctant to issue citations or make any arrests.
        Jason again encountered Donald on Deer Road on June 22, 2016. Donald was towing a
tractor and was preparing to remove corn from the bins. Jason called the sheriff and while waiting
for his arrival, he engaged Donald in a conversation about whether or not he had received the
March letter from the county attorney. Jason walked away since the conversation was not
productive and at that point Donald told him to “go to hell.” When the sheriff arrived Donald was
asked to leave the property and he complied. Jason later learned a trespass ticket was issued for
the June 22 incident but the county attorney declined to file charges since this case was underway.
        On July 19, 2016, the appellees filed a complaint in equity seeking to quiet title to an
alleged prescriptive easement across the appellants’ property and for injunctive relief. The
appellants responded to the appellees’ complaint and affirmatively alleged they had permitted the
appellees’ use of the driveway from 2003 through 2015 when permission was withdrawn. The
appellees set their request for a preliminary injunction for hearing and a retired district court judge
was appointed to hear the matter. The appellants sought a permanent injunction which was
combined for hearing before the judge.
        On August 19, 2016, the judge overruled the appellees’ motion for a preliminary
injunction. The court found Deer Road is entirely located on the appellants’ property as confirmed



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by the surveyor for Otoe County. In denying the motion for relief the court said it was the
appellees’ burden to prove the likelihood of success on the merits which means proving they have
a clear right to use Deer Road. Since the appellees failed to produce evidence supporting a
conclusion that Deer Road is a public right of way, nor did they produce evidence of having
acquired a prescriptive easement over the appellants’ private property, the court concluded they
are unlikely to prove their right to use Deer Road.
         The appellees filed a motion for summary judgment on May 8, 2017, seeking a declaratory
judgment that Deer Road is a public right of way or in the alternative that they have a prescriptive
easement over Deer Road. On June 28, 2017, the appellants filed a motion for summary judgment
quieting title to Deer Road in them and for permanent injunction against the appellees. A hearing
was held on July 18, 2017, before a different district court judge, and on November 1, 2017, the
district court granted the appellees’ motion for summary judgment while also denying the motion
filed by the appellants. The court determined there were no material facts in dispute and that a
public prescriptive easement existed in Deer Road. The court further found that the appellants were
permanently restrained from prohibiting the appellees’ use of the road to access their grain bins on
the UPRR ground. After various motions were heard after entry of the summary judgment, the
appellants appealed to this court on February 1, 2018.
                                  ASSIGNMENTS OF ERROR
        The appellants set out 11 assignments of error, including whether the trial court erred when
it refused to quiet title to their land because of the operation of “Nebraska’s marketable title
statutes,” and because summary judgment was not proper given the many questions of material
fact which existed. Since this court finds there are material facts in dispute about whether the
appellees’ use of the road was “permissive,” there are several material facts in dispute about
whether their use was also “exclusive” and “adverse” for a sufficient span of years.
                                   STANDARD OF REVIEW
        An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admissible evidence offered at the hearing show that there is no genuine issue as to any
material facts or the ultimate inferences that may be drawn from those facts, and, that the moving
party is entitled to judgment as a matter of law. Feloney v. Baye, 283 Neb. 972, 815 N.W.2d 160
(2012). In reviewing a summary judgment, an appellate court views the evidence in a light most
favorable to the party against whom the judgment is granted and gives such party the benefit of all
reasonable inferences deducible from the evidence. Id.
                                           ANALYSIS
       As a preliminary matter, the appellants assert the lower court failed to apply “the operation
of Nebraska’s marketable title statutes” to the facts in this case. However, our examination of the
record presented to us demonstrates that none of the pleadings filed in this case raise the
applicability or operation of the Marketable Title Act, Neb. Rev. Stat. §§ 76-288 to 76-294
(Reissue 2018). Nor did the appellants raise this issue in their motion for summary judgment, or
in opposition to the motion for summary judgment filed by the appellees. As a result, we decline




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to consider the question here. See, First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d
465 (2013) (when party raises issue for first time on appeal, appellate court will disregard it
because lower court cannot commit error in resolving issue never presented and submitted to it for
disposition).
        With regard to the remaining assignments of error, it has long been recognized in this
jurisdiction, as in others, that a highway may be established by prescription when used adversely
by the public continuously for a period of 10 years or more. Sellentin v. Terkildsen, 216 Neb. 284,
343 N.W.2d 895 (1984). In order 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. Id. Furthermore, we have held that in order to establish a roadway in favor of the public by
prescriptive easement, 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, the period of time necessary to bar an action
to recover the land. Id. Once a claimant shows open, visible, continuous, and unmolested use of
the land for the necessary period, the use will be presumed to be under a claim of right, and 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. Id.
        The rules applicable to prescriptive easements are the same and are set out in Jurgensen v.
Ainscow, 155 Neb. 701, 708-09, 53 N.W.2d 196, 200 (1952), as follows:
                The use and enjoyment which will give title by prescription to an easement is
        substantially the same in quality and characteristics as the adverse possession which will
        give title to real estate. It must be adverse, under a claim of right, continuous and
        uninterrupted, open and notorious, exclusive, with the knowledge and acquiescence of the
        owner of the servient tenement, for the full prescriptive period.

See, also, Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979); Neb. Rev. Stat. § 25-202
(Reissue 2016). To prove a prescriptive right to an easement, all the elements of prescriptive use
must be generally established by clear, convincing, and satisfactory evidence. Then, the owner of
the servient estate, in order to avoid the acquisition of the easement by prescription, has the burden
of rebutting the prescription by showing the use to be permissive. Svoboda v. Johnson, supra.
        Here, there are facts in dispute about whether the appellees’ use was exclusive and hostile
for the prescribed period; whether the appellants have established the appellees’ use was by
permission; and during which 10-year period from 1858 to the present was the time frame during
which a public prescriptive easement may have been established. Accordingly, the grant of
summary judgment was in error.
                                          EXCLUSIVE USE
        Exclusive use requires some evidence of an intention by the claimant to appropriate and
use the property as his or her own to the exclusion of all others. Nye v. Fire Group Partnership,
265 Neb. 438, 657 N.W.2d 220 (2003). And if the occupier shared possession with the title owner,




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the occupier may not obtain title by adverse possession. Dugan v. Jensen, 244 Neb. 937, 510
N.W.2d 313 (1994).
        An unbroken chain of title to the property exists from 1858 to 1957 when the Rosses, the
owners prior to the appellants, bought the property. The evidence presented by the appellees
includes affidavits from farmers and other neighbors who say “as long as I can remember” many
people have used Deer Road to access the leasehold improvements at the top of Deer Road. But at
least since 1957 the same road was also being used by the owner of the property. The Rosses’
simultaneous use of the road from 1957 through 2003 may undermine the exclusive use element
necessary to establish a public prescriptive easement unless a public prescriptive easement was
established well before 1957. The record is not clear whether the appellees or the various public
users ever had exclusive use of Deer Road or whether, or when, a public prescriptive easement
existed prior to 1957 and through 2003.
                                          PERMISSIVE USE
        The district court also failed to consider whether Jason had successfully rebutted the
presumption of adverse possession with evidence of permissive use when he became owner of
record. Between September 2003 and August 2015, the appellees had been using Deer Road either
in conjunction with the appellants or with their permission, and at no time during this period was
the use “adverse.” Permissive use of property can never ripen into title by adverse possession. See
Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998). The rule in Nebraska has been and
continues to be that use of “unenclosed” or “wilderness” land is presumed to be a neighborly act
and thereby a “permissive use” since a large land owner may not notice a person crossing his land
and would not have an opportunity to protect his interest. Fischer v. Grinsbergs, 198 Neb. 329,
339, 252 N.W.2d 619, 625 (1977). But even in an urban setting, when the owner of a property has
opened or maintained a right of way for his own use and the claimant’s use appears to be in
common with that use, the presumption arises that the use is permissive. Feloney v. Baye, 283 Neb.
972, 815 N.W.2d 160 (2012). The foundation for the presumption of permissive use in either
situation is the likelihood that the owner is being neighborly as opposed to acquiescing in a tortious
trespass over his land.
        The evidence is clear in this case that Jason permitted the Starners’ use of Deer Road
because the Starners had been good neighbors to him and his family. The record is also clear that
Jason permitted the appellees continued use of Deer Road while Jason tried to work out a
maintenance arrangement with the UPRR. What is not clear is whether a public prescriptive
easement had already been established prior to Jason’s purchase of the property, either during the
Rosses’ ownership or before, such that Jason’s acquiescence in Donald’s use was irrelevant.
                                          CONCLUSION
        For the foregoing reasons, we reverse the district court’s order and remand the cause for
further proceedings.
                                                                   REVERSED AND REMANDED FOR
                                                                   FURTHER PROCEEDINGS.




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