                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     JAEGER V. BLOOMBERG


  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).


           EDWIN L. JAEGER AND DONNA C. JAEGER, HUSBAND AND WIFE, APPELLEES,
                                                V.

     RODGER E. BLOOMBERG AND CAROL J. BLOOMBERG, HUSBAND AND WIFE, APPELLANTS,
                       AND LONNIE D. KURKOWSKI, APPELLEE.



                              Filed June 23, 2015.   No. A-14-866.


       Appeal from the District Court for Keith County: RICHARD A. BIRCH, Judge. Affirmed.
       Randy Fair, of Dudden & Fair, P.C., L.L.O., for appellants.
       Gregory J. Beal, of Beal Law Firm, for appellees Bloombergs.



       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       PIRTLE, Judge.
                                       INTRODUCTION
        Roger E. Bloomberg and Carol J. Bloomberg appeal from an order of the district court for
Keith County granting Edwin L. Jaeger and Donna C. Jaeger an access easement across the
Bloombergs’ property based upon the theory of prescriptive easement. Based on the reasons that
follow, we affirm.
                                        BACKGROUND
      The Jaegers and the Bloombergs own adjoining properties located in Keith County,
Nebraska. The Jaegers’ land is directly west of, and adjacent to, one tract of land owned by the
Bloombergs. The Bloombergs’ property also includes tracts that are east and south of the tract that




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adjoins the Jaegers’ property. The Jaegers allege that the only access to their property is a road that
runs east and west across a portion of the Bloombergs’ property.
         The Jaegers purchased their land in September 1973 and immediately built a home on the
property. The Bloombergs bought their property in August 1973, but did not build a home on the
property until 1976. The Bloombergs can access their property from the same road that the Jaegers
claim to have been using and want to continue to use, as well as another east/west road that is
located south of the road at issue. Both parties purchased their land from the same owner, and the
land was all pasture at the time it was purchased.
         On November 9, 2011, the Jaegers filed an amended complaint against the Bloombergs
alleging that they had used the road on the Bloombergs’ property for 36 years to access their house
and that the Bloombergs were now trying to restrict their access to their property and had taken
the position that the Jaegers have no right to use the road. The Jaegers requested that the court
enter an order finding that they have an express easement, an easement of necessity, or a
prescriptive easement for the road at issue, allowing them to continue using the road to access their
property.
         The Bloombergs filed an answer and several counterclaims. Lonnie Kurkowski, who owns
land east of the Bloombergs that is part of the road at issue, filed an answer and cross-complaint.
Kurkowski stated in his pleading that he did not object to the Jaegers use of the road and he
believed it should remain open for their use, as it is the only reasonable access to their home in his
opinion.
         Trial was held in April 2013 to determine whether the Jaegers had an access easement
across the Bloombergs’ property. Edwin Jaeger testified that in the fall of 1973, the same year both
parties bought their property, he and Roger Bloomberg built the road now at issue. Edwin testified
that no other roads existed at the time they purchased the property. Edwin and Donna Jaeger both
testified that they began using the road after it was constructed in 1973 and have been continuously
using it since then.
         Edwin testified that there was never any agreement or discussion about the use of the road,
he and his family just used it. Donna testified that based on the abstract of title she and Edwin
received when they purchased their property, she understood that the road at issue would be their
access to their property. Travis Jaeger, Edwin and Donna’s son, testified that the Jaegers never
asked the Bloombergs for permission to use the road, and the Bloombergs never told them that
they could not use it.
         The Jaegers both testified that they had unrestricted use of the road at issue until 2010. At
that point, the Bloombergs began putting up signs and telling the Jaegers they could not use the
road.
         The Jaegers testified that since 1973, friends and neighbors have used the road at issue to
visit them. They testified that their three children, who are now adults, continuously used the road
when they were old enough to drive and their friends also used the road to get to and from the
Jaeger house. The Jaegers also testified that the United States Post Office used the road at issue to
deliver their mail, and Federal Express and UPS also used the road for deliveries to the Jaegers.
The Jaegers’ garbage service also used this road to pick up garbage from the Jaegers’ home, and




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emergency vehicles have used the road to get to their home. Donna also testified that the county
road maintainer used to come onto the road.
        Donna testified that her family provided maintenance for the road at issue continually since
1973. Travis testified that he remembered his father working on the road when he was a child. He
also testified that he worked on the road at different times when he was older, doing such jobs as
grading, laying gravel, and snow removal.
        Kurkowski also testified about the use of the road over the years. He testified that the
Jaegers used the road continuously since he acquired his property in 1979. He testified that he has
observed garbage trucks and the United States Postal Service using the road to go to the Jaegers’
house.
        Roger Bloomberg testified that immediately after buying his property in 1973, he posted
no trespassing signs and fenced his entire property with barbed wire to keep his animals in and
others out. Roger and Carol Bloomberg both testified that the disputed road did not exist in 1973
as the Jaegers contend. Rather, it was developed in 1976 when the Bloombergs built their house.
Roger denied that Edwin helped him build the road. Roger testified that between 1973 and 1976,
he used another road referred to as “Kelly Lane” to access his property.
        Roger testified that from the late 1970’s to the early 1980’s the Jaegers had animals on
their property so they fenced in their property. Roger stated that the fence came across the disputed
road so the Jaegers had no access to the Bloombergs’ property during those years. Roger testified
that from 1976 to 1985, he did not see the Jaegers use the disputed road, and he assumed the
Jaegers used Kelly Lane or Christine Drive to access their property. Roger also testified that during
those years he never saw anyone, such as the United States Postal Service or UPS, use the road to
get to the Jaegers’ house. He also testified that he never had a discussion with Edwin about
permission to use the road during that period of time.
        Carol testified that she observed the Jaegers using Kelly Lane and Christine Drive to access
their property between 1976 and 1985. Carol also testified that during those years there were times
in the winter months that the road could not be used. She testified that during those times, she and
Roger used the alternate road to the south of the road at issue.
        In the mid-1980’s, the Bloombergs moved to California. During that time, they would
occasionally return to their property in Nebraska. Roger and Carol testified that during the times
they would return, the road at issue was in bad condition and could not be used. Roger and Carol
both testified that when they moved back to Nebraska in 1990, the road needed so much repair
work and maintenance that they did not do anything to it for some time and they used only the
road to the south. The Bloombergs also testified that in 2002 there was a flood that caused the road
at issue to wash out and become unusable again.
        Roger testified that between 1990 and 2005, he never saw any service vehicles drive on the
road to get to the Jaegers’ property. On cross-examination, Roger testified that the Jaegers never
used the road at issue between 1973 and 2010. He testified that he told them in 2010 that they
could not use the road because they had no right to use it, and again stated that they never used it
until 2010.
        Carol Bloomberg testified that between 1980 and 1985 she was home most of the time
because she was operating a dog kennel at that residence, and she never saw any service vehicles



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use the disputed road to get to the Jaegers’ house. Carol testified that in 2005, she saw one of the
Jaegers’ children working on the road. She stated that was the only time she saw the Jaegers
working on the road. She also testified that she and Roger never had any conversations with the
Jaegers.
         On rebuttal, Donna testified that the Jaegers have used the road at issue to go to and from
their home every day for over 40 years. She testified that they started getting mail delivery to their
property in 1975 or 1976, and that Kelly Lane did not exist then. She also testified that there was
never a barbed wire fence across the road or anything else restricting their access to the road.
Edwin testified that Kelly Lane did not exist in the 1970’s as the Bloombergs contend, and that
they have been using the road at issue since shortly after building their house in 1973. Kurkowski
testified that the Jaegers have been using the road at issue every day since 1979. He also testified
that Kelly Lane did not exist until after 2002.
         At the conclusion of trial, based on an agreement by the parties, the trial court viewed the
property in question. Subsequently, the trial court entered an order finding that the Jaegers proved
they had an access easement over the road on the Bloombergs’ property under the theory of
prescriptive easement. The court ruled against the Bloombergs on their counterclaims and found
in favor of Kurkowski on his cross-complaint. Kurkowski is not a party in the present appeal.
                                    ASSIGNMENT OF ERROR
        The Bloombergs assign that the trial court erred in finding that the Jaegers met their burden
to establish an access easement under the theory of a prescriptive easement.
                                    STANDARD OF REVIEW
         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).
                                            ANALYSIS
        The Bloombergs assign that the trial court erred in finding that the Jaegers proved the
elements necessary for a prescriptive easement.
        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, 815 N.W.2d 160 (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. The use and enjoyment that will establish an easement
through prescription are substantially the same in quality and characteristics as the adverse
possession that will give title to real estate, but there are some differences between the two
doctrines. Id.
        Nebraska case law has previously noted that the law treats a claim of prescriptive right with
disfavor. Feloney v. Baye, supra. The reasons are obvious - to allow a person to acquire




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prescriptive rights over the lands of another is a harsh result for the burdened landowner. Id. And
further, a prescriptive easement essentially rewards a trespasser, and grants the trespasser the right
to use another’s land without compensation. Id.
        In prescriptive easement cases, the Nebraska Supreme Court has 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.
        In order for the Jaegers to prove a prescriptive easement, they had to establish each of the
elements by clear, convincing, and satisfactory evidence. See Teadtke v. Havranek, supra.
        The prevailing rule is that where a claimant has shown open, visible, continuous, and
unmolested use of land for a period of time sufficient to acquire an easement by adverse user, the
use will be presumed to be under claim of right. Teadtke v. Havranek, supra. If 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. Id. The
presumption of adverse use and claim of right, when applicable, prevails unless it is overcome by
a preponderance of the evidence. Id.
        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. Teadtke v. Havranek, supra. There was no evidence that the Jaegers use of the property
was dependent on a similar right in others.
        The Bloombergs contend that the Jaegers did not prove that their use of the road at issue
was continuous and uninterrupted because the evidence showed that the Bloombergs had a barbed
wire fence around their entire property and also showed that the road was in bad condition and
impassible much of the time.
        The Jaegers’ evidence showed however, that they have used the road at issue to access their
property consistently for well over 30 years at the time they filed their amended complaint, and
that they have maintained the road over the years. The Jaegers’ friends and neighbors, the Jaegers’
children, and the children’s friends, have all used the road at issue over the years to access the
Jaegers’ house. The evidence also showed that the Jaegers received mail, deliveries, garbage
service, and emergency medical care through use of the road. Kurkowski’s testimony supported
the use claimed by the Jaegers. He testified that he had observed the Jaegers continually use the
road since 1979.
        The trial court found that based on the evidence and a view of the property at issue, that
someone had been using the road regularly and for an extensive number of years, and since it was
apparently not the Bloombergs, it concluded that it was the Jaegers. The court stated that it
accepted the Jaegers’ testimony as to their use of the road since 1973 and the extent of that use.
        When credible evidence is in conflict on material issues of fact, the appellate court may
consider and give weight to the fact that the trial court observed the witnesses and accepted one
version of the facts over another. Homestead Estates Homeowners Assoc. v. Jones, 278 Neb. 149,
768 N.W.2d 436 (2009). We give such deference to the trial court here, especially since the trial
court had viewed the property at issue, and find the Jaegers’ evidence as to their use of the road



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more credible. The Jaegers’ use of the road constitutes continuous and uninterrupted use, as well
as open and notorious conduct.
         Generally, once a claimant has shown open and notorious 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.
         The Bloombergs argue that the Jaegers testified that their use was permissive and therefore,
they did not prove that their use was adverse and notorious. The Jaegers did not testify their use
was permissive. They only testified that there was no discussion about their use of the road. Edwin
testified that there was never any agreement or discussion about the use of the road, they just used
it. Donna testified that she believed they had a right to use the road beginning in 1973 when they
purchased their property. Travis testified that his family never asked the Bloombergs for
permission to use the road, and the Bloombergs never told them that they could not use it. The
Jaegers’ evidence shows that they never asked for or received permission to use the road.
         The Bloombergs’ evidence does not establish that the Jaegers’ use was permissive either.
Roger testified that he never had a discussion with Edwin about permission to use the road between
1976 and 1985. He testified that there was never a discussion over the years. Carol testified that
she and Roger never had any conversations with the Jaegers. Therefore, the Bloombergs did not
provide sufficient evidence to overcome the presumption of adverse use and a claim of right.
         We conclude that the Jaegers have shown by clear and convincing evidence that their use
of the road at issue was exclusive, adverse, under the claim of right, continuous and uninterrupted,
and open and notorious for the required ten year prescriptive period. Therefore, the Jaegers met
their burden to establish an access easement under the theory of a prescriptive easement. The
Bloombergs’ assignment of error is without merit.
                                          CONCLUSION
         We conclude that the trial court did not err in granting the Jaegers an access easement
across the Bloombergs’ property based upon the theory of prescriptive easement. The judgment of
the trial court is affirmed in its entirety.
                                                                                         AFFIRMED.




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