Opinion
No. 38295.
Filed August 8, 1972.
1. Easements: Highways: Adverse Possession. A permissive use of the land of another, that is a use or license exercised in subordination to the other's claim and ownership, is not adverse and cannot give an easement by prescription no matter how long it may be continued. 2. Easements: Notice: Adverse Possession. It is well settled that a permissive use cannot ripen into a prescriptive right until 10 years after notice of the adverse claim is brought home to the landowner. 3. Easements: Adverse Possession: Evidence. To prove a prescriptive right to an easement all of the elements to a prescriptive use must be generally established by clear, convincing, and satisfactory evidence.
Appeal from the district court for Cherry County: ROBERT R. MORAN, Judge. Reversed and remanded with directions to dismiss.
Michael V. Smith, for appellant.
W. Gerald O'Kief, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON JJ.
This action was brought to establish a roadway easement across defendant's land and enjoin him from interfering in its use. The district court held a public road had been established and granted an injunction against defendant. We reverse the judgment of the district court.
Plaintiff's father is the owner of the south half of Sections 8, 9, and 10, Township 34 North, Range 26 West of the 6th P.M., in Cherry County, Nebraska, and other lands running south to the Niobrara River. Defendant is the owner of the north half of Sections 9 and 10 and the northeast quarter of Section 8. Paved Highway No. 12, completed in 1962, runs along the north edge of these sections. The disputed right-of-way runs along the east fence line of the northeast quarter of Section 8. Both the Connot and Bowden buildings are 2 miles east bordering a north-south road running between Sections 10 and 11. The respective holdings of the parties are fully fenced. There is a wire gate in the northeast corner of Section 8 and there formerly was a similar gate in the southeast corner of the northeast quarter in a fence maintained by Connot.
Plaintiff's evidence is to the effect that, prior to 1914, Section 8 was a military reservation, unfenced, open to public grazing, and crossed at will by the public, including persons living on the river bottom to the south. The land in the area was then homesteaded and fenced. Thereafter for a period of about 6 years, in the 1930's, persons living on the river sometimes entered Section 8 at the gate in the northeast corner, drove south through the Connot gate in the southeast corner, and on south across Connot land to the river. A trapper and one or two persons cutting wood on the river bottom did likewise on occasion. The length of this usage is not reflected by the record. Plaintiff claims he used the trail across defendant's land 50 to 150 times each year since 1960 and that these had for many years been a well-defined trail. Plaintiff knew of only 2 neighbors who had used the trail and that was about 30 years ago. A man by the name of Hayes formerly owned and lived on the northeast quarter of Section 8. He had padlocked one of the gates for a considerable period of time commencing about 1940. Plaintiff's father had padlocked the gate in the southeast corner of the northeast quarter of Section 8 about 30 years ago, then removed the gate and fenced across the alleged road. An individual who lived south along the river for a short time was given a key and plaintiff says he now drives through by removing a post and letting down the fence.
Plaintiff and his father concede they often crossed from the east through their own land to reach their land 2 miles to the west and had a well-defined trail used for this purpose but insist they made use of the road, now Highway No. 12, and the trail across defendant's land. A disinterested neighbor, a Valentine high school teacher for 10 years, gave volunteer work as a neighbor to the Connots in 1967 and says in every instance he drove through the Connot land to get to the Connot westerly holdings. He was not aware that Connot ever used a trail through defendant's land. Plaintiff says the route through the Connot land is now impassable due to a washout or deepening of a creek.
Plaintiff introduced aerial photos taken in 1955. These photos fail to show any north-south road across the Connot land but do show an east-west trail. The only trail appearing on defendant's land in the northeast quarter of Section 8 is one running to the Hayes building site where it ends and does not run farther south. Pictures taken by defendant after issuance of a restraining order and recent use of the alleged trail by plaintiff do not reflect a well-defined trail, but only a mashing down of the foot-high grass. Usage of this route by plaintiff for 50 to 150 times per year over a 10-year period, as he testified, would necessarily have resulted in destruction of the grass and a well-defined roadway. Plaintiff concedes that until 1971 practically all his machinery was moved west across the Connot land; and that prior to construction of Highway No. 12, that roadway was a very poor one. Defendant verifies this and indicates it was subject to sand blowouts.
Plaintiff further says that on occasion a coyote hunter, a trapper, and on occasion a gardener on the river bottom had entered or left across plaintiff's and defendant's lands from the road, now Highway No. 12. Defendant states that to his knowledge plaintiff had only used the alleged trail on one occasion, in 1961, when his truckers hauled hay out after asking defendant's permission.
The district court, understandably, failed to find an easement by prescription had been established but did find a public road had been established by user. This finding is of necessity based upon the more or less sporadic travel across plaintiff's and defendant's lands and is directly contradictory of the actions of the owners, specifically including the Connots. For many years plaintiff's father either padlocked his gate or fenced solidly across the road plaintiff now seeks to establish. The same was done by the former owner of defendant's land, Hayes. Obviously none of the owners recognized the establishment of a public road or the right of others to freely enter and leave. They interrupted, at will, the sporadic entry by others, and Connot, after exerting such rights of ownership, granted permission to the last resident to the south to cross his land by giving him a key. Such interruptions of public use are assertions of ownership rights, stop the running of the statute, and definitely indicate a permissive use only.
It is apparent that the land was formerly public owned, was open grazing land, was traversed at will by anyone desiring to do so, and that such use was permissive. In the year 1914 it was thrown open to homesteading, was subsequently homesteaded, and eventually fenced. The permissive crossing of the land appears to have continued. There was no road through the area. The situation appears to be similar to that described in Burk v. Diers, 102 Neb. 721, 169 N.W. 263, wherein it is stated: "The road in controversy, if it was a road, which is disputed, was a neighborhood road. Oftentimes farmers or owners of city lots, out of mere generosity and neighborly feeling, permit a way over their land to be used, when the entire community knows that the use is permissive only, without thought of dedication or adverse user. This use ought not to deprive the owner of his property, however long continued. Such rule would be a prohibition of all neighborhood accommodations in the way of travel. * * *
"The use necessary to estop the owner from claiming his land must be such that interruption would affect private rights or public convenience. Where the public has exercised no control or dominion over the road, nor used it to such an extent as to inform the owner, exercising reasonable care for his rights, that the public is using it under claim of right, then neither implied dedication nor adverse user is shown. There is no evidence in this case that the general public has depended upon the existence of this road and will be seriously inconvenienced by the loss of it; nor have private persons made improvements in the belief that this is a road. In fact, the road is a cul-de-sac."
In the vast holdings of grazing lands in western Nebraska, many well-defined trails may be found which are accessible to all through gates provided. Entry by nonowners of the land for various purposes cannot ordinarily be deemed to be adverse. It is not under a claim of right but generally recognized as permissive in nature. In the present case, no "claim of right" was ever asserted until the incidents occurred which gave rise to this action. As stated in Stubblefield v. Osborn, 149 Neb. 566, 31 N.W.2d 547: "In the instant case the evidence by the plaintiffs shows the original entry and use to have been permissive. The plaintiffs did not inform Bolton that they claimed a right-of-way and perpetual easement across his land. They crossed the land on occasions to go hunting, as did others. There was no claim of right or exclusive use. The most that can be said as to their crossing the lands in question is that it was permissive only, a neighborly act on the part of the owners or tenants on the land. There was no claim of ownership on the part of plaintiffs of such a nature that they openly and forcibly asserted directly against the actual owners of the land in such a manner that the owners would be required to take affirmative action against the plaintiffs." It is well settled that a permissive use cannot ripen into a prescriptive right until 10 years after notice of the adverse claim is brought home to the landowner. See Walsh v. Walsh, 156 Neb. 867, 58 N.W.2d 337. "A permissive use of the land of another, that is a use or license exercised in subordination to the other's claim and ownership, is not adverse and cannot give an easement by prescription no matter how long it may be continued. * * *
"To establish a prescriptive right to an easement, it must have been exercised under a claim of right. A use by express or implied permission or license cannot ripen into an easement by prescription." Scoville v. Fisher, 181 Neb. 496, 149 N.W.2d 339.
Plaintiff did not contend that a public road had been established but claimed only an easement. The record does not disclose that the public ever claimed dominion over the alleged right-of-way or exercised dominion over it. It was never worked or maintained by the public. With the establishment of the Connot fence it became a deadend or cul-de-sac. The evidence discloses that if a road ever existed it ran all the way through the lands of both parties to the Niobrara River. The actions of the Connots clearly negate their claims that either an easement or a public road was established by prescription. Their padlocking of the gate and closing of the fence definitely import a permissive use only. Both landowners have asserted dominion over the purported easement way. When their lands were fenced they could no longer be crossed at any or all points. Entry could only be gained through the gate which defendant's predecessor in title provided as a means of entry to his improvements and home and thence south through the Connot gate.
It is conceded that Connots had access to their lands through their own property and commonly used this means of access until the recent construction of Highway No. 12 when they found it more convenient to cross defendant's land. The photographs fail to support their contention that a well-traveled easement or roadway existed. On the contrary, they verify defendant's contention that Connot used the way through his own land almost exclusively and that the lane on defendant's land ran only to the site of the old improvements and not straight south through the Connot fence. "`* * * To prove a prescriptive right to an easement all of the elements to a prescriptive use must be generally established by clear, convincing, and satisfactory evidence.'" Kuhlmann v. Platte Valley Irr. Dist., 166 Neb. 493, 89 N.W.2d 768. See, also, Jurgensen v. Ainscow, 155 Neb. 701, 53 N.W.2d 196. The proof here is not sufficient to meet this requirement.
The language used in Gilliland v. County of Frontier, 148 Neb. 636, 28 N.W.2d 448, is appropriate: "To establish a highway by prescription there must be a user by the general public under a claim of right, and which is adverse to the occupancy of the owner of the land, of some particular or defined way or track, uninterruptedly, without substantial change, for a period of time necessary to bar an action to recover the land." That case further stated: "The plaintiff owner acquired the land in 1916 and 1917. He fenced it in 1918 and there were gates at C and at E. Thereafter these gates were kept closed, in particular during the several months of each year when stock was kept there. The relatively few people who found occasion to use the road did so, opening and closing the gates. It was a community, neighborly arrangement such as existed in many sections of Nebraska. From 1918 to 1945, no one protested or questioned plaintiffs' right to enclose the road and to maintain the gates."
The existing circumstances demonstrate that neither a prescriptive easement or public road has been established. The judgment of the district court is reversed and the cause remanded with directions to dismiss.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.