Nebraska Supreme Court Affirms Prescriptive Easement Claim in Otoe County

Fey v. Olson, 319 Neb. 45 (2025)

Two landowners claimed they have crossed their neighbors’ property for as long as they can remember due to a river dividing the property, thus making the southern half otherwise inaccessible.  The neighbors attempted to stop that access by locking a gate in the access road.  The landowners sued for a prescriptive easement.

The Otoe County District Court held the landowners established a prescriptive easement.  The elements for a prescriptive easement claim are use that is exclusive, adverse, continuous and open and notorious during a 10-year prescriptive period.  The court found that landowners satisfied these elements.

The court rejected the neighbors’ argument that the access road served only agricultural purposes.  Evidence showed the landowners used the property for both agriculture and recreational purposes.  The landowners demonstrated their use by showing crops currently planted on the property and prior history of camping and hunting.  The court held the landowners may use the easement in the same manner they did previously. 

The neighbors also argued the landowners’ use was permissive.  The court rejected this argument after testimony indicated the landowners never received nor asked for permission to cross the property.  As a remedy, the district court ordered the neighbors to unlock the gate and allow the landowners and their successors access to the road.

The Nebraska Supreme Court affirmed.  It held the landowners satisfied all required elements of a prescriptive easement and thus landowners were entitled to cross neighbors’ property to enter onto their land.  

Contrasting the facts of a previous case, Feloney v. Baye[1], the Nebraska Supreme Court determined there was no evidence to show the neighbors gave permission to cross their property.  Although the neighbors acquiesced, that did not amount to permission.

Attorneys at Baird Holm specialize in various subject matter areas including land use, environmental law and real estate development and litigation.  Please contact us with any questions.

Hannes D. Zetzsche
Linnea N. Jorgenson, Summer Associate