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The Nebraska Court of Appeals Affirmed a Prescriptive Easement for a Landowner Over a Lateral Water Canal on a Neighbor’s Property

on Friday, 6 March 2015 in Dirt Alert: David C. Levy, Editor

The Nebraska Court of Appeals, in Fyfe v. Tabor Turnpost, L.L.C., 22 Neb. App. 711 (2015), held that a landowner may establish and perfect a prescriptive easement for an irrigation lateral over the land of an adjacent property owner. The decision is a potent reminder to landowners that neighboring landowners may establish easements by prescription over your land.

Plaintiffs (“Fyfe”) and Defendants (“Baker”) were adjacent landowners and stockholders in the Minatare Mutual Canal and Irrigation Company (“Minatare Mutual”), which provided water to its stockholders through a water canal. Headgates located at several points along the canal distributed water to individual stockholders, but if more than one landowner received water through a particular headgate, those landowners were responsible to determine how each party would receive water. At issue was a lateral of the canal that ran across Baker’s property until it reached Fyfe’s property.

Maintenance of the lateral had been a contentious issue between the parties. Baker maintained the lateral from the headgate to a “check” (a cement structure that rises to impede and alter the directional flow of water), and Fyfe maintained it from that check to Fyfe’s land. Maintenance included burning the dried weeds in the lateral, spraying weedkillers on the sides of the lateral, or using mechanical means to remove weeds. Baker claimed Fyfe did not properly maintain the lateral, causing water to overflow onto Baker’s property.

In 2007, Baker installed four culverts on the lateral, two of which diverted water from the lateral to irrigate Baker’s land. In 2010, after Fyfe called Minatare Mutual for water, Baker shut down the headgate, claiming water was running over the lateral onto Baker’s property. Fyfe did not receive any additional water for crop irrigation for the rest of the year and sued.

Fyfe sought a prescriptive easement over Baker’s property to obtain water, an injunction barring Baker from interfering with the easement, and damages for crop losses. The trial court granted Fyfe a perpetual prescriptive easement and an injunction, and after a jury trial on damages, a jury awarded Fyfe damages. Baker appealed, and the Nebraska Court of Appeals affirmed.

A party claiming a prescriptive easement must show that its use was continuous and uninterrupted, adverse, exclusive, under a claim of right, and open and notorious for a ten-year period. The Court of Appeals held Fyfe’s use of the lateral was continuous and uninterrupted because Fyfe used it whenever necessary and with sufficient frequency to put Baker on notice. Although Baker restricted Fyfe’s access to the lateral, Baker never asserted Fyfe could not use it to obtain water.

A permissive use is not adverse and cannot become a prescriptive easement. Although Baker claimed Fyfe’s use of the lateral was permissive, there was no evidence of any agreement with Baker or the prior landowners permitting Fyfe to use the lateral. If Fyfe’s use of the lateral was permissive, Baker would not have prohibited Fyfe from entering Baker’s property on occasion to maintain the lateral.

The Court of Appeals also noted that Fyfe had used the lateral since at least 1959, and that is when the ten-year prescriptive period began. Accordingly, Fyfe’s easement existed before Baker purchased the adjoining property. Because Baker installed the culverts after the prescriptive period ended, and the culverts restricted the flow of water to Fyfe’s land, Baker had to remove the culverts and pay Fyfe damages for crop losses.

A full copy of the opinion is available here.

Pedro A. Salazar

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