Fischer v. Grinsbergs

• Decision Date: 20 April 1977
• Docket Number: No. 40881,40881
• Citation: 198 Neb. 329,252 N.W.2d 619
• Parties: Viola M. FISCHER, Appellant, v. Voldemars GRINSBERGS and Parsala Grinsbergs, Appellees.
• Court: Nebraska Supreme Court

Page 619

252 N.W.2d 619

198 Neb. 329

Viola M. FISCHER, Appellant, v. Voldemars GRINSBERGS and Parsala Grinsbergs, Appellees.

No. 40881.

Supreme Court of Nebraska.

April 20, 1977.

Syllabus by the Court

1. 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, and with the knowledge and acquiescence of the owner of the servient tenement for the full prescriptive period.

2. 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 a claim of right. 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.

3. A permissive use is not adverse, and cannot ripen into an easement. Where a person proves uninterrupted and open use for the necessary prescriptive period without evidence to explain how the use began, the presumption is raised that the use is adverse and under claim of right and that presumption prevails until it is overcome by a preponderance of the evidence.

4. It is the general rule and weight of authority that where adjoining proprietors lay out a way or alley between their lands, each devoting a part of his own land to that purpose, and the way or alley is used for the prescriptive period by the respective owners or their successors in title, neither can obstruct or close the part which is on his own land; and in these circumstances the mutual use of the whole of the way or alley will be considered adverse to a separate and exclusive use by either party.

5. The extent of an easement is determined from the use actually made of the property during the running of the prescriptive period.

James L. Haszard and Robert D. Zimmerman, Lincoln, for appellant.

Joseph H. Badami of Dean, Badami & Radke, Lincoln, for appellees.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

BRODKEY, Justice.

This is an appeal from a District Court judgment dismissing a petition which prayed for injunctive relief on the basis of an alleged acquisition of a prescriptive easement for the purpose of access to a garage, over a driveway located along and on both sides of the property line between two adjacent lots of land in Lincoln, Nebraska. We reverse and remand with directions to grant the injunctive relief requested.

On June 5, 1975, Viola M. Fischer, plaintiff and appellant herein, filed a petition in the District Court for Lancaster County, alleging that she had acquired a prescriptive easement over part of a driveway located on the property of the defendants and appellants, Valdemars and Parsala Grinsbergs. The petition alleged that plaintiff and defendants owned adjoining lots of land in Lincoln, Nebraska; that a driveway runs parallel to the boundary line between the two lots, and is situated on both sides of that boundary; that plaintiff has acquired a prescriptive easement over the driveway for the purpose of access to her garage by virtue of adverse possession; and that the defendants had interfered with plaintiff's use of the driveway. The petition prayed that defendants be enjoined from interfering with plaintiff's use of the driveway. For answer, defendants generally denied all allegations of the petition other than the fact that they were owners of one of the lots in question.

The evidence adduced at trial was as follows. The plaintiff appellant is the owner of a lot of land, hereinafter referred to as "Lot 25," located at 2007 South 16th Street in Lincoln. The defendants own an adjoining lot, described as "Lot 26," which lies to the south of Lot 25. Deeds on both lots reflecting current and prior ownership were entered into evidence, and show the following chain of ownership: With reference to Lot 25, now owned by the plaintiff, the deeds and evidence reveal that one Coralie S. Wilterdink deeded that lot to Benjamin H. McConnel and wife in 1942; and that in 1949, McConnel deeded an interest in the lot to his daughter, Marjorie H. Corr. Ten years later, in 1959, the McConnels and the Corrs deeded the lot to Roy and Bertha Graham, who were the parents of the plaintiff. Subsequent thereto, in 1970, Roy Graham, his wife having died in the interim, deeded the lot to his daughter, the plaintiff herein, who has owned it continuously since that time. With reference to Lot 26, owned by the defendants in this action, which lot lies to the south of Lot 25, owned by the plaintiff, it appears that in 1945, the property was deeded by Maude Young and her husband to Paul C. Baldwin and his wife, who in 1952 deeded the lot to Michael L. and Helen M. Starita. In 1954, the Staritas deeded the lot to the defendants, who have owned it continuously since that time.

It appears from the record that prior to 1945 a cinder driveway ran along and on both sides of the property line between Lots 25 and 26. There is, however, no evidence as to how and under what circumstances this cinder driveway was originally constructed. The driveway ran from South 16th Street toward the back of the lots, and then branched in a "Y" shape toward garages located on each lot. In 1945, the driveway was made into a concrete driveway. The owners of the lots in 1945, Benjamin McConnel and Paul Baldwin, both worked on the new concrete driveway, and each paid one-half of the costs. Subsequent to 1945, until at least 1972, the owners and/or tenants of Lots 25 and 26 both used the driveway as a means of access to their respective garages without any controversy. It is undisputed that the owners or tenants of Lot 25 frequently and openly used the driveway, helped repair it, and helped scoop snow from it in winter months. It is also undisputed that, to the knowledge of the parties and witnesses, no written agreement in regard to the driveway ever existed between the current or prior owners of the lots.

In 1972 an attorney for the defendants wrote the plaintiff, stating that the plaintiff could no longer use the driveway. Apparently there had been a survey of the lots in 1972, which showed that 6 or 7 feet of the driveway were on the property of the defendants; and that 2 to 3 feet of it were on plaintiff's property. No action resulted from the letter written in 1972, and the plaintiff or her tenants continued to use the driveway as a means of access to her garage.

In 1975 the defendants tore up the part of the driveway on their property, and replaced it with new concrete. In so doing, a small portion of the old cement on plaintiff's property was destroyed, but most of it remained intact. The defendant then built a barrier or fence on the property line, effectively preventing plaintiff from using the driveway as a means of access to her garage. Photographs admitted into evidence indicate that plaintiff's house is located so near the property line that it is impossible for her to build a driveway which would lie entirely on her property and be wide enough to permit passage of an automobile to her garage. The evidence does not show the reason for the defendants' decision to prevent plaintiff from using the driveway.

With regard to the issue of whether the defendants or previous owners of Lot 26 had ever given owners of Lot 25 permission to use their part of the driveway, there was no evidence that express permission had ever been given. Leonard Corr, who had an interest in Lot 25 from 1949 to 1959, stated that he had no real knowledge of whether Paul Baldwin, who owned Lot 26 from 1945 to 1952 ever gave the owners of Lot 25 permission to use his part of the driveway. Corr had never discussed the matter with the defendants, who became owners of Lot 26 in 1954. Corr stated that he "assumed" that the owners of Lot 26 granted permission to use their part of the driveway, but had no knowledge of this fact.

Edwin V. Fischer, plaintiff's husband, stated that he "assumed," on the basis of defendants' "inaction" on the matter, that they had given permission to use the driveway; but he clarified this statement by stating unequivocally that to his knowledge the defendants had never given him or anyone else permission to use the driveway. The defendant, Mr. Grinsbergs, gave no testimony whatsoever on the issue of permission. He stated that no written agreement existed in regard to the driveway, and that he had received no explanation in regard to it when he acquired Lot 26 in 1954. He stated that Leonard Corr, previous owner of Lot 25, had told him that the driveway was on the Grinsbergs' property. Mr. Grinsbergs stated that he had never requested that plaintiff or her tenants not use the driveway.

Finally, although Mr. Grinsbergs stated that there is an opening at the back of plaintiff's garage such that a car can be driven in and out of the garage from an alley, plaintiff testified there is no opening in the back of her garage.

Following the submission of briefs in the case, the trial court entered judgment in favor of the defendants on April 28, 1976, and made the following findings: (1) That the use of the driveway was a permissive use, (2) that there was not an agreement made between the parties or the prior owners of the real estate in question which would constitute an agreement sufficient to constitute an easement, and (3) the evidence was insufficient to establish a location for the easement claimed by the plaintiff. In accordance with these findings, the trial court dismissed plaintiff's petition. Plaintiff's motion for new trial was overruled, and she has now appealed to this court.

In her assignments of error, the plaintiff contends that the foregoing findings and judgment of the...