Sturm v. Mau

• Decision Date: 06 November 1981
• Docket Number: No. 43588,43588
• Citation: 209 Neb. 865,312 N.W.2d 272
• Court: Nebraska Supreme Court
• Parties: Opal J. STURM and Merle Sturm, her husband, Blanche Gladys Jennings and Ivan Jennings, her husband, and Bethel L. Ziettlow, Appellants, v. Raymond W. MAU and Beulah L. Mau, husband and wife, Appellees.

Page 272

312 N.W.2d 272

209 Neb. 865

Opal J. STURM and Merle Sturm, her husband, Blanche Gladys Jennings and Ivan Jennings, her husband, and Bethel L. Ziettlow, Appellants, v. Raymond W. MAU and Beulah L. Mau, husband and wife, Appellees.

No. 43588.

Supreme Court of Nebraska.

Nov. 6, 1981.

Syllabus by the Court

1. Equity: Appeal and Error. In an equity action it is the duty of the Supreme Court to try the issues de novo upon the record and reach an independent conclusion without being influenced by the findings of the trial court, except, where the credible evidence is in conflict, to give weight to the fact that the trial court saw the witnesses and observed their demeanor while testifying, that it inspected the premises, and that its examination constituted evidence tending to influence belief or unbelief of the matters at issue in the case.

2. Prescriptive Easements: Adverse Possession: Proof. A prescriptive right is not looked upon with favor, and generally must be proved by clear, convincing, and satisfactory evidence.

3. Highways: Adverse Possession: Prescriptive Easements. To establish a road or highway by prescription, there must be a use by the general public, under a claim of right adverse to the owner of the land, of some particular or defined line of travel, and the use must be uninterrupted and without substantial change for 10 years, the period of time necessary to bar an action to recover the land.

4. Prescriptive Easements: Adverse Possession: Proof. Ordinarily, 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. Under such circumstances, the owner of the servient estate, in order to avoid acquisition of an easement by prescription, has the burden of rebutting the presumption by showing the use to have been permissive.

5. Prescriptive Easements: Adverse Possession. The presumption of adverse use does not arise when a prescriptive easement is claimed over land which is unenclosed and which has no defined pathway across it.

6. Appeal and Error. Error may not be predicted upon a ruling which excludes evidence, unless a substantial right of the party is affected.

7. Adverse Possession. If the initial entry is adverse, an actual claim of ownership is not necessary to establish a claim of right.

8. Adverse Possession. If adverse possession continues for the required 10 years, the adverse holding ripens into ownership in the absence of explanatory circumstances affirmatively showing the contrary, such as occupancy under a lease, an easement, or a permissive use; the title of the true owner is lost by his inaction.

9. Highways: Adverse Possession: Prescriptive Easements. It is not indispensable to the establishment of a highway by prescription that there be no deviation in the line of travel; if the course of travel has remained substantially unchanged for the full period, it is sufficient even though at times, to avoid encroachments, obstructions, or the like, there have been slight changes in the line of travel.

10. Highways: Adverse Possession: Prescriptive Easements. A diminution in the number of users does not constitute an abandonment of a road acquired by prescription.

Baldwin & McKernan, Hebron, for appellants.

Marti, Dalton, Bruckner, O'Gara & Keating, P.C., Lincoln, and Ronald R. Brackle, Fairbury, for appellees.

Heard before KRIVOSHA, C. J., WHITE, and HASTINGS, JJ., and RIST and CAPORALE, District Judges.

CAPORALE, District Judge.

Plaintiffs-appellants seek to establish, by prescriptive easement, a road in favor of the public across land owned by the defendants-appellees.

The trial court denied plaintiffs any relief and dismissed their petition. For the reasons set forth hereinafter, we reverse the judgment of the trial court.

In this equity action it is our duty to try the issues de novo upon the record and reach an independent conclusion without being influenced by the findings of the trial court, except, where the credible evidence is in conflict, to give weight to the fact that the trial court saw the witnesses and observed their demeanor while testifying, that it inspected the premises, and that its examination constituted evidence tending to influence belief or unbelief of the matters at issue in the case. Neb.Rev.Stat. § 25-1925 (Reissue 1979); O'Neill Production Credit Assn. v. Mitchell, 209 Neb. 206, 307 N.W.2d 115 (1981); Schmidt v. Chimney Rock Irrigation Dist., 209 Neb. 1, 305 N.W.2d 888 (1981); Sullivan v. Hoffman, 207 Neb. 166, 296 N.W.2d 707 (1980).

A prescriptive right is not looked upon with favor, and generally must be proved by clear, convincing, and satisfactory evidence. Svoboda v. Johnson, 204 Neb. 57, 281 N.W.2d 892 (1979); Fischer v. Grinsbergs, 198 Neb. 329, 252 N.W.2d 619 (1977); Mehling v. Deines, 191 Neb. 287, 214 N.W.2d 627 (1974).

To establish a road or highway by prescription, there must be a use by the general public, under a claim of right adverse to the owner of the land, of some particular or defined line of travel, and the use must be uninterrupted and without substantial change for 10 years, the period of time necessary to bar an action to recover the land. Neb.Rev.Stat. § 25-202 (Reissue 1979); Smith v. Bixby, 196 Neb. 235, 242 N.W.2d 115 (1976); State v. Kilberg, 192 Neb. 661, 223 N.W.2d 665 (1974); Dunnick v. Stockgrowers Bank of Marmouth, 191 Neb. 370, 215 N.W.2d 93 (1974).

Ordinarily, 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. Under such circumstances, the owner of the servient estate, in order to avoid acquisition of an easement by prescription, has the burden of rebutting the presumption by showing the use to have been permissive. Svoboda v. Johnson, supra; Fischer v. Grinsbergs, supra; Smith v. Bixby, supra; Dunnick v. Stockgrowers Bank of Marmouth, supra. The above-stated general rule is subject to an exception. The presumption of adverse use does not arise when a prescriptive easement is claimed over land which is unenclosed and which has no defined pathway across it. Svoboda v. Johnson, supra; Stubblefield v. Osborn, 149 Neb. 566, 31 N.W.2d 547 (1948). See, also, 4 H. Tiffany, Law of Real Property § 1196.1 (3d ed. 1975).

It is with the foregoing standard of review and principles of law in mind that we review the evidence to determine whether, as claimed by plaintiffs, the trial court erred in finding that the public's use of the pathway was neither adverse nor under a claim of right.

Until the early 1950s, north-south Highway 53 lacked a bridge across the Little Blue River in the area of the juncture of Sections 23, 24, 25, and 26, Township 3 North, Range 1 West of the 6th P. M., Thayer County, Nebraska. From 1934, at the latest, to 1950, at the earliest, the general public, without permission from or interference by anyone, used an east-west pathway, 20 feet wide, across land owned by the defendants and their predecessors in title. The route began at a point adjoining plaintiffs' land, thence eastward along the north boundary line of the northeast quarter of said Section 26 and south boundary line of the southeast quarter of said Section 23, to a point joining Highway 53. There have been minor variations in the course of the way over the years due to the inherent nature of the area traversed, and due to rains, floods, and natural causes and conditions. The origin, terminus, course, location, and use of the route remained substantially unchanged.

Since the Highway 53 bridge was built, travel over the route has diminished. The pathway has been used mostly for farming operations, and by hunters and fishermen. Since about 1967 some travelers have asked permission to use the road and some have paid consideration to defendants for its use; others have done neither. In about 1977 defendants padlocked a gate which existed at the east end of the pathway when they purchased the land in 1959.

The record is silent as to whether defendants' predecessors in title gave permission for travelers to cross their land by the route in question. However, the evidence clearly, convincingly, and satisfactorily establishes that the use was open, notorious, visible, continuous, and unmolested from at least 1934 to 1950, a period in excess of 10 years. Therefore, the crucial question becomes whether the presumption of adverse use arises. We find it does.

Since at least 1912 this court has held to the view that open, continuous, and unmolested use of a roadway across the premises of another for a period of 10 years gives rise to a...