Westin Hills v. Federal Nat. Mortgage Assn.

Westin H ills West tHree toWnHome oWners A ssociAtion,
AppellAnt, v. F ederAl nAtionAl mortgAge A ssociAtion,
doing business As FAnnie mAe , Appellee .
814 N.W.2d 378
Filed June 1, 2012. 	No. S-11-817.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Deeds. Neb. Rev. Stat. § 76-238 (Reissue 2009) was designed to protect a subse-
quent purchaser even though there was a prior conveyance or transaction concern-
ing the property, provided the subsequent purchaser recorded his or her title first,
and provided further that the subsequent purchaser was a bona fide purchaser
without notice of any other claims to the property.
4. Deeds: Liens: Time. Because Neb. Rev. Stat. § 76-238(1) (Reissue 2009) reflects
“first in time” jurisprudential concepts, it is critical to determine when each of
the competing liens became choate. A lien becomes choate when there is nothing
more to be done when the identity of the lienor, the property subject to the lien,
and the amount of the lien are established.
5. Liens. A lien cannot exist in the absence of the debt, the payment of which
it secures.
Appeal from the District Court for Douglas County: tHomAs
A. otepkA, Judge. Affirmed.
Ben Thompson, of Thompson Law Office, P.C., L.L.O., for
appellant.
Donald J. Pavelka, Jr., and Patricia D. Schneider, of Locher,
Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellee.
H eAvicAn, c.J., WrigHt, connolly, stepHAn, mccormAck ,
and miller-lermAn, JJ.
per curiAm.
NATURE OF CASE
Westin Hills West Three Townhome Owners Association
(the Association) appeals the order of the district court for
960 	283 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

Douglas County which entered summary judgment in favor
of the owner of the property, Federal National Mortgage
Association, doing business as Fannie Mae (FNMA). In this
foreclosure of lien case, the Association claims that the record-
ing of its declaration of covenants before the deed of trust
(the Deed of Trust) gave the assessment lien recorded after
the Deed of Trust first priority. The district court rejected this
claim, as do we. We affirm the district court’s order.
STATEMENT OF FACTS
The Association was formed pursuant to a declaration of
covenants, conditions, and restrictions (the Declaration) for
a townhome community in the Westin Hills West subdivi-
sion in Douglas County, Nebraska. The Declaration imposed
duties on the Association to provide maintenance service to
townhome owners and included a covenant for assessments
to fund the costs of the Association. The Declaration was
recorded with the Douglas County register of deeds on March
29, 2002, and the Association made its first assessment on
April 10.
Mary k. Pichler bought a property in the townhome com-
munity subject to the Declaration. In order to secure certain
indebtedness, Pichler executed and delivered a Deed of Trust
encumbering the property. The Deed of Trust was recorded
with the register of deeds on May 6, 2003. The original
creditor later assigned the Deed of Trust to U.S. Bank, and the
assignment was recorded on January 14, 2009.
Pichler 	failed 	to 	pay 	the 	Association’s 	assessment 	of
September 1, 2008. On January 28, 2009, the Association
recorded with the register of deeds a notice of assessment
lien naming Pichler as the person against whom the interest
was claimed.
Pichler also became delinquent on her indebtedness to U.S.
Bank, and the trustee of the Deed of Trust filed a notice of
default with the register of deeds on November 4, 2009. U.S.
Bank elected to proceed with a nonjudicial foreclosure of the
Deed of Trust pursuant to the Nebraska Trust Deeds Act. The
trustee held a trustee’s sale on May 6, 2010. U.S. Bank sub-
mitted the winning bid and later assigned its bid to FNMA.
WESTIN HILLS v. FEDERAL NAT. MORTgAgE ASSN. 	961
Cite as 283 Neb. 960

The trustee’s deed to FNMA was recorded on June 14. On
August 23, the Association recorded with the register of deeds
a notice of assessment lien naming FNMA as the entity against
which the interest was claimed.
On February 11, 2011, the Association filed a second
amended complaint in this case. The second amended com-
plaint named FNMA as the sole defendant and alleged that
FNMA had failed to pay assessments when due since June
2010 and that the previous owner had failed to pay assessments
since November 2008. At oral argument on appeal, the parties
agreed that subsequent to the district court’s judgment but prior
to oral argument, FNMA paid all assessments which had come
due during the period of FNMA’s ownership, and that there-
fore, the only assessments at issue on this appeal are those that
Pichler failed to pay between November 2008 and the trustee
sale in May 2010. Essentially, the priority to be accorded the
lien filed January 28, 2009, attributable to Pichler’s delin-
quency is at issue before us. In its controlling complaint, the
Association sought an order establishing and confirming its
assessment lien “as a paramount lien upon the real estate . . .
senior and superior to the rights, title, interests, liens or claims
of” FNMA.
The parties filed competing motions for summary judgment.
In an order filed August 31, 2011, the district court denied the
Association’s motion and granted FNMA’s motion. The court
concluded that the Association’s lien recorded on January
28, 2009, was subsequent and inferior to the Deed of Trust
that was recorded on May 6, 2003. The court rejected the
Association’s argument that its recording of the Declaration
on March 29, 2002, gave the Association’s lien attributable
to Pichler’s delinquency priority over the Deed of Trust. The
court reasoned that the Declaration only gave notice of poten-
tial future assessments and that no lien arose until the owner
became delinquent on payments, which did not occur until
after September 1, 2008. In addition to concluding that the
Association’s assessment lien recorded on January 28, 2009,
was subsequent and inferior to the Deed of Trust that was
recorded on May 6, 2003, the court further concluded that
the trustee’s sale of the real estate in May 2010 effectively
962 	283 NEBRASkA REPORTS

extinguished and terminated all junior liens and encumbrances.
In its order on summary judgment, the court ordered (1) that
the Deed of Trust recorded on May 6, 2003, was senior as
against the Association’s Declaration recorded on March 29,
2002; (2) that the Deed of Trust recorded on May 6, 2003, was
senior as against the Association’s assessment lien recorded
on January 28, 2009; and (3) that FNMA was entitled to a
first lien position as against the Association and its assessment
lien attributable to Pichler’s delinquent Association dues. In
reaching its conclusions, the court referred to both Neb. Rev.
Stat. § 76-238 (Reissue 2009) and Neb. Rev. Stat. § 52-2001
(Reissue 2010).
The Association appeals the district court’s order.
ASSIgNMENTS OF ERROR
The Association assigned four errors generally claiming
that the district court erred when it denied the Association’s
motion for summary judgment and granted FNMA’s motion for
summary judgment. One of the assignments of error pertained
to priorities of liens during the period of FNMA’s ownership,
which issue is no longer before us on appeal and about which
we make no comment.
Summarized and restated, the Association’s three remaining
assignments of error each claim for a variety of reasons that the
district court erred when it concluded that the Deed of Trust
recorded May 6, 2003, was superior to the assessment lien
mentioned in the Declaration filed March 29, 2002, and the
lien created by Pichler’s delinquency.
STANDARDS OF REVIEW
[1] An appellate court will affirm a lower court’s granting
of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Howsden v. Roper’s Real Estate
Co., 282 Neb. 666, 805 N.W.2d 640 (2011).
[2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
WESTIN HILLS v. FEDERAL NAT. MORTgAgE ASSN. 	963
Cite as 283 Neb. 960

against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the
evidence. Doe v. Board of Regents, ante p. 303, 809 N.W.2d
263 (2012).
ANALYSIS
In this foreclosure of lien case, the district court concluded,
inter alia, that the Deed of Trust filed May 6, 2003, was
“senior” to the right to a lien described in the Declaration of
the Association recorded March 29, 2002, and entered sum-
mary judgment accordingly. The Association claims this rul-
ing was error. The Association proffers numerous arguments,
including that the assessment lien was entitled to priority under
the Nebraska Trust Deeds Act, specifically, Neb. Rev. Stat.
§ 76-1002 (Reissue 2009); that the Deed of Trust should be
subordinated pursuant to the terms of the Declaration; and that
the actual assessment it charged and which became delinquent
after the filing of the Deed of Trust should enjoy a priority date
through relation back to the date the Declaration was filed. We
find no merit to these arguments. Although our reasoning dif-
fers in part from that of the district court, we find no error in
the court’s summary judgment ruling.
As an initial matter, we observe that at the time the under-
lying facts occurred, Nebraska had no statute governing home-
owners’ association assessments. Subsequent to these events,
the Legislature passed 2010 Neb. Laws, L.B. 736, effective
March 4, 2010, and codified at § 52-2001, which deals with
homeowners’ association liens and their priority in relation
to other encumbrances. Both parties contend that § 52-2001
does not apply to this case, and we agree. We, therefore, do
not refer to that statute as a rationale for our resolution of
this appeal.
The Association contends on appeal that the Nebraska Trust
Deeds Act—specifically § 76-1002(1), (2), and (3)(a)—con-
trols the priority issue in this foreclosure of lien case. The
provisions upon which the Association relies concern the prior-
ity accorded future advances necessary to protect that secured
property and debts and obligations created simultaneously
with the Deed of Trust. These items are not at issue in this
964 	283 NEBRASkA REPORTS

case, and we conclude that the Nebraska Trust Deeds Act is
not applicable.
In the absence of a specific statutory framework applicable
to this case, we look to the general recording statutes to deter-
mine the priority of the liens involved.
Section 76-238(1) provides:
All deeds, mortgages, and other instruments of writing
which are required to be or which under the laws of this
state may be recorded, shall take effect and be in force
from and after the time of delivering such instruments
to the register of deeds for recording, and not before, as
to all creditors and subsequent purchasers in good faith
without notice. All such instruments are void as to all
creditors and subsequent purchasers without notice whose
deeds, mortgages, or other instruments are recorded prior
to such instruments. However, such instruments are valid
between the parties to the instrument.
[3] Section 76-238(1) is a “race-notice recording statute.”
See Pederson v. U.S. ex rel. Farm Services Agency, 78 F. Supp.
2d 1017, 1020 (D. Neb. 1999). “First in time” concepts inform
our application of § 76-238(1). Fundamental to the law of reg-
istry is the principle of establishing priority of title. Section
76-238 was designed to protect a subsequent purchaser even
though there was a prior conveyance or transaction concerning
the property, provided the subsequent purchaser recorded his
or her title first, and provided further that the subsequent pur-
chaser was a bona fide purchaser without notice of any other
claims to the property. Miller v. McMillen, 214 Neb. 244, 333
N.W.2d 887 (1983).
The issue before us as framed by the assignments of error
is whether the Deed of Trust or the Association’s assessment
lien initially described in the Declaration has priority. The
Association contends that its lien has priority because the
Declaration of the Association was recorded before the Deed
of Trust. The Declaration was recorded March 29, 2002. The
Deed of Trust was recorded May 6, 2003. If the lien mentioned
in the Declaration was enforceable against third parties when
the Declaration was recorded, it would be superior to the Deed
of Trust. If the lien in the Declaration was not enforceable as
WESTIN HILLS v. FEDERAL NAT. MORTgAgE ASSN. 	965
Cite as 283 Neb. 960

against third parties until the assessment became delinquent
and a notice of the delinquency was recorded, the Deed of
Trust is superior.
[4] Because § 76-238(1) reflects “first in time” jurispru-
dential concepts, “it is critical to determine when each of
the competing liens became choate.” Reed v. Civiello, 297
F. Supp. 2d 1008, 1012 (N.D. Ohio 2003). A lien becomes
choate when “there is nothing more to be done . . . when the
identity of the lienor, the property subject to the lien, and
the amount of the lien are established.” United States v. New
Britain, 347 U.S. 81, 84, 74 S. Ct. 367, 98 L. Ed. 520 (1954).
See, also, 51 Am. Jur. 2d Liens § 8 (2011); 53 C.J.S. Liens
§ 43 (2005).
In its order, the district court stated that there must be a
clearly established debt to which the lien can attach, and there
was no debt owed by the property owner until the Association
imposed an assessment, the property owner failed to pay it,
and the assessment became delinquent. Somewhat similarly,
in Allied Mut. Ins. Co. v. Midplains Waste Mgmt., 259 Neb.
808, 612 N.W.2d 488 (2000), we indicated that as a general
matter, a lien is in existence when the lienor has been identi-
fied, the property is subject to a lien, and the amount of the
lien has been established.
[5] Other courts have observed that a lien does not exist
until a debt is owed. A lien on real estate for payment of a
debt is a right to have the debt satisfied out of the land, if
not otherwise paid. Thus, a lien cannot exist in the absence
of the debt, the payment of which it secures. Dean Realty
Co. v. City of Kansas City, 85 S.W.3d 83 (Mo. App. 2002).
Because a lien is a right to encumber property until a debt is
paid, it presupposes the existence of a debt. Dorr v. Sacred
Heart Hospital, 228 Wis. 2d 425, 597 N.W.2d 462 (Wis. App.
1999). Compare First Federal Savings & Loan v. Bailey, 316
S.C. 350, 450 S.E.2d 77 (S.C. App. 1994) (holding that it is
failure of owners to pay assessment when due that actuates
association’s lien identified in covenants).
With respect to assessment liens mentioned in declara-
tions of covenants, other courts have held that a homeowners’
association’s assessment lien is junior to a deed of trust or
966 	283 NEBRASkA REPORTS

mortgage. In F.N. Realty v. Or. Shores Recreational Club, 133
Or. App. 339, 891 P.2d 671 (1995), the association’s declara-
tion was recorded on February 13, 1978. Lots were sold and
secured by deeds of trust, which were recorded. The lender
foreclosed on the deeds of trust when the purchasers defaulted.
The plaintiff escrow agent acting on behalf of the lender sought
declaratory judgment to determine whether it was liable for
delinquent assessments on the foreclosed lots. The declaration
provided that a lien would exist when an annual assessment
was unpaid 90 days after its due date. The court stated that
no lien existed when the declaration was recorded, because
no power of assessment had been exercised. The court added
that under the terms of the declaration, a lien existed when an
annual assessment remained unpaid 90 days after its due date.
The court stated that the recorded declarations merely “provide
notice of the authority to impose a lien.” Id. at 344, 891 P.2d
at 674. See, similarly, Builders Floor Serv., Inc. v. Westchester
Homes of VA, Inc., No. 13724, 1992 WL 884540, *1 (Va.
Cir. Feb. 26, 1992) (unpublished opinion) (stating that “[t]he
[a]ssociation does not have a lien merely by saying it does in
the [d]eclaration”).
In First Twinstate Bank v. Hart, 160 Vt. 613, 648 A.2d 820
(1993), the Supreme Court of Vermont considered when a lien
becomes choate in the context of deciding priority between a
declaration of covenants and a purchase-money mortgage. In
First Twinstate Bank, a declaration of covenants was recorded
on March 25, 1970. A mortgage deed was recorded on April
21, 1986, and the bank sought to foreclose on February 25,
1991. Relying on the “first in time” rule, the court concluded
that prior to the recording of the mortgage, there was no evi-
dence of unpaid dues. The association’s claim of a first priority
lien based on the date of filing the declaration of covenants did
not establish the amount of any lien. Thus, the bank’s mortgage
had priority.
In First Twinstate Bank, the court also considered the lan-
guage of the declaration of covenants in deciding the priority
issue. The court noted that the declaration lacked an express
provision as to which type of encumbrances the association
considered its liens to be superior. The absence of express
WESTIN HILLS v. FEDERAL NAT. MORTgAgE ASSN. 	967
Cite as 283 Neb. 960

subordination provisions defeated the association’s claim of
priority based on the declarations.
Notwithstanding the foregoing jurisprudence, the Association
contends that the language of the Declaration implies that the
Deed of Trust should be subordinated to the assessment lien
initially identified in the Declaration. We do not agree.
The Association relies on article IV, sections 1, 10, and 11,
of the Declaration in support of its argument. These sections
read as follows:
Section 1. Creation of the Lien and Personal Obligation
of Assessments. The Declarant, for each Lot owned within
the Properties, hereby covenants, and each Owner of any
Lot by acceptance of a deed therefor, whether or not it
shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Association (1) annual assess-
ments or charges, and (2) special assessments for capital
improvements, such assessments to be established and
collected as hereinafter provided. The annual and special
assessments, together with interest, costs, and reasonable
attorney’s fees, shall be a charge on the land and shall be
a continuing lien upon the property against which each
such assessment is made. Each such assessment, together
with interest, costs, and reasonable attorney’s fees, shall
also be the personal obligation of the person who was
the Owner of such property at the time when the assess-
ment fell due. The personal obligation for delinquent
assessments shall not pass to his successors in title unless
expressly assumed by them.
. . . .
Section 10. Effect of Nonpayment of Assessments:
Remedies of the Association. Any assessment not paid
within thirty (30) days after the due date shall be deemed
delinquent and shall bear the maximum rate of inter-
est allowable by law. Should any assessment remain
unpaid more than sixty (60) days after the due date, the
Association may declare the entire unpaid portion of said
assessment for said year to be immediately due and pay-
able and thereafter delinquent. The Association may bring
an action at law against the Owner personally obligated
968 	283 NEBRASkA REPORTS

to pay the same, or may foreclose the lien of such assess-
ment against the property through proceedings in any
court having jurisdiction of actions for the enforcement
of such liens. No Owner may waive or otherwise escape
liability for the assessments provided herein by abandon-
ment of title or transfer of such Owner’s Lot.
Section 11. Subordination of Assessments. The lien
on the assessments provided for herein shall be sub-
ordinate to the lien of any first mortgage, and the
holder of any first mortgage, on any Lot may rely on
this provision without the necessity of the execution of
any further subordination agreement by the Association.
Sale or transfer of any Lot shall not affect the status or
priority of the lien for assessments made as provided
herein. The Association, if authorized by its Board of
Directors, may release the lien of any delinquent assess-
ments on any Lot as to which the first mortgage thereon
is in default, if such Board of Directors determines that
such lien has no value to the Association. No mortgagee
shall be required to collect any assessments due. The
Association shall have sole responsibility to collect all
assessments due.
The Association refers us to American Holidays v. Foxtail
Owners, 821 P.2d 577 (Wyo. 1991), in which an association’s
lien for a specific delinquency recorded after a mortgage was
found to have priority over the mortgage based on the language
of the declaration of covenants which was filed before the
mortgage. In American Holidays, the declaration provided that
“‘[a]ny mortgage or other encumbrance . . . shall be subject
[to] and subordinate to each and all of the provisions of this
[d]eclaration . . . .’” 821 P.2d at 580. This language was relied
on by the court in making its decision. No such sweeping sub-
ordination clause or comparable terms exist in the Declaration
under consideration, and we decline to read in such terms.
See First Twinstate Bank v. Hart, 160 Vt. 613, 648 A.2d 820
(1993) (declining to give priority based on declaration which
failed to contain express language creating priority lien and
failed to give adequate notice of agreement to subordinate sub-
sequent liens).
WESTIN HILLS v. FEDERAL NAT. MORTgAgE ASSN. 	969
Cite as 283 Neb. 960

In a related argument, the Association claims that the actual
assessment it charged and which became delinquent after the
filing of the Deed of Trust should enjoy the priority date of
the Declaration by relation back to the date of the filing of
the Declaration. The Association relies on cases such as Ass’n
of Poinciana v. Avatar Properties, 724 So. 2d 585 (Fla. App.
1998), in which the court stated that given the language in the
declaration, a later recorded assessment lien had priority based
on relation back. The cases on which the Association relies
were decided based on specific language which served as notice
of relation back. No such language is found in the Declaration
under consideration, and, to the contrary, article IV, section 10,
suggests that it is not until an assessment remains unpaid more
than 60 days that such obligation becomes a lien.
In Holly Lake Ass’n v. Federal Nat. Mortg., 660 So. 2d 266,
267 (Fla. 1995), the following question was certified to the
Florida Supreme Court:
“WHETHER A CLAIM OF LIEN RECORDED PUR-
SUANT TO A DECLARATION OF COVENANTS BY
A HOMEOWNERS’ ASSOCIATION HAS PRIORITY
OVER AN INTERVENINg RECORDED MORTgAgE
WHERE 	THE 	DECLARATION 	AUTHORIZES 	THE
ASSOCIATION TO IMPOSE A LIEN FOR ASSESS-
MENTS BUT DOES NOT OTHERWISE INDICATE
THAT 	THE 	LIEN 	RELATES 	BACk 	OR 	TAkES
PRIORITY OVER AN INTERVENINg MORTgAgE.”
After considering the language of the declaration and the lack
of notice as to the extent or amount of the claimed assessment
lien, the Florida Supreme Court held as follows:
We hold that in order for a claim of lien recorded pur-
suant to a declaration of covenants to have priority over
an intervening recorded mortgage, the declaration must
contain specific language indicating that the lien relates
back to the date of the filing of the declaration or that it
otherwise take priority over intervening mortgages.
Id. at 269. See, similarly, St. Paul Federal Bank v. Wesby, 149
Ill. App. 3d 1059, 1073, 501 N.E.2d 707, 716, 103 Ill. Dec.
390, 399 (1986) (stating that “we find no language in [the]
declaration that would cause any lien for unpaid common
970 	283 NEBRASkA REPORTS

expenses to ‘relate back’ to the date that the declaration was
filed”). We agree with the analysis of the Florida Supreme
Court in Holly Lake Ass’n and, given the language of the
Declaration, reject the Association’s argument that assessment
liens in this case relate back to the date that the Declaration
was filed.
In the present case, the undisputed facts show that at the
time the Declaration was recorded on March 29, 2002, there
existed no actual lien upon the property because no assessment
had been charged, much less stood unpaid or delinquent. The
Deed of Trust was recorded on May 6, 2003. The assessment
lien contemplated by the Declaration could not have come into
existence and become enforceable against third parties until
a debt was owed and became delinquent in September 2008.
The terms of the Declaration do not contain an express priority
provision subordinating a deed of trust, nor is there a relation-
back clause.
This case is presented to us as an appeal from the granting
of summary judgment. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the mov-
ing party is entitled to judgment as a matter of law. Howsden
v. Roper’s Real Estate Co., 282 Neb. 666, 805 N.W.2d 640
(2011). In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against whom
the judgment was granted, and gives such party the benefit of
all reasonable inferences deducible from the evidence. Doe v.
Board of Regents, ante p. 303, 809 N.W.2d 263 (2012). giving
all inferences in favor of the Association and finding no mate-
rial fact in dispute, we agree with the district court that FNMA
was entitled to summary judgment.
CONCLUSION
There are no genuine issues of material fact. We note
that this case is decided without reference to § 52-2001. As
explained above, the Deed of Trust was superior to any assess-
ment lien mentioned in the Declaration of the Association, as
WESTIN HILLS v. FEDERAL NAT. MORTgAgE ASSN. 	971
Cite as 283 Neb. 960

the district court so determined. The district court was correct
when it denied the Association’s motion for summary judgment
and granted FNMA’s motion for summary judgment. The deci-
sion of the district court is affirmed.
AFFirmed.
micHAel p. F eloney, AppellAnt, v.
robert W. bAye , Appellee .
815 N.W.2d 160
Filed June 1, 2012. 	No. S-11-879.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in a light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable inferences deducible
from the evidence.
3. Easements: Words and Phrases. An easement is an interest in land owned by
another person, consisting in the right to use or control the land, or an area above
or below it, for a specific limited purpose.
4. Easements. A claimant may acquire an easement through prescription.
5. Easements: Adverse Possession. The use and enjoyment that will establish an
easement through prescription are substantially the same in quality and charac-
teristics as the adverse possession that will give title to real estate, but there are
some differences between the two doctrines.
6. Easements. The law treats a claim of prescriptive right with disfavor.
7. Easements: Proof: Time. A party claiming a prescriptive easement must show
that its use was exclusive, adverse, under a claim of right, continuous and uninter-
rupted, and open and notorious for the full 10-year prescriptive period.
8. Easements: Presumptions: Proof: Time. generally, once a claimant has shown
open and notorious use over the 10-year prescriptive period, adverseness is pre-
sumed. At that point, the landowner must present evidence showing that the use
was permissive.
9. Easements: Presumptions. When an owner permits his unenclosed and unim-
proved land to be used by the public, or by his neighbors generally, a use thereof
by a neighboring landowner and others, however frequent, will be presumed to
be permissive and not adverse in the absence of any attendant circumstances to
the contrary.
972 	283 NEBRASkA REPORTS