Feloney v. Baye

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.
A ffirmed.
michAel P. feloney, 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.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

10. ____: ____. The presumption of permissiveness that arises from unenclosed lands
applies when the land in question is wilderness.
11. Judgments: Appeal and Error. An appellate court will affirm a lower court’s
ruling that reaches the correct result, although based on different reasoning.
12. Easements: Presumptions. When a claimant uses a neighbor’s driveway or road-
way without interfering with the owner’s use or the driveway itself, the use is to
be presumed permissive.
Appeal from the District Court for Douglas County: GAry b.
rAndAll, Judge. Affirmed.
W. eric Wood, of Downing, Alexander & Wood, and russell
S. Daub for appellant.
David V. Drew, of Drew Law Firm, for appellee.
heAvicAn, c.J., WriGht, connolly, StePhAn, and mccormAck ,
JJ., and P irtle , Judge.
connolly, J.
For several years, Michael p. Feloney used his neighbor’s
driveway to turn his vehicle to enter his garage. This was
apparently necessary because the narrow alley that separated
Feloney’s property from his neighbor’s did not leave adequate
room for Feloney to make the sharp turn into his garage.
eventually, the neighbor, robert W. baye, decided to build a
retaining wall on his driveway. This construction prevented
Feloney from using baye’s driveway to get in and out of
his garage.
Feloney sued baye in the district court for Douglas County.
Feloney requested the court to impose a prescriptive ease-
ment on baye’s driveway for ingress and egress. Feloney also
requested the court to require baye to remove at least part of
his retaining wall. baye moved for summary judgment. The
district court granted it, concluding that Feloney’s use of the
driveway was permissive and thus Feloney could not prove the
elements required for a prescriptive easement. Although our
rationale differs from that of the district court, we affirm.
bACkGroUND
Feloney lives at 714 North 58th Street in omaha, Nebraska.
baye lives at 720 North 58th Street. An alley that runs generally
FeLoNey v. bAye 	973
Cite as 283 Neb. 972

in a northwest-southeast direction separates the homes. both
properties, at least at one time, had driveways. These driveways
were directly across from one another on opposite sides of the
alley. baye’s driveway did not have any fence or gate surround-
ing it. A diagram showing the locations of the driveways is
included below.
Feloney’s driveway is very short. At its longest, it is 6.7 feet
in length, and at its shortest, it is only 3.3 feet long. The alley
separating the two driveways is only 16 feet wide. because of
the narrow alley, Feloney would use baye’s driveway to help
him make the turn into his garage. baye, however, apparently
used his own driveway rarely, if ever, instead choosing to park
his car on the street. but baye’s roommate did use the drive-
way to access baye’s garage. The record does not show that
Feloney’s use of the driveway ever interfered with baye’s or
his roommate’s use.
Feloney moved into the house in the summer of 2006. The
prior occupants lived in the house for 8 years. They stated
that in exiting their garage, they would “occasionally” back
into baye’s driveway. They never did any maintenance on
974 	283 NebrASkA reporTS

baye’s driveway. Feloney, however, did shovel snow from
baye’s driveway.
before baye built the retaining wall, he and Feloney had
a good relationship. They would talk frequently, visit each
other’s home, and attend neighborhood gatherings together.
They were friendly neighbors.
The friendly neighbors became less friendly when baye later
decided to build a retaining wall over his driveway to combat
a drainage problem. This construction prevented Feloney from
using baye’s driveway.
After baye built the retaining wall, Feloney sued in the
district court for Douglas County. He sought an order impos-
ing a prescriptive easement over a portion of the area that
was once baye’s driveway and an order requiring baye to
remove a portion of his retaining wall. baye counterclaimed
to quiet title.
baye moved for summary judgment and the district court
sustained the motion. The court noted that courts should gen-
erally presume adverseness if the claimant can prove uninter-
rupted and open use over the prescriptive period, which is 10
years. but the court concluded that an exception to this rule
applied. The court reasoned that the presumption of adverse-
ness does not apply when the use is over unenclosed land, and
baye’s driveway was unenclosed. on such facts, the use is pre-
sumed to be permissive. And the court ruled that Feloney had
not presented any evidence that would rebut such a presump-
tion. because Feloney could not show that his use was adverse,
the court granted baye summary judgment.
ASSIGNMeNTS oF error
Feloney assigns that the court erred in applying the pre-
sumption that Feloney’s use of the land was permissive and in
granting baye summary judgment.
STANDArD oF reVIeW
[1,2] 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
FeLoNey v. bAye 	975
Cite as 283 Neb. 972

from those facts and that the moving party is entitled to judg-
ment as a matter of law.1 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.2
ANALySIS
We begin with some general propositions of prescriptive
easements. The law of prescriptive easements has been called
“a tangled mass of weeds.”3 Nevertheless, the core principles of
the doctrine are well established in Nebraska.
[3-5] An easement is “[a]n 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
our cases recognize that a claimant may acquire an easement
through prescription.5 The use and enjoyment that will establish
an easement through prescription are substantially the same in
quality and characteristics as the adverse possession that will
give title to real estate,6 but there are some differences between
the two doctrines.7
[6] We have previously noted “the law treats a claim
of prescriptive right with disfavor.”8 The reasons are obvi-
ous—“‘[t]o allow a person to acquire prescriptive rights over
the lands of another is a harsh result for the burdened land-
owner.’”9 And further, a prescriptive easement “essentially
1 See Golden v. Union Pacific RR. Co., 282 Neb. 486, 804 N.W.2d 31
(2011).
2 Id.
3 O’Dell v. Stegall, 226 W. Va. 590, 599, 703 S.e.2d 561, 570 (2010).
4 black’s Law Dictionary 585-86 (9th ed. 2009).
5 See, e.g., Werner v. Schardt, 222 Neb. 186, 382 N.W.2d 357 (1986).
6 See Teadtke v. Havranek, 279 Neb. 284, 777 N.W.2d 810 (2010).
7 See Plettner v. Sullivan, 214 Neb. 636, 335 N.W.2d 534 (1983).
8 Sjuts v. Granville Cemetery Assn., 272 Neb. 103, 109, 719 N.W.2d 236,
241 (2006).
9 Waters v. Ellzey, 290 Ga. App. 693, 697, 660 S.e.2d 392, 396 (2008).
976 	283 NebrASkA reporTS

rewards a trespasser, and grants the trespasser the right to use
another’s land without compensation.”10
[7] In our prescriptive easement cases, we have held that
a party claiming a prescriptive easement must show that its
use was exclusive, adverse, under a claim of right, continu-
ous and uninterrupted, and open and notorious for the full
10-year prescriptive period.11 Here, the point in contention
is whether Feloney’s use was adverse, that is, was it under a
claim of right?
Feloney points to two acts that would establish adverse
use: (1) his and the prior occupants’ use of the driveway to
turn around and (2) his shoveling snow off the driveway. but
the shoveling of the driveway would have begun in 2006, at
the earliest, when Feloney moved into his home. Assuming
that shoveling snow off baye’s driveway would establish the
adverseness element, it has not been occurring for the 10 years
required to establish a prescriptive easement. Thus, the only act
that is relevant is the use of the driveway to turn around.
[8] Generally, once a claimant has shown open and notori-
ous use over the 10-year prescriptive period, adverseness is
presumed.12 At that point, the landowner must present evi-
dence showing that the use was permissive.13 but this rule
“is not without exceptions.”14 In certain factual situations,
we have applied a presumption of permissiveness. one of
these exceptions is when a claimant seeks an easement over
land that is unenclosed. Here, the district court found that
the land was unenclosed and thus that the use was presump-
tively permissive.
[9] In its decision, the district court relied on Scoville v.
Fisher.15 In Scoville, 	the 	plaintiff 	sought 	to 	establish 	a
10 O’Dell, supra note 3, 226 W. Va. at 599, 703 S.e.2d at 570.
11 Sjuts, supra note 8.
12 See, e.g., Teadtke, supra note 6.
13 See id.
14 Gerberding v. Schnakenberg, 216 Neb. 200, 204, 343 N.W.2d 62, 65
(1984).
15 Scoville v. Fisher, 181 Neb. 496, 149 N.W.2d 339 (1967).
FeLoNey v. bAye 	977
Cite as 283 Neb. 972

prescriptive easement over an unenclosed lot in the business
district of a small town. The lot was graveled and belonged to
a neighboring business. The plaintiff had used the lot for park-
ing and unloading trucks. And the evidence showed that others
used the lots for parking. We cited a rule providing that a pre-
sumption of permissiveness arises when the land is unenclosed.
We held that
when an owner permits his unenclosed and unimproved
land to be used by the public, or by his neighbors gen-
erally, a use[] thereof by a neighboring landowner and
others, however frequent, will be presumed to be permis-
sive and not adverse in the absence of any attendant cir-
cumstances to the contrary.16
Applying this rule, we concluded that the use was permissive,
despite that the land was graveled (i.e., improved) and in a
business district.
Feloney argues that the district court erred in applying the
“unenclosed land” rule to baye’s driveway and, implicitly, that
Scoville was incorrectly decided. Feloney argues that the pre-
sumption of permissive use should apply only when the land is
unenclosed and undeveloped. We agree.
[10] The rule providing for a presumption of permissive-
ness in the case of unenclosed land has traditionally been
applied to land such as wilderness. The Idaho Supreme Court
has said that the presumption of permissiveness applies to
“wild and unenclosed lands.”17 A Missouri appeals court has
said that “[t]he ‘wild lands’ exception to prescriptive ease-
ments is inapplicable where [the] defendant’s land is located
in a well settled county and forms no part of an extensive,
unimproved, uninhabited area.”18 Washington courts apply the
presumption “[w]here the land is vacant, open, unenclosed,
16 Id. at 502, 149 N.W.2d at 343.
17 See Hodgins v. Sales, 139 Idaho 225, 232, 76 p.3d 969, 976 (2003). See,
also, Rancour v. Golden Reward Mining Co., L.P., 694 N.W.2d 51 (S.D.
2005).
18 Behen v. Elliott, 791 S.W.2d 475, 476 (Mo. App. 1990).
978 	283 NebrASkA reporTS

and unimproved.”19 Maryland courts have stated that the excep-
tion applies “‘[w]hen unenclosed and unimproved wildlands
or woodlands are involved.’”20 Arkansas courts have said that
“[i]t is well established that where there is passage over prop-
erty that is unenclosed, uninhabited, and unimproved, there
is a presumption that such use is permissive.”21 The lesson of
these cases is clear: The presumption of permissiveness arises
when the land is unenclosed wilderness; the presumption is not
properly applied to an unenclosed parking lot in a downtown
shopping center; nor is it applicable to a driveway in a subur-
ban neighborhood.
In fact, a treatise author has lamented applications of this
rule like ours in Scoville. The treatise reads:
The term “unenclosed” is the most frequently used, but
it is misleading, and has occasionally led a court to con-
fuse the subject by invoking the principle in the case of
vacant lots or blocks in an urban district, though cleared
and cared for. obviously it cannot apply to a residential
lawn, though unenclosed. The more appropriate terms
[sic] is “unimproved.”22
This statement lends strong support to Feloney’s interpretation
of the rule.
Courts have advanced several rationales for the rule. one,
a landowner who owns hundreds or thousands of acres of
wilderness may not notice a person crossing his land and thus
would have no opportunity to protect his or her rights.23 Two,
even if he or she did discover the use, there would likely be
no incentive to stop it—a landowner might not want to upset
19 Granite Beach v. Natural Resources, 103 Wash. App. 186, 200, 11 p.3d
847, 855 (2000). See, also, Drake v. Smersh, 122 Wash. App. 147, 89 p.3d
726 (2004).
20 Turner v. Bouchard, 202 Md. App. 428, 447, 32 A.3d 527, 537 (2011),
quoting Forrester v. Kiler, 98 Md. App. 481, 633 A.2d 913 (1993).
21 Cook v. Ratliff, 104 Ark. App. 335, 346, 292 S.W.3d 839, 847 (2009).
22 Annot., 170 A.L.r. 776, 820 (1947).
23 See Rancour, supra note 17. See, also, Friend v. Holcombe, 196 okla. 111,
162 p.2d 1008 (1945).
FeLoNey v. bAye 	979
Cite as 283 Neb. 972

neighborly relations when the use of his land causes him no
injury.24 Three, it is also possible that the “rule springs from
the modern tendency to restrict the right of prescriptive use
to prevent mere neighborly acts from resulting in deprivation
of property.”25
Whatever its theoretical underpinnings, we agree that the
rule should not apply to cases like the one before us. The land
at issue is not wilderness; it is a residential driveway in the
middle of the largest city in Nebraska. The presumption of per-
missiveness arising from unenclosed, vacant, and unimproved
land does not apply here. And it should not have applied in
Scoville either.
[11] but an appellate court will affirm a lower court’s ruling
that reaches the correct result, although based on different rea-
soning.26 And we find that on these facts, a different presump-
tion of permissiveness arises.
In Dan v. BSJ Realty, LLC,27 a Florida appeals court consid-
ered an alleged prescriptive easement over a 25-foot strip of
land. The land was a private roadway on a piece of commercial
real estate that was used by two adjacent businesses, those
of the plaintiffs and the defendants. The roadway, however,
was entirely on the defendants’ property. And the defendants
eventually built a fence that prevented the plaintiffs from
using the property. The plaintiffs sued, claiming a prescrip-
tive easement.
The appellate court affirmed the district court’s decision
that the plaintiffs had not established an easement. The court
noted that the defendants’ predecessors had allowed the plain-
tiffs and their predecessors free use of the roadway and that
the defendants had also used the roadway. The court cited
a rule that “use in common with the owner is presumed to
be in subordination of the owner’s title and with his or her
24 See Rancour, supra note 17.
25 Granite Beach, supra note 19, 103 Wash. App. at 200, 11 p.3d at 855.
26 Doe v. Bd. of Regents, ante p. 303, 809 N.W.2d 263 (2012).
27 Dan v. BSJ Realty, LLC, 953 So. 2d 640 (Fla. App. 2007).
980 	283 NebrASkA reporTS

permission.”28 Applying this rule, the court found the plaintiffs’
use to be permissive.
Thus, when the owner of a property has opened or main-
tained a right of way for his own use and the claimant’s use
appears to be in common with that use, the presumption arises
that the use is permissive.29 The foundation for the presump-
tion is the likelihood that the owner is acting neighborly as
opposed to acquiescing in a tortious trespass over his land.30
Several other courts have applied similar presumptions.31 And
we have stated a similar rule, although in dicta. In Gerberding
v. Schnakenberg,32 we stated that a presumption of permissive-
ness arises when the use is “over a way opened by the land-
owner for his own purposes.”
[12] We believe a similar rule should apply here. We hold
that when a claimant uses a neighbor’s driveway or roadway
without interfering with the owner’s use or the driveway
itself, the use is to be presumed permissive. As noted, the law
disfavors prescriptive easements.33 And using a neighbor’s
driveway to turn around in is a common act. Landowners who
permit such acts out of neighborly accommodation would
likely stop doing so if their continued accommodation meant
that they would one day lose the power to control the devel-
opment of their land. “‘Such [a] rule would [lead to] a pro-
hibition of all neighborhood accommodations in the way
of travel.’”34
28 Id. at 642-43.
29 See Guerard v. Roper, 385 So. 2d 718 (Fla. App. 1980).
30 See id.
31 See, e.g., Dewey Beach Lions Club, Inc. v. Longanecker, 905 A.2d 128
(Del. Ch. 2006); Chen v. Conway, 121 Idaho 1000, 829 p.2d 1349 (1992);
Bulatovich v. Easton, 435 N.e.2d 997 (Ind. App. 1982); Wilfon v. Hampel
1985 Trust, 105 Nev. 607, 781 p.2d 769 (1989); Kawulok v. Legerski, 165
p.3d 112 (Wy. 2007).
32 Gerberding, supra note 14, 216 Neb. at 205, 343 N.W.2d at 66.
33 See, e.g., Sjuts, supra note 8.
34 Connot v. Bowden, 189 Neb. 97, 101, 200 N.W.2d 126, 129 (1972), quot-
ing Burk v. Diers, 102 Neb. 721, 169 N.W. 263 (1918).
FeLoNey v. bAye 	981
Cite as 283 Neb. 972

of course, this rule merely creates a presumption. And a
claimant can rebut the presumption by showing the claimant is
making the claim as of right.35 but here, Feloney adduced evi-
dence showing that he only cleared baye’s driveway of snow.
even if we assume that this act would have put baye on notice
of Feloney’s hostile claim, Feloney’s clearing of the driveway
did not span the full 10-year prescriptive period. Feloney’s
use was presumed permissive until he clearly put baye on
notice that he was claiming under right.36 Ten years have not
passed since that time. The district court properly granted sum-
mary judgment.
CoNCLUSIoN
We conclude that Feloney’s use of baye’s driveway is pre-
sumptively permissive. And Feloney did not present any evi-
dence that would create a question of fact as to that question.
Accordingly, we affirm.
A ffirmed.
miller-lermAn, J., not participating.
35 See Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440
N.W.2d 456 (1989).
36 See, e.g., Connot, supra note 34.
StAte of nebrASkA ex rel . counSel for diSciPline
of the nebrASkA SuPreme court, relAtor , v.
michAel JAmeS murPhy, reSPondent.
814 N.W.2d 107
Filed June 1, 2012. 	No. S-12-278.
original action. Judgment of public reprimand.
heAvicAn, c.J., WriGht, connolly, StePhAn, mccormAck ,
miller-lermAn, and cASSel , JJ.
P er curiAm.
INTroDUCTIoN
The 	Counsel 	for 	Discipline 	of 	the 	Nebraska 	Supreme
Court, relator, has filed a motion for reciprocal discipline
982 	283 NebrASkA reporTS