Clarifying Adverseness and Scope in Prescriptive Easements: Agricultural and Recreational Access

Introduction

In Fey v. Olson, 319 Neb. 45 (May 23, 2025), the Nebraska Supreme Court resolved a dispute over access to a parcel of farmland bisected by the Little Nemaha River. Appellees Barbara Fey (life tenant) and L. Gail Wurtele (remainder owner) sued appellants Jeffery Olson and Dianne Dowding to establish a prescriptive easement across the Dowding Property, their only vehicular route to the southern 18.42 acres of the “Fey Property.” Until 2016 the family had driven combines, trucks, all-terrain vehicles, and held recreational events without objection. When appellants acquired the adjoining forty acres and locked the gate, the farmers and their successors sought declaratory and injunctive relief to confirm uninterrupted, adverse use for both agricultural and recreational purposes.

Summary of the Judgment

The trial court found that the appellees proved all five elements of prescriptive easement—exclusive use, adversity under claim of right, continuity, open and notorious occupancy—over the ten-year statutory period, by clear, convincing, and satisfactory evidence. It declared a permanent ingress and egress easement limited to the historic 24-foot width, for farming (row crops, livestock delivery) and recreation (camping, hunting, family gatherings), running with both tracts. Injunctive relief was granted to prevent any lockout or obstruction; if appellants lock the gate, appellees may install and maintain their own lock. On de novo review the Supreme Court affirmed all aspects of the decree and declined to address plaintiffs’ alternative claim for an easement by necessity once the prescriptive right was established.

Analysis

Precedents Cited

Feloney v. Baye (283 Neb. 972): Defines an easement as an interest in land owned by another, and confirms that prescriptive easements are disfavored and require strict proof of five elements.
Teadtke v. Havranek (279 Neb. 284): Holds that once open, notorious, and continuous use over ten years is shown, adverseness is presumed unless rebutted by evidence of permission.
Fischer v. Grinsbergs (198 Neb. 329): Distinguishes acquiescence from permissive use and confirms that mere neighborliness does not defeat a prescriptive claim.
Cremer v. Cremer Rodeo Land & Livestock Co. (192 Mont. 208): “Implied acquiescence is not the same as permission.”
Werner v. Schardt (222 Neb. 186): Illustrates that the scope of a farm easement is fixed by the historic width and type of farm equipment used during the prescriptive period.

Legal Reasoning

The Court applied established Nebraska law that a prescriptive easement claimant must prove:

Exclusive use (not shared with the true owner),
Adverse use under a claim of right,
Continuous and uninterrupted use,
Open and notorious use,
For the full ten-year statutory period.

Once open and continuous use is demonstrated, Nebraska presumes adversity. The burden then shifts to the record owner to show that the user had permission. Here, appellees’ testimony that no permission was ever requested or granted—and that appellees simply “used it when we needed it and nobody questioned it”—failed to establish a license. The Court emphasized that implied acquiescence or neighborly accommodation does not equate to permission. Because appellants offered no contrary evidence, the presumption stood and the easement was confirmed.

In limiting the easement’s scope, the Court looked to the precise historic use: farm machinery no wider than 24 feet and recreational vehicles used for camping, hunting, and family events. The decree’s restrictions—maintenance obligations, non-interference clauses, and a permanent lock-and-key protocol—mirror those approved in prior Nebraska cases and ensure a balance between the servient owner’s quiet enjoyment and the dominant owners’ right of access.

Impact

Fey v. Olson reinforces key lessons for landowners and practitioners:

Open, continuous use over ten years will yield a prescriptive easement absent express permission.
Landowners must grant clear, documented licenses if they wish to avoid adversity presumptions and future easements.
Courts will tailor the scope of a prescriptive easement to the exact width, activities, and vehicles historically employed during the prescriptive period.
The decision clarifies that acquiescence—even over decades—does not convert into permissive use.

Future disputes over rural access routes will now be litigated under a sharper standard: show precise permission to defeat an adverse-use presumption, or risk losing a portion of one’s property rights to an easement.

Complex Concepts Simplified

Prescriptive Easement: A right to use another’s land acquired by long-term (10 years in Nebraska), open, notorious, adverse, and exclusive use.
Adverseness: Use against the owner’s interest; presumed once the use is shown but defeated only by proof of express permission.
Exclusivity: The claimant’s use alone—shared use with the owner does not qualify.
Open and Notorious: Use visible enough that a reasonable owner should notice it.
Acquiescence vs. Permission: Acquiescence (tolerating use) is not the same as permission (granting a license).
Scope of Easement: Defined by the historic type of use (width of equipment, vehicles, activities) during the prescriptive period.
Easement by Necessity: Arises only when a landlocked parcel has no other access; the Court did not address it once prescriptive rights were found.

Conclusion

Fey v. Olson reaffirms that a decade of open, exclusive, and uninterrupted use without express permission will ripen into a prescriptive easement in Nebraska. It sharpens the distinction between acquiescence and permission, underscores the presumption of adversity, and binds courts to tailor easements to historic use—here both agricultural and recreational. Landowners who wish to preserve unfettered control over access routes must grant explicit, documented licenses or risk statutory dispossession of their property rights.