Full question:
In 1973 my aunt bought a farm and sold off 5 acres with no written easement at that time. In 1981 she granted a perpetual easement to the lot which was 30' wide. This easement did not include a portion of the drive that cut across the corner where the lot and the 30' easement intersected. The lot also changed owners in 1981 and my aunt told the new owners of the lot that they could use this portion of the drive, but she owns it and does not wish to give an easement. In 1987 I bought the farm. My aunt was leasing the portion of the farm ground where the easement met the lot. In 1991 a man and his wife bought the lot. The wife thought that my aunt still owned the farm and told her that they needed an easement for this portion, a 12' x 40' triangle. they got into an argument about it and my aunt told her about the agreement that she had with the previous owners. She told her that she could use it but assured her that I would not be giving an easement to that portion either. Shortly after this I told her husband the same thing verbally. He told me he had talked to a realtor that told him that I owned the land and I could build a fence there if I wanted to. There was a concrete curb on the outside of this triangular piece that I removed in 1999. no one complained about that. In 2000 I got a message from the owner of the lot that he didn't like my farm equipment parked near the drive on my own land. I sent a certified letter back saying that I intend to use my land to pass through and to park equipment as I have for the past 13 years and that he was welcome to mow around my equipment and the borders of my land as you have in the past, with the understanding that I will reserve all of the rights that go with ownership of the land. In 2004 the husband put a bale pile on the property line in another location where I often take extra room to turn on his property. I told him that he was turning on my land 365 days a year and if he did not let me turn on his property then I would not let him turn on mine. He told me again what the realtor had told him and agreed to move the bale pile. In 2008 I got a pivot and had to run it over the road to irrigate about 5 extra acres. He didn't complain last year. Recently he called me and told me that if I ran the pivot over the road, he would get an injunction to stop me. I responded by blocking the drive with an old tractor and putting a steel post where the easement meets the lot. I considered this an act or deed that revoked a permissive easement. He got an injunction to make me move the equipment and not run the pivot over the road. After the hearing for the temporary injunction, the judge didn't continue the pivot restraining order but did order me not to park equipment on the drive and called in at minimum a prescriptive easement. I think I had a permissive easement that I could revoke at any time. This will be going to trial and the plaintiffs will have to put up a $500. bond for damages in case the judgement was not appropriate. What are the laws and statute of limitations for permissive easements in Nebraska?
- Category: Real Property
- Subcategory: Easements
- Date:
- State: Nebraska
Answer:
An easement cannot arise from permissive use. Said another way, permissive use defeats any claim of an easement. Prescriptive use, however, is non-permissive use, and adverse, that is non-permissive, prescriptive use, for the period of limitation will create a prescriptive easement.
Prescriptive Easement: Law & Legal Definition.
A prescriptive easement is an easement upon another's real property acquired by continued use without permission of the owner for a legally defined period. State law, which varies by state, defines the time period required to acquire a prescriptive easement. Prescriptive easements are harder to be noticed of, since they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
A prescriptive easement arises if someone uses part of your property without your permission. It can also occur when you use part of your neighbor's property without approval. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway. Local laws should be consulted for the exact requirements in your area.
Easements can be further broken down into easements appurtenant and easements in gross. The characterization of an easement will affect the rights to transfer the easement to another. Easements appurtenant are adjacent to the servient estate (the underlying land). If the dominant estate (the property which enjoys the benefit of an easement over the servient estate) is sold or otherwise transferred to another, the easement over the servient land is transferred with it.
Easements in gross are unrelated to the easement holder's possession of a dominant estate and do not ordinarily transfer with title to an adjacent property. As a general rule, easements in gross are not transferrable unless transfer is specifically authorized in the document creating the easement. However, if the easement has commercial value, unless there is an express intent to limit transferability, the commercial easement in gross has the same attributes of transferability as other interests in property. Laws regarding transferability of easements vary by state, so local laws should be consulted.
The period of the statute of limitations in Nebraska for civil actions regarding real property appears to be 4 years.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
