## Facts

- Michael P. Feloney owned a residential lot separated from Robert W. Baye’s adjacent lot by a 16-foot alley; each property had a narrow driveway facing the other across the alley.
- For years, Feloney used part of Baye’s driveway to help maneuver his vehicle into Feloney’s own narrow driveway and garage.
- Feloney regularly shoveled snow from Baye’s driveway so he could continue using it for turning during winter.
- Feloney’s use did not interfere with Baye’s use of the driveway and did not physically alter the driveway.
- Baye built a retaining wall over part of his driveway to address drainage, which blocked Feloney’s ability to use the driveway for turning.
- Feloney sued seeking a prescriptive easement over the affected portion of Baye’s driveway and an order requiring removal of the obstructing wall.
- Baye counterclaimed to quiet title.
- The district court granted summary judgment to Baye, reasoning Feloney’s use was permissive; Feloney appealed.

## Issues

1. Whether Feloney produced sufficient evidence that his long-term use of Baye’s driveway was “adverse” (rather than permissive) to establish a prescriptive easement under Nebraska law.
2. What presumption governs adversity or permission when a neighbor uses an owner-maintained residential driveway in common with the owner’s use.

## Decision

- The Nebraska Supreme Court affirmed summary judgment for Baye.
- The court rejected applying the “unenclosed land” presumption to a residential driveway, limiting that doctrine to unenclosed wilderness-type land.
- The court adopted and applied a presumption that when an owner opens or maintains a driveway for the owner’s use and a neighbor uses it in common without interference, the neighbor’s use is presumed permissive.
- Feloney did not rebut the permissive-use presumption with evidence of hostile or claim-of-right conduct sufficient to show adversity.
- Because adversity was not established on the undisputed record, Feloney could not prove a prescriptive easement, and Baye was entitled to judgment as a matter of law on both the easement claim and the quiet title counterclaim.

## Legal Principles

- A prescriptive easement requires proof of use that is exclusive, adverse, under a claim of right, continuous and uninterrupted, and open and notorious for 10 years.
- The “unenclosed land” presumption of permissive use is confined to unenclosed wilderness and does not control improved, urban residential property such as driveways.
- When a landowner opens or maintains a driveway or right of way for the owner’s own use, and a neighbor uses it in common without interfering with the owner’s use or altering the way, the neighbor’s use is presumed permissive.
- Conduct consistent with neighborly accommodation, without notice of a claim of legal right, is insufficient to establish the adversity element required for prescription.
- Summary judgment is proper where the undisputed facts and permissible inferences show the claimant cannot establish adversity as a matter of law.

## Conclusion

The court held that routine, shared, noninterfering use of a neighbor’s owner-maintained residential driveway is presumed permissive in Nebraska, and absent evidence overcoming that presumption, such use cannot mature into a prescriptive easement.


Feloney v. Baye, 283 Neb. 972, 815 N.W.2d 160 (Neb. 2012)