## Facts

- Larry Fiese operated a private grass airstrip and agricultural spraying business on his property beginning in 1969; the runway ran south-to-north and ended at his northern boundary.
- A county road lay immediately north of the runway; across the road were the neighboring farm and residence owned by George and Marcia Sitorius.
- Aircraft generally departed to the north and approached from the north, resulting in routine overflight above the Sitoriuses’ property, subject to wind conditions.
- In 1992, the Sitoriuses placed a haystack (approximately 30 feet wide and 15 feet high) near the end of the runway on their land and had also erected a pole about 25 feet high.
- Fiese alleged these structures interfered with safe runway operations by increasing takeoff requirements and limiting emergency options.
- Fiese sued to enjoin any obstruction in the airspace above the Sitoriuses’ land, claiming a prescriptive “avigation easement” based on open and continuous overflight for more than the prescriptive period.

## Issues

1. Whether Nebraska law permits acquisition of an avigation easement by prescription based on long-term use of airspace over a neighbor’s land for takeoffs and landings.
2. Whether overflight in federally regulated navigable airspace can be “adverse” to the landowner when federal law grants a public right of transit and limits landowner interference.

## Decision

- The Nebraska Supreme Court affirmed dismissal with prejudice and affirmed denial of a new trial.
- The court held that, on these facts, Fiese could not obtain a prescriptive avigation easement because his use of navigable airspace was not “adverse.”
- Because federal law restricts a landowner’s ability to exclude aircraft from navigable airspace, the Sitoriuses had no legal right to prohibit the overflights at issue; without a right to exclude, the adversity element failed.
- The court treated the federal right of transit as a generally available, nonexclusive authorization rather than a private property interest that can ripen into a prescriptive easement.

## Legal Principles

- A prescriptive easement requires use that is adverse, under a claim of right, continuous and uninterrupted, open and notorious, exclusive, and with the servient owner’s knowledge and acquiescence for the full prescriptive period.
- “Adverse” use presupposes that the servient landowner has a legal right to exclude the use being asserted.
- Federally protected transit through navigable airspace, coupled with limits on landowner interference, prevents characterizing such overflight as adverse for purposes of state prescriptive-easement doctrine.
- A generally applicable federal authorization to use navigable airspace does not, by itself, create a private, user-specific easement enforceable by injunction against a neighboring landowner.

## Conclusion

The court denied injunctive relief and rejected a prescriptive avigation easement claim because routine overflight in navigable airspace authorized by federal law is not adverse to the underlying landowner and therefore cannot satisfy Nebraska’s requirements for a prescriptive easement.


Fiese v. Sitorius, 526 N.W.2d 86 (Neb. 1995)