## Facts

- Owners of adjoining residential lots in Lincoln, Nebraska shared a single concrete driveway built in the mid-1940s that physically straddled the property line and served garages on both lots.
- For roughly 30 years, successive owners of both parcels openly and continuously used the entire driveway to access their garages without objection or obstruction.
- Viola M. Fischer owned the north lot (Lot 25) and, along with her predecessors, used the shared driveway continuously; she received the property by deed from her father in 1970.
- In 1972, the south-lot owners (Voldemars and Parsala Grinsbergs) obtained a survey locating the boundary line.
- In 1975, the Grinsbergs erected a fence along the boundary line running lengthwise down the driveway, preventing Fischer from maneuvering her vehicle to her garage.
- Fischer sought an injunction, alleging a prescriptive easement over the portion of the driveway located on the Grinsbergs’ land.

## Issues

1. Whether Fischer proved a prescriptive easement over the portion of the driveway on the Grinsbergs’ land based on long-term use by her and her predecessors.
2. Whether decades of open, continuous, unmolested mutual use of a boundary-straddling driveway is presumed adverse under a claim of right, shifting the burden to the servient owners to prove permissive use.

## Decision

- The Nebraska Supreme Court reversed the district court’s dismissal and remanded with directions to grant injunctive relief.
- The court held Fischer acquired a prescriptive easement for driveway access, including the segment located on the Grinsbergs’ parcel.
- Fischer established open, visible, continuous, and unmolested use for the prescriptive period, triggering a presumption that the use was under a claim of right.
- The Grinsbergs failed to rebut the presumption by showing the use originated or continued as permissive.
- Because the driveway was a shared way laid out along the common boundary and used by successive owners on both sides, neither owner could obstruct the portion on their own land so as to defeat the other’s established use.

## 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.
- When a claimant shows open, visible, continuous, and unmolested use for the prescriptive period, the use is presumed to be under a claim of right; the servient owner bears the burden to prove permissive use.
- Permissive use is not adverse and cannot mature into a prescriptive easement; if the manner of origin is unexplained, uninterrupted open use for the prescriptive period raises a presumption of adversity that persists unless overcome by a preponderance of the evidence.
- When adjoining owners establish a shared way along their boundary by each contributing land and both sides use the whole way for the prescriptive period, the mutual use is treated as adverse to later exclusive use by either owner, and neither may obstruct their portion to close the shared way.
- The scope of a prescriptive easement is defined by the use actually made during the prescriptive period.

## Conclusion

The court recognized a prescriptive easement protecting Fischer’s established vehicular access over the shared driveway and ordered injunctive relief because long, open, and unopposed mutual use of a boundary driveway is presumed adverse, and the servient owners did not prove permission sufficient to defeat prescription.


Fischer v. Grinsbergs, 252 N.W.2d 619 (Neb. 1977)