82 Neb. 442 | Neb. | 1908
The plaintiff and appellee is the owner of the west half of the northeast quarter of section 4, and the east half of the northeast quarter of section 5, in township 8, of range 14, Otoe county, Nebraska. The defendant and appellant is the owner of adjoining land on the north. Plaintiff’s land had been inclosed with a fence for 20 years or more prior to the commencement of this action. Defendant purchased his land from one Meredith some three or four years ago. Prior to the -purchase Meredith occupied the
The law is well settled that the burden is upon the party claiming .an easement on the land of another “to prove the facts essential to the acquisition of a prescriptive title; but proof of an uninterrupted use for the necessary period without evidence to explain how it began raises a presumption that it was adverse and under a
The only evidence upon that question was given by the plaintiff and by Meredith. Being asked to explain how Meredith came to go across the land, the plaintiff said: “Mr. Meredith had some land right north of me and lie had some timber on it, and he had to go out and around Mrs. Hibbard’s, and he asked me if I would mind his going through the place to get his timber, and I said No,’ and. I let him go through. I let him go either Avay he was a mind to. The fact of the business is that they was coming by the front of my house too much in the Avinter time. When it Avas a very bad snoAV, I would let him come up in front of the house, and then I got in my fence a little way in order to let him have more room. He said if I Avould take doAvn a short piece of my fence and let him go through, it would be better, and I did it. They couldn’t get around Mr. Rouse’s place there. If it Avas blocked up down there, I let them go up in front of the house.” Mr. Meredith testified that he first commenced using the road in 1884, and that, it being so long ago, he does not remember any conversation which he had with the plaintiff
It is quite apparent from the whole testimony that the use of this road or way was commenced and continued by Meredith under license or permission from the plaintiff, and that no claim of right was ever asserted until made by the defendant a short time prior to commencement of this action. As stated in Atchison, T. & S. F. R. Co. v. Conlon, 62 Kan. 416, 53 L. R. A. 781: “Mere use under a naked license, however long continued, cannot ripen into a prescriptive right.” In that case the railroad company constructed a crossing over its tracks and ties, and put gates in its fences for the benefit of the party owning land on both sides of the right of way, and this crossing was used by such owner for more than 15 years, during all of which time the railroad company maintained said crossing and gates. Under these circumstances, the supreme court of Kansas held that the landowner was a mere licensee, and could not, by the use of the crossing for the time stated, obtain a prescriptive right to the same.
. The record as a whole makes-it clear that the decree of the district court was right, and we recommend an affirmance of its judgment.
Affirmed.