An Elkhorn homeowner discovers that the gravel drive her neighbor has used for fifteen years to reach his pole barn crosses the back corner of her lot. The deed says nothing about it. No fence ever marked a boundary. When she finally asks him to stop, he tells her the drive is “grandfathered in” and threatens to sue if she blocks it. She has no idea whether he is right, or what it would take to find out. Nebraska easement laws decide whether that use is permission, a license, or a property right.
Questions like hers land in Nebraska property law more often than most landowners expect. An easement gives one person the right to use another person’s land for a specific purpose, and Nebraska recognizes several ways an easement can come into existence, several ways it can be enforced, and a newer statutory process for asking a court to relocate certain easements. Omaha-area landowners buying, selling, developing, or disputing rural and suburban parcels need to know which kind of easement they are dealing with before they act.
What Do Nebraska Easement Laws Recognize?
Nebraska recognizes express, prescriptive, and implied easements, and a landowner can now ask a court to relocate certain private easements under the Uniform Easement Relocation Act. Which category applies controls how an easement is created, proved, and ended.
An easement is a nonpossessory right to use land owned by someone else. Lawyers call the benefited parcel the dominant estate. The burdened parcel is the servient estate. Nebraska courts recognize several categories, and the category controls how the easement is created, proved, and ended.
Express Easements
An express easement is created by a written grant or reservation, often in a deed or a separate recorded instrument. Recording makes it easier to identify because the terms, scope of use, and location can be indexed against the property. A title search in Douglas, Sarpy, or any other Nebraska county should reveal it before closing. Disputes over express terms, and over the many easements that are never written down at all, are the kind of Nebraska real estate matter that reaches our office long after the original neighbors have moved on.
Prescriptive Easements
A prescriptive easement arises without any writing, through open, notorious, exclusive, and continuous use of someone else’s land for the statutory period, under a claim of right adverse to the owner. The use must continue for the full ten-year prescriptive period. The Nebraska Supreme Court restated those elements in Fey v. Olson, 319 Neb. 45 (2025), affirming a prescriptive easement over an access road that a family had used for more than sixty years to reach farmland and recreational ground. Once a claimant shows open, notorious, and continuous use over the period, adverseness is generally presumed, and the landowner must then show the use was permissive. The court also held that acquiescence is not permission: a landowner who merely tolerated the use did not defeat the claim. The Nebraska Court of Appeals reviewed a similar dispute in Melendez v. Holling, 27 Neb. App. 156 (2019), and found the claimant had failed to prove either a prescriptive or an implied easement. A neighborly courtesy, by contrast, is permissive and cannot ripen into a legal right.
Implied Easements and Easements by Necessity
When a single tract is divided and one resulting parcel is landlocked, Nebraska law may imply an easement over the remaining land to provide access, depending on the facts at severance and the available routes. Prescription is a separate path. In Fey, the trial court declined to reach the alternative theory of easement by necessity because the prescriptive easement already resolved the dispute, and the Supreme Court agreed that it was unnecessary to address it. Which theory fits a given property depends on its history, and both are fact-intensive.
How Does an Easement Holder Prove a Prescriptive Claim?
A claimant proves a Nebraska prescriptive easement by showing four things with clear, convincing, and satisfactory evidence, and Nebraska courts treat such claims with disfavor.
The burden falls on the person claiming the easement. The claimant must show that:
- Use was open and visible, rather than hidden or occasional
- Continuity lasted for the full ten-year period, without a meaningful gap
- Adversity existed under a claim of right, meaning without the landowner’s permission
- Exclusivity existed in the legal sense, which does not require that only one person used the road
Neighbors in Omaha, Papillion, and the surrounding counties frequently assume that long use alone settles the question. It does not. A landowner who can show the use began with a handshake, a gate the neighbor asked permission to open, or an email granting access can rebut the presumption of adverseness regardless of how many years have passed.
Can a Nebraska Landowner Move an Easement Without the Other Side’s Consent?
Yes, within limits, since the Legislature adopted the Uniform Easement Relocation Act. Neb. Rev. Stat. § 76-2,136 and the surrounding sections of the Act let the owner of a servient estate petition a court to relocate certain easements, including many private access and utility easements, to a different part of the same property, provided the relocation does not materially lessen the utility of the easement, increase the burden on the easement holder, or frustrate the easement’s purpose. The Act expressly provides that a court-ordered relocation is not treated as a new grant of an interest in the land, so it does not trigger a due-on-sale clause in a mortgage or breach a lease covenant tied to the original easement location.
This matters for Nebraska landowners planning a new outbuilding, a pole barn, or a subdivision improvement where an existing utility or access easement sits in the wrong spot. Before the Act, moving an inconvenient easement usually required the other party’s cooperation or a lawsuit grounded in equity. Now there is a defined statutory path, though it still requires a court petition and proof that the relocation meets the statute’s conditions.
What Should a Buyer Check Before Closing on Omaha-Area Land?
A title commitment lists recorded express easements, but it will not catch a prescriptive claim that has never been reduced to writing, and it will not flag a use pattern that is close to the ten-year mark. A buyer or a buyer’s counsel should:
- Walk the property and compare visible access points, fence lines, and driveways against the recorded legal description
- Ask the seller directly about any informal access arrangements with neighbors
- Review the title commitment’s exceptions line by line rather than relying on a summary
- Confirm whether any utility easement crosses a planned building footprint before signing a contract contingent on inspection only
A thirty-minute walk of the boundary before closing routinely catches problems that would otherwise surface only after a dispute with a new neighbor. When a disputed easement cannot be resolved by agreement, it typically moves into litigation over quiet title or an injunction, and the earlier the history of use is documented, the stronger that case will be.
How Should a Landowner Preserve Evidence of an Easement Dispute?
Evidence of how a use began usually decides these cases. A landowner who suspects a neighbor is building a prescriptive claim, or a user who hopes to establish one, should collect dated photographs of the route and any gates, written messages about access, seller disclosures, prior surveys, and the title commitment’s exceptions. Recording who used the route, for what purpose, and since when gives a court the history it needs to decide whether the use was adverse or permissive.
Frequently Asked Questions
Does a verbal agreement with a neighbor create a binding easement in Nebraska?
No. An oral agreement to allow access generally creates a revocable license, and the landowner may withdraw permission. Use that remains permissive does not establish adversity, so it generally cannot ripen into a prescriptive easement during the period of permission.
How long does a neighbor have to use my Nebraska land before claiming a prescriptive easement?
Ten years of open, continuous, exclusive, and adverse use, proved by clear, convincing, and satisfactory evidence. Falling short on any one element, including a single meaningful interruption in use, restarts the clock.
Can I block an easement that was never properly created?
A landowner who believes a claimed easement fails one of the required elements can generally act to restrict the use, but doing so without first confirming the legal status invites a quiet title action or an injunction request from the other side. A title search and, where the history is disputed, a declaratory judgment action are the safer paths before taking self-help measures like fencing off a contested drive.
Does the Uniform Easement Relocation Act apply to every easement on my property?
No. The Act contains conditions and exclusions, and certain conservation, preservation, and public easements are treated differently than private access or utility easements. Whether a specific easement qualifies for relocation under the Act depends on its type and terms.
Can I move an easement under the Uniform Easement Relocation Act without going to court?
No. The servient estate owner must commence a civil action, and the court may approve relocation only after the statutory conditions are established. The order must be recorded before relocation proceeds.
What happens to an easement when the underlying property is sold?
An easement appurtenant to the land, meaning one that benefits a specific parcel rather than a specific person, generally runs with the land and binds successive owners of the servient estate whether or not the new deed repeats it, provided it was properly recorded or the buyer had notice of it.
Easement disputes in the Omaha metro area usually surface at the worst possible time, during a sale, a development project, or a falling-out between neighbors who had gotten along for years. If a driveway, fence line, or utility run on your Nebraska property does not match the paper record, Horgan Law LLC can help. Contact us at 402-965-0652 or visit horganlawfirm.com/contact-us.
This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship with Horgan Law LLC. If you need advice specific to your situation, contact us for a consultation.