A farmer splits a quarter section between two heirs. One heir’s parcel fronts the county road. The other parcel sits entirely behind the first, with no frontage on any public road and no recorded right of way across the neighboring tract. Years later, the second parcel changes hands, and the new owner discovers that the only way in or out runs across land that someone else now owns. Can that owner force access? Under Nebraska law, the answer can be yes under a legal theory called an easement by necessity, provided the facts line up in a particular way.
Large tracts of farmland and older residential subdivisions around Omaha and across Douglas County were frequently divided over the decades without anyone recording a formal access easement. Understanding when Nebraska courts will imply an easement by necessity, and when they will not, matters to anyone buying, selling, or inheriting property that does not have its own clear frontage on a public road.
What Is an Easement By Necessity Under Nebraska Law?
An easement by necessity is a right to cross someone else’s land that Nebraska courts will recognize even though no deed, contract, or other written document ever created it. The Nebraska Supreme Court has explained that this kind of easement “does not arise from an express grant,” but instead comes into existence “either by implied grant or reservation.” Johnson v. Mays, 216 Neb. 890, 895, 346 N.W.2d 401, 404 (1984). The theory behind it is straightforward: when a landowner divides a single tract and sells off part of it, the law assumes the parties intended the buyer to have whatever access is needed to actually use the land, even if nobody wrote that intention down.
The Nebraska Supreme Court traces this rule back decades. In Badura v. Lyons, 147 Neb. 442, 450, 23 N.W.2d 678, 683 (1946), the court described a way of necessity as arising “where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is entirely surrounded by the land from which it is severed or by this land and the land of strangers.” In plain terms, if an owner carves off a landlocked piece and sells it, the law implies a right to cross the remaining land to reach a public road.
What Is the Difference Between an Easement By Necessity and an Easement By Implication From Prior Use?
Nebraska courts recognize more than one kind of implied easement, and confusing them is one of the most common mistakes property owners make when researching their own situation. The Nebraska Supreme Court drew a sharp line between the two doctrines in Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996), a case involving a dispute over railroad track access between two commercial parcels in Douglas County.
An easement by necessity, the court explained, is reserved for situations where land would otherwise be landlocked, and it requires strict or absolute necessity, not mere convenience. Hillary Corp., 250 Neb. at 407-08, 550 N.W.2d at 896. An easement by implication from prior use is a separate doctrine that applies when a use of the land existed and was obvious before the property was divided, the use was continuous enough to appear permanent, and the easement is reasonably necessary to the enjoyment of the property. That lower standard of reasonable necessity, not strict necessity, controls a prior-use claim. Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996).
The practical difference matters. A buyer who simply continued using a driveway the previous owner had used for years has a different, generally easier, case than a buyer whose land is genuinely landlocked with no other route in or out. Anyone evaluating an access dispute in Nebraska should be precise about which doctrine actually fits the facts before assuming either one applies.
How Can an Easement By Necessity Be Created on Nebraska Property?
Nebraska law requires several things to line up before a court will imply an easement by necessity. Drawing on Johnson v. Mays and Badura v. Lyons, the elements generally include:
- Unity of ownership followed by severance: a single owner must have held both the landlocked parcel and the parcel that would carry the access route, and then split them through a sale, gift, or inheritance. A way of necessity cannot be claimed over land a third party always owned separately. Johnson v. Mays, 216 Neb. at 895, 346 N.W.2d at 404.
- Landlocked status at severance: once the tract was divided, the parcel claiming the easement must have lacked any other practically available legal access to a public road.
- Strict necessity, not convenience: Nebraska applies a demanding standard here. Showing that crossing the neighbor’s land would be easier or cheaper than an alternative route is not enough; the claiming party generally must show there is no other reasonably available way in or out, considering whether an alternative route could be made usable at reasonable labor and expense. Badura v. Lyons, 147 Neb. 442, 450, 23 N.W.2d 678, 683 (1946); Hillary Corp., 250 Neb. at 407-08, 550 N.W.2d at 896.
- A necessity that traces back to the original division: because the easement is implied from the parties’ presumed intent at the time of the conveyance, the landlocked condition has to be a product of that severance, not of something that happened afterward.
Property records matter a great deal in these cases. Nebraska law requires that deeds and other instruments conveying an interest in real estate, including an express easement, be signed, acknowledged, and recorded under Neb. Rev. Stat. § 76-211. When no recorded written easement can be found, the implied-easement analysis becomes central, and these disputes tend to turn heavily on old deeds, plat maps, and sometimes decades-old testimony about how a driveway or farm lane was actually used.
Is There a Statutory Alternative for Landlocked Nebraska Property?
Nebraska landowners are not limited to the common-law easement-by-necessity theory. The Nebraska Legislature created a separate statutory process for landowners whose property has no public access at all, regardless of whether the land was ever held in common ownership with the neighboring tract.
Under Neb. Rev. Stat. § 39-1713, an owner of isolated land in a Nebraska county, meaning land with no public access other than by water because it is entirely surrounded by other owners’ land, can file an affidavit with the county board. The affidavit must show that the owner cannot buy a right of way to a public road from the surrounding landowners, or can only do so at an excessive price, and it asks the county board to establish an access road, which under the statute is a right of way open to the general public rather than a private easement. Neb. Rev. Stat. § 39-1714 extends a similar procedure to land whose only existing access is an established private road narrower than two rods wide.
Once the statutory showing is made, Neb. Rev. Stat. § 39-1716 directs the county board to provide an access road if it finds, among other conditions, that the land was not already isolated when the current owner acquired it (or the owner got it directly from the state), that the isolation was not caused by the owner, and that access is genuinely needed for the land’s existing use. The board appraises the damages owed to the owners whose land the new access road crosses, the petitioning landowner pays those damages, and, for land acquired after January 1, 1982, the petitioner also reimburses the county for the engineering and construction costs.
This statutory path can be a meaningful option for Nebraska landowners whose facts do not fit the common-law easement-by-necessity elements, for example because the landlocked tract was never under common ownership with its neighbor, provided the owner also satisfies the statute’s own conditions on how the isolation arose and the owner’s acquisition of the land. It proceeds through a county board hearing rather than a declaratory judgment action in district court, a different and separately regulated process with its own procedural requirements.
What Are Common Scenarios Involving Easements By Necessity in Nebraska?
Several fact patterns recur across Nebraska real estate disputes involving necessity claims:
- Subdivided farmland: a quarter section or similar large tract is split among family members or sold off in pieces over successive generations, and one resulting parcel ends up with no direct road frontage.
- Older residential lots created before modern platting standards: many older Omaha-area and Douglas County subdivisions were platted decades ago, and alleys, access strips, or private drives that once served multiple lots were later vacated or built over, leaving a lot dependent on a neighbor’s property for access.
- Landlocked parcels created by partial sales: an owner sells the road-fronting portion of a larger tract and keeps the back portion, or vice versa, without addressing access in the deed.
- Inherited property with unclear access history: heirs receive land that has been used informally for ingress and egress for years, but no one can locate a recorded easement, and the family has to reconstruct the chain of title and historical use to determine what legal rights actually exist.
Each of these scenarios requires its own factual investigation. Whether a Nebraska court will imply an easement by necessity, recognize an easement from prior use instead, or decline to find any implied easement at all depends heavily on the specific history of the parcels, not on general assumptions about fairness.
How Do Nebraska Courts Resolve Disputes Over Easements By Necessity?
When landowners cannot agree on access, the usual vehicle for resolving the dispute in Nebraska is a quiet title or declaratory judgment action filed in the district court for the county where the land is located, often paired with a request for injunctive relief if one party is actively blocking the route. In Johnson v. Mays, for example, the dispute reached the Nebraska Supreme Court as an equitable action to enjoin a neighboring landowner from interfering with the plaintiffs’ use of a long-standing driveway, and the court reviewed the case de novo on the record, meaning it reached its own independent conclusions about the facts rather than simply deferring to the trial court. Johnson v. Mays, 216 Neb. at 892, 346 N.W.2d at 402.
These cases are fact-intensive. Courts look at old deeds and plat records, surveys, aerial photographs, and testimony about how long a driveway, farm lane, or access strip has existed and who used it. Because an easement by necessity is implied rather than written, the burden falls on the party asserting the easement to establish, through this kind of evidence, that the elements of unity of ownership, severance, landlocked status, and strict necessity are all satisfied. A property owner anywhere in Nebraska, including in Omaha and the rest of Douglas County, who is facing this kind of dispute should expect to gather historical title documents and, often, retain a surveyor before the legal question can even be meaningfully addressed.
If a landlocked owner’s situation does not satisfy the elements for an implied easement by necessity, for instance because the two parcels were never under common ownership, the statutory isolated-land process under Neb. Rev. Stat. §§ 39-1713 to 39-1716 may offer a separate route to establish access through the county board, provided the statute’s own conditions are met.
When Should a Nebraska Property Owner Talk to an Attorney About Easement Access?
Anyone who discovers that their Nebraska property, or a parcel they are considering buying, does not have clear recorded access to a public road should get legal advice before a dispute escalates. The same is true for landowners on the other side of these disputes, who are told that a neighbor has a right to cross their property without any written easement on record. Waiting until a fence goes up, a gate gets padlocked, or a sale falls through at closing makes these situations far more expensive to resolve than addressing them early, through a title review, a survey, and, when necessary, a negotiated easement agreement recorded under Neb. Rev. Stat. § 76-211.
If your Nebraska property lacks clear recorded access, or a neighbor is blocking a driveway or farm lane you have relied on for years, Horgan Law LLC can help. Contact us at 402-965-0652 or visit horganlawfirm.com/contact-us.
Our Omaha Real Estate Attorneys regularly handle access and easement disputes for property owners throughout Omaha and Douglas County, as well as landowners elsewhere in Nebraska, and we also assist with the title review and survey work that typically has to happen before any easement question can be resolved.
Frequently Asked Questions About Easements By Necessity in Nebraska
Can you get an easement by necessity in Nebraska if your land is landlocked?
Yes, but only if the Nebraska elements are met: the landlocked parcel and the parcel that would carry the access route were once under common ownership, they were later severed from each other, the landlocked parcel had no other practically available access once that severance occurred, and the necessity is strict rather than a matter of mere convenience. Johnson v. Mays, 216 Neb. 890, 346 N.W.2d 401 (1984); Badura v. Lyons, 147 Neb. 442, 23 N.W.2d 678 (1946).
What is the difference between an easement by necessity and an easement by implication from prior use in Nebraska?
An easement by necessity requires strict or absolute necessity and applies to genuinely landlocked property created by a severance of common ownership. An easement implied from prior use requires only reasonable necessity, but it also requires that the use existed, was obvious, and appeared permanent before the property was divided. Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 550 N.W.2d 889 (1996).
What if my Nebraska property was never owned in common with the neighboring parcel I need to cross?
A common-law easement by necessity will not apply, because unity of ownership followed by severance is a required element. Nebraska’s statutory isolated-land process under Neb. Rev. Stat. §§ 39-1713 to 39-1716 may still provide a path to establish access through the county board in that situation.
Do I need a recorded document to prove an easement by necessity in Nebraska?
No. An easement by necessity is implied by law rather than created by a written grant, which is exactly what distinguishes it from an ordinary recorded easement under Neb. Rev. Stat. § 76-211. That said, the absence of a recorded document is also why these cases depend so heavily on historical deeds, plat records, and testimony to prove the elements.
How do Nebraska courts decide whether land is landlocked enough to qualify for an easement by necessity?
Nebraska courts look at whether the parcel had any legal access to a public road at the time of severance and apply a strict necessity standard, meaning that inconvenience alone is not sufficient. Hillary Corp. v. United States Cold Storage, Inc., 250 Neb. 397, 407-08, 550 N.W.2d 889, 896 (1996).
Who pays for building an access road under Nebraska’s statutory isolated-land process?
Under Neb. Rev. Stat. § 39-1716, the county board appraises the damages owed to the landowners whose property the new access road crosses, and the petitioning landowner pays those damages along with the county’s engineering and construction costs for land acquired after January 1, 1982.