Melendez v. Holling

927 N.W.2d 834, 27 Neb. Ct. App. 156
Nebraska Court of Appeals·Decided April 23, 2019·No. No. A-17-1201.·Published·Cited by 2 cases

Opinion

Arterburn, Judge.

*837INTRODUCTION

Felicia J. Melendez appeals from an order of the district court for Adams County that found she had failed to prove the existence of either a prescriptive easement or an implied easement across land belonging to her neighbors, Rodney L. Holling and Brandy A. Holling. Melendez argues on appeal only that the district court erred in not awarding her a prescriptive easement across the Hollings' property. Finding no merit to her argument, we affirm the order of the district court.

BACKGROUND

Melendez owns a house located at 716 North Colorado Avenue in Hastings, Nebraska, while the Hollings own the *158house located immediately to the south, at 712 North Colorado Avenue. Melendez' house contains three one-bedroom apartment-style units. The Hollings purchased the house located at 712 North Colorado Avenue with the intent to renovate and then resell it. Part of the renovation included the installation of a paved driveway running from the street, then alongside the house, and ending flush with the back of the house. A privacy fence was built around the backyard. The newly constructed driveway and privacy fence were built along the property line between the two properties.

On October 15, 2015, Melendez filed a complaint against the Hollings, asking the district court to find that a prescriptive easement existed over a portion of the Hollings' property. She alleged that a shared driveway previously existed, which was located on the southern portion of her property and the northern portion of the Hollings' property. Melendez further alleged that the shared driveway had been continuously used for a period of more than 10 years and used in an actual, open, notorious, and hostile manner. Melendez alleged in her complaint that the Hollings' new driveway and privacy fence along the property line would cause irreparable injury and damage to her by preventing her tenants from being able to access the rear of her property for purposes of parking. At trial, Melendez testified that if two panels of the privacy fence were ordered removed, her tenants would retain the ability to park their cars behind the house.

Trial was held on July 19, 2017, consisting of the testimony of the parties, two tenants who previously rented from Melendez, the prior owner of the Melendez *838property, and the Hastings building inspector. Numerous exhibits were also admitted into evidence.

The driveway in question sits between Melendez' apartment house and the Hollings' house. Melendez testified that the driveway between the two properties was a shared driveway with separate approaches when she purchased the property. She stated that people from both properties used the driveway.

*159She never asked for nor received either written or verbal permission to use the driveway from the previous owners of 712 North Colorado Avenue or the Hollings. Melendez described the driveway as narrowing as you move from the street, past the houses, and toward the back of the properties. In the backyard of Melendez' property is a small parking area where her tenants parked their cars. Melendez testified that she bought her property in 2012 from Laura Witte. Melendez testified that she never communicated with the prior owner of 712 North Colorado Avenue or the Hollings regarding use of the driveway between the houses. No permission was granted nor had there been any past denial of access to the portion of the driveway located on the 712 North Colorado Avenue side of the property line. Melendez made no improvements such as providing gravel or other resurfacing with respect to either the parking area or the driveway as it existed on her side of the property line.

Witte testified that she had owned the property at 716 North Colorado Avenue for 12 years before selling it to Melendez. While Witte owned the property, she told her tenants that they could use the shared driveway to access the back parking area on her property but that they could not park on the driveway due to its shared nature. She testified that she believed that the driveway was part of both neighboring properties and had always considered it to be a shared driveway. Witte could not recall ever asking for or receiving any type of permission from the prior owners of 712 North Colorado Avenue to drive vehicles over a portion of that property in order to access the rear of her property. She also could not ever recall being told by the prior owners that her tenants should stop using the driveway.

In August 2015, the Hollings bought the house at 712 North Colorado Avenue, intending to renovate and then resell it. Rodney Holling testified that the seller made no representations to him regarding a shared driveway. He testified that he had never given any of Melendez' tenants permission to use *160the driveway nor had he told them they were prohibited from using it. Even though neither Melendez nor her tenants asked him for permission to use the preexisting driveway to access the rear of her property, he did not seek to prohibit the tenants from using the driveway until such time as the exterior improvements were made. He acknowledged that a portion of the privacy fence would have to be removed in order for cars to access the back parking area on Melendez' property. He noted that he made the exterior improvements based on his belief that most prospective buyers would prefer a private driveway over a shared driveway. He also noted that the backyard of Melendez' property consisted of "grass and weeds." Until the lawsuit was filed, he had intended to build a garage inside the privacy fence.

Melendez had the property surveyed. The surveyor's flags showed that the dirt driveway in question laid almost evenly on the Hollings' property and on Melendez' property. Based on the property survey, the Hollings installed the privacy fence on the property line in the backyard and poured the new concrete driveway flush with the property line.

*839Two of Melendez' tenants testified during trial. Anthony Garvin lived in an apartment at 716 North Colorado Avenue for about a year during a period of time that included the Hollings' purchase of the neighboring property and adding the new driveway and privacy fence. Garvin testified that there was no division between the properties when he first moved in and that he used the shared driveway to access the back parking area. However, he stated that he could no longer get his vehicle to the back parking area once the Hollings' privacy fence was erected. From that point on, Garvin accessed the back parking area by driving across the neighboring property to the north.

Breanna Draper lived in an apartment at 716 North Colorado Avenue both before and after the Hollings installed the new driveway and erected their privacy fence. Like Garvin, Draper testified that she also used the shared driveway to access the *161parking area behind Melendez' property. However, once the Hollings' privacy fence was up, she could no longer access the backyard parking area.

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Melendez v. Holling, 927 N.W.2d 834, 27 Neb. Ct. App. 156 (Neb. Ct. App. 2019).

927 N.W.2d 834 (Melendez v. Holling) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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