by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; CREATION; PRESCRIPTION; AVIGATION: Nebraska court holds that a private party cannot gain a prescriptive easement for avigation. Fiese v. Sitorius, 526 N.W.2d (Neb. 1995).

The plaintiff claimed that he and his predecessor in interest (father) had continuously operated an air strip in compliance with statutory requirements necessary to establish a prescriptive easement. The plaintiff testified that there had never been a year where he or his predecessor failed to take off and land on the north end of the strip. This airspace was over the land of the defendant. Defendant erected poles and placed hay in the area - thus precipitating the suit.

The court began by acknowledging the existence of avigation easements which grant the holder the right to navigate aircraft in the designated airspace overlying another's land. The court then noted the split of authority regarding the creation of such an easement by prescription and chose to side with those refusing to allow such easements. Relying on federal law, the court concluded that the defendant had no right to prohibit the plaintiff's use of certain airspace because he had no power over this property. The right to use the navigable airspace is a license granted by the federal government. Since the right is permissive, there can be no adversity and therefore no prescription since one of the core elements is missing.

Reporter's Comment: The court recognized the avigation easement as a valid property interest even to the point of mentioning elsewhere that condemnation of such and easement can amount to a taking. However no mention is made of the overflight taking cases such as U.S. v. Causby 328 U.S. 256 (1946). Is it possible that the court is concluding that the federal government has already condemned an easement over the defendant's property? If so, is there liability?

Editor's Comment: The issue is more likely to be framed as one of identification of "core" property rights. Defendant's property rights simply never included the right to bar persons from navigable airspace, at least for certain purposes, and when the overflights did not interfere with ground uses. Therefore, plaintiff's overflights never violated defendant's property interests, and no prescriptive rights could be created. Since defendants never had the rights, moreover, the government never took them away.

Further, the argument can be made that if the government did take the rights, it did so long ago, when it first declared "navigable airspace" existed, and the statute of limitations on a takings claim has expired. For an great example of all the arguments against a takings claim described above, see Cheyenne Airport Board v. Rogers, 707 P.2d 717 (Wyo. 1985) (City's declaration of severe building height limitation to facilitate civic airport activities not actionable now, if it ever was, and landowner must cut down cottonwood tree that has grown over the limit).

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