Feloney v. Baye

815 N.W.2d 160 (2012)

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Nature of the Case

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Facts

Feloney (P) has a problem parking in his garage. P's driveway is very short. At its longest, it is 6.7 feet in length, and at its shortest, it is only 3.3 feet long. The alley separating the two driveways is only 16 feet wide. Because of the narrow alley, P would use D's driveway to help him make the turn into his garage. P moved into the house in the summer of 2006. The prior occupants lived in the house for 8 years. They stated that in exiting their garage, they would 'occasionally' back into D's driveway. They never did any maintenance on D's driveway. P did shovel snow from D's driveway. D decided to build a retaining wall over his driveway to combat a drainage problem. This construction prevented P from using D's driveway. P sued in the district for an order imposing a prescriptive easement over a portion of the area that was once D's driveway and an order requiring D to remove a portion of his retaining wall. D counterclaimed to quiet title and moved for summary judgment, and the district court sustained the motion. The court reasoned that the presumption of adverseness does not apply when the use is over unenclosed land, and D's driveway was unenclosed. On such facts, the use is presumed permissive. P could not rebut the presumption, and summary judgment was granted. P appealed.