Nationwide Financial, L.P. v. Pobuda

Court erred in entering summary judgment for adjacent landowner which had filed declaratory judgment action claiming that neighboring landowners' use of a strip of its land amounted to trespass. Neighboring landowners satisfied elements of exclusivity and adversity necessary to establish claim for prescriptive easement. Although exclusivity is an element of a prescriptive easement claim, it does not require that claimant prove that titleholder was altogether deprived of possession and/or use of property during the 20-year period. Given absence of evidence that origin of the way was merely permissive, the presumption is that of a right or grant based on long acquiescence of owners on whose land the way is located. (GARMAN, FREEMAN, KILBRIDE, KARMEIER, BURKE, and THEIS, concurring.)