Fahser v. Hilgart

1. Robert Fahser appeals an order, which denied his motions for a new trial or judgment notwithstanding the verdict, and the judgment in favor of Wesley and Donna Hilgart on Fahsers and Duane Klawitters claims for adverse possession and prescriptive easement. Fahser claims the trial court erred by instructing the jury that the mere use of a way over unenclosed land is presumed to be permissive and not adverse. We agree that the instruction was an incorrect statement of the law given the facts of this case and therefore reverse the judgment and the order and remand for a new trial on the claim of prescriptive easement.