No. 12595
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1974
ROBERT H. WILSON,
P l a i n t i f f and Respondent,
CLOYD W. CHESTNUT,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable Nat A l l e n , Judge p r e s i d i n g .
Counsel o f Record:
For Appellant :
Gough, Booth, Shanahan and Johnson, Helena, Montana
Ward A . Shanahan a r g u e d , Helena, Montana
F o r Respondent :
Anderson, Symmes, F o r b e s , P e e t e and Brown, B i l l i n g s ,
Montana
Weymouth D. Symmes a r g u e d , B i l l i n g s , Montana
Submitted: A p r i l 26, 1974
Decided: '
cfUL 2 3 ly@
Filed :
JIjL 2 1911)
PER CURIAM:
This i s an a p p e a l from a judgment f o r p l a i n t i f f e n t e r e d
upon f i n d i n g s of f a c t and c o n c l u s i o n s of law by t h e d i s t r i c t c o u r t
of S t i l l w a t e r County. The judgment d e c l a r e d p l a i n t i f f t h e owner
of an easement by p r e s c r i p t i o n f o r t h e u s e of a roadway a c r o s s
d e f e n d a n t ' s land and e n j o i n e d defendant from i n t e r f e r i n g w i t h
p l a i n t i f f ' s u s e of t h e roadway. Defendant a p p e a l s .
The road i n c o n t r o v e r s y i s l o c a t e d i n S t i l l w a t e r County,
southwest of Dean, Montana. The a c c e s s road l e a v e s t h e county r o a d
and e n t e r s p r o p e r t y owned by a M r . K e l l e r , r e f e r r e d t o i n t h e t r a n s -
c r i p t of proceedings a s "The O r r Place." The road t h e n e n t e r s
o n t o defendant Cloyd W, C h e s t n u t ' s l a n d ; proceeds approximately
o n e - f o u r t h m i l e a c r o s s h i s p r o p e r t y ; t h e n e n t e r s on p l a i n t i f f Robert
H. W i l s o n ' s land t e r m i n a t i n g a t some ranch b u i l d i n g s . Thereafter a t
l e a s t two t r a i l s l e a d t o n a t i o n a l f o r e s t l a n d beyond p l a i n t i f f ' s
property.
N one measured t h e r o a d , b u t e s t i m a t e s r a n from C h e s t n u t ' s
o
e s t i m a t e of t h e w i d t h a t t h e c a t t l e guard t o each p a r t y ' s p r o p e r t y
o f seven f e e t t o e s t i m a t e s of f o u r t e e n t o twenty f e e t a t o t h e r
p o r t i o n s of t h e road.
The d i s t r i c t c o u r t found t h e road had been i n e x i s t e n c e f o r
some f i f t y y e a r s ; d a t i n g back t o 1920 when p a t e n t s were i s s u e d t o
former owners of t h e l a n d s now owned by t h e opposing p a r t i e s . This
road i s , and has been s i n c e t h e p a t e n t s were f i r s t i s s u e d , t h e o n l y
road and t h e only means of a c c e s s t o and from ~ i l s o n ' sp r o p e r t y .
The d i s t r i c t c o u r t a l s o found t h e r o a d i s and h a s been f o r a t l e a s t
t e n y e a r s and f o r many y e a r s p r i o r t h e r e t o a w e l l d e f i n e d and w e l l
marked road s o a s t o be c l e a r l y i d e n t i f i a b l e from a e r i a l photographs
and c l e a r l y marked on a t o p o g r a p h i c a l map marked a s E x h i b i t #2.
Chestnut i s p a r t owner w i t h Iowa B . S p i c e r and Alena Chestnut
of t h e l a n d s t h e road i n c o n t r o v e r s y t r a v e r s e s . They purchased t h e
p r o p e r t y i n 1959 and have r a i s e d c a t t l e on t h e land s i n c e t h a t time,
Wilson is the equitable owner of real property located adjacent
to and southwest of Chestnut's land under a contract for deed. The
property was purchased on May 16, 1972 from Standwood Williams. The
contract was subject to a previous contract between Williams as
buyer, and E. D. Morehad, as seller, which was dated 1968.
The district court found that in the late 1920's and early
1930's a lodge capable of entertaining several hundred people was
constructed on the premises now owned by Wilson. This property
was then known as the " 4 ~ "
and had been operated as a dude or guest
ranch. From time to time throughout the years, entertainment and food
were supplied by the owners of the 4K ranch for groups such as the
Jaycees, and all used the disputed roadway to gain access to the 4K
ranch. Moreover, witnesses testified the roadway was never closed
by gates, and was occasionally used by the general public as an
access way into the national forest protected only by cattle guards
at the boundary line of each owner's property.
Shortly after Wilson purchased the 4K ranch he began an adver-
tising campaign introducing a real estate development on the re-
named Island Lake Ranch. Realizing the distinct possibility of an
increased burden on the roadway Chestnut constructed a locked gate
across the road. Shortly thereafter Wilson obtained a temporary
restraining order against Chestnut, preventing interference with
Wilson and his invitees from traveling over and across the road.
Chestnut was ordered to remove the gate or other device blocking or
interfering with the use of the road. The matter was later set
for trial before the district court, sitting without a jury, on
Wilson's claim cf a "prescriptive right1'to use the road across
Chestnut's property.
Following trial the district court entered findings of fact,
conclusions of law, and judgment followed on July 11, 1973, in favor
of Wilson. On July 25, 1973, Chestnut filed his proposed amendments
and exceptions to the court's findings and judgment. These were deemed
denied because of lapse of time, pursuant to Rule 59, M.R.Civ.P., and
on August 10, 1973, Chestnut filed notice of appeal to this Court.
The district court then entered an order staying execution and
preserving the status quo existing in June 1972, pending disposition
of the appeal.
On appeal Chestnut presents several issues for review which
require consideration of the judgment in some detail. In pertinent
part the judgment reads:
"4. The Plaintiff and his successors in interest
and the plaintiff's guests and invitees, as well as the
Plaintiff's successors in interest, have acquired a pre-
scriptive right to use the roadway undisputed which is
20 feet in width, extending from the easterly boundary
line of the Defendant's lands to the boundary line of the
plaintiff's lands.
"5. That in the event it should be determined by a
higher court that this Court erred in its conclusion of
law No. 4, then in such event the Court concludes that the
Plaintiff and the other individuals described in para-
graph 4 have acquired an easement by necessity over and
across the ~efendant's lands 20 feet in width and extending
from the easterly boundary of the Defendant's lands to the
lands owned by the Plaintiff.
"6. That in any event, under the deed to the Defendant
and to his predecessors in interest their property was ac-
quired subject to the easements of the present roadway which
is the subject of dispute in this action for the use of the
public generally.
"7. In the event all of the foregoing conclusions
of law are reversed by the Supreme Court of the State of
Montana, the Court concludes that the Plaintiff and his
successors in interest in whole or in part are entitled
to a 20 foot roadway across the Defendant's lands by way
of condemnation using the existing roadway and subject to
whatever compensation to the Defendant that the Court
might subsequently find,"
The form of the judgment presents three issues:
First. Did the district court err in concluding that Wilson
had established a prescriptive easement across Chestnut's land?
The applicable statute to the issue in controversy is section
67-1203, R.C.11. 1947, which provides:
"Occupancy for the period prescribed by Title 93
as sufficietlt to bar an action for the recovery of
the property confers a title thereto, denominated a
title by prescription, which is sufficient against
all. "
In Title 93, referred to in section 67-1203, are sections 93-2501
to 93-2516, inclusive, which prescribe five years as the period of
limitations required to establish a presumption that the land was
used under a c l a i m of r i g h t , and a d v e r s e ; i . e . sufficient to establish
a t i t l e by p r e s c r i p t i o n and t o a u t h o r i z e t h e presumption of a g r a n t .
Te S e l l e v. S t o r e y , 133 Mont. 1, 319 P.2d 218.
The a p p l i c a b l e p r i n c i p l e s t o e s t a b l i s h an easement by p r e -
s c r i p t i o n were s e t f o r t h i n S c o t t v. Weinheimer, 140 Mont. 554,
560, 374 P.2d 91 and r e i t e r a t e d i n Lunceford v. Trenk, Mon t .
II
To e s t a b l i s h t h e e x i s t e n c e of a n easement by
p r e s c r i p t i o n , t h e p a r t y so c l a i m i n g must show
open, n o t o r i o u s , e x c l u s i v e , a d v e r s e , continuous
and u n i n t e r r u p t e d u s e of t h e easement claimed
f o r t h e f u l l s t a t u t o r y period."
T h i s Court i n conno nor v. Brodie, 153 Mont. 129, 137, 454
P.2d 920, commented:
"'Where t h e c l a i m a n t h a s shown an open, v i s i b l e ,
c o n t i n u o u s , and unmolested u s e of t h e land of
a n o t h e r f o r t h e p e r i o d of time s u f f i c i e n t t o a c -
q u i r e t i t l e by a d v e r s e p o s s e s s i o n , t h e u s e w i l l b e
presumed t o be under a c l a i m of r i g h t and n o t by
l i c e n s e of t h e owner. I n o r d e r t o overcome t h i s
presumption, t h e r e b y s a v i n g h i s t i t l e from t h e incum-
b r a n c e of an easement, t h e burden i s upon t h e owner t o
show t h a t t h e u s e was p e r m i s s i v e . 1 Glanz v. Gabel, 66
Mont. 134, 141, 212 P. 858, 860."
Wilson i n t r o d u c e d evidence of t h e r o a d ' s u s e by h i s p r e -
d e c e s s o r s t o g a i n a c c e s s t o t h e 4 K r a n c h f o r a p e r i o d of time
s u f f i c i e n t t o meet t h e f i v e y e a r s r e q u i r e d by s t a t u t e . I n addi-
t i o n , he p r e s e n t e d evidence of o c c a s i o n a l u s e by t h e g e n e r a l p u b l i c .
But, t h e mere u s e of t h e r o a d i n c o n t r o v e r s y f o r t h e r e q u i r e d
time i s n o t s u f f i c i e n t t o c r e a t e a t i t l e by p r e s c r i p t i o n . Le Vasseur
v. Roullman, 93 Mont. 552, 20 P.2d 250.
Chestnut a r g u e s t h a t Wilson h a s f a i l e d t o show open, n o t o r i o u s ,
e x c l u s i v e , a d v e r s e , c o n t i n u o u s and u n i n t e r r u p t e d u s e of t h e e a s e -
ment f o r t h e f u l l s t a t u t o r y p e r i o d . He m a i n t a i n s t h e u s e of t h e r o a d
f o r a c c e s s t o t h e 4C r a n c h was by p e r m i s s i o n , t h u s l a c k i n g t h e r e -
1
q u i r e d proof of a d v e r s i t y and h o s t i l i t y . To s u p p o r t t h i s c o n t e n t i o n
Chestnut r e f e r s t o t h e testimony of Stantirood Williams, ~ i l s o n ' s
predecessor i n i n t e r e s t t o t h e 4K ranch:
"Q. Well, what did Mr., the substance of what M r .
Morehead told you? [Morehead w a s t k obmer of the
4K before Williams, and at the time the action
was commenced the legal title holder of the property.]
"A. Well, the substance of what he, of my under-
standing from him, was that we were allowed use of the
road by Chestnut, use of +he road across chestnut's
property by Chestnut. I never was given to understand
that there was anything in writing, but that there was
use of the road allowed to Morehead by Chestnut.I I
Although Morehead did not recall specifically telling Williams of
this permission, Williams (who was the equitable owner from 1968
to 1972 when it was transferred to Wilson) was clearly under the
impression that use of the road was by permission of Chestnut.
From the time Morehead purchased the 4 K ranch in 1964 until
he sold it to Williams in 1968, Morehead testified to cordial,
neighborly relations between himself and Chestnut. Chestnut visited
the 4K for dinner as a guest at various times. During the winter
Morehead lived on the property; Chestnut helped him and his family
get in and out of the property by a different route because the
existing road was impassable.
The use of the road by Wilson's predecessors was limited to
the summer months for operation of the dude ranch, according to
witness Kratz, and Morehead who ran it for nine years. They would
11
get over there about May 15 to start cleaning it up" and by Labor
day it was pretty well over. Testimony also shows that any previous
use was clearly interrupted while Williams owned the property.
Its use as a dude ranch was abandoned in 1971 and subsequently it
was leased for cattle grazing.
In 2 Thompson on Real Property (1961 Replacement), Easements,
$345, the general rule regarding the effect of permission upon
prescription is aptly stated:
II
Since prescription must be by adverse use, no use
with permission of the owner can ripen into prescrip-
tion. No easement by prescription can be acquired
where the privilege is used by the express or implied
permission or license of the owner of the land * +c *.
II
The mere use of a way for the required time is gener-
ally not sufficient to give rise to the presumption of
a grant, and generally some circumstances or act, in
addition to the use, tending to indicate that the
use was not merely permissive, is required. When
the use of a way has begun by permission it is pre-
sumed so to continue as respects the question of
prescription. Although the acquisition of a way by
prescription does not preclude the use by the servient
owner or by the public, it does require a use as of
right and not by favor or permission, and no prescriptive
right arises if the use originated in amity and con-
tinued in recognition of the owner's title. If the use
of a way over one's land be shown to be permissive only,
no right to use it is conferred though the use may have
continued for a century, or any length of time. Such
permission may be withdrawn at any time, however long
continued. i'i ik 9
:
If*
* *A use of a neighbor's land based upon mere neigh-
borly accommodation or courtesy is not adverse and can-
not ripen into a prescriptive easement. Thus where the
use of a way by a neighbor was by express or implied per-
mission of the owner, it was held that the continuous use
of the way by the neighbor was not adverse and did not
ripen into a prescriptive right. 9
: **
"* %If the user began by the permission of the owner,
itwill not ripen into an adverse or hostile right until
notice of such adverse user is brought home to the ovmer
and the user continued thereafter for the statutory period."
In the instant case, unlike Lunceford relied on by Wilson,
the owner of the servient tenement, Chestnut, presented evidence
sufficient to establish permissive use of the road in controversy.
Second. Since we have determined the district court erred
in determining that Wilson had a prescriptive easement across
Chestnut's land, did the district court further err in determining
that Wilson was entitled to either an easement by necessity, or to
acquisition of the roadway by condemnation proceedings?
On the m o r d we hold that it did. Even a cursory reading of
the record shows a failure of proof to support either contention.
Such evidence as there is tends to the contrary. Wilson obtained
a 60 foot easement from one Horton, a neighbor of Chestnut, which runs
to within 100 feet of the county road. At that point a steep em-
bankment presents a problem, so that an additional easement from
Keller would be necessary to reach the county road. In addition,
there was testimony as to the possibility, never consummated, of
the forest service providing some sort of access to ~ilson's ranch.
Suffice it to say the foregoing, coupled with the lack of any evi-
dence as to necessity, is not sufficient to support a judgment for an
easement by necessity, i.e. condemnation proceedings.
Third. Did the district court err in determining that
Chestnut acquired his property subject to an easement for a roadway
across his property for the use of the public?
We hold that it did. Chestnut's deed contains the following
reservation:
It
Subject to the reservations contained in the United
States patent, prior conveyances of record and ease-
ments for roads and ditches as now established and
located upon or across said premises.''
It is elementary that if the "reservations" did in fact grant to
the public an easement across Chestnut's land, he took subject to
it. Did the clause in the deed reserve to the public such an ease-
ment? We think not. It is the majority rule in other jurisdictions
that an easement cannot be reserved in favor of a stranger to the
deed. See Annotation, 88 ALR2d 1199. We are aware of the trend
of cases which tend to avoid technical distinctions in order to give
effect to the grantor's intent. For example: Thisted v. Country
Club Tower Corp., 146 Mont. 87, 405 P.2d 432, Where it appears
in a proper case, we will not hesitate to do so. But here there
is nothing to suggest that a departure from the established rule
is indicated. For aught that appears in the record, it is as
likely the purpose of the clause in Chestnut's deed was to protect
the grantor's warranty of title, as to reserve an easement to the
public.
For the foregoing reasons the judgment is reversed,