No. 13697
IN THE SUPREME COURT OF THE STATE OF MONTAIJA
1977
KENNETH LYNN YECNY and
JANE ELLEN YECNY, husband and wife,
Plaintiffs and Respondents,
LOUIS DAY, JR. and Dorothy L. day,
husband and wife, et al.,
Defendants and Appellants.
Appeal from: District Court of the Fifth Judicidl District,
Honorable Frank E. Elair, Judge presiding.
Counsel of Record:
For Appellants:
Gilbert & Gilbert, Dillon, Montana
Max A. Hansen argued, Dillon, Montana
For Respondents:
Schulz, Davis & Warren, Dillon, Montana
John Warren argued, Dillon, Montana
Submitted: September 19, 1977
Decided: NOV 1 5 1977
Filed : :
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Clerk
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
This is an appeal by defendants, Louis Day, Jr. and
Dorothy L. Day, husband and wife, from the District Court's
order, Madison County, granting plaintiffs' motion for summary
judgment on Count I of the amended complaint. Count I1 of the
amended complaint is not before this Court.
Plaintiffs are purchasing certain real property located
in Madison County, Montana, hereinafter referred to the "Yecny
property". Due to the location of the property, private land
must be crossed to gain access. Plaintiffs have not asked for,
nor been given any grant of right-of-way to cross the existing
"private lane" to reach their land. The usage of this private
lane precipitated the law suit. Plaintiffs filed their complaint
alleging that defendants had denied them use of a right-of-way
or easement by prescription across the portion of the lane which
burdens defendants' property.
The complaint was filed December 17, 1974. Following
legal proceedings, plaintiffs moved for summary judgment with
respect to the first count of their amended complaint. A hear-
ing was held on the motion. The evidence presented to the Dis-
trict Court consisted of the depositions of the Durhams, plain-
tiffs' predecessor in interest, of defendants, and of Fred
Winslow, a homesteader familiar with the property in question
since 1919; the pleadings; the exhibits; the testimony of the
parties; and the oral arguments of counsel. Based upon this
evidence, the District court granted plaintiffs' motion for
summary judgment. Defendants appeal from this order.
The issues raised before this Court are:
1. Did the District Court err in granting plaintiffs'
motion for summary judgment on the first count of plaintiffs'
amended complaint, and declaring plaintiffs to be the owners of
an easement or right-of-way across defendants' property?
2. Did the District Court err in making and entering
certain other written findings of fact and conclusions of law,
and a judgment, which failed to limit future use to ordinary
residential use by one family only, or in some way to limit
the burden of the easement?
A review of the facts finds that in 1941 Durhams pur-
chased a ranch in Madison County containing the Yecny property.
At that time, the "private lane" existed, and was fenced on both
sides. According to Durhams, they used the lane without per-
mission, whenever convenient, and according to their needs.
During the Durhams' 30 years of ownership of the Yecny property
Mr. Durham did repair work on the lane. Around 1946 Mr. Durham
rebuilt a bridge across the lane. In 1972 Mr. Durham caused a
caterpillar to improve a portion of the lane. During this period
no objection was made of Durhams' use and repair work.
In 1963 defendants purchased what is known as the Day
property. The "private lane" was in existence and fenced on both
sides. A portion of that lane burdened the Day property.
In 1974, Durhams sold to plaintiffs the Yecny property.
Before plaintiffs purchased the property, defendants had not
objected to Durhams' use of the portion of the lane burdening
their property. Durhams had never sought, nor received, per-
mission for this use. Shortly after plaintiffs took possession,
defendants initiated efforts to prevent plaintiffs' use of the
lane.
Issue 1.
The District Court ruled that the pretrial record dis-
closed the absence of any genuine issue of material fact and
that the moving party was entitled to judgment as a matter of law.
"'We must indulge the presumption that the judgment of the
district court is correct and will not be disturbed unless
there is a clear preponderance of evidence against it when
viewed in the light most favorable to the prevailing party.'"
Magelssen v. Mouat, 167 Mont. 374, 382, 538 P.2d 1015 (1975),
quoting from Stromberg and Brown v. Seaton Ranch Co., 160 Mont.
The initial inquiry of this Court concerns the defen-
dants' burden, as the party resisting summary judgment. Where
the record discloses no genuine issue of material fact the
burden shifts from the moving party. Under that circumstance,
the party resisting the motion must come forward with substan-
tial evidence raising the issue. Harland v. Anderson, 169 Mont.
" * * * Once the burden has shifted, the party
opposing the motion is held to a standard of
proof about equal to that initially imposed upon
the moving party:
" ' * * * the party opposing motion must present
facts in proper form--conclusions of law will
not suffice; and the opposing party's facts
must be material and of a substantial nature,
not fanciful, frivolous, gauzy, nor merely
suspicious.'" Harland, supra.
We hold defendants did not meet their burden of proof.
Defendants' purported issues of genuine material fact are bold
assertions and fail to meet the standards set forth in Harland.
Defendants first assert the evidence shows the use of
the lane to be by permission. This is a bold assertion. De-
fendants did not present evidence demonstrating Durhams' use to
be a result of neighborly accomodation and thus not hostile nor
adverse. Contrarily, plaintiffs presented the testimony of Mr.
Durham, stating he had used the lane without permission since
1941 despite knowing the lane was not county property. Mr. Durham
claimedperaveled the lane whenever convenient and maintained
the lane by repairing the bridge, fixing the culvert, and removing
rocks. There was no evidence that Days or their predecessors
ever acted to interrupt Durhams' use of the lane. Additionally,
testimony was elicited from the defendants showing the non-
permissive use of the lane. In 1971, Mr. Durham drove a
caterpillar on the lane and began repairing the lane without
asking permission. Defendant Louis Day admitted in his deposition
the following:
"Q. Mow, when Mr. Durham came in * * * I believe
this was about in 1971? A. '71, yes.
"Q. * * * and started repairing the road, did he
discuss the repairs with you? A. He didn't do
anything. I came home from work one day, and he
had this big bulldozer right in the middle of the
road.
"Q. So he didn't ask your permission about * * *
A. No.
"Q. * * * doing anything to the road? When he
started repairing the road, did you then go to
him and discuss the repairing with him? A. NO, I
did not; I did not."
Defendants' assertion is unconvincing that mere use of
the lane failed to prove adversity. According to Scott v. Wein-
heimer, 140 Mont. 554, 561, 374 P.2d 91 (1962), where the plain-
tiffs and their predecessor in interest used such road for 35 years,
this use unexplained raises a presumption that it was adverse.
The lane in this case was used for 33 years without question. The
presumption that Durhams use was adverse was not rebutted.
Defendants next assert that the poor condition of the
road precluded use and thus prevented establishing the prescrip-
tive period. This claim lacks merit. The combined testimonies
of Mr. Durham, Mr. Day and Mr. Winslow establish that the lane
was used. There was no contradicting evidence showing that the
lane could not be used by Durhams.
TO establish the existence of an easement by prescription,
the plaintiffs must show open, notorious, exclusive, adverse,
continuous and uninterrupted use of the easement claimed for the
full statutory period. Weinheimer, supra at 560. "Continuous
and uninterrupted" has been explained as follows:
"By 'continuous and uninterrupted use' is
meant that the use was not interrupted by the
act of the owner of the land, and that the right
was not abandoned by the one claiming it. * * * "
Kostbade v. Metier, 150 Mont. 139, 143, 432 P.2d
382 (1967). See also Wilson v. Chestnut, 164
Mont. 484, 525 P.2d 24 (1974).
Also :
"Continuous use does not imply constant use. All
that is necessary to obtain title by prescription
to a ditch conveying water is that the ditch be
used whenever water was needed." Selle v. Storey,
133 Mont. 1, 6, 319 P.2d 218 (1957), citing Hays
v. DeAtley, 65 Mont. 558, 212 P. 296 (1923).
While Mr. Durham's testimony concerning the exact daily times of
use between 1941 and time of selling the land to plaintiffs
was hazy, his testimony concerning use since 1941 was uncontra-
dicted.
Defendants' third assertion attempts to raise an issue
of abandonment. This issue was not raised before the District
Court and resultantly, precludes consideration by this Court.
Johnson v. Johnson, Mont . , 560 P.2d 1331, 34 St.Rep. 101,
Issue 2.
The District Court did not limit the use of the lane by
the Yecnys to ordinary residential use by one family. In order
for this Court to disturb the judgment of the District Court,
the defendants had the burden to show by a clear preponderance of
evidence that the judgment was incorrect. Stromberg & Brown v.
Seaton Ranch, supra.
This was not done. The uncontested evidence is replete
with proof of plaintiffs' predecessors' nonresidential use of
the lane. Mr. Durham testified to using the lane to transport
livestock, to haul timber, hay and grain, to check irrigation
headgates, and to use the lane in any manner for which a rancher
might u s e a r o a d . Accordingly, t h i s Court w i l l not d i s t u r b
t h e judgment of t h e d i s t r i c t c o u r t .
For t h e f o r e g o i n g r e a s o n s , t h e judgment o f t h e D i s t r i c t
Court i s affirmed.
Chief J u s t i c e I'
Justices L/