No. 85-546
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986
JESSIE H. CLEMANS,
Defendant and Respondent,
-vs-
WAYNE MARTIN and JOYCE M A R T I N ,
P l a i n t i f f s and A p p e l l a n t s .
APPEAL FROM: D i s t r i c t Court of t h e Twentieth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lake,
The Honorable R o b e r t H o l t e r , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
M. R i c h a r d G e b h a r d t , Ronan, Montana
For Respondent:
F r e n c h , Mercer, G r a i n e y & Duckworth; John Mercer,
P o l s o n , Montana
S u b m i t t e d on B r i e f s : A p r i l 4 , 1986
Decided: J u n e 5 , 1986
*,
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Wayne and Joyce Martin (appellants) appeal the August
26, 1985, order of the Twentieth Judicial District Court,
County of Lake, denying them a prescriptive easement for a
roadway across Jessie Clemans' (respondent) property. We
affirm.
Appellants own a forty acre parcel of land on the west
slope of the Mission Mountains. Their land is bordered on
three sides by land belonging to the Confederated Salish and
Kootenai Tribes. Respondent owns the property bordering
appellants' land on the west.
There is no road access to appellants' property. This
situation was acknowledged in appellants' contract for deed:
16. Access. The parties acknowledge that the
property being sold hereunder is being sold without
access.
Appellants purchased their land from Art Zimmerman in
1983. Zimmerman and his wife had owned the land from 1967
until 1983. Bob Croft had owned the land since sometime
prior to 1954 and had sold to Zimmermans. Upon purchasing
the property in 1983, appellants filed suit seeking to
establish their ownership of a prescriptive easement through
respondent's property for access to their property. A bench
trial was had. Numerous witnesses testified for both
parties.
Art Zimmerman testified that he first entered the
subject land in 1937 to haul a load of wood. Zimmerman
testified that he believed he gained access to the property
via the road in dispute; that the road had no cuts or fills,
but was not overgrown with timber or brush; and that it was
in better shape than it is now. Zimmerman further stated
that he did not seek permission to use the road; however, he
had permission to obtain the firewood. While on the
property, Zimmerman observed a small cabin, a garden plot and
several vehicles and farm implements. Zirnmerman did not
return to the property until 1967, when he purchased a car
from Bob Croft's estate. Thereafter, Zimmerman decided to
purchase the real property.
Next, Zimmerman testified that between 1967 and 1983, he
used the roadway approximately three times a year to obtain
firewood and Christmas trees. He further stated that the
road was inaccessible in the winter. Although there were
three gates across the road, they were never locked.
Zimmerman merely opened and closed them as necessary for
access. Finally, Zimmerman stated on direct examination that
he had never sought permission from the Clemans to use the
road. However, on cross-examination, he indicated that at
Ralph Clemans' request, he had always phoned to say he would
be going to the property.
Wendall Putnam testified that he obtained firewood from
respondent's property from 1976 to 1982; that he never used
the road in question; and that his access to the land was
always with respondent's permission. Merle Amerson testified
that he leased pasture from respondent and used the road for
access to his cattle in 1976, 1977, and from 1980 until 1983.
Again, the road was used only with respondent's permission.
Amerson never found the gates locked until 1983. At that
time, respondent provided him with a key for continued
access. Neither witness ever saw anyone else using the
disputed road.
Respondent testified that the road in question was built
in 1955 by a logging contractor hired to harvest timber on
her land. Once the logging was completed, the road was
allowed to return to its natural condition. She further
testified that neither she nor her husband (now deceased)
ever allowed the road to be used without their permission.
Even Bob Croft obtained permission to gain access via the
road, when he chose to drive to his land.
After presentation of all the evidence, the presiding
judge visited the site and examined the road in question.
Thereafter, he issued an order denying Martins' claim to a
prescriptive easement. Following a timely notice of appeal,
appellants raise the following issues:
1. Did the District Court err in failing to consider
the priority of patents and consequently 43 U.S.C. S 932
(repealed 1976) in the establishment of a right-of-way
appurtenant to the homestead on the Martin parcel?
2. Did the Court abuse its discretion in failing to
consider and rule upon relevant evidence of a prescriptive
easement prior to 1955?
Issue number one is raised for the first time on appeal,
apparently in an untimely effort to bolster appellants'
position. We have repeatedly refused to consider an issue
raised for the first time on appeal. In re the Marriage of
Glass (Mont. 1985), 697 P.2d 96, 101, 42 St.Rep. 328, 333.
Furthermore, we have held that a party may not advance on
appeal a theory of the case different than that relied on
below. Donnes v. State ex rel. Superintendent of Public
Instruction (Mont. 1983), 672 P.2d 617, 621, 40 St.Rep. 1834,
1838. For these reasons, we refuse to consider appellants'
first issue.
In their second issue, appellants contend the trial
judge failed to consider evidence that a prescriptive
easement existed prior to 1955. We disagree. The only
evidence the road existed prior to 1955 was that presented by
Art Zimmerman. The trial judge noted his testimony in his
order:
Mr. Zimmerman was on the land belonging to
Plaintiffs in 1937. He purchased wood from the
then owners of the Plaintiffs' land. His entry was
with the consent of the then owners of the
Defendant' s land.
This statement is an accurate reflection of Art
Zimmerman's testimony. Appellants apparently contend that
4
the existence of a cabin and garden plot, as well as the
presence of vehicles on the land in 1937, is irrefutable
proof that the road was used for access to the property and
that this use created a prescriptive easement. The trial
judge did not agree. Substantial credible evidence supports
his conclusion.
Respondent presented evidence at trial that the road at
issue was not created until 1955. Other roads or paths
existed in the same area prior to 1955, including an old
homestead road. The trial judge found that the subject road
did not exist in 1955; that other paths were used for access
to the property prior to 1955; and that any access to the
property through respondent s land has a.lways been
permissive. Unless they are found to be clearly erroneous,
we will not set aside the findings of fact of the trial
court. Rule 52 (a), M.R.Civ.P. In the Matter of the
Guardianship and Conservatorship of Tennant (Mont. 1986), 714
P.2d 122, 129, 43 St.Rep. 189, 198. The findings here are
clearly supported by the evidence and will not be overturned.
The burden was on appellants to "show open, notorious,
exclusive, adverse, continuous and uninterrupted use of the
easement claimed for the full statutory period." Taylor v.
Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 122. See
also Rathbun v. Robson (Mont. 1983), 661 P.2d 850, 851-52, 40
St.Rep. 475, 477. The statutory period is five years.
Section 70-19-401, MCA. Because appellants were unable to
prove adverse or continuous use for the five year period
immediately prior to the filing of this suit, they are now
relying on an historical adverse use which is refuted by the
facts adopted by the trial court.
Lastly, appellants object to the form of the trial
judge's order because it does not list specific findings of
fact separate and distinct from the conclusions of law and
judgment. Rule 52 (a), M. R.Civ. P. requires that "the court
shall find the facts specially and state separately its
conclusions of law thereon, and judgment shall be
entered. ... " In In Re the Marriage of Barron (1978), 177
Mont. 161, 164, 580 P.2d 936, 938, we held that if a trial
judge's findings and conclusions are clear to this Court,
failure to state them in the recommended form is not
substantial error. Here, the trial judge's facts are clear,
as are his conclusions. Although Rule 52 (a), M.R.Civ.P.
specifies the preferred format, we find no error.
The judgment of the trial court is affirmed.
We concur: