NO. 87-544
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1988
FRANCES C A R O L I N E PARKER,
Plainti-ff a n d Respondent,
-vs-
C A R R I E WILMOTH EIJDER,
ROBERT DALTON a n d VADA DALTON,
D e f e n d a n t s and A p p e l l a n t s .
A P P E A L FROM: D i s t r i c t C o u r t of 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 ,
I n and f o r t h e C o u n t y of B i g H o r n ,
T h e H o n o r a b l e G. T o d d R a u g h , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
B e r t W. K r o n m i l l e r a n d J a m e s E . T o r s k e , H a r d i n ,
Montana
For R e s p o n d e n t :
F r e e m a n Law F i r m ; Natasha Morton, Hardin, Montana
S u b m i t t e d on B r i e f s : May 1 9 , 1 9 8 8
Decided: July 2 1 , 1 9 8 8
Filed:
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The District Court for the Thirteenth Judicial District,
Big Horn County, has entered a permanent injunction enjoining
defendants from interfering with plaintiff's use of a road
which crosses defendant Carrie Wilmoth Elder's land. For
reasons expressed herein we affirm. Defendants raise the
following issues on appeal:
1. Did the District Court err by concluding that the
subject road was a public road by reason of and pursuant to
43 U.S.C. § 932?
2. Did the District Court err by concluding that the
plaintiff had a road right of way by reason of prescriptive
easement?
The action involves a road located about 20 miles east
of Decker, Montana, on property owned by Carrie Wilmoth
Elder. The road begins at a county road and runs northwest
across Mrs. Elder's land for approximately four-tenths of a
mile. This is the portion now in dispute. The road then
enters property owned by plaintiff Frances Caroline Parker
and continues northwest less than one-half mile to Mrs.
Parker's home and ranch buildings.
Gloria Schwalbe testified that her father, in 1916,
homesteaded what is now Mrs. Parker's place. Mrs. Schwalbe
lived there from 1917 to 1941, and during that period no
other road existed for travel to the county road. Her family
and at least three other families used the subject road
regularly since 1916.
Mrs. Elder and her husband occupied land southeast of
Mrs. Schwalbe's home, at least by 1926. Mr. Elder received a
patent for the land from the United States in 1927. This
property included the land upon which the disputed lower
portion of the road runs. Mrs. Schwalbe testified that
children used the road to attend the Pine Butte School,
starting in 1925.
About the time Mrs. Schwalbe left in 1941, her father
sold the ranch to Mrs. Parker's brother-in-law. Mrs. Parker
and her husband bought the ranch in 1946 and moved onto the
place in 1947. Mrs. Schwalbe testified that she returned for
a short visit in 1957, and she used the same road she and her
family had always used since 1916.
Mrs. Parker testified that she used the road almost
daily for 39 years. In November 1985 she drove down the road
from her home toward the county road, but when she came to
the fence line between her property and Mrs. Elder's, she
found that the gate had been removed and two steel posts had
been driven into the road between the gate posts. Four
strands of wire had been stretched across the road and at-
tached to the steel posts. Mrs. Parker later saw that the
gate at the county road had also been wired shut. Sometime
before this, bad relations had developed between Mrs. Parker
and Mrs. Elder's daughter and son-in-law, Vada and Robert
Dalton. The Daltons, who are defendants in this action, had
wired the gates shut. Mrs. Parker filed this action seeking
injunctive relief and damages.
Did the District Court err by concluding that the sub-
ject road was a public road by reason of and pursuant to 43
U.S.C. S 932?
In 1866, Congress enacted Revised Statute § 2477 which
read as follows:
The right of way for the construction of highways
over public lands, not reserved for public uses, is
granted.
That section was in effect during the years pertinent to
litigation of this issue. 43 U.S.C. S 932 (repealed 1976).
Section 2477 was explained in State ex rel. Dansie v. Nolan
(1920), 58 Mont. 167, 172-73, 191 P. 150, 152:
Section 2477 of the Revised Statutes of the United
States goes no further than to grant a right of way
for the construction of a highway across public
lands ... The grant is but an offer of the right
of way for the construction of a public highway on
some particular strip of public land, and can only
become fixed when a highway is definitely estab-
lished and constructed in some one of the ways
authorized by the laws of the state in which the
land is situated.
Section 1339, RCM (1915) (previously S 1337, RCM (190711,
described the ways authorized by the State of Montana for
establishing public highways:
All highways, roads, lanes, streets, alleys,
courts, places and bridges laid out or erected by
the public or now traveled or used by the public,
or if laid out or erected by others, dedicated or
abandoned to the public, or made such by the peti-
tion [sic, should read "partition"] of real proper-
ty, are public highways.
Montana law recognized the existence of highways by
prescription when used by the public for the appropriate
statutory period of limitation. State v. Auchard (1898), 22
Mont. 14, 16-17, 55 P. 361, 362, overruled on other grounds,
Reid v. Park County (Mont. 1981), 627 P.2d 1210, 1213, 38
St.Rep. 631, 634. The applicable statute of limitations for
purposes of this case was 10 years. Sections 4571 and 6432,
RCM (1907). Additionally, the public use "must be shown to
have continued over the exact route claimed. .. . " Dansie,
191 P. at 152; see also Montana Ore-Purchasing Co. v. Butte &
Boston Consol. Mine Co. (1901), 25 Mont. 427, 65 P. 421.
This Court shall not set aside findings of fact made by
a district court unless those findings are clearly erroneous.
Rule 52 (a), M.R.Civ.P. If there is substantial credible
evidence to support the findings, those findings are not
clearly erroneous. See City of Billings v. Billings
Firefighters (1982), 200 Mont. 421, 430-31, 651 P.2d 627,
632; Olson v. Westfork Properties, Inc. (1976), 171 Mont.
154, 157, 557 P.2d 821, 823.
After thorough review of the record, we conclude that
the plaintiff failed to establish use by the public of the
exact route claimed over public land for the 10 year period
prior to 1927 when the patent was issued by the United States
to Mr. Elder. Because there is not substantial credible
evidence to support the District Court's finding that the
road was in place, was in use, and was a granted public road
by reason of and pursuant to 43 U.S.C. S 932, we conclude
that the finding was clearly erroneous.
I1
Did the District Court err by concluding that the plain-
tiff had a road right of way by reason of prescriptive
easement?
To establish a prescriptive easement, the owner of the
dominant tenement must establish an open, notorious, exclu-
sive, adverse, continuous, and uninterrupted use by the owner
or successors in interest for the statutory period. Rathbun
v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852. The
element of adverse use is established by presumption if all
other elements of the claim are demonstrated. Garrett v.
Jackson (1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179.
Then the burden shifts to the owner of the servient tenement
to show that the use was merely permissive, not. adverse.
Garrett, 600 P.2d at 1179.
The District Court concluded that Mrs. Parker had
presented evidence sufficient to establish the presumption of
adverse use. We conclude that substantial evidence supports
the District Court's determination.
Mrs. Elder argues that she properly rebutted the pre-
sumption of adverse use by establishing that Mrs. Parker's
use of the road has always been a permissive use. "A disput-
able presumption may be overcome by a preponderance of evi-
dence contrary to the presumption. " Rule 301 (2), M. R.Evid.
The District Court concluded that Mrs. Elder had failed to
establish permissive use by a preponderance of credible
evidence. The issue before us is whether the court's determi-
nation was clearly erroneous. Rule 52(a), M.R.Civ.P.
Mrs. Elder contends that she met her burden by present-
ing "extensive evidence" of permissive neighborhood usage of
the road. She argues that the Elders granted permission for
use of the road as a route to the school house across the
county road. However, Mrs. Schwalbe, a witness the lower
court found to be "most credible," testified that her family
(the plaintiff's predecessors in interest) and a number of
other families were using the road in 1 9 1 7 before the Elders
ever moved to the area.
Mrs. Elder also argues that she demonstrated that her
family exercised control over the road sufficient to overcome
the presumption of adverse use. She relies upon Mrs. Par-
ker's testimony that she would not have placed shale upon the
road in 1 9 7 9 had Mr. Elder objected. Mrs. Parker testified
that she called Mr. Elder to see if he had any objection to
her putting shale on the road, and he had none. However, she
also testified that she never sought permission to either use
or shale the road, that her call concerning shaling the road
was merely a "neighborly act."
Another point of evidence relied upon by Mrs. Elder is
her own deposition testimony that her husband had denied an
earlier request by Mr. Parker to shale the road. The lower
court did not find that this testimony outweighed the pre-
sumption of adverse use, and we do not find error in the
court's conclusion. Mrs. Elder was testifying about an
alleged conversation between her husband and Ralph Parker,
both of whom are deceased.
Lastly, Mrs. Elder contends that the two gates across
the road, together with all other evidence presented, was
sufficient evidence to establish permissive use. The pres-
ence of gates may be strong evidence of mere license.
Kostbade v. Metier (1967), 150 Mont. 139, 145, 432 P.2d 382,
386. However, the evidence supports the court's finding that
the gates were used to control cattle. They were not used to
control travel over the road. This evidence was not suffi-
cient to rebut the presumption. Kostbade, 432 P.2d at 386.
We conclude that Mrs. Elder has failed to show that the
District Court was clearly erroneous in finding that she had
not established permissive use by a preponderance of evi-
dence. We affirm the District Court's determination that
Mrs. Elder had failed to rebut the presumption of adverse
use.
Mrs. Elder argues that Mrs. Parker had failed to prove
adverse use. We agree with the District Court's conclusion
that adverse use need not be proved independent and apart
from the presumption of adverse use. Unless properly rebut-
ted, the presumption stands. Rule 301(2), M.R.Evid.
Finally, Mrs. Elder argues that the road has changed in
location over the years; therefore, the prescriptive easement
must fail. The same argument was discussed in Scott V.
Weinheimer (1962), 140 Mont. 554, 562, 374 P.2d 91, 96:
Although neither the owner of the dominant
estate, nor the owner of the servient estate, may
ordinarily change the location of all or part of a
right of way, without consent of the other, the
location may be changed by mutual consent of both
parties and such consent may be implied from their
acts and acquiescence.
Mrs. Parker testified that although the road had changed
slightly, the changes were apparent to everyone and the
Elders never objected. It is clear from the evidence that
the Elders acquiesced in the changes in the road. The lower
court found that the changes had been agreed to by the par-
ties or their predecessors in title. We conclude that sub-
stantial credible evidence supports this finding.
We affirm the court's holding as to Issue 11, that
plaintiff had a road right of way by reason of prescriptive
easement.
Affirmed.
We Concur:
/ - " . / -
Justices