No. 89-05
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1989
DAVE JOHNSON,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
WARREN A . McMILLAN,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h 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 G a l l a t i n ,
T h e H o n o r a b l e Joseph B . G a r y , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
John P. A t k i n s ; B r y a n & Atkins, Bozeman, Montana
For R e s p o n d e n t :
H. A. Bolinger, Bozeman, Montana
S u b m i t t e d on B r i e f s : June 1 6 , 1 9 8 9
Decided : A u g u s t 11, 1 9 8 9
F i l e d : :L:
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Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal from the District Court of the Eighteenth
Judicial District, Gallatin County, involves a dispute over
public use of a road across appellant McMillan's property.
The District Court permanently enjoined McMillan from
interfering with use of the road holding that the road
constituted a public way. Respondent Johnson had requested
the relief granted by the lower court arguing that the road
was a public way by virtue of prescriptive use from
approximately 1895 to 1985. We affirm.
Timberline road follows Timberline Creek up several
miles from the Jackson Creek Interchange on Interstate 90.
The road is on an old railroad bed built by the Northern
Pacific Railway in the early 1890's. The rail line formerly
connected Northern Pacific's main line to the Timberline coal
mining camp. The camp flourished during most of the 18801s,
but died out in the early 1890's. In 1912, the rail was
removed from the bed.
Testimony at trial documented public use of the old
railroad bed as a road across what is today McMillan's
property in the late 1930's. Testimony also documented
public use of the road from the early 1950's to 1976, when
McMillan purchased the land. Following McMillan's purchase
of the property, witnesses testified that public use of the
road continued up until McMillan placed a locked gate on the
road in 1985.
During the period from the early 1950's to the present,
various unlocked gates have been installed and in operation
on the road. However, the gates were erected to keep cattle
from roaming rather than to deny public access. Except for
McMillan's locked gate, there is no evidence that any other
landowner has attempted to restrict public access during the
long period of time that the road has been in use by the
public. Hilda Peterson, McMillan's predecessor in interest
to the land involved, testified she maintained gates to keep
cattle in pasture, but freely allowed all public access
through the gates. Other landowners whose property is
adjacent to the road also testified that they never
considered denying public access, although they may have
denied access if the public use had been abused. Hilda
Peterson also testified that hunters had sought and obtained
her permission to travel the road and hunt on her property.
Issue
Whether the District Court erred in concluding that the
Timberline Road is a public road by reason of a prescriptive
easement?
The public's acquisition of a prescriptive easement on a
private road may be explained as follows:
That the public may acquire the right by
prescription to pass over private land is
undisputed and such is the law in Montana. To
establish the existence of a public road by
prescription it must be shown that the public
followed a definite course continuously and
uninterruptedly for the prescribed statutory period
together with an assumption of control adverse to
the owner. .. .
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. ...
This court has said that to establish a
prescriptive right it must be shown that the use
was adverse and not by permission of the landowner.
However, the older a road the more difficult it
usually is to produce the proof of actual adverse
use because the witnesses are no longer usually
available. . ..
The fact that a road has been barred by gates to be
opened and closed by the parties passing over the
land has always been considered as strong evidence
of a mere license to the public to pass over the
designated way. [citations omitted]
Kostbade v. Metier (1967), 150 Mont. 139, 142-45, 432 P.2d
382, 384-86.
Use of an alleged easement for the full statutory
period, unexplained, creates a presumption of use adverse to
the owner which may be overcome by evidence that the use is
permissive. Lunceford v. Trenk (1974), 163 Mont. 504, 518
P.2d 266. District courts sitting as finders of fact occupy
the best position to determine if the use was permissive or
adverse. Lunceford, 518 P.2d at 267.
McMillan contends that the lower court erred by finding
use of Timberline Road adverse to prior owners. He points
out that "the general rule is that the use of the road by
another will generally be regarded as permissive where such
use does not injure or interfere with the owner's use."
White v. Kamps (1946), 119 Mont. 102, 115-16, 171 P.2d 343,
349. McMillan also contends that the fact that landowners
long gated the road, and the fact that he placed a locked
gate on the road in 1985, provides sufficient proof to
overturn the lower court's finding that public use
established the easement.
Referring again to the standard of review applicable
here, absent a demonstration by McMillan that the lower
court's determinations are "clearly erroneous", we must
affirm the lower court. Rule 52(a), M.R.Civ.P. The lower
court determined that the presence of gates on Timberline
Road did not overcome the presumption that the public's use
was by claim of right, adverse to McMillanls predecessors in
title. We acknowledge the rule from previous cases that
standing a.lone, evidence of use by the public of a road
obstructed by gates is insufficient to establish a
prescriptive easement in favor of the public. Descheemaeker
v. Anderson (1957), 131 Mont. 322, 326, 310 P.2d 587, 589.
But this Court has also held that a gate constructed "not to
stop people but cattle, is not enough standing alone to rebut
the presumption established by such [over 50 years] long
public use." Kostbade, 432 P.2d at 386.
There is substantial evidence here to support a finding
that public travelers pursued a definite, fixed course,
continuously and uninterruptedly, down the old railroad bed
for nearly one hundred years. The evidence of permissive use
brought out by McMillan is scant. Previous landowners could
only speculate that they may have attempted to bar public
access if gates had been left open by travelers on the road.
Hilda Peterson offered another solution to the open gate
hypothetical question posed by McMillan's counsel:
Q. Do you think that you -- if a member of
the public came in there and left your gate open,
did you think that you had the right to go in there
and ask him to leave?
A. I would have-- yes, I think maybe I would
have felt that way. I would certainly have felt
like asking him to please keep the gate closed.
(Tr. at 52) Hilda Peterson also testified as follows:
Q. And as far as you are concerned and your
dad was concerned, you gave permission to everybody
to go up through there?
A. There was no specific permission given to
anybody to go in there. People went in there,
that's all.
(Tr. at 52)
Prior to 1 9 5 4 , the relevant statutory period for
establishing the right at issue here was ten years. Section
9 0 1 5 R.C.M. (1935). Since 1 9 5 3 , the period has been five
years. Section 7 0 - 1 9 - 4 0 1 , MCA. The long public use as
documented in the record sufficiently supports the District
Court's finding that Timberline Road is a public way.
McMillanls evidence purporting to demonstrate permissive use
does not overcome such public use. We affirm.
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We Concur: