IN THE SUPREME COURT OF THE STATE OF MONTANA
WILLIAM GEORGE DOWNING and
NARQUERITE M. DOWNING,
Plaintiffs and Respondents,
and Cross-Appellants,
-VS-
C. JOSEPH GROVER, GEORGE J. GROVER,
and HAZEL M. GROVER,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial. District,
In and for the County of Missoula,
The Honorable Jack Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Garlington, Lohn & Robinson; Tarry E. ~ i l e y , iss sou la,
Montana
For Respondent :
Recht & Greef; John D. Greef, Hamilton, Montana
Submitted on Briefs: April 3, 1989
Decided: April 26, 1989
0
Filed:
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
plaintiffs (~ownings)brought suit in the Fourth Judi-
cial District, ~avalliCounty, seeking to establish a public
road across defendants' (Grovers) property allowing easy
access to Downings' property, or, in the alternative, a
public or private prescriptive easement. The District Court,
sitting without a jury, found that no public road existed, no
public easement existed, but that a prescriptive easement had
been established by Downingsl predecessors in interest prior
to 1 9 6 1 . Both parties appeal the ~istrict Court judgment.
The Downings still maintain that one or all of the roads in
question are public roads or that the public has established
prescriptive easements by adverse use. The Grovers argue
that the record does not support a finding of any easement,
public or private, across their property.
Thus, the issues on appeal are whether the District
Court erred when it found that no public roads existed and
when it concluded instead that a private easement had beer,
established. We affirm in part and reverse in part.
The land in question is just west of Hamilton, Montana,
generally described as T5N R21W Lots 3, 4 and 9 . The Grovers
obtained their 800-acre tract of land in 1 9 6 1 . At that time,
they put a gate across the road entering their property.
They locked the gate, although they allowed access to those
who asked. Next to the gate they erected a large wooden sign
which read, "PRIVATE PROPERTY, NO TRESPASSING, PRIVATE ROAD."
They did not hear any protest on this conduct for twenty-six
years until they were contacted in 1 9 8 7 by the Downings
regarding the possible existence of an easement. It is not
disputed that access has been permissive since 1 9 6 1 ; thus any
easement must be established by Downingsl predecessors in
interest prior to 1 9 6 1 .
The Downings obtained their 40-acre tract of land in
1965. The land is undeveloped and does not have any habited
buildings on the premises. The ~owningsbought this property
for $2,000 from Trudy Schatzer in 1965. They now wish to
sell it for $90,000 conditioned on obtaining access.
The road which enters Grovers' property is a dirt road
which, right after crossing the Grovers' property line,
splits into two separate roads. One branch goes to the
southside of Sawtooth Creek and the other crosses Sawtooth
Creek on a one-lane wooden bridge and proceeds on the
northside of Sawtooth Creek up to the Grovers' house. Beyond
the house, the road is presently indiscernible, although the
trial testimony established that previously it had been
traveled (prior to 1961) to proceed in a southwesterly direc-
tion to or near the old Welch cabin site, (long since burned
down) which is now Downings' property. To add to the confu-
sion of establishing this road, directly to the north is
another road now called Owings Lane Road. The testimony by
all at trial generally conceded that all three of these roads
are commonly referred to as Sawtooth Road or Sawtooth Creek
Road.
Because of this great confusion, the District Court
declined to find that a public road existed. The ~istrict
Court is affirmed on that finding. Any finding of a public
road based on this record would have been pure speculation.
The documents from Ravalli County introduced in support of
finding a public road were so ambiguous that they could have
referred to any of these three roads, or all of them, because
all roads bore the same name and roughly the same descrip-
tion. Likewise, the testimony of the residents was that all
three roads had the same name. Such evidence is not suffi-
cient to put a property owner on notice that his rights may
he jeopardized unless he acts. As we stated in Parker v.
Elder (Mont. 1988), 758 P.2d 292, 45 St.Rep. 1305, absent use
by the public over "the exact route claimed" for ten years,
there is no public roadway.
For the same reason, the court declined to find that
the public had established a prescriptive easement. The
testimony of those who traveled the Sawtooth road revealed
that they did not know which of the three roads was actually
"Sawtooth Road." Many of them traveled just the north branch
but not the south branch. Many did not travel as far as the
old Welch cabin site. Based on this record, the District
Court is likewise affirmed in its denial of a public
easement.
The court in Finding XXVI found that there was "credi-
ble evidence of open, notorious, exclusive, adverse, continu-
ous and uninterrupted use of the northside branch of the road
for fifty years prior to 1961." From that finding, it con-
cluded that a private easement by prescription had been
established. That finding is not supported by the record and
is reversed.
I. Prescriptive Easements in Montana
A. ELEMENTS
The burden at trial on the party seeking to establish
the prescriptive easement is to show
1) open
2) notorious
3) exclusive
4) adverse
5) continuous, and
6 ) uninterrupted use
of the easement claimed for the full statutory period.
Clemens v. Martin (Mont. 1986), 719 P.2d 787, 43 St.Rep. 994.
The statutory period is five years. section 70-19-401, MCA.
All elements of prescriptive easement must be proved by a
preponderance of the evidence or the claim will fail.
~rimsleyv. Estate of Spencer (1983), 206 Mont. 184, 670 P.2d
85. All elements must be proved in a case such as this
because "one who has legal title should not be forced to give
up what is rightfully his without the opportunity to know
that his title is in jeopardy and that he can fight for it."
Grimsley, 670 P.2d at 92-93.
"Open and notorious" is defined as "a distinct and
positive assertion of a right hostile to the rights of the
owner and must be brought to the attention of the owner."
Poepping v. Neil (1972), 159 Mont. 488, 499 P.2d 319, 321.
"Continuous" means "it is necessary to have use made often
enough to constitute notice of the claim to the potential
servient owner." Powell & Rohan, Powell - -
on Real Property,
Vol. 3, S 413, pp. 34/124-34/126 (1987). "Uninterrupted"
means "use not interrupted by the act of the owner of the
land or by voluntary abandonment by the party claiming the
right." Scott v. ~einheimer (1962), 140 Mont. 554, 374 P . 2 d
91.
The plaintiff offered evidence regarding the use of the
northside road from roughly 1918 through 1961. However, this
Court concludes that it is unnecessary to discuss the ele-
ments and possible establishment of a private prescriptive
easement. The record is replete with examples of ~ownings'
conduct and the conduct of Schatzer, his immediate predeces-
sor in interest, which is wholly inconsistent. with the exis-
tence of a private easement.
R. INCONSISTENT ACTS
Section 70-17-111, MCA, provides:
. .
. (3) A servitude is extinguished:
by the performance of any act upon
either tenement by the owner of the
servitude or with his assent which is
incompatible with its nature or
exercise.
That statute was construed in orriso on v. ~ i g b e e (1983), 204
Mont. 515, 668 P.2d 1025, where this Court stated, "even if
~ e w i sHughes' testimony could be construed to indicate that
his predecessors obtained a prescriptive easement, Hughes'
subsequent actions of asking permission to use the ditch and
of signing the license agreement are incompatible with the
nature of a prescriptive easement." his Court went on to
reverse the District Court finding in that case that a pre-
scriptive easement existed.
In the instant case, Schatzer acted inconsistently by
establishing permissive use after Grover locked the gate.
Plaintiff Downing acted inconsistently in at least three
ways: (1) by telling others that he had no easement, (2) by
continuing the permissive use established by Schatzer, and
(3) and by withdrawing the claim at the close of the trial.
In his deposition plaintiff W. Downing stated that he
has admitted to others that he has no easement. When he
retreated from that position at trial, he was impeached by
attorney Riley:
Q. Okay. So the fact of the matter is
that you told people you didn't have an
easement.
A. Yes.
Q. So from the time you purchased the
property in 1965 until 1986 when you had
a chance to sell it to Mr. Montgomery,
no attorneys had told you you had an
easement, the person you bought the
property from didn't tell you you had an
easement, and you were telling people
you didn't have an easement, right?
A. Yes.
owning further testified that he sought Grover's
permission to use the road, as Schatzer had done. Grover
granted permission to use the road as far as the Grover
house, but not beyond. owning never used the road until 1987
when he drove up there in connection with this lawsuit.
In plaintiffs' proposed findings of fact and conclu-
sions of law dated November 3, 1987 (pretrial), they claimed
a private easement by prescription.
After the trial, both parties submitted revised find-
ings and briefs in support thereof. In their December 4,
1987 (post-trial) revised findings, plaintiffs dropped their
claim of private prescriptive easement stating "insufficient
evidence" as the reason. The brief in support of ~ownings'
findings, also dated December 4, 1987, admitted their posi-
tion on private easement stating:
4. HAVE THE PLAINTIFFS OR THEIR PREDE-
CESSORS IN INTEREST ESTABLISHED AN
EASEMENT BY PRESCRIPTION FOR THE USE AND
BENEFIT OF PLAINTIFFS' PROPERTY?
There was insufficient evidence that the
plaintiffs established a private ease-
ment by precription [sic].
Assuming, arguendo, that a private easement had been
established prior to 1961, any such easement has been extin-
guished, contrary to the District Court finding. It has been
extinguished by many inconsistent acts--(l) Schatzer's asking
permission to use the road; (2) Downings asking permission to
use the road; (3) Downings' admissions of having no easement;
(4) Downings' withdrawal of the claim of a private prescrip-
tive easement and (5) Grovers erecting and locking the gate
in 1961. Grovers established statutory extinguishment by
inconsistent acts, and Montana law supports that conclusion.
Section 70-17-111(3), MCA; Higbee, supra.
11. Standard of Review
The standard of review for a judge sitting without a
jury, pursuant to Rule 52(1), M.R.Civ.P., is that the court's
findings shall not be set aside unless clearly erroneous.
Thus, when the District Court's findings are based on sub-
stantial credible evidence, they are not clearly erroneous.
Parker, supra. This record lacks substantial credible evi-
dence to support a finding that ~ownings have a private
prescriptive easement which is currently effective. On the
contrary, Grovers have proven statutory extinguishment by
inconsistent acts. The District Court is reversed on that
issue.
The conclusion of law of the District Court that no
public road was established or existed on the property of the
defendants is affirmed.
The judgment of the ~istrictCourt that plaintiffs have
a private prescriptive easement across defendants' property
is reversed.
We c o n c u r :
4.
Justices