No. 96-034
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
AMERIMONT, INC., A MONTANA CORPORATION,
CALVIN SMITH and ALICE K. SMITH,
Plaintiffs and Appellants,
v.
DAVID E. GANNETT and MONTANA LAND RELIANCE,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Karl Knuchel, Attorney at Law,
Livingston, Montana
For Respondents:
James J. Masar, Knight & Masar,
Missoula, Montana
Submitted on Briefs: July 18, 1996
Decided: September 30, 1996
Justice Charles E. Erdmann delivered the opinion of the Court.
Amerimont, Inc., a Montana corporation, and Calvin Smith and
Alice K. Smith appeal from the judgment entered by the Eighteenth
Judicial District Court, Gallatin County, decreeing that Amerimont
does not have a prescriptive easement over the property of David E.
Gannett and the Montana Land Reliance, a non-profit corporation,
which holds a conservation easement on Gannett's property. We
affirm.
The issue on appeal is whether the District Court erred in
concluding that Amerimont does not possess a prescriptive easement
over Gannett's property.
FACTS
Amerimont purchased property located in Gallatin County from
the Smiths in 1993. The property lies near the town of Manhattan
and the legal description of the land is the S'XSEX of Section 26
and the NE% of Section 35 and all of Section 25, all situated in
Township 2 North, Range 3 East.
Amerimont's chain of title dates back to 1887 when George
Oyler obtained title to the property by homesteading a portion of
the ground and purchasing different sections from private
individuals. In 1924 George Oyler conveyed title to Robert Oyler,
and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin
Smith's father. In 1975 Hugh Smith deeded one-half interest in the
property to Calvin Smith, and when Hugh Smith died in 1990, Calvin
Smith inherited the remaining one-half of the property. In July
1993, the Smiths transferred their interest to Amerimont by
2
conveying fee title to Section 25 and executing a contract for deed
on the respective portions of Sections 26 and 35.
In 1992 Gannett acquired title to the SE% of Section 36 in
Township 2 North, Range 3 East, Gallatin County. Gannett's chain
of title dates back to Annie and Enoch Sales who homesteaded the
property in 1922. The Saleses conveyed the property to C. W. Zelie
in 1928, and in 1930 Gallatin County foreclosed on the property
after Zelie failed to pay taxes. Enoch Sales repurchased the
property from Gallatin County in 1939 and then sold the land to
Elwyn Freeman in 1964. Freeman sold the property to Philip
Ver Wolf in 1979, and Ver Wolf conveyed his interest by warranty
deed to Keith Fairbank in 1987. Fairbank executed a warranty deed
to Gannett in 1992, who later that year conveyed a conservation
easement on the entire property to the Montana Land Reliance.
The properties are separated by a tract of land in Section 36,
which is owned by the State of Montana. Amerimont and its
predecessors in interest accessed the south one-half of Section 25
by crossing Gannett's property on a two-track dirt road. The road
is approximately the width of a pickup truck and traverses a
heavily grassed area. The roadway was not the only access to the
Smiths' property and they and their predecessors periodically used
the road to access the homestead on their land and to gain access
to the property for agricultural and recreational purposes. A map
of the properties and the disputed roadway is shown below.
3
In 1994, Amerimont and the Smiths filed suit against Gannett
seeking to establish that they had a prescriptive easement across
Gannett's property. The case was tried before the District Court
without a jury on January 19 and 20, 1995. On December 14, 1995,
the District Court entered its findings of fact, conclusions of
law, and order, concluding that Amerimont and the Smiths do not
have a prescriptive easement over Gannett's property. On
January 2, 1996, the District Court entered judgment in favor of
Gannett and the Montana Land Reliance, incorporating its earlier
findings of fact and conclusions of law. This appeal followed.
4
STANDARD OF REVIEW
This Court reviews a district court's findings of fact to
determine whether they are clearly erroneous. Dairies v. Knight
(1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We have adopted a
three-part test to determine whether the findings are clearly
erroneous. First, the Court will review the record to see if the
findings are supported by substantial evidence. Second, if the
findings are supported by substantial evidence, we will determine
if the trial court has misapprehended the effect of the evidence.
Third, if substantial evidence exists and the effect of the
evidence has not been misapprehended, the Court may still find that
a finding is clearly erroneous when, although there is evidence to
support it, a review of the record leaves the Court with the
definite and firm conviction that a mistake has been committed.
Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323,
820 P.2d 1285, 1287.
We review a district court's conclusions of law to determine
whether the court's interpretation of the law is correct. Carbon
County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898
P.2d 680, 686.
DISCUSSION
Did the District Court err in concluding that Amerimont does
not possess a prescriptive easement over Gannett's property?
To establish an easement by prescription, the party claiming
the easement must show open, notorious, exclusive, adverse,
continuous, and uninterrupted use of the easement claimed for the
5
full statutory period of five years. Tanner v. Dream Island, Inc.
(1996), 275 Mont. 414, 424, 913 P.2d 641, 647-48 (citing Public
Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856
P.2d 525, 527; Keebler v. Harding (1991), 247 Mont. 518, 521, 807
P.2d 1354, 1356). The burden is on the party seeking to establish
the prescriptive easement and all elements must be proved. Tanner,
913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527;
Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852).
If the owner shows permissive use, no easement can be acquired
since the theory of prescriptive easement is based on adverse use.
Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at
527; Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850,
852). Where the use of a way by a neighbor is by express or
implied permission of the owner, continuous use of the way by the
neighbor is not adverse and does not ripen into a prescriptive
right. Public Lands Access, 856 P.2d at 528 (citing Wilson v.
Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27).
Amerimont argues that use of the roadway by the Oylers was
sufficient to establish a prescriptive easement and that use by the
Smiths was open and notorious to a degree that Gannett should have
been placed on notice that the Smiths and their predecessors were
making a hostile claim against his ownership. Amerimont claims
that its and its predecessors' use was continuous and uninterrupted
for the full statutory time period. Amerimont maintains that the
historic use of the roadway by the Smiths and the Oylers was under
a claim of right and not by privilege or license.
6
Amerimont claims that it established the preliminary
requirements of a prescriptive easement, thus creating a
presumption of adverse use. According to Amerimont, the burden
then shifted to Gannett to establish that the use was permissive or
a neighborly accommodation and that Gannett did not bring forth any
evidence to rebut the presumption of adverse use. Amerimont argues
that the gates across the road were installed to control livestock
and restrict public access and that the gates were never meant to
keep Amerimont or its predecessors in interest from accessing their
property.
Gannett argues that Amerimont and the Smiths failed to prove
that their use of the road was open and notorious. Gannett relies
on Greenwalt Family Trust v. Kehler (19941, 267 Mont. 508, 885 P.Zd
421, to argue that Amerimont must have made a distinct and positive
assertion of a right hostile to the owner. Gannett argues that
without bringing such an assertion to the owner's attention,
neither he nor his predecessors in interest were placed on notice
that use of the roadway was hostile. Gannett claims that he cannot
now be forced to give up what is rightfully his without ever having
had the opportunity to know that his title was in jeopardy.
Gannett also argues that Amerimont failed to prove
uninterrupted use because Gannett and his predecessor, Fairbank,
required Smith to ask for a key to open the gate when he needed to
use the road. According to Gannett, such an arrangement indicates
Smith's assent to Gannett's ownership and control of the roadway
and that such a position is inconsistent with a claim for a
prescriptive easement. Gannett maintains that Amerimont and its
predecessors' use of the road began as permissive and that the
character of that use never changed. Gannett argues that the
ranchers and farmers in the area had always been good friends with
strong social ties and a commitment to helping one another.
According to Gannett, the close working and social relationships
among the landowners engendered a practice of neighborly
accommodation with respect to the use of roads across one another's
property
The District Court found as follows:
The court finds that the close working and social
relationships among neighbors engendered a custom and
practice of 'Ineighborly accommodation" with respect to
use of the road across the Gannett property. .
The court finds that plaintiffs and their
predecessors have 'crdssed the Gannett property with
express or implied permission at all times material to
this action.
Cal Smith testified Gannett and his predecessors
generally locked a gate at the beginning of the road at
all times pertinent to this action. [Tlhe court
finds that this widespread practice of giving out keys to
friends and neighbors reflects the custom and practice of
neighborly accommodation in the area . .
Defendant Gannett and Keith Fairbank did not give keys to
the gate to the Smiths. They required Smiths to obtain
permission to cross the Gannett property every time he
wanted to visit his property. The practice of locking
gates and restricting access to the Gannett property is
evidence that plaintiffs' use of the road across the
Gannett property has always been and continues to be
permissive.
8
Even if Mr. Smith and his father, Hugh Smith, intended to
establish a right to cross the Gannett property by
prescription, the evidence before the court does not show
that they placed Gannett or his predecessors on notice of
such hostile or adverse claim.
George Oyler's grandson, Enos Oyler, testified that he was
acquainted with Gannett's predecessors and that "everybody got
permission" to use the property. Oyler stated that after the
Saleses moved away, the new owners locked the gate and "you had to
ask permission."
Marguerite Fulker, a neighboring landowner, testified she had
occasions when she had to go into the southeast quarter of
Section 36 to hunt mushrooms with Elwyn Freeman and take sheep
across the property. Fulker stated that neighbors in the area got
along beautifully. She indicated that II [tl hey'd 1oa.n you anything
they had . and we did everything together."
Cal Smith testified that he worked with the Saleses, the
Freemans, and Philip Ver Wolf during haying season. The Smiths
used the Freemans' corrals when moving cattle. Smith and Ver Wolf
checked on and worked each others cattle, and on at least one
occasion, Ver Wolf helped move the Smiths' cattle to another ranch
in Harrison.
Cal Smith also testified in review of his earlier deposition
concerning conversations he had with Sales, Freeman, and Ver Wolf:
Q: And then I apparently asked a question that starts
with, "Yes," and then I would like you to -- having read
your answer that begins at line 16, I would like to have
you explain what you said in response to that question
with respect to your conversations with Sales. What is
Mr. Sales telling you there? Would you read that?
9
A: we asked a long time ago, we asked Sales about [it].
He said, 'Ah, hell, there's no problem. You people have
been doing it for years.' Like I said, that's the way we
get along.
Q: And I asked, "Okay. That['sl back to [the]
neighborly accommodation?" And your answer is --
A: I said, "Yes."
Q: And do you recall we talked during that deposition
about neighborly accommodation, do you not?
A: I recall.
.
Q: And again, we 1re talking about the three
predecessors in interest, Sales, Freeman, Ver Wolf, all
said the same things to you?
A: Yeah, that's the way to the property.
Q: "You don't need to ask. Just go right on in there."
A: That's right, that's the way you get there.
.
Q: To avoid you having to go through the whole answer,
1'm going to have you begin reading at line 6. And the
sentence that starts with, "We went when we -- when you
had to go or when you wanted to go --.'I Would you read
that and then complete the sentence?
A: "We went when you had to go or when you wanted to
go, whether it be summer, winter or whatever. Nobody
said boo, you can't go. It was a gentlemen's agreement,
I'll put it that way."
Q: And then I said, "Well, more than gentlemen, could
it be described as being a neighborly accommodation?
It's what one good neighbor would do to another?" And
your answer is --
A: "I would hope so, or however you want to say it.
It's just that there was never any problem getting
there."
10
~a1 Smith testified that he first remembered needing a key to
open the gate when he was in high school. He stated that when
Fairbank bought the place, "he did not give me a key." Smith
indicated that the first time he learned there was a problem was
when Gannett locked the gate and told Smith "I'll leave the key for
you. It Smith said " [fline" and when Gannett failed to give him a
key, Smith indicated "I went anyway."
Fairbank testified that when he purchased the property M[wle
put our own lock on the gate . . fairly early on." He indicated
that, for the most part, he maintained a locked gate after that.
Fairbank testified that no one told him that Calvin Smith had an
absolute right to cross the property and indicated there were times
when Smith would borrow a key.
Gannett testified as follows concerning his knowledge of the
Smiths' right to access the road across his property:
Q: And up to this point in time, as you've just
testified, all the information that was made available to
YOU indicated that the Smiths' use of that quarter
section was permissive?
A: Yes
Q: Now, what inquiry did you make of Mr. Smith with
respect to whether or not that was the case?
A: He mentioned -- he, Cal, told me that . "If we
do sell in two different pieces of property --'I, he had
always had permission to go across the Sales' road
quarter section and that's the way he referred to the
ground as the "Sales Road quarter section" --
Q: Now, I'd like to stop you there. You've used the
word "permission" --
A: Yes
11
Q: Is that --
A: That's the exact word he used. "I have always had
permission to go across that property."
Q: Okay. Yesterday Mr. Smith testified that he told
you that is was an "absolute right" that he had to go
across that property. Do you recall him using the words
"absolute right"?
A: No, he did not.
Q: Do you recall him using any words that would
indicate a use that was other than permissive?
A: No.
Calvin Smith himself stated that:
It's always been my understanding that the easement was
there when we bought the property. That we didn't have
to tell anybody
Our review of the record indicates that the District Court's
findings are supported by substantial evidence. The court did not
misapprehend the effect of the evidence, nor is this Court left
with the definite and firm conviction ~that a mistake has been
committed
In ordering that Amerimont and the Smiths do not have a
prescriptive easement over Gannett's property, the District Court
concluded that:
Plaintiffs have failed to carry their burden of showing
that their use of the road across the Gannett property
was open and notorious.
Plaintiffs have also failed to show that their use of the
road was "uninterrupted" by the owners of the Gannett
property.
Plaintiffs have also failed to establish that their use
of the road was adverse.
12
The first element in establishing a prescriptive right is that
the use be open and notorious. We have defined "open and
notorious" as a distinct and positive assertion of a right hostile
to the rights of the owner and brought to the attention of the
owner. Lemont, 887 P.2d at 726-27 (citing Downinq, 772 P.2d at
852). In the present case, neither the Smiths nor their
predecessors in interest made a distinct and positive assertion to
Gannett or his predecessors that a right hostile to the rights of
the owner was being made. Amerimont's assertion that the extensive
use of the road by the Oylers and the Smiths should have put the
owners of the servient ground on notice that the road was being
used as a primary access to get to their property is simply
insufficient to prove that their use was open and notorious.
The claimant must also prove that the use is continuous and
uninterrupted. We have defined "continuous" use as that which is
made often enough to constitute notice of the claim to the
potential servient owner, and "uninterrupted use" as a use not
interrupted by the act of the owner of the land or by voluntary
abandonment by the party claiming the right. Lemont, 887 P.2d at
727 (citing Downinq, 772 P.2d at 8521. While in the present case
use of the road may have been continuous, it was not uninterrupted.
Gannett's predecessors locked the gate at the beginning of the road
and supplied keys to their neighbors, including the Smiths, as a
matter of accommodation. However, when Fairbank bought Gannett's
property in 1987, Fairbank changed the locks on the gate and did
not provide the Smiths with a key. Rather, the Smiths had to ask
13
for the key to open the gate when they needed to use the road.
Calvin Smith admitted that he asked both Fairbank and Gannett for
keys to the gate as necessary. Such an arrangement clearly
interrupted any claim of right which the Smiths allege they had to
use the road.
The final requirement in establishing a prescriptive easement
is that the use be adverse. To be "adverse" the use must be
exercised under a claim of right and not as a mere privilege or
license revocable at the pleasure of the owner of the land; such
claim must be known to and acquiesced in by the owners of the land.
Lemont, 887 P.2d at 727. In most instances, adverse use will be
proven (or not proven) from the same evidence by which the claimant
establishes open, notorious, continuous, and uninterrupted use for
the statutory period. Lemont, 887 P.2d at 727.
A use of a neighbor's land based upon mere neighborly
accommodation or courtesy is not adverse and cannot ripen into a
prescriptive easement. Public Lands Access, 856 P.Zd at 528. This
Court has consistently reaffirmed this doctrine. See Greenwalt,
885 P.2d at 425; Lemont, 887 P.2d at 728. Furthermore, we have
repeatedly held that a landowner should not be forced to give up
title to property without notice of the alleged adverse claim and
the opportunity to know that his title is in jeopardy. See Unruh
v. Tash (1995), 271 Mont. 246, 250, 896 P.2d 433, 436; Greenwalt,
885 P.2d at 424; Downinq, 772 P.2d at 852.
Here, Amerimont and its predecessors had the privileged use of
the roadway pursuant to the permission and neighborly accommodation
14
extended by Gannett and his predecessors. Residents of the area
routinely helped each other with farm and ranch work and the
parties and their predecessors understood that this custom and
practice included the ability to cross one another's property
without having to ask for permission each time, as long as the
neighbors had business to attend to, did not abuse recreational
privileges, and closed all gates after each passage. The roadway
was used by the express or implied permission of the landowner and
as a neighborly accommodation to surrounding landowners.
Amerimont's and its predecessors' use of the road across the
Gannett property was not adverse.
We therefore hold that the District Court correctly
interpreted the law when it concluded that Amerimont and the Smiths
do not possess a prescriptive easement over Gannett's property.
Affirmed.
Justice
We concur:
Y---d ,L
Chief Justice /l/i