NO. 95-519
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
A.C. WARNACK, Trustee of the
A.C. WARNACK TRUST; and
KENNETH R. M DONALD,
C
Plaintiffs, Appellants and
Cross-Respondents,
v.
THE CONEEN FAMILY TRUST; ELK CANYON
ASSOCIATES LIMITED PARTNERSHIP,
a Montana Limited Partnership; and
J. BOWMAN WILLIAMS,
Defendants, Respondents and
Cross-Appellants.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Meagher,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John V. Potter, Jr., Attorney at Law, White Sulphur
Springs, Montana
Jean Faure; Church, Harris, Johnson & Williams,
Great Falls, Montana
For Respondents:
Patrick F. Hooks; Luxan & Murfitt, Townsend,
Montana
Perry J. Moore, Cindy E. Younkin; Moore, O'Connell
& Refling, Bozeman, Montana
Submitted on Briefs: June 27, 1996
Decided: August 27, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
A.C. Warnack and Kenneth R. McDonald (collectively Warnack)
appeal and Coneen Family Trust, Elk Canyon Associates, and J.
Bowman Williams (collectively Coneen) cross-appeal from the amended
judgment and injunction order of the Fourteenth Judicial District
Court, Meagher County. Warnack appeals from the District Court's
determination that the easement at issue here was limited in scope
to its use during the prescriptive period, and Coneen appeals from
the determination that a prescriptive easement has been
established. We affirm.
We address the cross-appeal first and restate the issues
raised on appeal and cross-appeal as follows:
1. Did the District Court err in granting Warnack a private
prescriptive easement over and across Coneen's lands?
2 Did the District Court err in restricting use of the
prescriptive road easement to its use during the prescriptive
period?
3. Should this Court adopt sections 478 and 479 of the
Restatement of Property in determining the extent of a prescriptive
easement?
This is the second appeal arising out of a dispute between
landowners regarding a prescriptive easement. This Court reversed
and remanded the District Court's grant of a prescriptive easement
in an earlier opinion, Warnack v. Coneen Family Trust (1994), 266
Mont. 203, 879 P.2d 715 (Warnack I), for reconsideration of whether
Warnack had proven the elements of prescription for the full
statutory period and for a determination of the scope of the
claimed prescriptive easement.
2
On remand, the District Court granted the easement finding
that Warnack had satisfied the elements of prescriptive use of the
roadway for the full statutory period and that the easement was
limited in scope to its use during the prescriptive period.
Warnack appeals and Coneen cross-appeals from this determination.
1. Did the District Court err in granting Warnack a
private prescriptive easement over and across Coneen's
lands?
Our standard of review for conclusions of law by a district
court is whether the court's interpretation of the law is correct.
Warnack I, 079 P.2d at 718 (citing Public Lands Access v. Boone &
Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527).
Coneen filed a cross-appeal asserting that the District Court
erred in finding that Warnack had established a prescriptive
easement. In order 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 full statutory period." Leffingwell Ranch, Inc. v. Cieri
(Mont. 1996), 916 P.2d 751, 754, 53 St.Rep. 453, 455 (citing Public
Lands Access, 856 P.2d at 527).
The burden is on the party seeking to establish the
prescriptive easement to prove all the elements of prescription.
Leffinswell Ranch, 916 P.2d at 754. To be adverse, the use of the
alleged easement 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. Tanner v. Dream Island, Inc. (Mont. 1996), 913
P.2d 641, 648, 53 St.Rep. 208, 212. Such claim must be known to
3
and acquiesced in by the owner of the land. Tanner, 913 P.2d at
648. Once the claimant establishes open, notorious, exclusive,
continuous and uninterrupted (unmolested) use for the full
statutory period, a presumption of adverse use or adversity arises
and the burden shifts to the landowner to prove permissive use or
license. Warnack I, 879 P.2d at 723. If the owner shows
permissive use of the alleged easement, no easement can be acquired
because the theory of prescriptive easement is based on adverse
use. Tanner, 913 P.Zd at 648. This Court has recognized that
"'where the use of a way by a neighbor was 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."' Tanner, 913 P.2d at 648 (quoting Public Lands Access, 856
P.2d at 528).
In Tanner, we recognized that the plaintiffs were under no
duty to communicate to the landowner that they were using the road
under a claim of right and adversely to the landowner. Tanner, 913
P.2d at 648. Accordingly, although the plaintiffs bear the burden
of establishing that their claim is known to and acquiesced in by
the owner, they need not specifically notify the servient
landowners that they are using the easement under a claim of right.
In this case, Coneen asserts that Warnack did not notify the
servient landowners that he was using the primary easement under a
claim of right. Coneen further asserts that the use of the
easement was a "neighborly accommodation." Under our holding in
Tanner, Coneen's first argument must fail--Warnack was not required
4
to communicate notice. In essence, Coneen's second argument is
that Warnack's use of the primary easement was not open, notorious,
or adverse--that it was a "neighborly accommodation."
This Court has held that "[iIn order to overcome the [claim of
. .
The Court specifically finds that though there was
evidence of a local custom of neighborly accommodation or
courtesy relating to many facets of the agricultural
endeavors in the area, the use of the primary easement
was based more on an assertion of the users' respective
rights to use the road than it was based upon neighborly
accommodation.
The court found that Coneen failed to prove that use of the
primary easement by Warnack and his predecessors was in any way
merely permissive or by revocable license. The court further noted
that Coneen's assertion that the use had been permissive did not
overcome the presumption of adverse use and acquiescence that
Warnack established. Accordingly, the court concluded that the
primary easement "[hlas been used by Plaintiffs [Warnackl and their
predecessors in an open and notorious manner, under claim of right,
5
and such use has been adverse for a period of time exceeding the
statutory period consisting of the early 1950's through October 1,
1988 [. I "
The District Court's determination that Warnack had
established an easement by prescription is well supported by the
record. For example, Coneen's predecessor in interest, Jeff
Doggett, testified that he never objected to Warnack's, or that of
Warnack's predecessors in interest, use of the road and never
required permission to use the road. In addition, Ben Hurwitz,
defendant J. Bowman Williams' predecessor in interest who owned the
servient estate from 1950-1991, testified that "[tlhe idea of
neighborly accommodation assumes that if you are not neighborly
anymore that you could somehow stop a person from crossing you, and
we never dreamed that we could have stopped anybody that had
business on the end of that road." Although Coneen has pointed to
additional or contradictory evidence in the record, we will not
substitute our judgment for that of the trial court where the issue
relates to the weight given to certain evidence or the credibility
of the witnesses. Taylor v. State Compensation Ins. Fund (Mont.
1996)) 913 P.2d 1242, 1245, 53 St.Rep. 201, 202 (citing Burns v.
Plum Creek Timber Co. (1994), 268 Mont. 82, 84, 885 P.2d 508, 509).
Accordingly, we hold that the District Court was correct in
concluding that Warnack had established a private prescriptive
easement over Coneen's property.
2. Did the District Court err in restricting use of the
prescriptive road easement to its use during the
prescriptive period?
6
In Warnack I, we remanded the case to the District Court and
directed that "if the court determines that the Respondents
[Warnack] have met their burden of proof and have established a
prescriptive easement over the lands of the Appellants [Coneen],"
then the court should determine the appropriate scope and extent of
the easement under the following rule: "It is settled law in
Montana that in acquiring a prescriptive easement, 'the right of
the owner of the dominant estate is governed by the character and
extent of the use during the period requisite to acquire it.'"
Warnack I, 879 P.2d at 724 (quoting Marta v. Smith (1981), 191
Mont. 179, 183, 622 P.2d 1011, 1013).
We recently reiterated this principle in the case of Ruana v.
Grigonis (Mont. 1996), 913 P.2d 1247, 1255, 53 St.Rep. 216, 222.
In Ruana, we stated that "for prescriptive easements, the use of a
roadway cannot exceed the use made of it during the prescriptive
period." Ruana, 913 P.2d at 1255
On remand, the District Court followed our mandate and limited
the scope of the easement to its use during the prescriptive
period. The court found that Warnack and his predecessors in
interest utilized the primary easement in an open, notorious, and
exclusive manner continuously and uninterrupted from at least 1950
to 1988. Further, the District Court determined that:
F . The right of the Plaintiffs [Warnack], heirs,
successors, assigns and agents to use the primary road
easement should be on foot, horseback, and all ordinary
modern means of transportation for purpose of access to
their lands, construction of a residence and outbuildings
as necessary, all for agricultural purposes.
Additionally, Plaintiffs have a right to access their
property for hunting, fishing, camping and recreation.
7
It is the conclusion of the Court that the easement is
governed by the character and extent of its use during
the period requisite to acquire it and that the easement
can not exceed the use which Plaintiffs and their
predecessors made of it during the prescriptive period.
This grants Plaintiffs an absolute right to access their
property over the primary easement for all agricultural
purposes, as well as hunting and fishing recreational
purposes. It does not grant an easement for purposes of
logging, mineral extraction or exploration, or
subdividing of the real property. Such uses of the
prescriptive easement would increase the burden on the
servient landowners. None of the parties are hereby
prohibited from placing gates or cattle guards on their
respective properties but if locks are placed on gates,
keys or combinations, as necessary, shall be provided to
Plaintiffs and their agents.
G. All of the Defendants [Coneen], their heirs,
successors, assigns and agents, shall be permanently
enjoined and restrained from obstructing or interfering
with Plaintiffs' use and enjoyment of the primary
easement.
&ir tJar\C
m asserts that four homesteaders settled on the subject
property in the early part of this century, thus, easements for
b.3UWUt.L
four residences should be allowed. However, N presented the
District Court with this argument in his motion to amend the order.
The District Court denied this motion to amend. Apparently, the
District Court reasoned that during the prescriptive period, the
easement had been used for only one seasonal residence and for
agricultural and recreational purposes. Thus, under the direction
given by this Court on remand in Warnack I, the District Court
properly limited the scope of the easement to its use during the
prescriptive period. See Ruana, 913 P.2d at 1255.
3. Should this Court adopt sections 478 and 479 of the
Restatement of Property in determining the extent of a
prescriptive easement?
Warnack urges this Court to adopt sections 478 and 479 of the
8
Restatement of Property. Citing a number of decisions from other
jurisdictions, Warnack asserts that an evolutionary approach should
be used in prescriptive easement cases to allow greater use of the
easement over time. In this regard, Warnack argues that "the
inflexible rule in Marta v. Smith should be reconsidered or
clarified." Although Warnack may not cotton to the result reached
by this Court in Marta, and more recently in Ruana, neither
decision is the least bit unclear. In fact, on remand, the
District Court appropriately applied the principles expressed in
Marta finding a prescriptive easement and limiting its scope. The
rule expressed in Marta and Ruana accurately reflects the scope of
prescriptive easements in Montana and we decline m request
to adopt sections 478 and 419 of the Restatement of Property.
Affirmed.
We concur:
9
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 95-519
A.C. WARNACK, Trustee of the
A.C. WARNACK TRUST; and
KENNETH R. MCDONALD,
i
Plaintiffs, Appellants and
Cross-Respondents, ;
O R D E R
v.
THE CONEEN FAMILY TRUST; ELK CANYON
ASSOCIATES LIMITED PARTNERSHIP,
a Montana Limited Partnership; and i
J. BOWMAN WILLIAMS,
',
Defendants, Respondents and
Cross-Appellants.
On September 9, 1996, Plaintiffs/Appellants filed herein a
Petition for Rehearing of this Court's August 27, 1996, Opinion;
Defendants/Respondents filed Objections on September 13, 1996.
This Court having considered the Petition and the Objections, and
having corrected the three incorrect references from "Coneen" to
"Warnacktt on pages 8 and 9 of the slip opinion in this matter,
IT IS ORDERED that the petition for rehearing is denied.
DATED this i!?
l2- day of September, 1996.
, -