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No. 00-619
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 202
JAMES G. RENNER,
Plaintiff and Respondent,
v.
DAVID NEMITZ, BN LEASING CORPORATION, a Delaware corporation, CITY OF ISMAY,
MONTANA, a political subdivision of the State of Montana, MONTANA BANK OF BAKER, N.A.,
SMALL BUSINESS ADMINISTRATION, an agency of the Government of the United States of
America, and all other persons unknown, claiming or who might have any right, title, estate or interest
in, or lien or encumbrance upon, the real property described in the Complaint, or any thereof adverse to
Plaintiff's ownership, or any cloud upon Plaintiff's title thereto, whether such claim or possible claim be
present or contingent, including any claim or possible claim of dower, inchoate or accrued, and the
unknown heirs, grantees and devisee of any of such Defendants as may be deceased, and the wife of any
heir or devisee, if married, and the unknown owners of said real property,
Defendants and Appellants.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Gary L. Day, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Page C. Dringman, Patrick N. Dringman, Josephson & Dringman, Big Timber, Montana; James Carr,
Miles City, Montana (David Nemitz)
For Respondent:
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George W. Huss, Brown & Huss, Miles City, Montana
Submitted on Briefs: December 14, 2000
Decided: October 4, 2001
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 The appellant, David Nemitz (Nemitz), appeals from an order of the District Court of
the Sixteenth Judicial District, Custer County, finding a prescriptive easement over his
property in favor of the respondent, James G. Renner (Renner). We affirm in part and
reverse in part.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err in finding a prescriptive easement over Nemitz's property
in favor of Renner?
¶4 2. Did the District Court err in finding the prescriptive easement was not abandoned?
¶5 3. Did the District Court err in finding that the prescriptive easement was not
extinguished by Nemitz's adverse conduct?
We decline to address the threshold issue of whether a prescriptive easement can run
against property of a railroad in Montana, because, as discussed below, this issue was not
properly preserved for appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶6 This case involves the use of an area of land in Ismay, Montana over a 52-year period
from 1948 to 000. The following facts are undisputed. Nemitz and Renner own adjoining
property located in Ismay, Montana. Nemitz's property lies generally to the north of
Renner's property. Nemitz leased his property in 1976 and then purchased the property in
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1982. Prior to his purchase, the property was owned by the Chicago, Milwaukee, St. Paul
and Pacific Railroad. Nemitz operates the Ismay Grain Company on the property. There is
a public easement (City of Ismay easement) that crosses Nemitz's property roughly from
east to west. Renner purchased his property in 1995. Prior to his purchase the property was
owned by Wayne Rieger (Rieger) from 1975 to 1995, by Robert and Carol Herbst from
1974 to 1975, and by Jacob and Luella Schell (Jacob and Luella) from 1948 to 1974.
¶7 Renner accesses his property by crossing Nemitz's property from the City of Ismay
easement on the north to his property on the south. Renner crosses Nemitz's property in
two different places, in order to form a loop driveway at Renner's house. An easement to
the west side of the loop was stipulated at trial and is not at issue here. Both the existence
and the location of an approximately 100' easement over the east side loop is at issue in
this case. To assist the reader, a diagram of the involved area is attached as an appendix to
this opinion.
¶8 A series of interactions between the two parties eventually led to Nemitz building a
fence across the east side of the loop which prevented its use. Renner then filed a claim to
establish an easement over the east side of the loop. Renner identified a number of
defendants besides Nemitz on his complaint and also included unknown defendants. Three
of the identified defendants, BN Leasing, the Montana Bank of Baker, and the Small
Business Administration, were either dismissed or allowed default judgment against them
by failing to respond. The other identified defendant, the City of Ismay, indicated at trial it
did not wish to contest Renner's claim and it stipulated to exhibits establishing the City of
Ismay easement. No defendants unknown at the time of filing the complaint were
discovered.
¶9 At trial, both parties presented testimony regarding use of the east side of the loop.
Further, both parties presented testimony regarding two possible exits of the east side loop
onto the City of Ismay easement. One exit essentially makes a straight line from the
Renner household to the City of Ismay easement. This exit goes to the right of the now-
existing utility pole and the left of the now-existing Quonset building on the Nemitz
property. The other exit turns west and rejoins with the west side of the loop at the point
where it meets the City of Ismay easement. This exit travels to the left (south) of the now
existing utility pole. Further details of the testimony will be discussed below under each
issue.
¶10 After trial on the matter, the District Court found a prescriptive easement over the
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Nemitz property for the east side of the loop during the time that the Schell's owned the
property, 1948 to 1974. This finding was based on testimony from Clarence and Lloyd
Schell (Clarence and Lloyd), two sons of Jacob and Luella Schell. The District Court then
found this easement was not later abandoned by Rieger during the time he owned the
(1)
property, 1975 to 1995, based on his deposition testimony. Finally, the District Court
found that Nemitz's activities, from 1995 when Renner purchased his property to 1998
when the fence was built over the east loop, failed to extinguish the prescriptive easement.
In making each of these findings, the District Court did not make specific distinctions
between the two possible exits of the east side of the loop.
¶11 Based on these findings, the District Court concluded there is an easement over the
east side of the loop in Renner's favor. The District Court then granted easements to
Renner for both possible exits of the east side of the loop. Based on these findings and
conclusions, the District Court ordered all obstructions of both easements removed.
Nemitz appeals from that order and is presumably appealing the award of both possible
exits, because both were granted by the District Court and both interfere with his use of
the Quonset hut. The exit to the right of the pole prevents him from parking vehicles in
front of the Quonset for long periods of time and using it as a storefront for customers and
repairs. The exit to the left of the utility pole prevents him from parking semi-trucks next
to the Quonset in a position so that he can unload grain with an auger into the semi-trucks.
II. STANDARD OF REVIEW
¶12 The standard of review of a District Court's findings of fact is whether the findings are
clearly erroneous. Wareing v. Schreckendgust (1996), 280 Mont. 196, 202-03, 930 P.2d
37, 41. In this case, all the alleged errors are based on findings of fact. This Court has
adopted a three-part test to determine whether a finding is clearly erroneous:
1. We will determine if the findings are supported by substantial evidence;
2. If the findings are supported by substantial evidence, we will determine if the
district court misapprehended the evidence; and
3. If the findings are supported by substantial evidence and that evidence has not
been misapprehended, this Court may still determine whether . . . "a finding is
'clearly erroneous' when . . . a review of the record leaves the court with the definite
and firm conviction that a mistake has been committed."
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Daines v. Knight (1995), 269 Mont. 320, 325, 888 P.2d 904, 906 (citing Interstate Prod. Credit Ass'n
v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). The district court is in the best position
to observe and judge the credibility of witnesses, therefore, "[w]e will not second guess the district
court's determination regarding the strength and weight of conflicting testimony." Double AA Corp.
v. Newland & Co. (1995), 273 Mont. 486, 494, 905 P.2d 138, 142. We review a district court's findings
to determine whether substantial evidence supports those findings, not contrary findings. Rafanelli v.
Dale (1996), 278 Mont. 28, 37, 924 P.2d 242, 248.
¶13 The elements necessary to establish a prescriptive easement must be proved at the
district court level by clear and convincing evidence. Wareing, 280 Mont. at 206, 930 P.2d
at 43. If a claimant establishes open, notorious, continuous, uninterrupted and exclusive
use of an easement by clear and convincing evidence, a presumption arises that the use is
adverse to the servient estate and the burden shifts to the owner to show the use was
permissive. Wareing, 280 Mont. at 209, 930 P.2d at 45; Glantz v. Gabel (1923), 66 Mont.
134, 141, 212 P. 858, 860. The level of proof for abandonment is also basically clear and
convincing in order to effect the same underlying policy to preserve established property
rights. In Rieman v. Anderson (1997), 282 Mont. 139, 145-46, 935 P.2d 1122, 1126, we
held that a party claiming that a property right has been abandoned must prove the acts
claimed to constitute abandonment are of a character so decisive and conclusive as to
indicate clear intent to abandon the easement. The level of proof for extinguishment of an
easement by reverse adverse possession is the same as the burden for establishing a
prescriptive easement. Halverson v. Turner (1994), 268 Mont. 168, 174, 885 P.2d 1285,
1290.
III. DISCUSSION
¶14 A. Prescriptive Easements over Railroad Property: Can a prescriptive easement
run against a railroad?
¶15 As an initial matter, we decline to address the threshold issue raised by Nemitz
regarding whether a prescriptive easement can run against property of a railroad in
Montana, because this issue was not properly preserved for appeal. The general rule is that
issues not raised before the trial court and new legal theories are not considered by this
Court on appeal because it is unfair to fault the trial court on an issue it was never given an
opportunity to consider. Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255,
¶ 15, 961 P.2d 100, ¶ 15 (citing Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864,
866). The exceptions to this rule typically apply to criminal cases and, further, are only
allowed when constitutional or substantial rights of the parties are at issue. See generally
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State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, overruled on other grounds by State
v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817. In this case, the only right
affected is a property right over an easement. Nemitz cites no authority for the proposition
that this easement issue is so substantial that an exception to the general rule should apply.
Therefore, we will not consider the issue of prescriptive easements over railroad property
in this appeal.
¶16 B. Easement over the Nemitz Property
¶17 Before we turn to the questions properly presented on appeal, it is important to note
two structural underpinnings that shape our analysis of the District Court's order. First, the
remaining issues in this case each involve specific time periods, based on ownership of the
servient and dominant estates. The findings of fact and conclusions of law for each earlier
time period affect the analysis of the subsequent time periods. In the District Court's order,
establishment of the prescriptive easement involves evidence from 1948 to 1974.
Abandonment of the easement involves evidence from 1975 to 1995. Extinguishment of
the easement involves evidence from 1995 to 1998. In their briefs, the parties incorrectly
blend evidence from the various time periods in support of their arguments regarding
establishment, abandonment and extinguishment. The following discussion separates the
trial evidence into the relevant time periods for proper analysis. Second, as mentioned
above, the District Court did not make distinct findings for each possible exit of the east
side of the loop. The following discussion addresses the effect of this omission on the
parties' relative property interests.
¶18 1. Did the District Court err in finding a prescriptive easement over Nemitz's
property in favor of Renner?
¶19 Regarding the question of whether a prescriptive easement was established, the parties
agree on the controlling law in Montana. The burden at trial on the party seeking to
establish the prescriptive easement is to show "open, notorious, exclusive, adverse,
continuous and uninterrupted use of the easement for the full statutory period." Wareing,
280 Mont. at 206, 930 P.2d at 43 (citing Swandal Ranch Co. v. Hunt (1996), 276 Mont.
229, 233, 915 P.2d 840, 843). The statutory period is five years. Section 70-19-401, MCA.
The period of prescriptive use by a claimant's predecessors in title inures to the benefit of
the claimant. Section 70-19-401, MCA; Rude v. Marshall (1917), 54 Mont. 27, 29-30, 166
P. 298, 298.
¶20 Open and notorious use is such that it gives the owner of the servient estate actual
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knowledge of the hostile claim, or is of such character as to raise a presumption of notice
because it is so obvious that the owner could not be deceived. Mildenberger v. Galbraith
(1991), 249 Mont. 161, 167, 815 P.2d 130, 134-35 (citing Collins v. Thode (1918), 54
Mont. 405, 411-12, 170 P. 940, 941). Continuous and uninterrupted denotes use not
interrupted by an act of the owner of the land or by voluntary abandonment by the party
claiming the right. Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 17, 293 Mont. 212,
¶ 17, 974 P.2d 650, ¶ 17. Open use and notorious use are discussed as one element in our
case law, as are continuous use and uninterrupted use. While these may constitute four
separate elements, the instant case does not require us to address the distinctions. Adverse
use is exercised under a claim of right and not as a mere license revocable at the pleasure
of the servient estate. Public Lands Access Ass'n v. Boone & Crockett Club Found., Inc.
(1993), 259 Mont. 279, 283, 856 P.2d 525, 527. The element of exclusivity, i.e., that the
right to use does not depend on a like right in others, Wareing, 280 Mont. at 208, 930 P.2d
at 44, has not been raised as an issue on appeal, and therefore it will not be discussed here.
(2)
¶21 The District Court found a prescriptive easement for the east side of the loop based on
testimony of its use from 1948 to 1974 when the Schells owned the property. Four
witnesses testified regarding the use of the road during that time period: Clarence, Lloyd,
Eugene Garber (Garber), an employer of Jacob and Luella for seasonal ranch work from
1951 to 1966, and Diane Schumacher (Schumacher), a woman who occasionally
purchased produce from Luella from 1968 to 1974. In addition, three stipulated exhibits
were introduced relative to that time period. These exhibits were aerial photographs taken
in 1961, 1967 and 1972. In its conclusions of law, the District Court stated that use by the
Schell family met all the requirements of a prescriptive easement.
¶22 Nemitz contends that the District Court's findings of fact are not supported by
substantial evidence and therefore, Renner failed to meet his burden of proof for a
prescriptive easement. Nemitz argues that the testimony supporting the prescriptive
easement is not clear and convincing because it was vague, inconsistent, and insufficient.
For example, Lloyd testified the Quonset hut existed during the period of his parents'
ownership, 1948 to 1974, even though it was not built until 1982. This argument of
insufficient evidence goes towards the elements of open, notorious, continuous and
uninterrupted use.
¶23 Nemitz also argues there was no testimony that the use during that time period was
adverse or hostile to the servient estate because he speculates that Jacob and Luella may
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(3)
have had permission from the railroad to cross its property. Specifically, he contends
that Lloyd's and Clarence's testimony that they crossed the railroad property without
permission does not prove the issue of adverse use because Lloyd and Clarence did not
own the property and did not live on the property for the entire time period, but rather
visited their parents there.
¶24 Renner asserts that the testimony was consistent, clear and convincing and that this
Court must show deference to the determinations of weight and credibility made by the
trial court.
¶25 Based on a careful review of the record, we determine that the District Court's
findings of open, notorious, exclusive, adverse, continuous, and uninterrupted use of the
east side of the loop were not clearly erroneous. Clarence and Lloyd were consistent in
that both remembered a loop road with one side that ran straight out from the house that
was used regularly. While there may have been inconsistencies in Lloyd's and Clarence's
testimony regarding specifics of use from 1948 to 1974, none of the inconsistencies
suggest that the east side of the loop did not exist at all. More importantly, none of the
inconsistencies suggest their testimony that the road was used openly and continuously is
false. Clarence could not remember the exact location of the utility pole, but he clearly
remembered the east side of the loop and testified it was used regularly. Lloyd testified
that the east side of the loop was used more than the west side of the loop, in contrast to
the other witnesses, but he also clearly remembered a looped driveway and remembered
that both sides were used by residents and visitors with no restrictions.
¶26 In this case, there was extensive testimony that the west side of the loop has been the
primary entrance and exit for the Renner property over the past 50 years, because people
would go out the same way they came in after turning around in the parking area by the
house. However, it does not matter whether the west side or the east side of the loop was
used more or which was the primary entrance. All that matters is that the east side of the
loop itself was in fact used in a way that meets the requirements of a prescriptive
easement. See Confederated Salish & Kootenai Tribes v. Vulles (9th Cir. 1971), 437 F.2d
177, 180 ("Continuous use" such as will establish right-of-way by prescription does not
mean constant use; rather, if the claimant used the right-of-way whenever he desired,
without interference by the owner of the servient estate, the use was continuous and
uninterrupted). Garber acknowledged that during the time period he visited the Schells,
1951 to 1966, while he did not use the east side of the loop himself, he believed there was
no extensive period during which the road was not used at all. Schumacher could not
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remember the east side of the loop at all, but her testimony stands in stark contrast with the
three photographs from that time period that show the east side of the loop. As mentioned,
it is the province of the trial court to weigh and resolve the above conflicts in testimony.
Our review shows the District Court was not clearly erroneous in its findings. The
testimony of Clarence, Lloyd and Garber demonstrates that use of the east side of the
looped driveway was open and notorious because it was obvious, and that the use was
continuous and uninterrupted because the use occurred during the entire time Jacob and
Luella owned the property.
¶27 Nemitz also contends that Clarence and Lloyd do not actually know if their parents
had permission to cross the railroad property, and therefore, that Renner failed to establish
the element of adverse use. However, Nemitz cites no authority for a requirement of
testimony from owners of the dominant estate, as opposed to testimony from residents of
and visitors to the dominant estate. Further, § 70-17-109, MCA, allows occupants to
maintain actions for easements, as well as owners. Because Renner demonstrated open,
notorious, continuous, uninterrupted and exclusive use of the easement, a presumption
arose that the use was adverse and the burden shifted to Nemitz to prove that the Schell's
use of the east side of the loop was permissive. Wareing, 280 Mont. at 209, 930 P.2d at 45.
Clarence and Lloyd both testified they used the looped driveway without any restrictions
whatsoever. Nemitz failed to introduce any testimony in this regard and did not properly
preserve the issue of prescriptive easements against railroads for appeal. Because the
property was owned by a railroad, there is simply little testimony on the issue of
permission, unlike similar cases on this issue. Therefore, we conclude that the District
Court did not err in finding a prescriptive easement over the east side of the loop during
the Schell's ownership.
¶28 It is not clear, however, whether the testimony from this time period regarding both of
the two possible exits for the east side of the loop meets the requirements of a prescriptive
easement. Clarence and Lloyd both testified to the east side of the loop being a road
straight out from the house. But Clarence could not remember the location of the utility
pole and this indicates either exit could have been used. Two of the photographs indicate
that both exits of the east side of the loop were likely used. This lack of specificity
indicates it was error for the District Court to find a prescriptive easement over both exits
of the east side of the loop based only on testimony and exhibits regarding the use from
1948 to 1974. However, given evidence and testimony regarding the use from 1975 to
1995 discussed under the next issue, this error is harmless. This evidence is specific
regarding both exits of the east loop. Further, this evidence shows that even if a
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prescriptive easement was not established during the Schell's ownership, the District Court
could have found the use from 1975 to 1995 independently established a prescriptive
easement. When the trial court makes an error, but sufficient facts are otherwise
established by independent evidence and substantial justice has been done such that the
error is harmless, this Court will not disturb the ruling of the lower court. Rule 14, M.R.
App.P.; Rule 61, M.R.Civ.P.; Shors v. Branch (1986), 221 Mont. 390, 398, 720 P.2d 239,
244; Thompkins v. Fuller (1983), 205 Mont. 168, 186, 667 P.2d 944, 953.
¶29 2. Did the District Court err in finding the prescriptive easement was not
abandoned?
¶30 Mere non-use is insufficient to prove abandonment because of the importance of
preserving property rights; abandonment must be proven with words or acts that indicate
clear intent to abandon. Rieman, 282 Mont. at 145-46, 935 P.2d at 1126. The District
Court found that Rieger, Renner's predecessor in interest who owned the property from
1975 to 1995, did not abandon the easement to the east side of the loop, but continued to
use it in the same manner as the Schells.
¶31 Nemitz argues that he established Rieger's clear intent to abandon the easement
because Rieger testified his use was permissive. Nemitz cites Morrison for the proposition
that permissive use indicates abandonment of a prescriptive easement. Morrison v. Higbee
(1983), 204 Mont. 515, 521, 668 P.2d 1025, 1028. Nemitz bases his argument on a letter
from Rieger to both the parties in which he states, "[I] considered it a privilege to be able
to cross their [Nemitz's] property to get to mine." Nemitz also points to similar comments
in Rieger's deposition testimony.
¶32 Renner argues that the District Court was correct in finding that Rieger expressed no
clear intent to abandon any easements based on Rieger's testimony that he continued to use
the road and never sought permission. Renner also cites testimony by Nemitz that Rieger
never sought permission to cross his property. Finally, Renner notes Nemitz certified the
looped driveway as a public road to the State for gas tax purposes and, therefore, Nemitz
could not believe Rieger's use was permissive.
¶33 After a review of the record, we determine that the District Court's finding that Rieger
did not abandon his use of the east side of the loop to be based on substantial evidence.
The following testimony by Nemitz illustrates that this finding is basically undisputed:
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Q. Did Mr. Rieger have a looped roadway that went to his house?
A. Yes, Mr. Rieger had a looped roadway.
Q. Did you see Mr. Rieger using that roadway?
A. Yes, sometimes he used the roadway.
Q. Okay. And did you see people visiting Mr. Rieger use that roadway?
A. Yes.
Q. And did that roadway appear to cross your land?
A. Right then you couldn't tell exactly where our land was. It was before it got
surveyed, but I would say that it crossed our land.
Q. Okay. And Mr. Rieger didn't ask your permission to go on your land?
A. No.
Q. And neither did the visitors?
A. No.
Q. And you didn't discuss any neighborly arrangement with Mr. Rieger?
A. No.
Q. In fact, there was no discussion by you and Rieger about his using the land; is
that correct?
A. Not that I know of.
Q. He just used the land?
A. Right.
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Q. And you could see him using it?
A. Right
Q. And you didn't do anything to stop him from using it?
A. No.
Q. And you didn't do anything to stop his visitors from using it?
A. No.
Q. And Mr. Rieger used this looped roadway from 1976 until he moved in 1995?
A. Well, he probably could have used it in '75, but since we moved there until when
he moved out he used the roadway.
Therefore, the District Court did not err in finding no abandonment because the parties
agree that Rieger continued to use the east side of the loop without permission.
¶34 However, the District Court did not make any distinctions between each of the
possible exits of the east side of the loop. Because the testimony is very specific to each
exit, we address each exit here to determine whether it was error for the District Court to
find easements over both. Rieger testified to the following:
Q. And that was your course of travel?
A. Before the Quonset was in, if I came on the east side, that's probably the way I
went [to the right of the utility pole]. After the Quonset was installed, however, it
was the other way [to the left of the utility pole].
Nemitz testified to the following:
Q. And was this [the fence built by Nemitz in 1998 across the east side of the loop]
the first action that had ever been taken to stop someone from going down the east
side of that looped roadway?
A. Oh, I couldn't say for sure because we unloaded trucks in the Quonset and so
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forth, so it would have been probably -- but they could always go on the south side
of the pole like the people always did.
Therefore, it is undisputed Rieger used the exit to the right of the utility pole for about 7
years, from 1975 to 1982 when the Quonset was built. Then he used the exit to the left of
the utility pole for about 12 years, from 1983 to 1995 when he sold the property. As
mentioned above, the District Court could have found that each of these periods of use
established a prescriptive easement over the respective exits of the loop, regardless of
Clarence's and Lloyd's testimony. Further, this testimony demonstrates it is undisputed the
exit to the left of the utility pole was used until 1995. Therefore, the District Court did not
err in finding the exit to the left of the utility pole was not abandoned by Rieger.
¶35 The evidence regarding the exit to the right of the utility pole, however, is disputed.
The District Court presumably based its finding of no clear intent to abandon the exit to
the right of the utility pole on the following testimony by Rieger:
A. "It happened occasionally, but not regularly."
...
Q. You never completely stopped doing that [driving between the Quonset and the
utility pole]?
A. No, I would say not totally.
...
A. Well, I didn't use it. I didn't need to . . . but there was never any regulation or
stipulation that I could or couldn't, either way. It just made sense for me not to since
there was another way to go that was safer.
Q. Did you believe that you had an easement between the utility pole and the
Quonset hut?
A. I never needed an easement. No, I never gave it a thought.
If the findings are supported by substantial evidence and that evidence has not been
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misapprehended, this Court will reverse findings of fact "when . . . a review of the record
leaves the court with the definite and firm conviction that a mistake has been committed."
Daines, 269 Mont. at 325, 888 P.2d at 906. While Rieger stated that he occasionally used
the exit to the right of the utility pole, his entire testimony relays a firm conviction that he
intended his use of this exit to be entirely subordinate to use by the Nemitz operation.
Unlike the defendant in Higbee who asked permission to use the ditch and signed a license
agreement, thereby abandoning the ability to establish a prescriptive easement, 204 Mont.
at 521, 668 P.2d at 1028, this case is distinguishable because Rieger never sought
permission and none was ever given. But Rieger's testimony of intent, taken together with
his actions, clearly indicate he intended to acquiesce to the Nemitz's use of the exit
between the Quonset and the utility pole. His letter to the parties states:
Occasionally, I drove on the eastern side of the loop which joins the western side of the
loop just south [left] of the power/light pole on the SW side of the Ismay Grain Company
metal [Q]uonset. I did not drive between the [Q]uonset and the light/power pole on the
SW corner of the [Q]uonset for safety reasons since many times elevator employees would
be working in front of the [Q]uonset.
He also testified:
Q. Would you consider the area between the pole and Quonset hut to be an area that
is used in the course of Ismay Grain's business?
A. Yeah. They parked a truck there quite often to load out of the Quonset.
Further, Gene Nemitz, the son of Nemitz, testified that Rieger did drive to the right of the
utility pole, but it was to stop and visit or to patronize the Ismay Grain business.
¶36 In light of the agreement between Nemitz and Rieger on Rieger's use of this exit over
a 12 year time period, and in light of the fact that Rieger's overall testimony conveys the
unmistakable message that he intended his use of the exit to the right of the utility pole to
be subordinate to the Ismay Grain business, we conclude the District Court erred in
finding no abandonment of this exit. While the District Court did not distinguish between
the two exits, we hold that the court was correct in finding no abandonment of the east
loop easement exit to the left of the utility pole, but was clearly erroneous in finding no
abandonment of the east loop easement exit to the right of the utility pole.
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¶37 3. Did the District Court err in finding that the prescriptive easement was not
extinguished by Nemitz's adverse conduct?
¶38 As mentioned above, the required proof for the extinguishment of an easement is the
same as that for establishing a prescriptive easement. Halverson, 268 Mont. at 174, 885
P.2d at 1290. The burden of proof for extinguishment is on Nemitz instead of Renner.
Based on its finding that Rieger did not abandon the easement to the east side of the loop,
the District Court found that the time remaining after Rieger sold the property to Renner,
1995 to 1998, was insufficient for Nemitz to establish extinguishment of the easement
under the statutory requirement of five years. Given our holding that distinguishes the two
exits of the east side of the loop and our further determination that Rieger abandoned the
exit between the utility pole and the Quonset, the extinguishment issue is irrelevant as to
this latter exit. As far as the exit to the left of the utility pole, we hold that the District
Court did not err in its finding that the prescriptive easement was not extinguished by
Nemitz's adverse conduct because the three year time period was insufficient under the
statute.
CONCLUSION
¶39 The District Court's finding of a prescriptive easement over the east side of the loop
exiting to the left of the utility pole is affirmed. The District Court's finding of a
prescriptive easement over the east side of the loop exiting to the right of the utility pole is
reversed. Because the fence put up by Nemitz blocks both exits, the District Court's order
to remove obstructions from blocking the easement to the east side of the loop is affirmed.
¶40 Affirmed in part and reversed in part.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ TERRY N. TRIEWEILER
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1. Rieger did not attend trial, but his deposition testimony was entered by stipulation.
2. There is extensive testimony in the trial transcript regarding the fact that the looped driveway was
certified to the State of Montana for about 10 years, 1988 to 1997, as part of the 3 to 4 miles of public
road eligible for gas tax funds in Ismay. Neither party argues, however, that the prescriptive easement is
defeated because the looped driveway should actually be a public right of way. Rather, because Nemitz
personally participated in the certification to the State of Montana, Renner cites this as evidence that
Nemitz acquiesced in the existence of an easement and that Nemitz's arguments for abandonment and/or
extinguishment of the easement are therefore disingenuous. At any rate, the District Court finding that
use of the easement by the Schells, Rieger, and Renner did not depend on anyone else's right, satisfies
exclusivity.
3. Although Nemitz combines the elements of open and notorious use with the element of adverse use in
his opening and reply briefs, each is treated separately here.
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