Heller v. Gremaux

No. 01-613

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 199

H. LEROY HELLER and
NAYLOR FAMILY TRUST,

Plaintiffs and Appellants,

v.

EMIL J. GREMAUX, RHONDA J. GREMAUX, and
CONRAD FAMILY TRUST,

Defendants and Respondents.

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable E. Wayne Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Robert L. Johnson, Attorney at Law, Lewistown, Montana

For Respondents:

James L. Stogsdill, Attorney at Law, Lewistown, Montana

Submitted on Briefs: February 28, 2002

Decided: September 5, 2002

Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1 H. Leroy Heller and the Naylor Family Trust (“Heller and

Naylor”) appeal from the June 7, 2001, Order entered by the Montana

Tenth Judicial District Court, Fergus County, granting summary

judgment in favor of Emil J. Gremaux, Rhonda J. Gremaux, and the

Conrad Family Trust (“Gremaux and Conrad”). Heller and Naylor

additionally appeal from the August 9, 2001, Order entered by the

District Court denying their Rule 60(b), M.R.Civ.P., motion for

relief from judgment. We affirm.

¶2 The following issue is dispositive of this appeal:

¶3 Did the District Court err in granting Gremaux and Conrad

summary judgment?

BACKGROUND

¶4 The parties own real property located in Fergus County,

Montana, which abuts a rural road commonly referred to as the Tony

Bench Road. Ingress and egress to Heller and Naylor’s real

property is by use of the Tony Bench Road. Heller sought an

easement of record from Gremaux and Conrad upon the road crossing
their property. Gremaux and Conrad refused. Several years

thereafter, Heller and Naylor filed a complaint in the District

Court seeking a declarative judgment that the Tony Bench Road is a

public road established by prescriptive use. On October 31, 2000,

Heller and Naylor filed a motion for summary judgment maintaining

that the road is a public thoroughfare established by prescription.

In response, Gremaux and Conrad filed a cross-motion for summary

judgment arguing that use of the road has been permissive since

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such use was based upon neighborly accommodation. After conducting

a hearing, the District Court denied the parties’ motions for

summary judgment determining that there were genuine issues of

material fact.

¶5 On March 26, 2001, Gremaux and Conrad filed a second motion

for summary judgment and a motion requesting leave to file

discovery. In response to Gremaux and Conrad’s motion for summary

judgment, Heller and Naylor asserted that genuine issues of

material fact existed regarding whether the road is a public

thoroughfare established by prescription. Additionally, they

asserted that the road is a public thoroughfare established by

common law dedication as evidenced by a 1916 petition for the

opening of a school and a 1948 petition to establish a road.

Moreover, Heller and Naylor objected to the filing of discovery.

The District Court issued an Order on April 3, 2001, permitting the

filing of discovery. On May 2, 2001, the District Court held a

summary judgment hearing. Thereafter, the court entered an Order

on June 7, 2001, granting Gremaux and Conrad summary judgment

concluding that the Tony Bench Road is not a public thoroughfare.

Specifically, the court determined that any genuine issues of

material fact regarding prescriptive use became moot when Heller

and Naylor stated, in response to an interrogatory request, that

they were not claiming a private easement by prescription. The

court also determined that substantial evidence was presented

demonstrating permissive use of the road through neighborly

accommodation. The court further determined that the 1916 petition

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for the opening of a school and the 1948 petition for a new road

did not establish an offer by the road’s landowners evidencing

their intention to dedicate the road to the public.

¶6 Final judgment was issued by the District Court in Gremaux and

Conrad’s favor on June 13, 2001. On June 26, 2001, Heller and

Naylor filed post judgment motions, including a Rule 60(b),

M.R.Civ.P., motion requesting relief from the court’s Judgment. On

August 9, 2001, the court entered an Order denying Heller and

Naylor’s post judgment motions. Heller and Naylor appeal.
STANDARD OF REVIEW

¶7 We review a district court’s summary judgment ruling de novo

and employ the same Rule 56, M.R.Civ.P., evaluation as applied by

the district court. See Andrews v. Plum Creek Manufacturing, 2001

MT 94, ¶ 5, 305 Mont. 194, ¶ 5, 27 P.3d 426, ¶ 5. Pursuant to Rule

56, M.R.Civ.P., we apply the following inquiry:

The movant must demonstrate that no genuine issues of
material fact exist. Once this has been accomplished,
the burden then shifts to the non-moving party to prove,
by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues
of fact do not exist, the court must then determine
whether the moving party is entitled to judgment as a
matter of law. We review the legal determinations made
by a district court as to whether the court erred.

Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d

901, 903 (citations omitted). We review a district court’s ruling

denying a motion to alter or amend its judgment pursuant to Rule

60(b), M.R.Civ.P., for an abuse of discretion. See Bragg v.

McLaughlin, 1999 MT 320, ¶ 11, 297 Mont. 282, ¶ 11, 993 P.2d 662, ¶

11 (citation omitted).

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 DISCUSSION

¶8 Did the District Court err in granting Gremaux and Conrad

summary judgment?

¶9 There are three ways by which a private road may become open

and public, including adverse use or prescription, common law

dedication by private owners, and statutory dedication by the

county. See Carbon County v. Schwend (1984), 212 Mont. 474, 476,

688 P.2d 1251, 1252. Heller and Naylor concede that the Tony Bench

Road did not become public by statutory dedication. Accordingly,

we will first review whether the road became public by

prescription. Then, we will review whether the road became public

by common law dedication.
¶10 Heller and Naylor argue that genuine issues of material fact

exist in this case regarding whether the Tony Bench Road became a

public road by prescriptive use, thus making summary judgment

improper. They allege that their affidavits and those of James R.

Guslander and Leo Cerovski present genuine issues of material fact

concerning whether use of the road was adverse. Most notably, they

assert that the affidavits provide evidence that county road crews

maintained the road periodically and members of the public used the

road since homestead days. They note that gates did exist on the

road, but allege that such gates were to control livestock and

could be easily opened. Additionally, Heller and Naylor contend

that the District Court erred in determining that they waived or

abandoned their prescription claim.

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¶11 In response, Gremaux and Conrad maintain the Tony Bench Road

is a private road. They contend that the evidence presented

establishes a lengthy history of permissive use based upon

community custom and the practice of neighborly accommodation.

Conversely, Gremaux and Conrad argue that the affidavits submitted

by Heller and Naylor establish only mere allegations of

prescriptive use and provide no specific factual matters

contradicting their evidence of the permissive nature of the road

usage.
¶12 An easement by prescription is created by operation of law.

See Rettig v. Kallevig (1997), 282 Mont. 189, 193, 936 P.2d 807,

810. We have held that the public may acquire a prescriptive

easement on a private road. See McCauley v. Thompson-Nistler, 2000

MT 215, ¶ 37, 301 Mont. 81, ¶ 37, 10 P.3d 794, ¶ 37 (citations

omitted). A prescriptive easement claimant must establish that the

use of the roadway was open, notorious, exclusive, adverse,

continuous and uninterrupted for the complete statutory period. See

Warnack v. Coneen Family Trust (1996), 278 Mont. 80, 83, 923 P.2d

1087, 1089. Since 1953, the statutory period required to establish

an adverse possession claim is five years pursuant to § 70-19-404,

MCA. Prior to 1953, the statutory period was ten years. See

Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 210, 879 P.2d

715, 720. The element of exclusivity is not required in

establishing the existence of a public prescriptive easement since

such an easement is used by members of the general public. See

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Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 16, 293 Mont.

212, ¶ 16, 974 P.2d 650, ¶ 16.

¶13 To be “open and notorious,” the use of a claimed right in a

prescriptive easement must give the landowner actual knowledge of

the claimed right, or be of such a character as to raise a

presumption of notice. See Hitshew, ¶ 17 (citation omitted). To

be “continuous and uninterrupted,” the use of a claimed right must

not be abandoned by the user or interrupted by an act of the

landowner. See Hitshew, ¶ 17 (citation omitted). 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 landowner, and such claim must be known to and

acquiesced in by the landowner. See Swandal Ranch Co. v. Hunt

(1996), 276 Mont. 229, 233, 915 P.2d 840, 843.
¶14 In determining whether the use of a road was adverse, we have

stated that “neighborly accommodation” is a form of permissive use

which, “by custom, does not require permission at every passing.”

See Kessinger v. Matulevich (1996), 278 Mont. 450, 457, 925 P.2d

864, 868 (quoting Lemont Land Corp. v. Rogers (1994), 269 Mont.

180, 186, 887 P.2d 724, 728). Therefore, use of a neighbor’s land

based upon mere neighborly accommodation or courtesy is not adverse

and cannot ripen into a prescriptive easement. See Public Lands

Access Assoc., Inc. v. Boone and Crockett Club Foundation, Inc.

(1993), 259 Mont. 279, 284, 856 P.2d 525, 528 (citation omitted).

The mere use of a way for the required statutory period is

generally not sufficient to give rise to the presumption of a

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grant, and “generally some circumstances or act, in addition to the

use, tending to indicate that the use was not merely permissive, is

required.” Public Lands, 259 Mont. at 285, 856 P.2d at 528

(quoting Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d

24, 27). Additionally, “[t]he fact that the passage of a road has

been for years barred by gates or other obstructions to be opened

and closed by the parties passing over the land, has always been

considered as strong evidence in support of a mere license to the

public to pass over the designated way.” Public Lands, 259 Mont.

at 285, 856 P.2d at 528 (quoting Maynard v. Bara (1934), 96 Mont.

302, 307, 30 P.2d 93, 95).
¶15 Each element of a prescriptive easement claim must be proven

by clear and convincing evidence. See Wareing v. Schreckendgust

(1996), 280 Mont. 196, 206, 930 P.2d 37, 43. “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.” Public Lands, 259 Mont. at 283, 856 P.2d at 527.

After a claimant has established the elements of a prescriptive

right, a presumption of adverse use arises and the burden shifts to

the landowner affected by the prescriptive claim to establish that

the claimant’s use was permissive. See Wareing, 280 Mont. at 209,

930 P.2d at 45 (citations omitted). If the landowner shows

permissive use, no easement can be acquired since the theory of

prescriptive easement is based on adverse use. See Public Lands,

259 Mont. at 283-284, 856 P.2d at 527 (citation omitted).

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¶16 Based upon the facts presented in this case, we conclude that

use of the Tony Bench Road was permissive, and thus a public

prescriptive easement does not exist. Although Heller and Naylor

submitted four affidavits in support of their prescriptive easement

claim, the affidavits provide no specific factual allegations of

adverse use. Instead, the affidavits provide only evidence of mere

use of the road and that county road crews periodically performed

maintenance on the road. In contrast, Gremaux and Conrad submitted

specific factual allegations demonstrating that use of the road was

permissive based upon neighborly accommodation. Most notably, the

evidence establishes that use of the road was at the pleasure of

the landowners as illustrated by the landowners placement of gates,

and occasional locking of those gates, at their real property

boundaries. In addition, the Tony Bench Road is not identified by

the Fergus County Commissioner’s Roadbook as a public or county

road, and county road crews have not maintained the road, except as

a favor when requested to do so by a landowner. Likewise, in an

earlier partition action between Gremaux and his sister, Karen

Green (“Green”), a title insurance examiner found that the road did

not provide public or record access. Similarly, the partition

referees in that case characterized access by way of the road as

“via informal, verbal, neighborly agreements and written

permission.” In addition, Gremaux and other landowners have been

unable to obtain insurable legal access and bank financing on their

parcels of real property accessed via the road because the records

of Fergus County demonstrate that there is no public road or other

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recorded right of access to and from these lands. Further, Heller

denied Green’s request for an easement upon the roadway where it

crosses his property and maintained at the time of her request that

the Tony Bench Road was private. Consequently, we conclude that no

genuine issues of material fact exist regarding whether a public

prescriptive easement was established on the Tony Bench Road.

Accordingly, we hold that the District Court correctly determined

that the Tony Bench Road is not a public thoroughfare established

by prescription.
¶17 Heller and Naylor also assert that the Tony Bench Road became

a public thoroughfare by common law dedication. They allege the

District Court erred in determining that a common law dedication in

Montana requires the statutory formalities pertinent to the

creation of county roads. They argue that no particular formality

is necessary to effect a common law dedication. Rather, any act of

the landowner clearly manifesting an intent to dedicate is

sufficient. They maintain that the 1916 petition to establish a

school and the 1948 petition for a new road are evidence of the

intent of the signers to make a common law dedication of the Tony

Bench Road. Heller and Naylor note that they do not contend that

either the school petition or the petition for a new road is

intrinsically sufficient as a common law dedication. Instead, the

petitions are evidence of the intent of the signers to make a

common law dedication of the Tony Bench Road. They further contend

that public use of the road for thirty eight years is sufficient to

show acceptance of the earlier dedication. They assert that

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the petition for the road being contemporaneous with the closing of

the school raises an inference that the signers of the latter

wanted an all-weather alternative route to primary and secondary

schools to the West.

¶18 Gremaux and Conrad respond that Heller and Naylor presented no

evidence to support their contention that a common law dedication

occurred. They argue that the filing of petitions for the

establishment of a school district and for the relocation of a

bridge, combined with evidence of permissive use of the road, are

not sufficient to invoke common law dedication. They allege it is

impossible to prove what the actual intent of the school and bridge

petitioners was because the petition for the establishment of a

school district is nothing more and nothing less. They point out

that nowhere in the petition is there any mention of dedicating the

road to public use. Similarly, the petition for the relocation of

a bridge dated January 3, 1948, was submitted on a form entitled

“Petition For New Road.” However, it is evident that the

establishment of a road was not its intention. Clearly, the

intention of this document was to relocate a bridge across the

Judith River. In addition, per the note on the petition dated

November 16, 1948, no action was ever taken in response to the

petition. Furthermore, they note no evidence was submitted to show

any affirmative action by the county regarding acceptance of the

alleged dedication of the road.
¶19 Two elements are required to establish a common law dedication

of a roadway: first, an offer by the owner evidencing an intention

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to dedicate the roadway; and second, an acceptance by the public.

See Richter v. Rose, 1998 MT 165, ¶ 34, 289 Mont. 379, ¶ 34, 962

P.2d 583, ¶ 34 (citation omitted). Generally, no one except the

owner of an unlimited estate or an estate in fee simple, or someone

expressly authorized by the owner, can make a dedication of land.

See Descheemaeker v. Anderson (1957), 131 Mont. 322, 329, 310 P.2d

587, 591 (citation omitted). The intent of an offer to dedicate

must be clear, satisfactory, and unequivocal. See Descheemaeker,

131 Mont. at 329, 310 P.2d at 591. Additionally, evidence of mere

permissive use of a road does not prove an intention to dedicate.

See Maynard, 96 Mont. at 307, 30 P.2d at 96 (citations omitted).
¶20 After reviewing the evidence presented in this case, we

conclude that Heller and Naylor failed to present evidence which

clearly and unequivocally establishes that Gremaux and Conrad’s

predecessors in interest intended to dedicate to the public the

portion of the Tony Bench Road they privately own. We note that

Heller and Naylor argue that a 1936 petition and a 1939 petition

requesting construction of cattle guards establish the landowners’

intent to dedicate the road. We will not consider either the 1936

or 1939 petitions since the petitions were not considered by the

District Court, as they were untimely filed. Moreover, the act of

signing the petitions for establishment of a school district and

relocation of a bridge does not establish that the landowners

intended to dedicate the road to the public. Further, the evidence

demonstrates that use of the road was permissive. Therefore, we

conclude that the Tony Bench Road is not a public road established

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by common law dedication. Consequently, we hold that the District

Court did not err in granting summary judgment in favor of Gremaux

and Conrad.

¶21 Based upon our determination that the District Court did not

err in granting Gremaux and Conrad summary judgment, we hold that

the District Court did not abuse its discretion in denying Heller

and Naylor’s Rule 60(b), M.R.Civ.P., motion for relief from

judgment.

¶22 Affirmed.
/S/ JIM REGNIER

We Concur:

/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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