No. 01-658
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 99
RAY J. HABEL and HABEL,
BOWD & HABEL, a partnership,
Plaintiffs and Appellants,
v.
BARTON KENT JAMES and
CAROL BROWN JAMES,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DV-99-270(B),
Honorable Katherine R. Curtis, Judge Presiding
COUNSEL OF RECORD:
For Appellants:
William E. Astle, Astle & Astle, Kalispell, Montana
For Respondents:
Stephen C. Berg, Johnson, Berg, McEvoy & Bostock, Kalispell, Montana
Submitted on Briefs: February 28, 2002
Decided: April 24, 2003
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Appellants Ray J. Habel and Habel, Bowd, & Habel, a partnership (Habel) appeal
from the order of the Eleventh Judicial District Court, Flathead County, in favor of
Respondents Barton James and Carol James (Jameses), determining that Jameses acquired
a prescriptive easement on the Habel property for a dock and retaining wall. We affirm.
¶2 The issue on appeal is whether the District Court erred in ruling, as a matter of law,
that a non-possessory prescriptive easement existed for the dock and retaining wall, and not
a possessory adverse possession of property enclosed by the dock and retaining wall.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Habel owns real property in Flathead County at the north end of Flathead Lake.
Jameses own real property contiguous to the Habel property, by virtue of the entire western
boundary line of Jameses’ property, about 100 feet in length, being contiguous to a portion
of the eastern boundary line of the Habel property. This common boundary, which
constitutes the western end of Jameses’ lot, runs roughly parallel to the shoreline of Flathead
Lake. Habel owns the strip of property between the western boundary of Jameses’ lot and
the Lake area. This strip extends from the remaining portion of the Habel property.
¶4 Jameses purchased their property in 1978. At the time, a man-made retaining wall,
constructed of wood, existed westerly of and parallel to the Jameses’ western boundary at
a distance of approximately three to five feet from the boundary, near the shoreline. The
retaining wall was 78 feet long and extended generally from a point several feet west of the
southwest corner of Jameses’ lot in a northerly direction. The Jameses’ back yard extended
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from their home to within a few feet of the wood retaining wall. The purpose of the wood
retaining wall was to prevent erosion of the property by the waters of Flathead Lake. The
wood wall was about two feet tall its entire length and approximately six to eight inches in
width. The north and south boundaries of Jameses’ property were generally marked by
fences, which ended several feet East of the retaining wall. At the time the Jameses
purchased the property, they assumed they owned all the property to the wood wall, and that
all land to the west of the wood wall, toward the lake, was public domain, probably owned
by the State of Montana. However, the wall and the strip of land between the wall and the
Jameses’ western boundary were located on property then owned by Habel’s predecessors
in title.
¶5 When the Jameses purchased their property, there was no dock. In 1979, they built
a floating dock extending westerly from the wood wall a distance of approximately 65 feet
in length, 6 feet wide, and located entirely on the Habel side of the common boundary line.
The dock was generally used by the Jameses to access the lake for swimming, fishing,
boating during high water, and as a walkway when the lake is at low pool. In 1983, the dock
was converted to a non-floating, permanent, stationary dock constructed of wood with
supporting beams embedded in the ground. The Jameses have routinely maintained and
repaired the dock as needed.
¶6 In the spring of 1981, Habel’s predecessor in interest, Jim Dockstader (Dockstader),
told James that he (Dockstader) owned the property on which the dock was situated, as well
as the strip of property east of the dock. Dockstader did not request the Jameses to cease
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using or remove the dock. This conversation marked the first time Jameses understood that
the dock was neither on their property nor property owned by the State of Montana, but was
located on property owned by Dockstader. They also realized that the termination of the two
fence lines east of the wood retaining wall suggested that the boundary between Jameses’
property and Habel’s property was an imaginary line between the ends of the fence lines, or
at least east of the retaining wall.
¶7 By 1988, the wood retaining wall had deteriorated due to forces of nature and was
being eroded. The Jameses decided to replace the wood wall with a concrete retaining wall.
The concrete retaining wall was constructed in precisely the same place as the wood wall,
except that its length is slightly over 99 feet, 21 feet longer than the wood wall. Concrete
was used, as opposed to wood, because of its superior strength and durability.
¶8 In May 1994, Habel ordered a survey of the property, including the common boundary
between the parties. The survey indicated that both the concrete retaining wall and the dock
were located on Habel’s property. In August 1994, Habel’s attorney, James Bartlett
(Bartlett), contacted the Jameses by letter. The letter defined Jameses’ use of the dock and
the concrete wall as permissive, and asked Jameses to acknowledge the permissive nature of
their use. The Jameses took no action in response to this letter as they did not agree their use
had been permissive. There was no request by or on behalf of Habel to remove or cease
using the dock or concrete wall.
¶9 Bartlett again contacted the Jameses by letter in September 1997. This time, Habel
purported to revoke permission for Jameses to use the dock and concrete wall, and further
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directed that the dock be removed within 45 days. The dock and retaining wall were not
removed. On June 2, 1999, Habel filed an action against the Jameses to quiet title on the
property in question.
¶10 On August 3, 1999, the Jameses filed an answer and counterclaim alleging that they
had acquired a prescriptive easement for the dock and retaining wall by adverse use for the
statutory period. Habel, in defense to the counterclaim, asserted that Jameses’ use of the
dock and retaining wall was possessory in nature which stated a claim of adverse possession
rather than prescriptive easement. Habel filed a motion to dismiss Jameses’ counterclaim
on August 19, 1999. The District Court denied Habel’s motion.
¶11 Habel filed motions for summary judgment on the complaint and Jameses’
counterclaim which were denied by the District Court. A non-jury trial was held on August
30, 2000, and the District Court conducted an on-site inspection of the parties’ properties on
September 18, 2000. The District Court entered its Findings of Fact, Conclusions of Law
and Order on April 9, 2001, concluding that the Jameses had acquired a prescriptive
easement on the Habel property for use of the dock and retaining wall. Habel appeals.
STANDARD OF REVIEW
¶12 We review a district court’s findings of fact to ascertain whether they are clearly
erroneous. Brumit v. Lewis, 2002 MT 346, ¶ 12, 313 Mont. 332, ¶ 12, 61 P.3d 138, ¶ 12.
A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court
misapprehended the effect of the evidence, or if our review of the record convinces us that
a mistake has been committed. Brumit, ¶ 12. Our standard of review of a district court’s
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conclusion of law is whether the court’s interpretation of the law is correct. Armbrust v.
York, 2003 MT 36, ¶ 12, 314 Mont. 260, ¶ 12, 65 P.3d 239, ¶ 12.
DISCUSSION
¶13 Did the District Court err in ruling, as a matter of law, that a non-possessory
prescriptive easement existed for the dock and retaining wall, and not a possessory
adverse possession of property enclosed by the dock and retaining wall?
¶14 An easement is a right which one person has to use the land of another for a specific
purpose or a servitude imposed as a burden on land. Burlingame v. Marjerrison (1983), 204
Mont. 464, 469, 665 P.2d 1136, 1139. Easements may be acquired by express grant,
reservation in a deed of the servient land, implied grant, or prescription. Burlingame, 204
Mont. at 469, 665 P.2d at 1139. By contrast, the doctrine of adverse possession refers to
acquisition of a possessory interest in land and results in acquisition of title to the property.
Burlingame, 204 Mont. at 470, 665 P.2d at 1139. Both prescriptive easements and title by
adverse possession are established in a similar manner: the claimant must show use that is
open, notorious, exclusive, adverse, continuous, and uninterrupted for the statutory five-year
period. The party claiming adverse possession must also have paid the taxes on the property
for the full statutory period. Section 70-19-411, MCA, and Burlingame, 204 Mont. at 470-
71, 665 P.2d at 1139-40.
¶15 Neither party disputes that the Jameses’ use of the Habel property has been open,
notorious, exclusive, adverse, continuous, and uninterrupted for the statutory five-year
period. Further, it is undisputed that Jameses have not paid taxes on any portion of the Habel
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property. Rather, it is the character of Jameses’ use of the property which is disputed. If the
use is non-possessory, than an easement interest is at issue, and the Jameses have
undisputably demonstrated all of the elements necessary to establish a prescriptive easement.
On the other hand, if the use is possessory, then adverse possession of the property is at
issue, and because Jameses have not paid taxes on the property, the claim must fail.
¶16 After receiving evidence and inspecting the properties, the District Court found that:
The retaining wall and dock in this case do not mark boundaries or completely
enclose any portion of [the disputed property]. The dock and retaining wall
would not serve to keep anyone or anything either in or out of a portion of [the
disputed property]. The area of land partially enclosed by the dock and
retaining wall is not used or improved in any way by [the Jameses]. The dock
is used to access the lake from [Jameses’ land]. The purpose of the retaining
wall is to prevent erosion. . . . [E]rosion prevention . . . is a use of the adjacent
parcel, not an attempt to possess it. [Jameses’] are not seeking to possess any
portion of [the disputed property] by constructing the retaining wall and dock.
The dock and retaining wall are not of the nature and extent to constitute a
possessory interest.
¶17 Section 70-19-410, MCA, provides:
For the purpose of constituting an adverse possession by a person claiming
title not founded upon a written instrument, judgment, or decree, land is
deemed to have been possessed and occupied in the following cases only:
(1) where it has been protected by a substantial enclosure;
(2) where it has been usually cultivated or improved.
¶18 The District Court reasoned that § 70-19-410, MCA, “does not provide that the
existence of a fixture on a parcel of land automatically constitutes possession. Rather, what
must be determined in this case is whether the structures constitute a ‘substantial enclosure,’
or are improvements of such a nature as to show dominion over the property.”
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¶19 Habel takes issue with the District Court’s conclusion that the Jameses established a
prescriptive easement, and more particularly, with its determination that Jameses’ use of the
dock and retaining wall situated on Habel’s property was non-possessory. Habel argues that
the dock and retaining wall are “possessory uses,” because physical improvements denote
adverse possession, as a matter of law, and offers Hyde v. Lawson (1972), 94 Idaho 886, 499
P.2d 1242, in support of this proposition. In Hyde, the Idaho Supreme Court determined that
a hedge row, shrubs, flower garden, and trees maintained along a common boundary line had
the same effect, for adverse possession purposes, as a fence. Habel contends that the dock
and retaining wall are permanent structures that clearly mark the boundaries of the land
enclosed by these structures, and therefore, Jameses acquired a possessory interest in the
land which is enclosed by the dock and retaining wall.
¶20 This Court has not previously interpreted the term “substantial enclosure” as used in
§ 70-19-410(1), MCA, except to hold that a fence enclosure complies with the statute. See
Swecker v. Dorn (1979), 181 Mont. 436, 441, 593 P.2d 1055, 1058. In determining that the
structures in this case do not constitute a “substantial enclosure,” the District Court
referenced the Idaho Supreme Court’s holding in Lindgren v. Martin (1997), 130 Idaho 854,
949 P.2d 1061. The Court in Lindgren addressed an Idaho adverse possession statute which
is identical to § 70-19-410, MCA, and ultimately concluded that the statute was satisfied by
fencing of the property, similar to our holding in Swecker. Lindgren offered the following
discussion of the “substantial enclosure” requirement:
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[T]he character of the inclosure may vary somewhat from case to case “so long
as it satisfies what is usual under the circumstances and indicates clearly the
boundaries of the adverse occupancy.” [Citation omitted.] Adverse claimants
must establish that they constructed or maintained an inclosure on the disputed
parcel of land to indicate the extent of their claim.
Lindgren, 949 P.2d at 1065.
¶21 Section 70-19-410(1), MCA, does not specify what kind of structure will satisfy the
requirement to “protect by substantial enclosure” in order to deem the property “possessed
and occupied” for purposes of adverse possession. In Swecker, we concluded a party who
had completely enclosed the property with fencing and placed a storage shed thereon had
established a substantial enclosure. Swecker, 181 Mont. at 441, 593 P.2d at 1059. Fencing
of the disputed property did not occur here. However, we can conclude from the above
authority that a structure or fixture may constitute a “substantial enclosure” evidencing
possession if the structure or fixture indicates the boundaries of the adverse occupancy in a
manner which clearly demonstrates the extent of the use of the property.
¶22 The District Court found the land was only partially enclosed by the dock and
retaining wall, and concluded that these structures did not establish a possessory use of the
disputed property itself. On appeal, Habel has not challenged the District Court’s factual
findings, and our review of the record reveals that the findings are supported by substantial
evidence and therefore, are not clearly erroneous.
¶23 The District Court’s conclusions of law regarding the enclosure issue were also
correct. Although the Jameses constructed a retaining wall along the shoreline to prevent
erosion, they neither fully enclosed, nor otherwise indicated the remaining boundaries of, the
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disputed property. Even Jameses’ fences, which were constructed along Jameses’ northern
and southern property lines, perpendicular to the retaining wall and the shoreline, stopped
short of entering the strip of property owned by Habel, and therefore, did not restrict access
to the lake across Habel’s land. Without more, we cannot conclude that the District Court
erred in determining that Jameses’ retaining wall and dock did not constitute a “substantial
enclosure” which demonstrated the disputed property had been “possessed and occupied,”
as required by § 70-19-410(1), MCA. The Jameses’ retaining wall protected Habel’s
property, and ultimately, Jameses’ own property, from erosion, and the dock provided an
enhanced lake access on Habel’s property, limited purposes which distinguish this matter
from the broad use of the entirety of the disputed property which occurred in Hyde v.
Lawson, supra, relied upon by Habel.
¶24 Habel next asserts, pursuant to § 70-19-410(2), MCA, that Jameses possessed and
occupied the disputed property by way of “cultivation or improvement.” In support of this
argument, Habel cites to language from our holding in Kenney v. Bridges (1949), 123 Mont.
95, 208 P.2d 475, wherein we stated:
To constitute adverse possession . . . does not necessarily require the claimant
to live upon the land, or to enclose it with fences, or to stand guard at all times
upon its borders to oppose the entry of trespassers or hostile claimants. It is
enough if the person . . . takes and maintains such possession and exercises
such open domination as ordinarily marks the conduct of owners in general in
holding, managing, and caring for property of like nature and condition. It is
manifest that the acts of ownership and dominion necessary to indicate adverse
possession of a vacant lot need not and cannot be the same which a court or
jury might think essential with respect to a lot covered with valuable
improvements or upon which there is a place of residence.
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Kenney, 123 Mont. at 98-99, 208 P.2d at 476-77 (citing Whalen v. Smith (Iowa 1918), 167
N.W. 646, 647).
¶25 Kenney was decided under a predecessor statute which provided that “[f]or the
purpose of constituting an adverse possession by any person claiming a title founded upon
a written instrument, or a judgment or decree, land is deemed to have been possessed and
occupied in the following cases: . . . 3. Where, although not inclosed, it has been used for
the supply of fuel, or of fencing timber, either for the purpose of husbandry, or for pasturage,
or for the ordinary use of the occupant.” Section 9020(3), R.C.M. 1935. Kenney involved
the possession of a vacant lot, which the claimant had obtained by Sheriff’s deed following
a sale under writ of execution. The claimant thereafter went upon the property, cut the
weeds and grass, set posts at the corners of the lot, had it surveyed and staked, and graded
the land level to the claimant’s adjoining property. Two years after possessing the property,
the claimant built on the land. Upon a challenge by the record owner of the property, the
Court was faced with the question of whether the two-year period before claimant built on
the property could be counted toward the time required for the claimant to establish adverse
possession. The Court determined that the claimant’s actions on the property prior to
building constituted possession for that purpose.
¶26 However, we are not persuaded from an analysis of Kenney that the District Court has
erred. There the claimant staked and used the entirety of the vacant lot in question. Even
assuming, for sake of discussion, that the statutory differences are not determinative, this
matter is distinguishable from Kenney because the Jameses neither cultivated nor improved
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the entirety of the disputed property. The District Court found that Jameses had not
“engaged in grazing, pasturing, cultivation, gardening, removal of soil, or any other use of
this land.” Their improvements to the property only provide an enhanced access to the lake
and prevent erosion.
¶27 Finally, Habel argues that the dock and retaining wall are sufficient possession of the
property to leave Habel with an “empty fee” to the disputed property, relying on this Court’s
decision in Burlingame v. Marjerrison (1983), 204 Mont. 464, 665 P.2d 1136. In
Burlingame, Marjerrisons had fenced a five acre portion of Burlingame’s property, and for
over 40 years, had planted a garden, raised corn, harvested timber and grazed cattle on the
parcel. They had not, however, paid the taxes, and thus, they claimed only a prescriptive
easement for their grazing, timber and farming purposes. In ruling against Marjerrisons, this
Court distinguished prescriptive easement and adverse possession, and held that
Marjerrisons’ complete possession of the disputed property negated their claim to a non-
possessory prescriptive easement:
An easement, however, is by definition a nonpossessory interest. Here,
Marjerrisons held complete possession of the parcel for the statutory period.
They did not merely impose a burden upon the Burlingame parcel for the
benefit of a dominant tenement.
....
Where a prescriptive right to a servitude has the effect of leaving the owner
with an empty fee title, the situation is not one of prescriptive right in the form
of an easement. It has ripened into a claim for adverse possession. . . . Here,
Marjerrisons’ use and occupancy of the land did not amount to acquisition of
an easement that was merely appurtenant to the dominant tenement. It must
rather be characterized as complete possession, dominion and use of the parcel
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to the exclusion of Burlingames and their predecessors in interest. It takes on
the aspect of a fee.
Burlingame, 204 Mont. at 471, 665 P.2d at 1140. Habel asserts that, similar to
Marjerrisons’ use in Burlingame, Jameses’ use so dominates the subject property that it has
taken on the aspect of a fee and cannot be considered as merely appurtenant.
¶28 The District Court disagreed with this argument, holding that:
The dock and retaining wall are not of the nature and extent to constitute a
possessory interest. In no respect could it be said that construction of the
retaining wall and dock . . . “ha[ve] the effect of leaving . . . [Habel] with an
empty fee.” The [Jameses’] use and occupancy cannot be characterized as
“complete possession, dominion and use of the parcel to the exclusion of
[Habel].” [Citations omitted.]
¶29 We agree with the District Court. Burlingame involved a claimant’s expansive and
exclusive use of the entirety of the land in question. The Marjerrisons planted a garden,
grazed and watered their cattle, farmed corn, and harvested timber upon the entire five acre
parcel, which they also fenced. Such use clearly constitutes complete possession or
occupation of the land, as opposed to a mere burden on the land. Unlike Burlingame, a
complete possession or occupation of the land is not present in this case. Jameses’
construction and maintenance of a dock and retaining wall are limited uses consistent with
a non-possessory interest, and constitute a burden upon the Habel property, not a complete
possession or occupation. The claimant in Burlingame erected a fence and excluded
Burlingame and all others from the parcel. As demonstrated herein, the Jameses’
construction of the dock and retaining wall neither encloses the land nor prevents Habel and
others from entering the property.
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¶30 The judgment of the District Court is affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
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