NO. 95-429
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
LEFFINGWELL RANCH, INC., a Montana corporation;
and PECKENPAUGH RANCHES, INC., a Montana corporation,
Plaintiffs and Respondents,
v.
CARLO CIERI, JIM HUNT, and TERRY SARRAZIN,
Members of the Board of County Commissioners of
Park County, Montana; PARK COUNTY, a political
subdivision of the State of Montana,
Defendants,
and
ELK PARK RANCH, INC., a Montana Corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Karl Knuchel, Attorney at Law,
Livingston, Montana (for Elk Park Ranch, Inc.)
For Respondents:
Jeffrey N. Pence, Huppert & Swindlehurst,
Livingston, Montana
Justice Terry N. Trieweiler delivered the opinion of the Court.
On April 19, 1993, Leffingwell Ranch, Inc., and Peckenpaugh
Ranches, Inc., filed a complaint in the District Court for the
Sixth Judicial District in Park County in which they sought a
declaratory judgment regarding the status of Miles Creek Road and
the extent to which the defendant, Elk Park Ranch, Inc., could use
that road. Following a nonjury trial, the District Court entered
its judgment and decree in which it held that Miles Creek Road was
not a county road and that no public prescriptive easement had ever
been established over the road. The decree limited Elk Park
Ranch's easements over Miles Creek Road to their historical use and
specifically enjoined Elk Park Ranch from accessing its land
development over the road. Elk Park Ranch appeals the District
Court's decree. We affirm the District Court.
We address two issues on appeal:
1. Did the District Court err when it determined that Miles
Creek Road was not a county road because no public prescriptive
easement had ever been established over that road?
2. Did the District Court err when it limited Elk Park
Ranch's use of Miles Creek Road to its historical use and enjoined
Elk Park from accessing its land development by means of that road?
FACTUAL BACKGROUND
Leffingwell Ranch, Inc., is a family ranch corporation which
owns real property in the Brackett Creek area of Park County.
Peckenpaugh Ranches, Inc., is also a family ranch corporation with
land holdings in the Brackett Creek area. In 1988, Elk Park Ranch,
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Inc., purchased substantial land in the Brackett Creek area from
the Brackett Creek Grazing Association. In 1993, Elk Park filed a
quitclaim deed dividing its property into 174 20-acre aliquot
parcels. Elk Park's intent was to develop and sell these smaller
parcels. Elk Park planned to use Miles Creek Road, which crosses
both the Leffingwell Ranch and the Peckenpaugh Ranch, to access the
20-acre parcels.
Miles Creek Road leaves the main Brackett Creek Road at a
point on the Leffingwell Ranch and continues in a westerly
direction for approximately one-quarter mile to the Leffingwell
Ranch compound. The road then turns south and crosses Brackett
Creek and continues across the northeast corner of the Peckenpaugh
Ranch. As it leaves the Peckenpaugh Ranch, the road forks and one
branch returns northeast to the Leffingwell Ranch; the other branch
continues southeast into Elk Park Ranch's property.
Miles Creek Road was originally developed by James Proffitt,
J.W. Camp, James Curdy, and Jim Christie during the late 1890s as
an access route to their homesteads. In 1904, Mary Leffingwell's
father, Charles Bridgman, purchased what is now the Leffingwell
Ranch from James Proffitt. In 1927, Bridgman granted a private
easement over Miles Creek Road to J.W. Camp and James Curdy. James
Curdy, in turn, granted a similar easement to J.W. Camp. Both
easements granted rights-of-way thirty feet in width over the
existing road for purposes of ingress and egress and required that
the rights-of-way not be fenced, that any gates in place across the
grantor's property be kept closed at all times, and that the
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failure to do so would result in the loss of the easements. Camp
was a predecessor in interest to Elk Park. However, when the
easements were executed in 1927 they were only intended to benefit
the small portion of land owned at that time by Camp and Curdy.
The property that Elk Park now intends to access includes several
additional sections of land which were acquired after the easements
were conveyed in 1927.
The Bridgmans rerouted the lower portion of Miles Creek Road
in the early 1930s through what is now the Leffingwell Ranch
compound. For the most part, the Leffingwells maintained the road,
although in the spring of 1948 Park County repaired the bridge on
Miles Creek Road across Brackett Creek in exchange for gravel from
the Leffingwell Ranch property. In the late 1970s a private
logging company rebuilt this same bridge with the Leffingwell's
permission.
County road records indicate nominal expenditures for Miles
Creek Road during the years 1953 and 1954. Although County road
crews sometimes plowed the road up to the Leffingwells' buildings
during the 1950s and 196Os, the plowing was done out of courtesy
rather than as part of an official road maintenance program. The
County ceased all work on the road by 1968.
Both the Leffingwells and the Peckenpaughs have always
maintained gates on Miles Creek Road. Although at times they have
given permission to members of the public to travel over the road
for access to Forest Service land for recreational purposes or
hunting, at least one of the gates located on the Leffingwell Ranch
4
has been regularly locked, particularly during hunting season,
since the early 1950s. All of the owners and parties in interest
in that area, including Elk Park Ranch, have maintained separate
locks on various gates on Miles Creek Road.
In 1972, a group of local hunters and sportsmen tried to have
Miles Creek Road opened for access as a public road. After
conducting a hearing, the Park County Commissioners concluded that
the road was private. This position was reaffirmed in 1988 by the
Park County Attorney in a letter to the local title company. In
his letter, the County Attorney stated:
My conclusion at this time is that it would be very
difficult for Park County to maintain that [Miles Creek
Road] is a public road. The records at the court house
only show that it was maintained at various times, but a
finding by past commissioners that it was a private road
indicates Park County never intended to assert control
over it. From the facts presented to me, it is not clear
that a prescriptive right was ever established on the
road. Even if that is established, it appears it may
well have been abandoned.
However, in a letter to the Leffingwell Ranch in 1993, the County
Attorney reversed his position and advised the Leffingwells that
the Park County Commissioners had decided that the road was in fact
a county road and that the Leffingwells could no longer maintain a
gate across it.
In response to the County Attorney's 1993 letter, both the
Leffingwell Ranch and the Peckenpaugh Ranch filed this action in
the Sixth Judicial District Court. In their complaint, the
plaintiffs alleged that Miles Creek Road is a private road to which
Park County has no right or interest; that any attempt by Elk Park
5
to access its planned development by means of Miles Creek Road
would be in derogation of the intention and contemplation of the
original 1927 agreements and would result in an overburdening of
the easements; and that any attempt by Elk Park to access land not
contemplated by the 1927 easements for any purposes other than for
agricultural purposes would constitute a misuse of the easements.
Following a hearing, the District Court entered its judgment
and decree. The Court concluded that Park County has no legal
right or interest in Miles Creek Road; that no prescriptive
easement has ever been established over the road; and that the 1927
easements were created and remain solely for the purpose of ingress
and egress for agricultural purposes. The court permanently
enjoined Elk Park from accessing its property by means of Miles
Creek Road for development purposes or for anything other than
agricultural purposes. The court further enjoined Elk Park Ranch
from accessing that portion of its properties which were not
contemplated by the 1927 easements and to which the 1927 easements
are not appurtenant.
ISSUE 1
Did the District Court err when it determined that Miles Creek
Road was not a county road because no public prescriptive easement
had ever been established over that road?
We review a district court's findings of fact to determine
whether they are clearly erroneous. Rule 52(a), M.R.Civ.P. See also
Dainesv. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We
6
review a district court's conclusions of law to determine whether
the court's interpretation of the law is correct. Carbon County v. Union
ReserveCoalCo. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
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." Public Lands Access Assoc. v. Boone & Crockett
ClubFoundation (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting
Keeblerv. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356).
Since 1953, the statutory period has been five years. Section
70-19-404, MCA. Prior to that time the statutory period was ten
years. Section 93-2507, RCM (1947). The burden is on the party
seeking to establish the prescriptive easement to prove all
elements of prescription. PublicLandsAccess, 259 Mont. at 283, 856
P.2d at 527.
In this case, Elk Park Ranch contends that the District Court
erred when it concluded that a public prescriptive easement had not
been established over Miles Creek Road. Elk Park maintains that
the public's use of Miles Creek Road for recreational and other
purposes was adverse and was not by permission of the underlying
landowners. Elk Park further maintains that there was an
assumption of control of the road by Park County, which performed
maintenance of the road in a continuous and uninterrupted manner
for at least twelve years.
It is well-established that when permissive use is shown, an
easement cannot be established since prescription is based on
adverse use. Tannerv.DreamIsland,Inc. (Mont. 1996), 913 P.2d 641, 648,
53 St. Rep. 208, 212.
George Leffingwell testified that in the 1960s he personally
gave permission to agents of the Forest Service to access the
Bangtail Ranger Station and to Montana State University to access
a weather station it had established in the Bangtail area. John
Hamm, a local rancher and a member of the Brackett Creek Grazing
Association, which owned Elk Park's property from 1965 to 1988,
testified that he has always obtained permission from the
Leffingwells to access Forest Service land over Miles Creek Road.
In addition, Sue Ward, who owned Elk Park's property from 1951 to
1964, testified that she obtained permission from the Leffingwells
on a yearly basis to use Miles Creek Road to access her property.
Although at times the Leffingwells did let other members of
the public use the road with their permission to access Forest
Service land, George Leffingwell testified that he and his brother
sometimes denied permission to recreationalists who sought access
to public lands over Miles Creek Road. In addition to these
explicit denials of access, there was evidence that the
Leffingwells and the Peckenpaughs restricted access to Miles Creek
Road with locked gates, private road signs, no trespassing signs,
and orange painted posts.
8
Testimony at trial established that even Elk Park treated
Miles Creek Road as a private road and denied access to members of
the public. In fact, in 1989 one of Elk Park's officers put a lock
on one of the gates on Miles Creek Road because he had a hunting
camp set up on Canyon Creek and did not want other hunters entering
the area. As the District Court stated in its findings of fact:
"It is grossly inconsistent for . . . Elk Park to contend they
could so lock up the Miles Creek Road for their own use and
purposes, and now contend it is a public road."
In Descheemaekerv.Anderson (1957), 131 Mont. 322, 325-26, 310 P.2d
507, 589, we held that to establish a public right-of-way by
prescription
the evidence must be convincing that the public have
pursued a definite, fixed course, continuously and
uninterruptedly, and coupled it with an assumption of
control and right of use adversely under a claim or color
of right, and not merely by the owner's permission, over
it for the statutory period . . .
Plaintiffs produced substantial credible evidence that use of Miles
Creek Road by members of the public was with their permission.
However, Elk Park contends that Park County's maintenance of the
road, which was "by the public and for public good," is sufficient
to demonstrate the elements of prescription. Elk Park maintains
that the County's occasional acts of grading and plowing the road
are adequate to establish Miles Creek Road as a public road.
This Court has held that adverse use by the public combined
with the grading and maintaining of a road without the landowner's
permission is sufficient to establish adverse control. Rasmussen v.
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Fowler (19901, 245 Mont. 308, 312, 800 P.2d 1053, 1056; McClurg v.
FlatheadCountyComm’rs (1980), 188 Mont. 20, 24, 610 P.2d 1153, 1156.
For example, in McClurg, we determined that a public prescriptive
easement existed when most members of the public had never asked
for permission to use the road and when the County had graded,
graveled, and performed maintenance on the road for a period in
excess of twenty-five years. McClurg, 188 Mont. 20, 610 P.Zd 1153.
In this case, however, the testimony at trial established that
most of the limited work which Park County performed on Miles Creek
Road was based on courtesy and cooperation with the local ranchers
and not because of public duty. In addition, the testimony
established that any work which was performed was not part of any
regularly scheduled maintenance program and ceased after 1968.
Clarence Curdy lived on Miles Creek Road from 1918 until 1936.
He testified that the Camps and the Curdys maintained the road with
a horse-pulled drag during that period. He further testified that
he never saw the County perform any kind of maintenance on the road
in those years. Russell Bridgman, who lived on the Leffingwell
Ranch on and off from 1912 until 1940 confirmed Curdy's testimony.
He testified that he had never seen Park County road crews on the
road past the Leffingwell Ranch compound during that time.
Mary Leffingwell, who has lived on the Leffingwell Ranch since
1914, testified that in the early years local residents maintained
Miles Creek Road. In later years, the Park County road crews would
10
grade the road on their way to the Leffingwell Ranch to "warm up
and use the telephone or borrow equipment or use the shop."
George Leffingwell testified that in 1948 or 1949 the County
replaced the bridge over Brackett Creek near the Leffingwell Ranch
compound in exchange for gravel from the ranch. At the hearing,
George did not recall that Park County had ever performed any
regular maintenance or repair work on Miles Creek Road, although he
stated that at times members of the county road crews would run the
snowplow as a courtesy into the Leffingwell Ranch compound. In
addition, George testified that in 1959, when he was driving a
truck for the County, he was permitted to take some gravel home to
gravel a portion of Miles Creek Road. In exchange, George
permitted Park County to take rock and gravel from the Leffingwell
Ranch without charge. George used his own ranch equipment to
spread the gravel.
Sue Ward, who owned Elk Park's property from 1951 to 1964,
testified that at one time she and her husband Ted had asked the
County to repair Miles Creek Road, but the County had refused
because "it wasn't in their territory." The Wards lived in the
Brackett Creek area from 1947 until 1974. Sue Ward testified that
she had not seen any Park County road crews on Miles Creek Road
during that time.
Kiel Peckenpaugh testified that he hauled calcite from a local
mine to improve the Peckenpaugh's portion of the road and hired
private crews to work on the road. He testified that he had not
seen Park County crews working on the road.
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Robert Youngberg, who was Park County road foreman from 1968
until 1989, testified that the County did not perform any work on
Miles Creek Road after 1968. He said that prior to that time the
County had occasionally bladed or plowed the road but he
acknowledged that it was common practice in his early years with
the County to plow out ranchers' private lanes as a courtesy.
Although Youngberg testified that Miles Creek Road had been
designated a county road (56B) on the official county road maps,
there was no evidence that anyone had ever petitioned for the
establishment of Miles Creek Road or attempted to dedicate the road
to the public.
The District Court reviewed testimony offered by the
defendants at trial and found that:
[Elven assuming the defense testimony to be true, it is
far from sufficient to prove that the Miles Creek road
had ever become a public road by statutory petition and
process, or by deed, dedication, condemnation or
prescription, and it was far from sufficient to offset or
overcome the overwhelming evidence presented by
plaintiffs.
Based on our review of the record, we hold that the District
Court's findings of fact are supported by substantial evidence and
are not clearly erroneous. We therefore affirm the District
Court's conclusion that the public has never established a
prescriptive easement over Miles Creek Road and has no right to
travel over the road without permission of the adjacent landowners.
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ISSUE 2
Did the District Court err when it limited Elk Park Ranch's
use of Miles Creek Road to its historical use and enjoined Elk Park
from accessing its land development by means of that road?
As stated above, our review of a district court's findings of
fact and conclusions of law is two-fold. We review a district
court's findings of fact to determine whether they are clearly
erroneous; we review a district court's conclusions of law to
determine whether they are correct. Dainesv.Knight (1995), 269 Mont.
320, 324, 888 P.2d 904, 9 0 6 ; Carbon County v. Union Reserve Coal Co. ( 19 9 5 ) ,
271 Mont. 459, 469, 898 P.2d 680, 686.
In this case, the easements over Miles Creek Road were created
by general warranty deeds in 1927 and provided for ingress and
egress to the Camp and Curdy homesteads. The easements further
required that the rights-of-way not be fenced and that any gates in
place across the grantor's property be kept closed at all times.
The general warranty deeds provided that abuse of the terms of the
easements would result in the loss of the easements. Based on the
terms of the easements and the historical use of the easements, the
District Court concluded that:
[Alny expansion or inconsistent uses of the easements
created by the 1927 warranty deeds would constitute an
overburdening of these easements, and therefore would be
in derogation of the common law and section 70-17-106,
MCA, and defendants should be enjoined therefrom.
Section 70-17-106, MCA, provides that: "The extent of a
servitude is determined by the terms of the grant or the nature of
13
the enjoyment by which it was acquired." In this case, the
warranty deeds which created the 1927 easements did not
specifically set forth the extent of the easements other than to
provide that the Camps and the Curdys could use Miles Creek Road
for "ingress and egress." However, as we stated in Stmhan v. Bush
(1989), 237 Mont. 265, 268, 773 P.2d 718, 720:
If the easement is not specifically defined, it need
only be such as is reasonably necessary and convenient
for the purpose for which it was created. It is
sometimes held . . . where the grant or reservation of an
easement is general in its terms, that an exercise of the
right, with the acquiescence and consent of both parties,
in a particular course or manner, fixes the right and
limits it to that particular course or manner.
In this case, Miles Creek Road and the 1927 easements have
never been used to access more than two or three homesteads and
have only been employed for related agricultural purposes. When
the road was established in the 188Os, it was probably no more than
a horse or wagon trail to the early Camp, Curdy, and Christie
homesteads. When the easements were conveyed in 1927 only the
Camps, Curdys, and Bridgmans lived on the road, and all of them
made their living from agricultural pursuits. Thus, at the time
the easements were granted, the "ingress and egress" set forth by
the terms of the general warranty deeds clearly did not contemplate
anything more than limited access by the Camps and the Curdys to
their property for agricultural purposes. In addition, the written
requirement that the gates be kept closed and the right-of-way not
be fenced is evidence of the fact that the parties did not
contemplate substantial traffic or intend that the easements could
14
be enlarged. As we stated in Lindleyv. Maggert (1982), 198 Mont. 197,
199, 645 P.2d 430, 432:
[Nlo use may be made of the right-of-way different from
the use established at the time of the creation of the
easement so as to burden the servient estate to a greater
extent than was contemplated at the time the easement was
created.
In this case, Elk Park has divided its property into 174
parcels and has indicated that it intends to resell the individual
parcels for development. Elk Park has further indicated that it
intends to access the developments by means of Miles Creek Road.
As a result, 174 families would use Miles Creek Road, which travels
directly though the Leffingwell Ranch compound, for ingress and
egress to their homes. AS the District Court noted in its findings
of fact:
A very significant factor in this case is that Miles
Creek road runs right through the Leffingwell Ranch and
building compound and that they not only have had a
family cattle business there for about 90 years, but
since 1934 have operated a dude ranch under the name and
style of G Bar M Guest Ranch. This limits its guests to
ten or fifteen at a time so that the guests can have a
more personal experience of the old west and cattle
ranching. Any expansion of the use of Miles Creek road
beyond its present use would seriously impact the
Leffingwells' guest ranch business, which is an essential
monetary supplement to their cattle operation.
Furthermore, the District Court took note of the fact that Elk Park
Ranch was aware of the restrictions on its access to its property
in 1988 when it demanded a $10,000 reduction in the purchase price
of its property for that reason, and in 1989 when it filed suit
against Security Title of Park County, Inc., and the American Title
Insurance Company complaining that the easements "severely
15
restricted access." In light of Elk Park's prior lawsuit, the
District Court noted the inconsistency of Elk Park's present
position and stated that "Elk Park should be judicially estopped
from now taking a contrary position about the road."
Elk Park also challenges the District Court's conclusion that
the easements cannot be enlarged to access property not owned by
Camp or Curdy in 1927 when the easements were conveyed. Elk Park
contends that although most of the property it intends to access by
means of Miles Creek Road is property which was acquired after
1927, that property was later acquired by one of Camp's successors
and is contiguous to the remainder of the Camp property.
When the easements were executed in 1927, the Camps owned only
Section 8 and the NH of Section 18, TlN, R0E, and the Curdys only
owned the 5% of Section 6, TlN, R8E, and the WJi of Section 20.
Although the 1927 easements limit Elk Park's access to Section 8
and the N% of Section 18, Elk Park now proposes to use the 1927
easements to access the following additional property which was not
owned by either the Camps or the Curdys in 1927:
All of Sections 17, 18, and 21, E3420; Lots 1, 2 and S%NE%
of Section 19; and Nl%'NW%NE%, N$4NE1%NE%, NWl%iiE% and Em%
of Section 18, TlN, R8E, M.P.M.
The 1927 easements are not appurtenant to any of the property which
Elk Park now proposes to access.
As the Court of Appeals of Arizona noted:
It is elementary law that an easement cannot be extended
by the owner of the dominant tenement to other land owned
by him adjacent to or beyond the land to which it is
appurtenant, for such extension would constitute an
16
unreasonable increase of the burden of the servient
tenement.
DND Neffson Co. v. Galleria Partners (Ariz. App. 1987), 745 P.2d 206, 207.
1n this case, the 1927 easements are appurtenant only to those
lands held by the grantees at the time the easements were granted,
and therefore cannot be used to access after-acquired property.
We therefore hold that the District Court correctly concluded
that Elk Park cannot access its development over the 1927 easements
because the use proposed by Elk Park was not contemplated by the
original parties to the easements, would be inconsistent with the
historical use of the easements, and would constitute an improper
burdening of those easements. We further hold that the District
Court correctly concluded that Elk Park cannot use the easements to
access property which was not owned by James Camp in 1927 because
easements cannot be used to access after-acquired property. We
therefore affirm the order of the District Court.
Leffingwell Ranch, Inc. v. Cieri
Court: Montana Supreme Court
Date filed: 1996-05-14
Citations: 916 P.2d 751, 276 Mont. 421, 53 State Rptr. 453
Copy CitationsCombined Opinion