No. 12533
I N THE SUPREME C U T O THE STATE OF M N A A
OR F OTN
1973
ERNEST F. LUNCEFORD and
JESSIE E. LUNCEFORD,
P l a i n t i f f s and Respondents,
DAVID L. TRENK, PAUL TRENK, HELEN
TRENK and CLYDE SCHRECKENDGUST,
Defendants and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable E. Gardner Brownlee, Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t s :
Tipp , Hoven and B r a u l t , Missoula , Montana
Raymond P. Tipp argued, Missoula, Montana
For Respondents:
Boone, Karlberg and Haddon, Missoula, Montana
Sam E. Haddon argued, Missoula, Montana
C u r t i s C. Cook, Hamilton, Montana
Submitted: December 5 , 1973
Decided :1)
f :I\ ,,2 3 3.4
F i l e d :O-'-
2 ;y 4
Mr, Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a judgment for plaintiffs entered
upon findings of fact and conclusions of law by the district court
of Ravalli County. The judgment declared plaintiffs to be owners
of an easement by prescription for the use of a roadway across
defendants' lands; declared the roadway to be a public roadway;
and enjoined defendants from interfering with plaintiffs' use of
the roadway. Defendants appeal.
The road in controversy is located in Ravalli County, west
of Florence, Montana. Plaintiffs Ernest F. Lunceford and Jessie
E. Lunceford own land located at the end of the road that comes
off of Highway 93. Defendants own parcels of land to the east
and southeast of plaintiffs' property. The road enters on an
easterly part of defendant Clyde ~chreckendgust'sproperty, pro-
ceeds approximately one-fourth mile across his property; it then
enters on defendants Arthur J. Olsen and Florence Olsen's land;
then onto defendants Paul Trenk and Helen ~renk'sland. It passes
through ~renks'farmyard between their house and barns; then
through Trenk land onto the Lunceford land for approximately one-
fourth mile ending in the Lunceford farmyard..
The road is described as a one lane rocky road which has been
in existence for some fifty years. It was first established to ac-
comodate horse drawn vehicles. Later it was improved for passenger
cars and school buses, Defendant Clyde Schreckendgust has lived
the longest on the property in question, He has been there contin-
uously since 1938. In 1947 he sold a part of the land crossed by
the road to defendants Trenk. In April 1951 plaintiffs Lunceford
moved onto their property, first leasing it from a Mrs. Kelly for
two years and then purchasing it in 1953.
During some twenty years of use there have been gates and
cattle guards on both the Trenk and Schreckendgust property which
were installed and maintained only by defendants. Schreckendgust
once b i l l e d p l a i n t i f f s f o r h a l f t h e c o s t of i n s t a l l i n g one c a t t l e
guard, but p l a i n t i f f s refused t o pay a l l e g i n g i f they paid f o r one
they might have t o pay f o r o t h e r s i n s t a l l e d l a t e r . Trenks and
Schreckendgust b u i l t a snowblower which was used t o keep t h e road
open i n t h e w i n t e r , although t h e Luncefords maintained t h a t they
plowed t h e road i n t h e winter. O s e v e r a l occasions over t h e
n
twenty years p l a i n t i f f s and defendants paid a county o p e r a t o r with
county equipment t o do maintenance work on t h e road, The road i s
n o t a p a r t of t h e county records system though over t h e years i t
has been used by d i t c h r i d e r s checking headgates l o c a t e d west of
t h e Lunceford property; by fishermen and h u n t e r s ; by f o r e s t s e r v i c e
people; and by people v i s i t i n g t h e various homes along t h e road.
Defendants maintain t h a t t h e road has always been a p r i v a t e
road and they should n o t be penalized because of t h e i r implied con-
s e n t t o t h e use of t h e road t o accomodate t h e Luncefords and be
good neighbors. Defendants argue they maintained t h e road; posted
s i g n s which have been destroyed by p a r t i e s unknown; denied per-
mission t o a timber h a u l e r who t r i e d t o haul logs o f f t h e Lunceford
property; have over t h e y e a r s asked persons using t h e road t o d r i v e
c a r e f u l l y ; and, during t h e twenty year period, denied t h e telephone
company an easement t o put i n a telephone t o p l a i n t i f f s .
Due t o an i n c r e a s e i n t r a f f i c on t h e road by a l l types of
v e h i c l e s , t h e p a r t i e s had s e v e r a l meetings t o t r y and r e l o c a t e
t h e road so a s not t o inconvenience defendants, however nothing
came from those meetings, O Labor Day 1972, t h e road was c l o s e d
n
to plaintiffs. Reasons given by defendants f o r t h i s a c t i o n were:
Increase i n t r a f f i c which i n t u r n caused dumping of garbage along
t h e road; t h e t h e f t of b a t t e r i e s and a u t o engines; t h e c u t t i n g o f
various fences; t h e breaking down of c a t t l e guards; and, t h e i n -
c r e a s e of nuisance f a c t o r s c r e a t e d by people coming upon t h e property.
Too, i n 1971 e i t h e r t h e Lunceford property was up f o r s a l e o r
rumored f o r s a l e and defendants were a f r a i d t h e property would be
subdivided thereby i n c r e a s i n g considerably t h e t r a f f i c and i t s
r e s u l t i n g problems.
Defendants do not appeal the court's finding that the
public had established a prescriptive right to use the road, so
that question is moot here.
While defendants set forth two issues on appeal, we find
only one substantive issue: Are the trial court's findings that
plaintiffs are the owners of an easement by prescription for use
of a roadway across defendants' land supported by substantial
credible evidence?
Criteria for reviewing the trial court 'S findings
cases tried without a jury are set forth in Rule 5 ( )
2a, M.R.Civ.P.,
which provides in pertinent part:
"Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge
the credibility of the witnesses."
The applicable principles to establish an easement by
prescription were set forth by this Court in Scott v. Weinheimer,
140 Mont. 554, 560, 374 P.2d 91:
II
To establish the existence of an easement by pre-
scription, the party so claiming must show open,
notorious, exclusive, adverse, continuous and un-
interrupted use of the easement claimed for the full
statutory period. Scott v. Jardine Gold, Min. & Mill
Co., 79 Mont. 485, 257 P. 406. By 'continuous and
uninterrupted' use is meant use not interrupted by
the act of the owner of the land or by voluntary aban-
donment by the party claiming the right. * * * It is
to be noted that it is not necessary that the use
should have been continuous in the person asserting
the right. It will be sufficient if such use has been
continuous in him and those under whom he claims.
[Citing case]
"If there has been the use of an alleged easement
for ten years (or five years subsequent to the 1953
amendment referred to above), unexplained, it will
be presumed to be under a claim of right, and adverse,
and will be sufficient to establish a title by pre-
scription and to authorize the presumption of a grant.
Te Selle v. Storey, 133 Mont. 1, 319 P.2d 218."
Later cases citing Scott have considered these principles.
In Kostbade v. Metier, 150 Mont. 139, 142, 432 P.2d 382, Justice
Castles speaking for the Court said:
II That the public may acquire the right by prescrip-
tion to pass over private land is undisputed and such
is the law in Montana. To establish the existence
of a public road by prescription it must be
shown that the public followed a definite
course continuously and uninterruptedly for
the prescribed statutory period together with
an assumption of control adverse to the owner.
[Citing cases. 1''
The Court in O'Connor v. Brodie, 153 Mont. 129, 137,
454 P.2d 920, noted:
"'Where the claimant has shown an open, visible,
continuous, and unmolested use of the land of
another for the period of time sufficient to
acquire title by adverse possession, the use will
be presumed to be under a claim of right, and not
by license of the owner. In order to overcome
this presumption, thereby saving his title from
the incumbrance of an easement, the burden is upon
the owner to show that the use was permissive. I
Glantz v. Gabel, 66 Mont. 134, 141, 212 P. 858,
860. "
Defendants contend that the presumption of adverse occupancy
was overcome by the evidence of permissive use or license. The main
thrust of defendants' argument is that because the owners of the
servient estate did not object to plaintiffs' use and permitted
plaintiffs or their predecessors to enter upon their land a license
by defendants' predecessors is to be inferred.
Rebuttable presumptions are overcome by other evidence,
direct or indirect. Section 93-1301-5, R.C.M. 1947. The evidence
to which defendants defer amounts to inferences of acquiescence.
White v. Kamps, 119 Mont. 102, 171 P.2d 343.
Here, the presumption of claim of right and adverse use
is clearly shown by the evidence. Mrs. Kelly, who sold to the
plaintiffs in 1953, testified as to her use and the use by the
public from 1944 to 1952; Albert Martin, whose family owned the
Trenk property from 1920 to the late 19301s, told of using the
road during that period and of its use by the public; Art Hayden,
a Stevensville drayman, testified as to its use during the 1920's
and 1930's; Robert Allen, a forest service officer, testified as
to the use of the road during the 1920's and 19301s, as did Morris
Slaght, a ranch hand. Robert Allen also testified as to the use
of the road from 1952. This testimony indicated that the use was
not permissive, that no request for permission to use the road was
asked nor given to a vast majority of the users. Plaintiffs
assumed they had a right to use the road and used it. Defendants
were aware of the use and until 1972 made no effort to restrain
the use as to plaintiffs.
The trial court found evidence of use by the public for
over fifty years; that such use was without permission of the
landowners; and that the public was never denied use by the owners.
Here, as in Scott, a presumption in favor of the use was established
and that presumption was not overcome by defendants' testimony.
The judgment of the district court is affirmed.
/' / Chief ~ustice
................................
Justices.
M. J u s t i c e Wesley C a s t l e s s p e c i a l l y concurring:
r
I concur, but on a d i f f e r e n t b a s i s than t h a t s e t f o r t h
i n t h e majority opinion. Here, s i n c e no i s s u e of t h e public
r i g h t t o use t h e road i s r a i s e d , t h e only question i s a s t o
t h e locking of p l a i n t i f f s ' g a t e and i n t e r f e r e n c e with p l a i n t i f f s
a s members of t h e public. I n o t h e r words, defendants' f a i l u r e
t o make exceptions t o t h e f i n d i n g s of t h e t r i a l c o u r t a s t o t h e
public use and r e s u l t a n t public p r e s c r i p t i v e r i g h t and t h e
f a i l u r e t o appeal t h a t p a r t of t h e judgment r e a l l y renders t h e
e n t i r e appeal moot. I recognize t h a t t h e n o t i c e of appeal i s
g e n e r a l i n n a t u r e b u t nowhere i n a p p e l l a n t s t b r i e f i s any i s s u e
r a i s e d except a s t o t h e p r i v a t e easement.