No. 13665
IN THE SUFREBQ7 COURT OF THE STATE OF MONTANA
1977
JAMES C. TAYLOR,
Plaintiff and Respondent,
CHARLES PETRANEK and MRS. CHARLES
PETRANEK, his wife, and GEORGE A.
FETMNEK and MRS. GEORGE A. FETRANEK,
his wife,
Defendant and Appellant.
Appeal from: District Court of the Tenth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of record:
For Appellant:
Bradley Parrish argued, Lewistown, Montana
For Respondent:
Morrow, Nash and Sedivy, Bozeman, Montana
James Morrow argued, Bozeman, Montana
Submitted: June 8, 1977
Decided:
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Filed:
Clerk
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
~efendantsappeal from a decree quieting title in plaintiff
to certain land in north central Fergus County and denying defend-
ants either a public or private easement across plaintiff's ranch.
Plaintiff is James C. Taylor, the successor in interest
to his father and brother who purchased the "Horse Ranch" south-
east of Suffolk in Fergus County, Montana in 1946. Defendants are
Charles and George A. Petranek and their respective wives; they
own a ranch adjacent to plaintiff's on the north and east sides.
A road, known as the Suffolk-East Road, runs easterly from
the town of Suffolk toward the Petranek ranch. The first six miles
of this road is a dedicated county road. The next seven miles runs
easterly along the top of a ridge, over a hill, down into Murphy's
Coulee, across the coulee and through a school section where it
splits. One fork joins a trail which leads south for about five
miles to the "Horse Ranch" buildings; the other fork leads east to
the Petranek ranch buildings, then becomes a trail leading south to
the "Horse Ranch" buildings.
Initially, the "Horse Ranch" lands did not include any part
of the Suffolk-East road. However, in the early 19401s, the Taylor
family's predecessor in interest expanded the "Horse Ranch" holdings.
Today the Suffolk-East road passes through a part of the " ~ o r s e
Ranch" property.
In 1914 the Petraneks' father purchased the land upon which
defendants' ranch buildings are now located. At that time the
country between Suffolk and the Petranek ranch was occupied by
homesteaders who forged trails across the countryside to reach
Suffolk by the shortest possible routes. As the homesteaders'
ranches were fenced in, a common practice developed among them to
allow one another to cross the fenced lands when traveling to ~uffolk.
Although many trails covered the countryside, the Suffolk-East
road was the main route into Suffolk from that area.
By the mid-1920's most of the homesteaders' operations had
failed. heir fences fell into disrepair and were eventually re-
moved. For awhile, the country through which the Suffolk-East road
passes became open range.
Then in 1930 defendant Charles Petranek and his father
fenced in the west side of their property where it adjoins what is
now the "Horse Ranch" property and installed a gate where the fence
line crossed the Suffolk-East road. In 1936 Milton Butcher bought
the property immediately west of the present day "Horse Ranch" and
fenced in his property. After the Taylor family acquired the "Horse
Ranch" in 1940, they fenced in their property and installed a gate
at the point where the Suffolk-East road crosses from the Butcher
property to the "Horse Ranch".
In 1952 the Taylors' gate was replaced by a cattle guard.
In 1973, the Butchers' removed this cattle guard and the foreman of
the "Horse Ranch" installed a gate. The "Horse Ranch" foreman
locked this gate from July to October, 1972, and again in October,
1973. He offered keys to the Butchers and the Petraneks, but the
Petraneks refused to accept one. The Petraneks persisted in cutting
locks on this gate after its closing in 1973, claiming a right to
use the Suffolk-East road where it crossed the "Horse Ranch". The
present lawsuit followed.
Plaintiff Taylor filed a complaint seeking to quiet title
to his lands under claim of ownership and denying any claim of
interest in these lands by defendants or any of them. Defendants
filed an amended answer in which they denied any claim of ownership
in plaintiff's lands, but they asserted that the public, or in the
alternative they as private individuals, had acquired an easement
by prescription in the road which crossed plaintiff's property and
that this road could not be closed by a quiet title action.
Judge Nat Allen assumed jurisdiction and granted a pre-
liminary injunction restraining defendants from going upon plain-
tiff's property during the pendency of the action. Following trial
by the court sitting without a jury, Judge Allen entered findings
of fact, conclusions of law and a decree quieting title in plain-
tiff, denying defendants' claims of public or private easement by
prescription in the roadway, and enjoined defendants from asserting
any interest in plaintiff's property or any claim of right to use
any roadway across it. Defendants have appealed from this decree.
The issues on appeal can be summarized in this manner:
(1) The sufficiency of the evidence to establish a private
road easement by prescription across plaintiff's land;
(2) The sufficiency of the evidence to establish a public
road easement by prescription across plaintiff's land;
(3) Whether Fergus County is an indispensable party to
defendants' claim of easement.
The legal principles governing defendants' attack on the
sufficiency of the evidence to support the district court's findings
are clear. Rule 52(a), M.R.Civ.P., 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 of the credibility of the witnesses * * *."
This Court's function on appeal is simply to determine whether there
is substantial evidence to support the district court's findings and
will not reverse them unless there is a clear preponderance of evi-
dence against them. Merritt v. Merritt, 165 Mont. 172, 526 P.2d
1375; Finley v. Rutherford, 151 Mont. 488, 444 P.2d 306.
The law on acquiring a public or private easement by pre-
scription is equally clear:
"To establish the existence of an easement by
prescription, the party so claiming must show
open, notorious, exclusive, adverse, continuous
and uninterrupted use of the easement claimed
for the full statutory period." Scott v. Wein-
heimer, 140 Mont. 5 5 4 , 5 6 0 , 374 P.2d 91; White
v. Kamps, 119 Mont. 102, 171 P.2d 343.
The controversy between plaintiff and defendants in this
case boils down to whether defendants1 use of the road was adverse
or permissive.
To be adverse, the use must be exercised under a claim of
right and not as a mere privilege or license revocable at the
pleasure of the owner of the land; such claim must be known to,
and acquiesced in by, the owner of the land. White v. Kamps, supra.
If there has been use of an alleged easement for the full statutory
period, unexplained, it will be presumed to be under a claim of
right, and adverse, and will be sufficient to establish a title by
prescription and to authorize the presumption of a grant. Scott v.
Weinheimer, supra; Te Sellev. Storey, 133 Mont. 1, 319 P.2d 218;
Glantz v. Gabel, 6 6 Mont. 134, 141, 212 P. 8 5 8 . This presumption
exists to overcome " ' * * * the general infirmity of human nature,
the difficulty of preserving the muniments of title * * * " and
'
to promote the public policy of supporting long and uninterrupted
possessions. Glantz v. Gabel, supra.
Defendants rely heavily on this presumption. They argue
that this Court in Te Selle substituted this presumption for "the
tortured and burdensome definition of what is and what isn't ad-
verse use contained in the White v. Kamps case". In our view,
White sets out very clearly what the law on adverse and permissive
use is, contrary to defendants1 assertion. The presumption upon
which defendants1 rely, first adopted in Glantz, was not at issue
in White.:
Defendants contend that plaintiff has not overcome the
presumption by adequately explaining defendants' use of plaintiff's
land. Rebuttable presumptions may be overcome by other evidence,
direct or indirect. Section 93-1301-5, R.C.M. 1947; Lunceford v.
Trenk, 163 Mont. 504, 518 P.2d 266; O'Connor v. Brodie, 153 Mont.
129, 454 P.2d 920. Here the record is replete with testimony from
both plaintiff's and defendants' witnesses that the homesteaders
who initially lived in the area developed common practice of allow-
ing others to cross their lands to reach Suffolk. This evidence is
sufficient to support a use permissive in its inception and not
under a claim of right.
Although a use permissive in its inception may ripen into
a prescriptive right, it cannot do so unless there is a later dis-
tinct and positive assertion of a right hostile to the owner, which
must be brought to the attention of the owner, and the use continued
for the full prescriptive period. White v. Kamps, supra; also, see
Poepping v. Neil, 159 Mont. 488, 499 P.2d 319.
Here the evidence shows that when the Taylors purchased
the "Horse Ranch" in 1946, they fenced in their property, inst,alled
gates, and posted "No Hunting" and "No Trespassing" signs. The
record does not clearly reveal who the intermediate owners of that
part of the present "Horse Ranch" crossed by the Suffolk-East road
were. However, in our view, the record does reveal that defendants'
first distinct and positive assertion of a hostile right to the
rights of the owner which was brought to the attention of the owner
was when Charles Petranek cut the locked gates of the "Horse Ranch"
in October, 1973. The full statutory period to establish an ease-
ment by prescription did not elapse thereafter.
Defendants' claim that the general public had acquired an
easement across the plaintiff's land fails for the same reason.
Although defendants point out that hunters occasionally used the
road, plaintiff's testimony that he considered the road a private
road and his foreman's testimony of posting "No ~unting"and "NO
re spas sing" signs on the gates supports permissive rather than
adverse use. This Court recently held that use of a road for recre-
ation, hunting or fishing in itself was not sufficient to raise a
presumption of adverse use or claim of right. Harland v. Anderson,
(1976) Mont . , 548 P.2d 613, 33 St.Rep. 363. Additionally,
this Court has considered gates which must be opened and closed by
persons passing over the land as strong evidence of a mere license to
the public to pass over the designated way. Kostbade v. Metier,
150 Mont. 139. 432 P.2d 382.
Defendants additionally challenge the district court's find-
ing that there is no instrument in writing conveying right of way
across plaintiff's land on file with the Fergus County clerk and
recorder. The evidence does not support defendants' contention.
In summary we hold that there is substantial evidence sup-
porting the district court's determination that neither the general
public nor the defendants individually have acquired an easement
by prescription across plaintiff's land.
In view of our holding against defendants on the first two
issues, the third issue becomes immaterial as it would not change
the result in this case.
The decree of the district court is affirmed.
Justice
We Concur:
Mr. Justice Daniel J. Shea did not participate in this Cause.