No. 13857
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
LUCY M. HAYDEN, DANIEL C. HILL
and MARY A. HILL,
Plaintiffs and Respondents,
FERN SNOWDEN, ORNTHA SNOWDEN,
DONALD L. WALTERS, and CLARICE L.
WALTERS ,
Defendants and Appellants.
Appeal from: District Court of the Fifth Judicial District,
Honorable Frank E. Blair, Judge presiding.
Counsel of Record:
For Appellants:
W. G. Gilbert I11 araued, Dillon, Montana
For Respondents:
Burns and Dwyer, Dillon, Montana
Robert C. Dwyer argued and Richard F. Burns argued,
Dillon, Montana
Submitted: March 6, 1978
Decided: MAR 3 @ 1978
Filed: hiAR : 1978
,
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Defendants Fern and Orntha Snowden and Donald and Clarice
Walters appeal from a judgment of the District Court, Beaverhead
County, granting plaintiffs Lucy Hayden and Daniel and Mary Hill
an easement across property owned by defendants.
The dispute concerns the boundary line of a roadway which
runs north from a county road to plaintiffs' agricultural property.
This roadway, described by the parties as a lane, abuts the
easternmost border of defendants' properties for a portion of its
half-mile length, and is located approximately three miles north
and east of Dillon, Montana, in Beaverhead County. Old fence lines,
in existence as early as 1912, flank the lane. Remnants of this
fence line on defendants' side of the lane were still standing
when the present dispute arose.
Defendants Snowden purchased their property in 1970. It
adjoins and is to the north of property bought by defendants
Walters in 1970. In 1971, defendants began to fence their proper-
ties as required by their purchase contracts. A survey had estab-
lished that defendants' easternmost boundaries extended approxi-
mately 8 feet to the east of the old fence line running alongside
the lane. Defendants set fence posts on the property line, inside
the old fence line, thereby narrowing the lane from its previous
width of 35 feet to a width of 27 feet along defendants','
properties.
The other side of the lane had been recently fenced.
George Webster, who had owned the land to the east of defendants'
properties since 1969, began subdividing and selling small tracts
of that land in 1971. His subdivision design allowed for a right-
of-way 26 feet in width along its westernmost side to provide
access for the tract owners. Measured from the property line
dividing Webster's property from that of defendants, this 26 feet
of right-of-way constituted most of the then-existing lane. The
remainder of the lane's width, from its westernmost barrow pit
to the old fence line on defendants' side of the lane, is the
subject of the present action.
Plaintiffs objected to defendants' fencing operations as
soon as they began and later circulated a petition to have the
lane declared a county road. While action on this petition was
pending, plaintiffs brought the present suit to establish an ease-
ment across a strip of land approximately 8 feet in width along
defendants' easternmost boundaries and to enjoin defendants from
erecting the new fence.
The cause was tried before the District Court sitting
without a jury. In its findings of fact and conclusions of law,
the District Court determined plaintiffs had acquired a nonexclu-
sive easement of right-of-way across those portions of defendants1
properties lying inside the old fence line. Following a hearing
on defendants1 motions to alter or amend the findings and conclu-
sions, and exceptions thereto, the District Court entered its
decree in plaintiffs' favor.
The issues for review are:
1. Whether the District Court erred in granting plaintiffs
a nonexclusive easement across defendants1 properties?
2. Whether such an easement could properly extend
beyond the old fence line into defendants' properties?
The long standing rule governing the acquisition of pre-
scriptive easements was recently stated by this Court in Harland
v. Anderson, (19761, 169 Mont. 447, 451, 548 P.2d 613:
"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 for the [5 year] statutory period
prescribed by section 93-2507, R.C.M. 1947."
(Bracketed material supplied.)
The standard review in a nonjury case is simply to deter-
mine if there is substantial evidence to support the findings of
the trial court. This Court will not reverse such findings of
fact unless there is a clear preponderance of evidence against
the findings. Merritt v. Merritt, (1974), 165 Mont. 172, 177,
526 P.2d 1375.
Defendants' central contention is that the lane's use wt3c
neither continuous nor uninterrupted. There was testimony that
the lane was overgrown with grass at various times and was occa-
sionally used to pasture livestock. The sodded surface of the
lane became treacherously slick when wet, and at times the lane
was impassible due to standing water or drifting snow. These
facts, which are not disputed, tend to show the lane was not a
well traveled thoroughfare.
There was conflicting testimony as to the extent of the
lane's use during the time any of the witnesses observed it. Carl
Guidici, a long-time resident of the area, testified he had use6
the lane while going to school beginning about 1912. Plaintiff
Lucy Hayden, who had purchased the property at the north end of
the lane with her husband in 1939, testified she and her family
had used the lane continuously since 1938, the year she first
moved to the area. Her daughter and son-in-law, plaintiffs
Daniel and Mary Hill, also testified to irregular but continuous
use of the lane up to the time the present action was brought.
Keith Taylor, who sold defendants their properties, testi-
fied that during the three years he owned land adjacent to the
lane, he had not seen anyone use the lane. Defendants' testimony
for the most part was to the effect that the lane's use was slight.
Defendant Donald Walters-didtestify he had seen farm equipment
that he believed was owned by plaintiffs going down the lane
"once or twice a week" within a year or so after he moved onto
his property, and that the lane was used year round. George Webster
also testified to having observed some traffic in the lane in the
years preceding his subdivision of the property to the east of
the lane.
There is no dispute that after Webster subdivided his
property the lane was used more frequently by a greater number of
persons than before. Webster's grading of the lane and creation
of barrow pits along its sides to facilitate drainage made travel
on the lane easier. Testimony offered by the parties as to the
lane's use conflicted with respect to that use prior to the time of
Webster's development of his property.
That use was not interrupted by the act of the owner of the
land until defendants began erecting their fences in 1971, and while
the evidence was conflicting, there is substantial evidence that
the lane's use was not voluntarily abandoned by plaintiffs. The
use was, therefore, "continuous and uninterrupted" for the full
statutory period. Scott v. Weinheimer, (1962), 140 Mont. 554, 560,
374 P.2d 91.
While most of the testimony showing use of the lane was
plaintiffs' use, it appears that others had used the lane at vari-
ous times and for various purposes since the lane was first estab-
lished. The District Court's findings that the lane's use was
continuous and uninterrupted and nonexclusive from 1938 until the
commencement of the present action are sustained by the evidence.
Defendants next contend plaintiffs' use of the lane was
permissive rather than adverse. Defendants rely on testimony of
Donald Walters concerning a statement Lucy Hayden allegedly made
when she first confronted defendants over their placement of the
new fence. According to Walters, Hayden told him Webster had left
her 26 feet of right-of-way. Defendants characterize this state-
ment as an admission against interest showing permissive use.
Defendants also assert that nonadverse use is established
by the presence of a gate at the south end of the lane. This
gate, installed by Webster in 1969, consisted of a couple of
panels. It was not equipped with a lock, but it did have "no
trespassing" signs attached. Webster testified he installed the
gate to prevent livestock from wandering off and that the gate
was left open when there was no stock in the lane.
There was conflicting testimony as to whether Webster
asked plaintiffs' permission to install the gate. Webster testi-
fied he asked no one's permission; Lucy Hayden and Daniel Hill
testified Webster had asked their permission before installing
the gate. Hayden also testified that Webster's predecessor in
title, a Mr. Sullivan, had earlier closed off the lane's south
end with a gate. She testified Sullivan had asked her permission
before putting up the gate, that it was put up to allow livestock
to graze in the lane, and that Sullivan did not keep it up
continuously.
While the presence of a gate across a roadway is strong
evidence of a mere license to pass over a designated way, Taylor
v. Petranek, (1977), Mont . , 568 P.2d 120, 34 St.Rep.
905, 910, it alone will not defeat a prescriptive easement. In
Scott v. Weinheimer, supra, this Court stated that while gates
across an easement will overcome the presumption that an unex-
plained use is adverse, the easement will not fail because of the
presence of a gate if there is evidence of adverse use. In Kostbade
v. Metier, (1967), 150 Mont. 139, 145, 432 Pc2d 382, one ground
for a challenge to a prescriptive easement was the presence of
a gate in a roadway. This Court upheld the easement, emphasizing
that the gate's purpose was not to control traffic on the road
and that it did not hinder use of the road.
In the present case there was testimony that the gate was
closed and had grown shut with grass shortly after defendants moved
onto their properties. Conflicting testimony indicated the gate
remained closed only at irregular intervals.
Having heard the testimony summarized above, the District
Court found plaintiffst use of the lane to have been adverse
rather than permissive. Neither Lucy Haydents alleged statement
concerning the basis of her claim to an easement nor the presence
of the gate at the south end of the lane supply evidence sufficient
to overturn that finding.
Defendants next contend the District Court granted an
easement across portions of their properties outside the old fence
line which defined the lane's perimeter, and argue such an ease-
ment cannot be properly granted. There was no evidence anyone
used the land to the west of the old fence line for travel. A
grant of an easement of right-of-way across such land, therefore,
would be improper since the easement would exceed the greatest
use of the land during the prescriptive period. Povah v. Portmann,
(1967), 149 Mont. 91, 97-98, 423 P.2d 56.
It is not clear whether the District Court's decree has
the effect of granting an easement beyond the old fence line.
The description of the granted easement is identical to the descrip-
tion used by plaintiffs in their complaint. The easement is
described in terms of its center line:
"Commencing at the north quarter corner of
Section 5, Township 7 South, Range 8 West;
thence North 8g054' East 1330.8 feet to the
point of beginning of said center line;
thence South 0 3 ' West 2639 feet, Together
'5
with 17-1/2 feet on either side of the ten-
ter line on the north end of said easement
and 16-1/2 feet on either side of said ten-
ter line on the south end of said easement."
The parties dispute whether the easement as described cor-
responds to the lane as defined by the old fence lines, with de-
fendants asserting it does not and asserting substantial corre-
spondence. The District Court's findings make it clear that only
the existing lane was intended to be included in the easement
granted. At the time this Court heard arguments on this case,
plaintiffs filed an offer of stipulation pursuant to which they
agree that they are not claiming any easement across land outside
the old fence lines. If and to the extent that the District Court's
description of the easement does include land beyond the old fence
lines, it is defective.
The parties are entitled to an accurate description of
the granted easement. On the motion of either party, the District
Court is directed to hear and decide whether its description is
accurate, and to reform the description if it is not.
The roadway within those fence lines, approximately 35 feet
in width, would be properly included in an easement established by
plaintiffs' prescriptive use. While defendants contend plaintiffs
have shown no need for a right-of-way greater than 16 feet in width,
substantial evidence supports the District Court's finding that the
lane's full width is necessary for the easement's enjoyment.
Defendants have shown the evidence conflicting; but they
have failed to show a preponderance of the evidence against any of
the District Court's findings. The District Court judgment granting
an easement of right-of-way across those portions of defendants'
properties which lie within the old fence line is therefore affirmed.
,?
.
We Concur:
z 31,dM
Chief Justice
District Judge, sitting in the
vacant seat on the Court.
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