No. 14878
IN THE SUPRl3ME COURT OF THE STATE OF MONTANA
1980
MARION C. McCLURG, and LOIS K. McCLURG,
husband and wife,
Plaintiffs and Appellants,
FLATHEAD COUNTY COMMISSIONERS and
CLIFFORD VINJE, Road Supervisor,
Defendants and Respondents.
Appeal from: District Court of the Eleventh Judicial District,
Honorable James M. Salansky, Judge presiding.
Counsel of Record:
For Appellants:
M. Keith McClurg, Bigfork, Montana
Por Respondents:
Ted 0 Lympus, County Attorney, Kalispell, Montana
.
Submitted on briefs: January 22, 1980
Filed:
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Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Plaintiffs appeal the orders of the Flathead County
District Court setting aside the entry of default against
the defendant County and granting summary judgment to the
County. Plaintiffs contend that the default should not have
been set because the County had no justifiable excuse in
failing to timely file an answer, and that the facts do not
support a finding that the public possessed a prescriptive
easement over that portion of Echo Lake Road which crosses
the plaintiffs '
Echo Lake Road is located in Big Fork, Montana, and has
been used by members of the public for over 33 years. In April
1951, when the plaintiffs, Marion and Lois McClurg, bought their
property, the road was a narrow, ungraded trail. Over the
years, the Flathead County Road Department has widened and graded
the road. Other maintenance has included placing gravel on the
road, and in winter sanding and plowing.
The plaintiffs have never placed barriers on the road
or attempted to block the public's access to it. However,
in recent years they have become increasingly annoyed by car
owners whose vehicles have become immobilized on the snowy
hill adjacent to their home. On September 2, 1976, the
plaintiffs filed a complaint seeking a declaratory judgment
that the County had a duty to erect signs, barricades, and
gates in order to prevent the public from crossing plaintiffs'
property.
Other than filing a motion to dismiss, the County did not
oppose the plaintiff's complaint. While their motion was still
pending, the County received an extension of time to file an
answer. During this time, the County consulted with plaintiffs
and advised them to address their grievance to county admin-
istrators. In December 1976, the plaintiffs filed a petition
to abandon the road with the county commissioners. On
February 3, 1977, prior to the county's action on the petition,
the plaintiffs had the clerk of court enter a default against
the County. Approximately three weeks later, the County
denied the plaintiffs' petition and filed an answer to the
complaint.
On May 16, 1977, the County filed a motion to set aside
the entry of default. The court granted the motion on April
13, 1978. The plaintiffs appealed this order but in an
opinion filed on December 21, 1978, we concluded that court's
order was not a final judgment and dismissed the appeal.
After the issuance of the remittitur, both parties filed
motions for summary judgment. The County also filed the
depositions of Marion and Lois McClurg and the affidavit of
Road Superintendent, Clifford Vinje. On August 22, 1979,
the court filed an order which denied the plaintiffs'
motion and granted the defendant's motion for summary judgment.
The court's judgment provided that the public had acquired a
prescriptive easement for use of the road on the plaintiffs'
property and that the plaintiffs should receive nothing by
reason of their complaint against the County. The defendant
appeals this judgment and the court's order setting aside
entry of default.
The party seeking to set aside an entry of default must
establish good cause for the default and the existence of a
meritorious defense to the action. See, Donlan v. Thompson
Falls C & M Co., et al. (1910), 42 Mont. 257, 112 P. 445;
Gomes v. Williams (10th Cir. 1970), 420 F.2d 1364, 1366; 6
Moore's Federal Practice $55.10 [2], p. 55-?37. See also,
Rule 55(c), M.R.Civ.P. The plaintiff contends it was error
,for the District Court to set aside the default because the
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County had no justifiable excuse for failing to file a
timely answer and the County's answer did not cure the
default.
A District Court's discretion to set aside entry of
default should be liberally exercised to promote trial on
the merits, and an order setting aside default will be
reversed only in exceptional cases. See Holen v. Phelps
(19571, 131 Mont. 146, 308 P.2d 624. This is not, as the
plaintiffs suggest, a case where the party attempted to cure
a default by simply filing an answer. See Johnson v. Matelich
(1973), 163 Mont. 329, 336, 517 P.2d 731. Here the County
filed an affidavit stating that the plaintiffs prior to
obtaining an entry of default, filed a petition for abandonment
of the road and led the County to believe that further
judicial action would be forestalled until completion of
administrative proceedings on the petition. The County's
affidavit was sufficient to support the court's finding that
the delay was not totally inexcusable.
The County also made a showing that a defense to the
plaintiffs' action was available. Before making its
motion to set aside entry of default, the County filed an
answer in which it alleged the public possessed a prescriptive
easement over the plaintiffs' property. The existence of an
easement was supported by the plaintiffs' complaint which
alleged that the public had continually harassed the plaintiffs
during the winter months when cars became immobilized on
plaintiffs' road. There was no abuse of discretion in
permitting the case to proceed to trial.
The plaintiffs' next contention is that the public used
the road with the plaintiffs' consent and thus did not
acquire a prescriptive easement. But there is undisputed
evidence here to support each of the elements required for
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establishing a prescriptive easement, and summary judgment
for the County was proper.
The public acquires the right of prescription to use a
road passing through private property when its use of the
road is continuous and uninterrupted across a definite
course for the prescribed statutory period with the exercise
of control adverse to the owner. See Kostbade v. Metier
(1967), 150 Mont. 139, 432 P.2d 382. Since 1953, the statutory
period for adverse possession has been 5 years. See section
70-19-404, MCA. It is not disputed that the public has used
the road to cross plaintiffs' property for over 25 years.
The public's use of the road has been continuous and uninterrupted.
The road has always been open and unimpeded by any barrier.
It has not changed course since the plaintiffs' purchase of
the land in 1951.
The plaintiffs' assertion of error concerns only the
last element for establishing a prescriptive easement, the
exercise of control adverse to the owner. Adverse control
is presumed when all other elements have been proved. See
Garrett v. Jackson (1979), Mont . , 600 P.2d 1177,
36 St.Rep. 1769; Kostbade v. Metier (1967), 150 Mont. 139,
145, 432 P.2d 382. The undisputed facts support rather than
rebut this presumption. Plaintiff Marion McClurg admitted in
his deposition that most members of the public never asked
for permission. In 1962, the County did talk with McClurg
about widening the road. On the other hand, grading, laying
gravel and other maintenance of the road has been performed
without the plaintiffs' permission. There are no disputed
facts material to the motion for summary judgment and the
order granting summary judgment to the County was proper.
The plaintiffs argue that the public's acquisition of
a prescriptive easement without compensation to the plaintiffs
is an unconstitutional taking of private property. In this
connection, they maintain that taking of private property for
a public roadway is not permissible when an alternate route
is available. In effect, the plaintiffs have argued that
the public cannot acquire a prescriptive easement. Such a
contention is contrary to well established precedent. See
Kostbade, supra. We see no reason to establish additional
requirements for acquiring a public easement.
The judgment is affirmed.
Justice
We Concur:
Chief Justice