IN THE SUPREME COURT OF THE STATE OF MONTANA
DAN C. RASMUSSEN,
Plaintiff, Respondent and Cross-Appellant,
-vs-
PHILLIP FOWLER, Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Edward McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Haynes, Hamilton, Montana
For Respondent:
Ralph B. Kirscher, Worden, Thane & Haines, Missoula,
Montana
submitted: September 31, 1990
~ecided: November 1 5 , 1 9 9 0
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.
Phillip Fowler appeals from the judgment of the District Court
of the Fourth Judicial District, Ravalli County, holding Rasmussen
to be entitled to access across Fowler's property by virtue of
prescriptive right. We affirm the District Court.
Fowler presents the following issues:
1. Whether the District Court erred in determining a public
easement exists on McFadgeon Road.
2. Whether the District Court erred in determining Rasmussen
has a prescriptive easement in the McFadgeon Road.
The Rasmussen family purchased dryland farm property in 1955
from Lawrence McFadgeon. In 1965, McFadgeon gave over his 200 acre
state land agricultural lease to the Rasmussens. To gain access
to the leased land, McFadgeon had crossed the land currently owned
by Fowler for more than forty years. The road was commonly
referred to as the McFadgeon Road by area landowners.
Appellant Fowler purchased his property in 1975. The
McFadgeon road runs across Fowler's property, passing between his
house and barn.
Dan Rasmussen acquired the farm from his parents in 1972. He
has continuously resided and worked upon the farm from 1955 to the
present, excepting three years of college. Rasmussen, as his
father and Lawrence McFadgeon before him, used the road to reach
his state leasehold. In that practice, Rasmussen has driven
trucks, combines, rod weeders and other farm machinery over the
road without seeking permission from Fowler or his predecessors.
2
At the time Fowler acquired his property, a problem arose
through increased use of the road by people not associated with any
farming or ranching interests in the area. A decision was made by
Fowler, Rasmussen and Robert Bandy, who also used the road, to
install a locking gate. Keys were distributed to all, including
other families who used the road for access. All parties continued
to use the road as they had in the past.
In 1987, Fowler erected a new gate across the road with a 14-
foot wide clearance. At that time, Rasmussen indicated to Fowler
that he could not drive his combine through, as it needed at lest
a 22- to 24-foot clearance. No change in the gate width was made.
Fowler soon informed Rasmussen to cease using the road, and Fowler
thereafter chained and locked the gate shut.
Rasmussen subsequently filed a complaint and request for an
injunction on August 17, 1987, i n order to harvest his wheat crop
'
on his leasehold. A hearing was held on August 27, 1987, and the
District Court granted Rasmussen a preliminary injunction, ordering
all locks and chains removed and interference to cease.
On May 23, 1988, Fowler was ordered to remove any gates or
posts encumbering Rasmussenlsaccess. A hearing was held two days
later, with Fowler appearing through counsel. The court advised
counsel to instruct Fowler to remove the portion of the gate
obstructing Rasmussenlsfarm equipment movement within three days.
Trial was held on August 29, 1988. The court issued findings
of fact and conclusions of law on November 4, 1988, and concluded
that Rasmussen and his predecessors had established the following
prescriptive rights in McFadgeon Road:
1. A commercial easement in gross for the benefit of
Rasmussen and his farmlands;
2. An easement appurtenant to the state leased land for
the limited benefit of agricultural lessees of the state
land; and
3. A public easement to the state land in accordance
with historical use.
The court ruled Rasmussen's easement to extend to all general
farming and ranching purposes as exercised in the past, and that
the use rights were conveyable by him to successors for the same
purposes. The court further ordered all impediments removed and
reconstruction of the gate to afford Rasmussen access with his
equipment. Rasmussen was further granted right of reasonable
maintenance and attorney fees, costs and punitive damages.
Final judgment and order was entered on January 12, 1990. The
court amended the earlier findings to establish that the McFadgeon
Road followed a definite course, a necessary element for the
existence of a prescriptive public easement. In addition, the
court reserved the issue of punitive damages pending a violation
of the order and judgment, and denied attorney fees. Fowler
appeals from the judgment, and Rasmussen cross-appeals the denial
of punitive damages and attorney fees.
We address first and primarily the issue of a public
prescriptive easement. It is well established that a prescriptive
easement may be acquired by open, exclusive, notorious, continued
and uninterrupted use for a period of five years. Section 70-19-
401, MCA; Parker v. Elder (1988), 233 Mont. 75, 758 P.2d 292; Stamm
v. Kehrer (1986), 222 Mont. 167, 720 P.2d 1194; Rathbun v. Robson
(1983), 203 Mont. 319, 661 P.2d 850; Garrett v. Jackson (1979), 183
Mont. 505, 600 P.2d 1177.
The record in the instant case is replete with evidence of an
adverse use of the McFadgeon Road rather than a permissive use.
Testimony by current and past landowners using the road documented
public use of the road going back over 50 years. During that
period, various gates were installed along the road for the purpose
of keeping cattle from roaming, not to deny access. Until Fowler
locked his gate, no evidence of restricting public use was shown,
save one. In that instance, Rasmussen's predecessor, Lawrence
McFadgeon instituted a civil suit in 1949 to enjoin one George
Schwab from closing off the road. The record discloses that the
suit was dismissed and Schwab thereafter made it known the road was
not to be closed.
In Johnson v. McMillan (1989), 238 Mont. 393, 778 P.2d 395,
a case very similar to the instant case, this Court reaffirmed the
rule that a gate erected "not to stop people but cattle, is not
enough standing alone to rebut the presumption established by such
... long public use.
Most of those testifying stated they used the road, without
seeking permission, to gain access to their lands. Others
testified that the county claimed the road for a period, and
provided a grader to be used in its maintenance. This is on all
fours with McClurg v. Flathead County Commissioners (1980), 188
Mont. 20, 610 P.2d 1153, wherein the landowner attempted to close
a road used by the public for over 33 years in a continuous,
uninterrupted and adverse manner. This Court held that the
public's continued adverse use, and the grading and maintaining of
the road without the landowner's permission were sufficient to show
adverse control.
There is substantial evidence here to support a finding that
public travelers pursued a definite, fixed course, continuously and
uninterruptedly, over the road for at least 50 years. Fowler's
evidence of permissive use is scant. Absent a demonstration of a
clearly erroneous determination by the district court, we will
affirm. Rule 52 (a), M.R.Civ. P. District courts sitting as finders
of fact occupy the best position to determine if a use has been
permissive or adverse. Lunceford v. Trenk (1974), 163 Mont. 504,
518 P.2d 266.
The District Court's finding of a public easement to the state
land in accordance with historical use is sufficient to grant
Rasmussen a continuing unimpeded right of way to his leasehold.
Although it need not have further ruled, the District Court also
found Rasmussen entitled to both an easement in gross and an
easement appurtenant to his agricultural leasehold. Fowler
contends error in both findings.
It is sufficient to say that the District Court's conclusions
have an adequate grounding in fact and law. Rasmussen presented
substantial credible evidence of adverse use. Fowler failed to
overcome the disputable presumption by contrary preponderant
evidence. Rule 301(b)(2), M.R.Evid.; Parker v. Elder, supra. An
easement in gross may be obtained by prescription. Restatement of
Property, 5 454, supplement at 29. As for an easement appurtenant,
Fowler maintains that the state land is the dominant tenement, and
that Rasmussen, as a mere lessee, cannot be granted a prescriptive
right. We agree that Rasmussen cannot be granted an easement
appurtenant to the state land, but hold that the lower court
rightly determined that there is such a right recognized in favor
of the State as the owner through long historical use, and that
Rasmussen, in his standing, as lessee, has the right of use of that
easement for agricultural purposes.
Rasmussen cross-appeals the denial of punitive damages and
attorney fees originally awarded him.
Rasmussen was granted entitlement to damages, punitive
damages, and attorney fees by the District Court in its order of
November 4, 1988. In the final judgment and order entered January
12, 1990, Judge McLean denied the right to attorney fees awarded
by his predecessor, Judge Wheelis. In addition, the District Court
in its judgment reserved the imposition of punitive damages pending
any violation of the final judgment and order.
Section 27-1-221, MCA, states that ttreasonable punitive
damages may be awarded where the defendant has been guilty of
actual fraud or actual malice." Subsection (2) states that actual
malice exists where the defendant "has knowledge of facts or
intentionally disregards facts that create a high probability of
injury to the plaintiffbband proceeds to act in disregard or
indifference to the high probability of injury. Fowler clearly did
so here. Despite being told by his predecessor and others that the
road was to remain open, and being told by Rasmussen that a new
gate would unable him to harvest his leasehold crop, Fowler
proceeded to block the McFadgeon Road.
Our reading of the judgment granted by the District Court is
that it granted injunctive relief to Rasmussen as well as nominal
compensatory damages, and held open the possibility of punitive
damages if Fowler violated the order and judgment. The District
Court also denied attorney fees to Rasmussen, although such damages
are sometimes awarded in cases involving injunctive orders. The
reason for denial of punitive damages at the judgment stage are
probably that the earlier order granted by the court served to keep
the road open and unobstructed during the litigation. It does not
appear the earlier order was disobeyed. The District Court does
not appear to be clearly erroneous at this stage, so we affirm the
District Court's order on punitive damages. We also affirm the
decision of the District Court not to award attorney fees. The
only statutory provision in which this Court has found reason to
grant attorney fees is 5 27-19-406, MCA, and this statute refers
only to parties who obtain a dissolution of an injunctive order.
Northern Border Pipeline Co. v. State (1989), 237 Mont. 133, 772
Justice 6
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We Concur: