No. 90-260
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
H. ALLEN KEEBLER and BETTY KEEBLER,
Plaintiffs and Respondents,
-vs-
NEVINS HARDING and RITA HARDING,
Defendants and Appellants. s ih
mt
c L ~ OF K
~ SUPREME
STATE OF M Q N T ~ ~ ~
APPEAL FROM: District Court of the Thirteenth ~udicial~istrict,
In and for the County of Carbon,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary L. Beiswanger, Attorney at Law, Billings,
Montana
For Respondent:
Richard F. Cebull; Anderson, Brown, Gerbase, Cebull,
Fulton, Harman & Ross, P.C., ~illings, Montana
submitted on Briefs: November 8, 1990
Decided: March 21, 1991
Filed:
a
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Defendants and appellants, Nevins and Rita Harding, appeal
from a judgment of the District Court of the Thirteenth Judicial
District, Carbon County, sitting without a jury, denying their
claim of the existence of a public or private easement by
prescription or otherwise across property owned by plaintiffs and
respondents, H. Allen and Betty Keebler. The court permanently
enjoined the appellants from using respondents' property without
permission and from interfering in any way with their possession,
use and enjoyment of their property. We affirm.
The sole issue on appeal as framed by this Court is whether
the District Court properly determined that appellants failed to
establish the existence of a prescriptive easement across the
respondents1 property.
Defendants and appellants are owners of a 320-acre tract of
land located in Carbon County, Montana. Their land is completely
surrounded by respondents1 adjoining land. Appellants1 land was
originally homesteaded by Horace Pierce in 1914 but has not been
owner-occupied since the 19201s when Mr. Pierce moved to Laurel,
Montana. Appellant Rita Harding initially purchased the property
in her own name in July, 1983, from Ethel Pierce, absentee owner
and widow of Horace Pierce. She later transferred one-half
interest in the property to her husband, Nevins Harding.
Access to the appellants1 property is by a road which runs in
a northwesterly direction from the Edgar/Pryor Road across land
owned by Arden and Gloria Blair, who are not parties to this
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action, and across land owned by the respondents. From the
appellants' property the road continues in a northwesterly
direction toward Silesia, Montana, across lands owned by the
respondents and other persons not parties to this action to a point
where it forks, with one route continuing toward Silesia, and the
other route turning south until a point where it joins a county
road which ultimately intersects the Edgar/Pryor Road. Improve-
ments have been made to the road at unestablished times over the
years. Apparently the road has followed substantially the same
course since homestead days. Gates across the road exist in
several locations. However, it appears that none of the gates had
ever been locked until some time after the respondents purchased
their property from Gerald Greeno in 1979.
This dispute arose shortly after the appellants purchased
their property in 1983. On August 6 of that year, they met with
respondents who told them that no easement existed across their
land to appellants1 land. In the fall of 1983, the appellants
began cutting chains from gates across the road on respondents'
property for access to their land. The respondents discontinued
locking their gates in 1984.
The respondents filed this action on April 11, 1988,
requesting the District Court to declare that appellants have no
right, title, or interest whatsoever across the respondents1 land
and to enjoin them from trespassing across their lands as a means
of ingress to and egress from their property. The respondents1
position was that access across their lands has always been
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permissive while appellants claimed a prescriptive easement over
the route the road takes across the respondents1 property. Both
parties agreed that the road over which the appellants claimed the
easement is not a county road, and that there is no easement by
implication or necessity due to a lack of commonality of ownership.
The District Court entered its findings of fact, conclusions of
law, and judgment in favor of the respondents on February 9, 1990.
This appeal followed.
The party seeking to establish a public or private easement
by prescription has the burden of showing several elements. That
party must show open, notorious, exclusive, adverse, continuous and
uninterrupted use of the easement claimed for the full statutory
period. Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d
850, 852. The statutory period is five years. Section 70-19-401,
MCA .
The appellants were unable to sustain their burden of proof
of a private easement by prescription for the period of time after
they purchased their property. The record shows appellants1 first
distinct and positive assertion of a claim of right to use the road
occurred in the fall of 1983 when they cut chains from the
respondents1 gates. The respondents subsequently brought this
action in April, 1988, within the five-year statutory period.
Therefore, the existence of a prescriptive easement depends on
whether the historical use of the road was adverse or permissive.
If permissive use is shown, no easement can be acquired since the
theory of prescriptive easements is based on adverse use. Wilson
.
v . Chestnut (1974), 164 Mont. 484, 525 P.2d 24.
To be adverse, the use of the alleged easement 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. Taylor v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120,
122. Once the required elements are established, adverse use is
presumed. O1Conner v. Brodie (1969), 153 Mont. 129, 137, 454 P.2d
920, 925. Additionally, adverse use will be presumed and will be
sufficient to establish a title by prescription if there has been
unexplained use of the alleged easement for the full statutory
period. Taylor, 173 Mont. at 437, 568 P.2d at 122. Either
presumption may be overcome by evidence that the use was
permissive. See, Rathbun v. Robson (1983), 203 Mont. 319, 661 P.2d
850; Thomas v. Barnum (1984), 211 Mont. 137, 684 P.2d 1106.
The District Court determined the use of the road across the
respondents' property had historically been permissive until the
appellants purchased their property in 1983 and, therefore, any
presumption of adverse use was effectively rebutted. The court
further concluded that even if a private easement had been
established prior to 1983, any such easement was extinguished by
inconsistent acts on the part of the appellants and their
predecessors in interest.
The appellants challenge the District Court's determination
of permissive use, attacking many of the court's findings of fact
as clearly erroneous. Our standard of review of a district court's
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findings of fact is 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. ...
If the district court's findings are based on substantial credible
evidence, they are not clearly erroneous. Downing, 237 Mont. at
178, 772 P.2d at 853. Upon reviewing the record, we hold the
District Court's findings of fact are not clearly erroneous.
Several witnesses testified concerning the historical use of
the road over which the appellants claim a prescriptive easement.
Four of these witnesses, Tom Taylor, Glen Marsh, Dorothea Landy and
Ethel Holton, were elderly and knew the road from the "old days."
The District Court found that:
The gist of their testimony was that the use and custom
since homesteader days was that in this area people came
and went on this road/trail as necessary to their
purposes with the understanding among all that use of
this sort was conditioned upon observation of the proper
respect for the landowner's interests and uses. The
Court finds and concludes that this use was pursuant to
implied consent of the landowner.
Appellants argue that these witnesses did not necessarily
appreciate the subtle distinctions involved when describing the
nature of the use under cross-examination by the respondents1
counsel and that it is clear that permission was something never
considered by the users over the years. It appears the District
Court was fully aware of this possibility and specifically found
that, although these witnesses were elderly, they were ''in full
command of their faculties1I and " [t]heir memories seemed sharp."
.
Furthermore, based on our review of the record, we conclude the
District Court's finding is an accurate reflection of these
witnesses1 testimony.
Arden Blair also testified to permissive use of the road. He
testified that the road over his land is currently being used with
permission and that he provides a key to a locked gate on his
property to people wishing to use the road. He also testified that
his predecessors in interest had given permission to Gerald Greeno,
the respondents1 predecessor in interest, to use the road across
the Blair property.
The appellants challenge Mr. Blair's testimony arguing that
he was not a credible witness. In non-jury trials, the credibility
of witnesses and the weight accorded their testimony is a matter
properly left to the discretion of the district court. Matter of
Estate of Murnion (1984), 212 Mont. 107, 113, 686 P.2d 893, 896.
The District Court found Mr. Blair to be a ''totally credible and
truthful1'witness. We will not substitute our judgment for that
of the District Court's.
We have previously held that evidence of a local custom of
neighborly accommodation or courtesy, without more, is sufficient
to establish permissive use. In Taylor v. Petranek (1977), 173
Mont. 433, 438, 568 P.2d 120, 123, this Court stated:
Here the record is replete with testimony from both
plaintiff's and defendant's witnesses that the
homesteaders who initially lived in the area developed
common practice of allowing 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.
.
See also, Rathbun v. Robson (1983), 203 Mont. 319, 661 P.2d 850.
We hold the District Court properly determined that the use of the
road over which the appellants claim an easement has always been
permissive and, therefore, no private easement by prescription
exists. Because we hold the appellants failed to establish a
private easement by prescription, we need not consider whether such
easement was extinguished.
The District Court also correctly determined that no public
easement by prescription exits over the road in question. There
is evidence in the record that the road has occasionally been used
by hunters, hikers, neighbors gathering firewood, and others.
However, this type of occasional use has been held to be
insufficient to raise a presumption of adverse use. See, Graham
v. Mack (1985), 216 Mont. 165, 699 P.2d 590; Harland v. Anderson
(1976), 169 Mont. 447, 548 P.2d 613; Ewan v. Stenberg (1975), 168
Mont. 63, 541 P.2d 60.
Affirmed.
We concur:
/ Chief Justice
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