NO. 94-263
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
LEMONT LAN'D CORPORATION,
a Montana corporation,
Plaintiff and Respondent,
-VS-
DAVID "BUZZ" ROGERS,
Defendants and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kent R. Douglass; Swandal, Douglass, Frazier & Cole,
Livingston, Montana
For Respondent:
Karl Knuchel, Attorney at Law, Livingston, Montana
Submitted on Briefs: October 13, 1994
Decided: December 20, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
David "Buzz" Rogers (Rogers) appeals from a judgment entered
by the Sixth Judicial District Court, Park County, quieting title
to certain property in Lemont Land Corporation (Lemont), and from
the court's underlying order granting Lemont's, and denying his,
motion for summary judgment. We conclude that no genuine issues of
material fact exist and that Rogers is entitled to judgment as a
matter of law on his claim to a prescriptive easement across
Lemont's property. Therefore, we reverse and remand for entry of
summary judgment in Rogers' favor.
Lemont brought this action to quiet title to property across
which Rogers claims a prescriptive easement. The facts relating to
the property involved and the parties' ownership of that property
are not in dispute.
Lemont and Rogers own adjoining properties bordering Mill
Creek in Park County. Rogers first took possession of his thirty-
eight acres of land in 1967 as a lessee, obtaining the deed thereto
in 1972. Lemont obtained its property from the Blackacre Land
Company (Blackacre) in 1991. Blackacre had purchased the land from
Sharon and Phillip Malcolm (Malcolms) in 1990. The Malcolms
purchased the land in 1975 from Mile High Ranch, Incorporated, a
corporation owned by Phillip Malcolm and his father, mother, and
brother. Phillip Malcolm lived on the property from 1938 through
1990.
Both Rogers' and Lemont's parcels lie immediately east of Mill
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Creek; the creek forms the western border of each parcel. Lemont's
property fronts Rogers' on the north, east and south sides. To the
west of each parcel across Mill Creek is a county road which runs
generally north and south.
Prior to the mid-1970s, primary access to Rogers' property was
via a deeded easement from the county road heading due east, across
a bridge over Mill Creek, and onto the northwest corner of his
parcel. We refer to this access as access #l. Access to Lemont's
property is via an easement from the county road heading east,
across a bridge over Mill Creek, and entering the southwest portion
of Lemont's parcel. We refer to this access as access #2. Access
#2 passes the residence and livestock area on Lemont's parcel, then
heads north onto Rogers' property where it links up with access #l.
In the mid-1970s, the bridge over which access #l passed
washed out and has never been replaced. From that point forward,
Rogers used access #2 exclusively.
At some point, a gate was placed across access #2 to control
livestock. During the Malcolms' ownership and occupation of the
property now owned by Lemont, this gate was closed--but not locked
or chained--when the Malcolms would bring their livestock down to
the calving area. During such periods, Rogers would open and shut
the gate as he drove through to his property.
Since the mid-1970s, access #2 has been used by Rogers and his
invitees on a daily basis as the sole means of ingress to, and
egress from, his property. Rogers has never sought permission to
use the road. Rogers and Phillip Malcolm--predecessor in interest
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to both Rogers and Lemont--agree that Rogers' use of the road was
never discussed during the many years they were neighbors. Rogers
made no effort to hide his use of the access, treating the road as
if it were his own. During Rogers' occupation of his land, the
only objection or comment regarding his use was made by the present
owner, Lemont. Access #2 provides access only to Lemont's and
Rogers' properties. Rogers and Lemont, together with their
invitees, are the only frequent users of the road.
After Lemont obtained the property in 1991, it attempted to
limit Rogers' use of access #2 by locking a gate between the
parcels, thereby denying Rogers access to his land. Rogers cut the
lock, precipitating Lemont's quiet title action.
Both parties moved for summary judgment. Rogers asserted
entitlement to judgment on the basis that a prescriptive easement
had been created as a matter of law, while Lemont contended that it
was entitled to have title quieted to its property with no easement
in Rogers' favor. The District Court granted Lemont's motion,
denied Rogers' motion and entered judgment quieting title to
Lemont's property. Rogers appeals.
Did the District Court err in granting Lemont's motion
for summary judgment and denying Rogers' motion for
summary judgment on the basis that Rogers had not
established a prescriptive easement across Lemont's land?
Summary judgment is proper when there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law. Rule 56(c), M.R.Civ.P. We review an order granting
summary judgment by applying the same criteria as the district
court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849
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P.2d 212, 214.
To establish an easement by prescription, the party claiming
the easement must show open, notorious, exclusive, adverse,
continuous and uninterrupted use of the claimed easement for the
full statutory period of five years. Public Lands v. Boone and
Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (citation
omitted). The consecutive five-year period may have occurred at
any time; prescriptive title, once established, is not divested by
the subsequent transfer of the servient estate. O'Connor v. Brodie
(1969), 153 Mont. 129, 139, 454 P.2d 920, 926. Thus, our inquiry
into whether Rogers' use of access #2 matured into a prescriptive
right focuses on the record before us regarding his use of access
#2 between the mid-1970s, when the access #l bridge washed out, and
1990, when the Malcolms sold the property reached by access #2 to
Blackacre.
The first requirement in establishing a prescriptive right is
that the use be open and notorious. We have defined "open and
notorious" as a distinct and positive assertion of a right hostile
to the rights of the owner and brought to the attention of the
owner. Downing v. Grover (1989), 237 Mont. 172, 176, 772 P.2d 850,
852 (citations omitted).
No genuine issue of material fact exists with regard to the
open and notorious nature of Rogers' use of access #2. Rogers and
his invitees did not attempt to conceal their use of the road,
traveling over it on a daily basis and at their own discretion. In
addition, access #2 passes just 100 feet from the Malcolms' full-
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time residence during the years in question, close enough for the
traffic, dust and noise to constitute a noticed use that was
hostile to the Malcolms' ownership. We conclude that Rogers' use
of access #2 was open and notorious as a matter of law.
The second requirement for establishing a prescriptive right
is that the use be exclusive. In the case of a claimed
prescriptive easement for a right of way, exclusive use means no
more than that the right of the claimant must rest upon its own
foundations and not depend upon a like right in any other person.
Scott v. Weinheimer (1962), 140 Mont. 554, 561-562, 374 P.2d 91,
95, overruled in part on other grounds, Warnack v. Coneen Family
Trust (Mont. 1994), 879 P.2d 715, 51 St.Rep. 739. It is not
necessary that the person asserting a right by prescription be the
only one who used the roadway, so long as the right was exercised
under a claim of right independently of others. See Scott, 374
P.2d at 95-96.
No genuine issue of material fact exists with regard to
whether Rogers' use of the road was dependent upon another's claim
or right. Rogers and the Malcolms, together with their invitees,
appear to have been the only regular users of access #2. Indeed,
as noted above, access #2 provides access to no other property. We
conclude that Rogers‘ use of the road was exclusive as a matter of
law.
The third requirement for a prescriptive easement is that the
use be continuous and uninterrupted. We have defined
"uninterrupted use" as a "use not interrupted by the act of the
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owner of the land or by voluntary abandonment by the party claiming
the right." Downinq, 772 P.2d at 852 (citations omitted).
"Continuous" use is that which is made often enough to constitute
notice of the claim to the potential servient owner. Downinq, 772
P.Zd at 852 (citations omitted).
No genuine issue of material fact exists with regard to the
continuous and uninterrupted nature of Rogers' use of access #2.
It is undisputed that Rogers and his invitees used the road on a
daily basis after the access #I bridge washed out in the mid-1970s.
From that time until the Malcolms sold the property in 1990,
Rogers' use of the roadway was not interrupted by the Malcolms or
abandoned by Rogers. The only variation in Rogers' unbroken use of
the road during that time was Rogers' and the Malcolms' use of an
unlocked gate to keep the Malcolms' livestock from wandering off
their land; the gate was neither intended nor used to deny, limit
or control Rogers' access to the road. The only actual
interruption in Rogers' use of access #2 came in 1991 or 1992, when
Lemont locked a gate along access #2. On the basis of this
evidence, we conclude that Rogers' use of access #2 from the mid-
1970s until the Malcolms sold the property in 1990 was continuous
and uninterrupted as a matter of law. It necessarily follows, of
course, that the use was for the full five-year statutory period.
The final requirement in establishing a prescriptive easement
is that the use be "adverse." 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 owners of the
land. Warnack v. Coneen Family Trust (Mont. 1994), 879 P.2d 715,
719, 51 St.Rep. 739, 741 (citations omitted). Given that
definition, it follows that in most instances adverse use will be
proven from the same evidence by which the easement claimant
establishes open, notorious, continuous and uninterrupted use for
the statutory period. Warnack, 879 P.2d at 724.
After the claimant has established the preliminary
requirements for a prescriptive right, a presumption of adverse use
arises; the burden then shifts to the owner of the land on which
the prescriptive easement is claimed to establish permissive use or
license. Warnack, 879 P.2d at 723-724. If an owner establishes
that the use is permissive, no easement can be acquired. See
Warnack, 879 P.2d at 719 (citation omitted).
Here, as discussed above, no genuine issue of material fact
exists with regard to Rogers ' open, notorious, continuous,
uninterrupted and exclusive use of access #2 for the statutory
period. Thus, Rogers is entitled to the presumption of adverse
use. Lemont could overcome the presumption by bringing forth
sufficient evidence to raise a genuine issue of material fact
regarding whether the use was permissive.
As discussed above, the evidence is clear and undisputed that
Rogers' use of access #2 was not dependent upon permission or
license. After the access #l bridge washed out in the mid-1970s,
Rogers began using access #2 on a daily basis. This use continued
unchecked and uninterrupted from the mid-1970s through at least
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1990. Phillip Malcolm admits that, during his ownership of the
property over which access #2 passes, Rogers was not required to
seek permission to use the road; nor was there an objection to, or
attempt to control, Rogers' use. Moreover, contrary to Lemont's
argument, Rogers was not required to notify the Malcolms that his
use of access #2 was adverse. Rogers' acts alone, which were
inconsistent with the Malcolms' title, were sufficient to
constitute notice. Groshean et al. v. Dillmont Realty Co. (1932),
92 Mont. 227, 241, 12 P.2d 273, 276.
The only impediment to Rogers' totally unfettered use of
access #2 was the gate used by the Malcolms to control their
livestock. We previously have stated that the presence of gates
may be strong evidence of a mere license. Parker v. Elder (1988),
233 Mont. 75, 79-80, 758 P.2d 292, 294 (citations omitted). Here,
however, as was the case in Parker, the gate was used to control
livestock, not travel; thus, the evidence regarding the gate is
insufficient to overcome the presumption of adverse use. See
Parker, 758 P.2d at 294.
Lemont also could overcome the presumption of adverse use if
it could demonstrate that Rogers' use constituted an ongoing act of
"neighborly accommodation." We have determined that:
use of a neighbor's land based upon mere neighborly
accommodation or courtesy is not adverse and cannot ripen
into a prescriptive easement. Thus where the use of a
way was by express or implied permission of the owner, it
was held that the continuous use of the way by the
neighbor was not adverse and did not ripen into a
prescriptive right.
Boone and Crockett, 856 P.2d at 528; citing Rathbun v. Robson
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(X983), 203 Mont. 319, 323, 661 P.2d 850, 852. Neighborly
accommodation is a form of permissive use which, by custom, does
not require permission at every passing. See Boone and Crockett,
856 P.2d at 528.
In Boone and Crockett, the plaintiffs did not establish the
preliminary requirements for a prescriptive easement; as a result,
they were not entitled to the presumption of adverse use and the
burden did not shift to Boone and Crockett to demonstrate that the
use was merely permissive. Boone and Crockett, 856 P.2d at 528-
529. Even if the plaintiffs had been entitled to the presumption,
however, it would have been rebutted by the evidence of record,
which indicated that both the present landowners and their
predecessors in interest had exercised control over access to the
property, including requiring express permission from some users.
Those crossings which were not barred outright, controlled, or
allowed by permission could be explained as mere neighborly
accommodation. Boone and Crockett, 856 P.2d at 528-529. As one
local resident stated, the whole remote area was "open" and
crossings between parcels were allowed as part of neighborly
accommodation and local custom since the homesteading years. Boone
and Crockett, 856 P.2d at 528.
The record in this case is very different. Here, unlike Boone
and Crockett, there is no affirmative evidence that local custom
authorized Rogers' passage over the Malcolms' property other than
Phillip Malcolm's subjective and limited assertion that "in a
sense" he was being "neighborly" by allowing Rogers to use the
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road. Affidavits from long-time residents of the area indicate
that access #Z was considered the legal access to Rogers' parcel
and was used extensively by business and social invitees without
comment or objection by the Malcolms.
A second distinction between this case and Boone and Crockett
lies in Rogers' use of the easement. We have already determined
that his use was open, notorious, exclusive, continuous and
uninterrupted as a matter of law. In this case Rogers treated
access #2 as if it were his own, using the road in an obvious and
hostile manner. Such a pervasive use contrasts sharply with the
sporadic and unobtrusive passings authorized by the custom of
neighborly accommodation in Boone and Crockett.
We conclude that no genuine issue of material fact exists with
regard to whether Rogers' use was adverse as a matter of law.
Having already determined that the preliminary requirements of a
prescriptive right have been met, Rogers is entitled to summary
judgment as a matter of law. We hold, therefore, that the District
Court erred in granting Lemont's, and denying Rogers', motion for
summary judgment.
Reversed and remanded with instructions to enter summary
judgment in Rogers' favor.
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We concur:
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